MARITIME PERSONAL INJURY-LecheChapters 1-10, 12,13

I. Background: Geographical Definitions

a. Law of the seas v. Admiralty and maritime lawi. LAW OF SEAS (INTERNATIONAL): established by treaty,

diplomatic note or by custom or practice. 1. DEF: The rules governing the relationships between states

concerning the use and control of the sea and its resourcesii. Admiralty and Maritime: Private law relating to activities on

navigable waters1. GML –cases relating to maritime activities2. STATUTORY –3. PROCEDURAL LAW

b. Geographical definitionsi. BASELINE: an artificial surveyed line intended to represent the

coastline. RULE: baseline is the low water line along the coast as marked on large-scale charts recognized by coastal states

ii. INLAND WATER: waters on the landward side of the baseline. Coastal state has full sovereignty

iii. TERRITORIAL SEA: Waters in the zone of national jurisdiction that lie immediately seaward of the baseline. Coastal state has full sovereignty over the seas, airspace. Right of innocent passage exists here for shipping. EXTENDS 12 MI from baseline

iv. TERRITORIAL WATERS (state): Submerged Land Act Defines land beneath navigable waters as: land seaward 3 geographical mi. distant from coast and to the boundary line of each such state where in any case such boundary extends seaward beyond 3 mi. Title and ownership of such land beneath navigable waters is in the states

1. The seaward boundary of each original coastal state as a line three geographical miles distant from its coast line (except Great lakes)

2. Therefore the territorial waters of a state includes offshore waters within the 3 mile limit i.e.- 3 miles seaward of the baseline, also includes all such waters of a state landward of the baseline i.e.- inland waters of a state.

v. CONTIGIOUS ZONE: 24 mi seaward of the baseline. Coastal state may enforce custom, immigration, environmental, shipping, safety etc

vi. EXCLUSIVE ECONOMIC ZONE: extends from the outer limit of the Territorial Sea (12mi from baseline to 200 mi) Coastal state

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may exercise rights over fisheries and seabed minerals and establish artificial islands and other structures

vii. CONTINENTAL SHELF: LOS DEF: up to 200 mi even if no physical shelf exists. Where a physical shelf extends farther than 200mi from baseline, The CS may extend to a MAX of 350 nm or 100 nmi from the 2500-meter isobath.

1. Coastal state has sovereign rights relating to the exploitation of natural resources.

viii. HIGH SEAS: all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in archpelagic waters of an archipalic state

1. ALL STATES MAY EXERCISE: navigation, overflight, fishing, laying of submarine cables and pipelines, const of artificial islands conduct scientific research.

ix. Summary for Direct PI jurisdictional interests1. State law applicable out to 3 mile limit under OCSLA; and

on vessels or over navigable waters where state law supplants the GML

2. State law applicable to platform and structures on OCS, which applies beyond 3 mi

3. GML applied on vessels in any of the navigable waters4. La. Compensation: within 3 mi on fixed structures5. LHWCA on platforms on OCS; on vessels in territorial

waters; and on federal enclaves9areas adjacent to navigable waters used for shipbuilding, ship repair, loading/unloading of vessels, etc

II. Intro to Jurisdiction and procedurea. Admiralty jurisdiction: Constitutional and historical view

i. CONST basis: Art III Sect 2 – the judicial power shall extend ….to all Cases of admiralty and maritime jurisdiction

1. Empowers Congress to confer admiralty and maritime jurisdiction to all federal courts, and empowers those courts

2. Empowers Congress to revise and supplement maritime law

ii. English 19th cent rule: admiralty and maritime jurisdiction applied only to high seas so matters arising in states’ inland waters were not of federal jurisdiction

iii. GREAT LAKES ACT: grants federal maritime jurisdiction over federally licensed shipping employed in interstate commerce on the Great Lakes and connecting waters. NOTE: ALSO GRANTS JURY TRAIL. Constitutionality of this extension of fed juris was upheld.

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iv. EXTENSION TO NAVIGABLE WATERS: fed juris extends to Miss and other western rivers above the reach of the tide and to lakes and navigable rivers of the US

b. Admiralty and law sides of federal courts now merged.c. STATUTORY BASIS FOR ADMIRALTY JURISDICTION

1. ADMIRALTY, MARITIME, PRIZE CASES 28 usc 1333

a. DC has original jurisdiction, exclusive of state courts for

Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled

Any prize brought into the U.S. and all proceeding for the condemnation of property taken as prize (Prize cases are actions in rem by the US against vessels and cargos of enemy nations in time of war)

b. The jurisdictional provision is based on the constitutional grant. Purpose is for uniformity

d. Effects of maritime SMJ 28 usc 1333 confers SMJ on federal

district courts; admiralty cases don’t arise under the laws of the US under 1331 and thus are not federal question cases nor do they depend upon diversity of citizenship and thus do not fall under 1332

A P may restrict his claim as one under Rule 9(h) for the purposes of avoiding a jury trail, which is available under diversity but not admiralty juris.

e. A JURY TRAIL is not available in admiralty a. 7th inapplicable to admiralty side of federal courtsb. Exception:

Great Lake Acts Negligence action under the Jones Act

gives right to a jury trail, which may be combined with the Ps admiralty action and tried in front a jury. Fitzgerald

c. HOWEVER: Litigant may invoke both federal question and /or diversity if applicable subject to the following

Practical purpose of P invoking them is to get jury trail

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However, if P designates the complaint as one under 9(h)-it is a compliant on the admiralty side and will prevent jury trails only available on the law side.

If P seeks diversity jurisdiction there must be complete jurisdiction

f. Designation of the complaint as one under the admiralty jurisdiction of the US

i. 9(H) states that a pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty claim

ii. 9 h designation means that a case will proceed without a jury because the complaint will be deemed to be in admiralty and not in ‘law’

iii. General rule is that D cannot change the Ps designation of admiralty jurisdiction and obtain a jury trail

iv. Dry Dock- Ps allegation concerning maritime tort and maritime contract invoked the maritime jurisdiction of the federal court even though P did not specifically refer to 9 h, therefore no jury trail.

v. RIGHTS OF D TO DETERMINE JURIS/JURY1. D’s right to a jury trail on the ‘law side’ cannot be taken

away by a P who later amends his complaint to allege admiralty J only. 39 a

2. If a P later amends to withdraw his STATUTORY jury demand and proceed in admiralty, then D CANNOT require a jury trail- ONCE a case is lodged on the admiralty side of the court a D cannot obtain a jury trail even on grounds of newly arisen diversity where diversity did not exist when the case became an admiralty case.

3. Rachal a. In a non-diversity Jones Act, the seaman is entitled

to a jury trail only because of the statutory provision allowing it. When there is diversity jurisdiction on a Jones Act case both parties have an independent basis for a jury trail IF the P has CHOSEN to pursue his Jones Act Case on the law side of the court under the savings to suitors clause

b. 39 a specifically protects the party who, relying on another party’s jury demand waives his own right by not demanding a jury. It does not grant d an independent right to a jury trail.

c. If diversity does not exist when Ps original complaint is filed, and where P makes claims under Jones Act and GML and demands a jury, the P has the sole right to demand JT and within the

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discretion of the court has the right to withdraw that demand.

g. Venue in admiralty cases

i. General venue rules for civil actions are not applicable in admiraltyii. RULE for Admiralty: venue is proper in an in personam admiralty

claim whenever D has been properly served. In an in rem proceeding, venue is proper whenever D’s property can be found and seized.

h. The saving to suitors clause i. Concurrent jurisdiction in state courts if the case is not a pure

admiralty claim and if not prohibited by statute. ii. Allows a litigant to bring what would solely be an admiralty claim

in Fed court under diversity. However P must establish jurisdictional grounds other than admiralty

i. In remi. If Ct has smj, then jurisdiction over the vessel may be acquired by

arresting the vessel while within the territorial jurisdiction of the court

ii. Allows seizure of a vessel without first obtaining a judgment and w/o PJ or hearing

iii. Claims in rem are exclusively admiralty and within the juris of fed cts only

iv. Things its used for1. to enforce maritime liens2. For PI settings

a. Recovering MCb. DOSHA prosecutionc. Perusing PI and death claims under GML

v. Claims under Jones act not to be asserted by in rem

j. In personami. SMJ? Then in persona can be acquired by serving D with process.

k. Significance of admiralty juris in PI casesi. Gives federal courts SMJ

ii. Availability of in rem iii. Availability of limitation of liability to a defendant vessel owneriv. Application of substantive federal maritime lawv. Availability of 9 h allowing p to choose to litigate in admiralty

rather than at law.

III. Navigable Water and Admiralty Tort Jurisdictiona. Test for navigability (for ad juris purposes)

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i. Navigable in fact 1. Must be regarded as public navigable rivers in law2. Used or susceptible to being used in the ordinary conditions

as highways for commerce3. There must be proof of present or potential commercial

shipping, mere rec boating not sufficient. ii. Capable of use in interstate or foreign trade

If a body of water is wholly within one state and isn’t capable of interstate waterborne commerce use then it wont be deemed navigable

b. Pleasure boating on otherwise non-navigable water does not give rise to admiralty jurisdiction. But cases arising from pleasure boating on navigable water may fall under admiralty jurisdiction.

c. Artificial bodies of water navigable if used for interstate commerce.d. Jurisdiction will exist on non-navigable portions of navigable bodies of

water. e. Piers whars, bridges, jetties, art islands are not within ad juris even if built

over navig waters.

f. The Admiralty Extension Act

i. ADMIRALTY AND MARITIME JURISDICTION SHALL EXTEND TO AND INCLUDE ALL CASES OF DAMAGE OR INJURY TO PERSONS OR PROPERTY CAUSED BY A VESSEL * ON NAVIGABLE WATERS NOTWITHSTANDING THAT THE DAMAGE OR INJURY WAS CONSUMMATED ON LAND.

* Must be vessel status- Covers ship collisions with shore or shore bound structures.

(Allision) GML law applied- Impact of vessel not required, only causation by the vessel or its

crew- Mere economic loss sustained ashore will not give rise to Ad

Juris under act, must be physical damage

ii. Resulted from a need to cover hybrid situations involving ships and persons or structures on land

1. Cases: P using gangplank falls onto dock, since gangplank is a part of the vessel admiralty jurisdiction applies.

g. Admiralty tort jurisdictioni. Requirement

1. Location on navigable water or on land under extension acth. Product Liability Actions in Admiraltyi. Choice of law

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IV. LHWCAa. 33 usc 901 b. state comp statutes did not apply to longshoremen injured on water.

Therefore longshoremen had no compensation remedy.c. Initially applied to injuries to non-crewmember workers on vessel in

navigable water (including drydock). 1972 extends jurisdiction over land-expansion of situs coverage and the establishment of status test.

i. Situs reach was extended onto piers, whars, drydocks, etc, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling or building a vessel.

1. EMPLOYER- any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the U.S. including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel

2. COVERAGE: compensation shall be payable under this act in respect of disability or death of an employee ONLY if it results from an injury occurring upon the navig. waters of the US including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel

ii. STATUS: 1972 changes1. EMPLOYEE: a person engaged in maritime employment

including any longshoremen or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder and shipbreaker. Does NOT include:

a. Individuals performing exclusive clerical, secretarial, security or data processing work.

b. Individuals employed in a club, camp, recreational operation, restaurant, museum, or retail outlet

c. Individual employed by a marina AND who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance)

d. Individuals who are Employed by suppliers, transporters, or

vendors

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Temporarily doing business on premises of employer

And are not engaged in work normally preformed by employees of that employer under this act.

e. Aquaculture workersf. Ind. employed to build, repair, or dismantle any rec

vessel UNDER 65 ft. in length g. A master or crew member of any vesselh. Any person engaged by a master to load or unload

or repair any small vessel under 18 tons neti. If individual in a-f are covered by state workers

compensation law. * MUST HAVE SITUS AND STATUS* JA AND LHWCA ARE MUTUALLY EXCLUSIVE – CAN’T COME UNDER BOTH

d. STATUS AND SITUS POST 1972i. GEOGRAPHIC REACH

1. 72 amend expand shoreward reach of act2. Williams v. Avondale

a. P injured aboard a new vessel undergoing seatrail3. Reynolds-ship yard worker injured on an incomplete vessel

a. Navigable waters of the United States as used in Sect 903(A) includes the high seas. Therefore P was a maritime worker covered by LHWCA.

ii. DIFFERING STATUS TEST FOR INJURIES OVER NAVIGABLE WATER vs. INJURIES “IN ADJOINING AREAS” ON LAND

1. Both status and situs test have to be met post 72 for persons injured on the landward extensions of the act; employees injured over water need situs only.

2. Director v. Perini: employee injured while working on building sewage plant over Hudson River in New York. Injured on deck of the barge.

a. As a marine const worker required to work upon navigable waters and injured while performing his duties on navigable waters P would have been covered pre-72

b. 72 amend changed def of employee to require that employee be engaged in maritime employment

c. There was no congressional intent to withdraw coverage of the LHWCA from those workers injured on navig waters in the course of employment who had been coved by the act before 1972

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d. Employee injured upon navigable waters in the course of his employment does not have to show that his employment possessed a direct or substantial relation to navigation or commerce in order to be covered

e. Employees injured on water need not be engaged in maritime employment but those ashore must

f. When a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement of 902[3], and is covered by the LHWCA provided that he is the employee of a statutory employer and is not excluded by any other provision of the Act

3. Gray: welder- preformed duties on a fixed platform located in La state territorial waters.

a. Was held not to be engaged in maritime employment and thus was not covered by the LHWCA

4. Bienvenue v. Texacoa. Pumper specialist-oil fields located in La terr waters

w/ fixed platforms. P injured twice while on a boat used to travel from platform to platform

b. Ct distinguishes from Gray- Gray injured on fixed platform, P here injured on vessel

c. Since P injured on navigable waters, it was not necessary for him to establish that he was engaged in maritime employment

d. Perini only requires that claimant show that he was injured on navigable waters while in the course of employment.

e. A worker in the course of his employment on navigable waters is engaged in maritime employment and meets the status test only if his presence on the water at the time of injury was not transient or fortuitous. The presence of a worker injured on the water and who performs a “ not insubstantial” amount of his work navigable waters is neither transient nor fortuitous.

f. Court doesn’t say how much work needs to be preformed on navig waters so that presence is not transient or fortuitous, but the court does say that it must be more than merely commuting from shore to work by boat

iii. Particular situations- workers performing even a small amount of time loading or unloading or repairing vessels are covered

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iv. Twilight zone- Concurrent jurisdiction: under some authorities, the LHWCA and state compensation may both be applicable to shoreside situs injuries

1. NOT IN LA – LWCA will not apply to any claimant covered by the LHWCA—no compensation is payable in respect to disability or death of any employee covered by the FELA, the LHWCA, or any of its extensions, or the JA

v. LHWCA v JA1. Mutually exclusive2. Pizzitolo –overruled by Gizoni-

a. Electrician- spent 25% of time working on a “fleet” of vessels owned by his employer was injured when he fell into the Miss River from an overhead landbased conveyer structure

b. He is covered by LHWCA not JA. He was a member of one of the enumerated class of workers –ship repairer- covered by the act

c. Because longshoremen, shipbuilders and ship repairers are engaged in occupations enumerated in the LHWCA, they are unqualifiedly covered by that act if they meet the acts situs requirement. Coverage by the LHWCA renders them ineligible for JA

d. IF YOUR JOB TITLE IS NAMED IN THE LHWCA, & YOU MEET THE SITUS TEST, YOU ARE COVERED BY THE LHWCA REGARDLESS OF WHAT YOUR RELATIONSHIP TO A VESSEL

3. Gizoni- received benefits under LHWCA but later sued under JA. Mere fact that a harbor worker is engaged in one of the enumerated classes of workers covered by the LHWCA does not preclude him from being a ‘member of the crew of vessels.

vi. Acceptance of comp1. Acceptance of compensation benefits under LHWCA does

not preclude a later claim under the JA. HOWEVER a settlement agreement with a compensation order or a formal award of compensation benefits will preclude a JA claim

2. Acceptance of comp under a state comp act does not preclude a later LHWCA claim

vii. Statutory exceptions to the LHWCA coverage- club/ camp- Green v. Vermillion- Court holds that where admiralty jurisdiction applied to an injury on a boat in La. waters to an employee who was engaged in tying up the vessel (i.e. traditional maritime work), the exclusive remedy provisions of the Louisiana state workers

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compensation act could not be applied to deny plaintiff his GML actions in negligence and unseaworthiness against his employer, even though the La comp act was otherwise generally applicable because P was specially exempted from coverage under LHWCA as a club or camp worker.

e. The Borrowed servanti. IN GENERAL

1. 9 factors to make a determination of borrowed servant status

a. Who has control over employees and the work he is performing, beyond mere suggestion of details

b. Whose work is being performedc. Was there an agreement/ meeting of the minds

between the original and the borrowing employerd. Did the employee acquiesce in the new work

environmente. Did original employer terminate relationship with

the employeef. Who furnished the tools and the place of

performanceg. Was the new employment over a considerable

period of time/h. Who had right to discharge employeei. Who had obligation to pay employee

NOTE: BORROWED EMPLOYER ENJOYS IMMUNITY TO THE TORT CLAIM OF THE ‘borrowed’ EMPLOYEE

2. Trail court determines issue of borrowed servant as a matter of law

f. 84 amendments to the LHWCA do not restrict borrowed employee status to instances where the lending employer fails to secure workers compensation coverage and the borrowing employer does secure such coverage

g. “Statutory employee or liability of a principle for payment of compensation to the employee of a contractor, OR liability of a contractor for payment of compensation to the employee of a subcontractor and the effects upon tort liability

i. UNDER LHWCA- an entity deemed a contractor may become liable in compensation to the employee of a subcontractor (La term-“statutory employee”) of the employee of the other (sub- contractor) entity. However, a principle is not liable in compensation to the employee of a contractor

ii. 904a1. Every employer is liable for payment to his employees of

the compensation payable

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2. In the case of an employer who is a subcontractor, the contractor is only liable if such subcontractor fails to secure the payment of compensation. A subcontractor shall not be deemed to have failed to secure the payment of compensation if the contractor has provided insurance for such compensation for the benefit of the subcontractor.

iii. Sketoe:1. A major oil co- as the principle and an oil/gas lessee upon

the OCS is not a contractor so as to become liable in workers comp to the employees of its contractor’s subcontractor

2. The injured claiming benefits of section 904 (a) against a ‘contractor’—THE CONTRACTER MAY BE LIABLE IN WORKERS COMPENSATION TO EMPLOYEES OF THE SUBCONTRACTOR IF THE SUBCONTRACTOR HAS UNDERTAKEN TO PERFORM PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR

3. Here Exxon contracts with DT to drill a well from its platform on the lease. Sketoe an employee of DT is injured while working on the Exxon platform. He collected workman’s comp benefits from DT until it went bankrupt then wants workmen’s comp from Exxon

4. Court holds that Exxon was not a contractor so as to make DT a subcontractor and Exxon liable

5. Although Exxon’s contract with the US government permitted Exxon to explore for and produce oil and gas, it did not require Exxon to drill- Exxon had the option of simply abandoning its lease. Therefore when Exxon contracted DT to drill, Dt was not contracting to perform a part of Exxon’s obligation to the government. Therefore there was no two contract situation

6. REVERSE EFFECT OF THIS RULING: if a principle (ex Exxon here) is not liable for workers comp benefits then it is potentially liable in tort. - If an entities obligation is in workers compensation, it is tort immune, if it is not obligated in workers comp- it is potentially tort liable.

V. THE GENERAL MARITIME LAW: INTRODUCTIONA. GML overview

a. Substantive judge made law. Applies to all matters of admiralty and maritime jurisdiction unless preempted by legislation. Federal Common law

b. For purposes of PI litigation, there are three important remedies under GML

i. Negligence- maritime tortii. Unseaworthiness

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iii. Maintenance and cureB. Negligence

a. An action to recover for injuries/ damages caused in an admiralty setting EX:

i. Passengers /visitors on vesselii. Seaman injured on vessel by someone other than the crew

iii. Seaman or passengers injured on one vessel due to collision with another vessel

iv. Persons injured on land due to the negligence of a vessel under the Ad extension Act

b. Not available to i. A seamen against the vessel on which he is employed

ii. Maritime worker covered by LHWCA1. Note: Seaman’s actions against their employers in

negligence have been permitted under Jones Act since 1920

C. Unseaworthiness a. Action for injuries/ damages caused by s defective condition of a

vessel (including its hull, machinery, appurtenances-including safety equipment, and crew

b. Duty to furnish seaworthy vessel= duty to furnish a vessel, including all of its appurtenances, equipment and crew, reasonably fit for its intended purpose

c. LIABILITY WITHOUT FAULT. ITS ABASOLUTE AND NONDELAGABLE DUTY

d. Available toi. Seaman against vessel which he is employed

ii. Maritime workers held to be doing traditional maritime work- (sieracki seaman)-prior to 72 amendment to LHWCA

iii. After 1972- to remnant sieracki seamen- maritime workers not covered by the act

e. Not available toi. Persons not seaman- not members of the crew of a vessel-

passengers or visitors of vesselii. Maritime workers (sieracki seaman) covered by the

LHWCA after 1972D. Action for recovery of maintenance and cure

a. Maintenance - is a stipend –paid weekly- figured at a daily rate. It is intended to replace room and board which a seaman receives while working aboard a vessel

b. Cure—is a payment f medical expenses incurred by the seaman relative to his injuries and illness.

c. Right to recover occurs when a seaman is injured or falls ill while in the service of the vessel

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d. Payment is due until the point at which seaman reaches maximum cure

e. Available toi. A seaman as against the vessel upon which he is employed

while in service of ship--- Only – f. In addition to m&c seaman is entitled to transportation back to the

port at which he is signed on the vessel and wages to the end of the voyage

E. A seaman’s remedy under the GML: Osceolaa. Gangway raised caught in the wind and pulled derrick over,

striking plaintiff. P was a crewmember. No defect in any of the ships equipment. Accident was caused solely by negligence of captain in ordering the gangway raised

b. CT: i. A VESSEL AND ITS OWNER ARE LIABLE TO A

SEAMAN WHO IS INJURED OR FALLS SICK WHILE IN THE SERVICE OF THE VESSEL FOR MAINTENECE AND CURE

ii. A VESSEL AND ITS OWNER ARE LIABLE TO A SEAMAN FOR INJURIES RESULTING FROM THE UNSEAWORTHINESS OF A SHIP

iii. All members of a crew, except the master, are between themselves, fellow servants, and cannot recover from an injury sustained through the negligence of another member of the crew BEYOND maintenance and cure

iv. Maintenance and cure is owed even if the accident was caused by the negligence of the master or another crew member.

VI. NEGLIGENCE UNDER THE GLMA. Kermarec case

a. Visitor falls down stairwayb. Brings diversity action against vessel owner alleging negligence and

unseaworthinessc. CT: even though the suit was grounded on federal court’s diversity J,

Fed maritime law applied to plaintiff’s action, so his claim was not barred by contributory negligence under New York law.

d. Even if brought in state court admiralty law would have applied. e. P’s unseaworthy claim dismissed- not a sieracki seamanf. VESSELS DUTY TO VISITOR –one of reasonable care under the

circumstancesg. ELEMENTS OF GML TORT: essentially the same as for any land

based tort: i. Duty –reasonable care under the circumstances- to the injured

partyii. Breach of duty

iii. Proximate cause

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iv. Injury and damageB. GEN PRINCIPLES OF TORT LAW APPLY

a. USUAL CONCEPTS OF NEGLIGENCE ACTION APPLY:i. Breach of duty, causation, proximate cause, loss injury,

forseeability, vicarious liability, intervening or superceding cause, comparative fault, product liability, indemnity

C. Maritime law and not state law is to apply to a negligence action under admiralty jurisdiction

a. Pope v. Talboti. P-carpenter employed buy a ship repair contractor was injured

while working aboard a vessel docked in navig watersii. Diversity action against vessel owner seeking damages on

theories of negligence and unseaworthinessiii. Since P was injured on a vessel over navigable water, his claim

was by federal maritime law not Penn lawD. Supplementation of maritime law by state law

a. Federal statutory law may preempt state law i. If the statutory provision specifically provides that the federal

legislation will supplant sate law, the preemption is specificii. May be implied by the stated purpose of the federal legislation

b. State law will generally be preempted by federal maritime law where the state law is directly in conflict with the federal law-statutory or judicial.

c. Fed law may be supplanted by state law where:i. Federal maritime law is incomplete or silent on the issue

ii. State law does not directly conflict with federal lawiii. State law does not conflict with general purposes of uniformity

in maritime lawiv. Choice of law principles require the application of state law

d. YAMAHAi. Non- maritime-worker death case- 12 yr old girl killed in

territorial waters of Puerto rico while operating a jet skiii. Survivor brings wrongful death against ski manufacturer

claiming diversity and admiralty jurisdiction. COA- negligence, strict liability, breach of warranties of fitness

iii. CT: DAMAGES COULD BE RECOVERED UNDER STATE LAW, WHICH REMAINED APPLICABLE

1. No federal statute applicable to deaths in territorial waters specifies the elements of damages in the case of a wrongful death of a non- seafarer- so state remedies remained applicable

2. Exercise of admiralty jurisdiction does not result in automatic displacement of state law

iv. YAMAHA expands P’s ability to recover

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e. YAMAHA II- decision sent back to DC for determination as to which law would govern which aspects of the case- then appealed to us ct of appeals 3rd

i. Recovery of damages will be governed by application of Puerto rico law

ii. Recovery of compensatory damages- Penn lawiii. Maritime law will be applied to liability aspects of the case- for

uniformityiv. ADMIRALTY JURISDICTION applies in this case even

thought non- seafarer operating pleasure craft in non- commercial setting

v. State law may supplement maritime law, thus under a choice of law analysis the court must decide which state law applies

vi. Since admiralty jurisdiction applies, admiralty choice of law rules will be applied

vii. The state with the most significant relationship to the issue of punitive damages- Puerto rico

viii. State law with dominant interest in compensatory damages- PENN

ix. Maritime law will apply to the case, but maritime law may be supplemented by state law where the doctrine of uniformity is not threatened; the application of state law will be determined by means on maritime choice of law principles

x. Note: here since non-seafarer involved there was no application of fed stat schemes such as DOSHA or JA which would have preempted state law if applicable

f. Green i. Helicopter death 150 miles offshore LA due to defect in

helicopterii. 2317 LCC supplements maritime law applied by the state court

in a suit brought pursuant to a saving the suitors clauseg. Romero

i. US law –JA- not applicable to case of Spanish seaman injured on a Spanish ship in the port of NY

h. BJ Titani. P maritime claim may be supplemented by urging punitive

damage claims under then in force LCC 2315.3 providing for punitive damages

i. In re Amtraki. Tow rams railway bridge

ii. CT: Yamaha does not stand for the proposition that state wrongful death remedies must always supplant federal law for death claims arising in territorial waters. STATE LAW WILL NOT APPLY WHERE IT IS DIRECT CONFLICT WITH FEDERAL MARITIME LAW

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E. Duty of vessel owner to third parties when vessel in custody of another for repair

a. Wall i. Captain of tugboat drowns while crossing over the barges

going to shoreii. Negligence action against the barge owners

iii. Operator defended claim by stating that they relinquished control for repairs

iv. A vessel owner does not bear the duty of keeping his ship hazard free when the requested repairs would remedy the hazards which cause the injury --- one cannot be found to have acted unreasonably in not preventing a workers expose to a condition that he was hired to repair. Does not apply when the injury is caused by a condition OUTSIDE the area of repair

v. If a person is injured by a condition other than that for which the vessel was surrendered to another to be repaired, then the vessel owner may be; liable in negligence for the condition of his vessel even though the vessel has been relinquished to the possession of a third party

VII. The non- crewmember Maritime Workers Action Against the VesselA. Sieracki- ISSUE: Whether: The obligation of seaworthiness traditionally owed

by a vessel owner to a crewmember seaman abroad his vessel, extends to a longshoreman who is injured while working abroad the ship. I.e.- whether the obligation to furnish a seaworthy vessel extended not only to the regularly assigned crew but also to a maritime worker on board doing ship work.

a. HELD: for injuries incurred while working on board the ship in navigable waters, the stevedore is entitled to the seaman’s traditional protection regardless of the fact that he was employed immediately by another than the vessel owner…he is a seaman because he is doing a seaman’s work and incurring a seaman’s hazards

b. Therefore longshoremen injured aboard a vessel while doing a seaman’s work (loading and unloading) is entitled to recover for breach of the duty of seaworthiness. - Longshoreman are effectively converted into seaman ---known as sieracki seaman

c. They are entitled to the duty of seaworthiness but are not members of the crew of vessels so they do not become Jones Act seaman.

d. Under Sieracki, vessel strictly liable to longshoreman for unseaworthiness that may have been caused, created or brought into play by the stevedore co., by a third party or even fortuitously and not by the vessel or crew

e. Sieracki has been in large part overruled by the 72 amendments to LHWCA, however there are still maritime workers to whom the LHWCA does not apply who may still be entitled to the warranty of seaworthiness under Sieracki

B. The warranty of Workmanlike performance--- WWLP: INDEMNITY UNDER SEIRACKI—Ryan Regime

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a. Ryan — Ryan Stevedoring Co loaded vessel with a mixed cargo in SC. The same co unloaded in NY. Longshoreman employee of Ryan –a sieracki seaman was injured on the vessel during the unloading in NY. Injured longshoremen collected LHWCA benefits from Ryan and then sued the vessel for unseaworthiness and negligence. The vessel third partied Ryan for indemnity

b. Held: the exclusive remedy provision of the LHWCA do not prevent a claim by the vessel against the plaintiffs employer

c. The exclusive remedy provisions of the LHWCA are designed to protect the employer against tort liability to the injured plaintiff in return for limited compensation and medical liability without fault.

d. However the exclusive remedy provision doesn’t protect the employer from contractual liability to third parties, such as ship owners

e. Even though there was no written contract between the vessel and the stevedore, the stevedore owed an implied warranty of workmanlike performance-i.e. That it will load cargo properly and safely--- the vessel owner is entitled to indemnity where the stevedore s breach of the WWLP caused the unseaworthy condition, which injured the plaintiff.

C. The longshoreman’s action for unseaworthiness against vessel owner which is also his employee

a. Reed v. Yakai. Plaintiff- longshoreman. Pan Atlantic was bareboat charter—he

was the owner pro hoc vice of the vessel and was owner and employer PA claimed that as employer it was immune against the seaworthy claim because of LHWCA’s exclusive remedy

ii. If P had been employed by an independent stevedore, and not by the owner of the vessel, his action against the owner for unseaworthiness under sieracki would be preserved. Also under Ryan, the burden ultimately fall upon the entity which created the unseaworthy condition

iii. Therefore PA can not avoid liability by relying upon the exclusive remedy provisions of the LHWCA as a defense, even though it is plaintiffs employer

iv. In short, the Sieracki seaman’s seaworthiness remedy is available against the vessel owner even where the vessel owner is also the plaintiff’s employer. The action is not proscribed by the exclusive remedy provisions of the LHWCA

D. 1972 amendments to LHWCAa. ELIMINATES LONGSHORE WORKERS ENTITLEMENT TO THE

UNSEAWORTHY REMEDY--- legislatively overruling Sieracki as to persons covered by the act

b. Also insulated the employer from direct or indirect liability to the vessel and made agreements or warranties to the contrary void. 1972 amendments substituted a negligence action against the vessel in place f the longshoreman’s pre-1972 unseaworthiness action

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E. Sieracki seaman and Ryan indemnity post 1972---cases involving persons not covered by the LHWCA

a. Generallyi. 5TH circ has effectively ruled that Sieracki survives the 1972

amendments to the LHWCA as to maritime workers not covered by the LHWCA

1. Aparicio—plaintiff-- -line handler—2. 5th circ--- 1972 amendments to the LHWCA did not

abrogate the sieracki rights of maritime workers not covered by the LHWCA

a. –905 b does not apply to maritime workers who are not within the coverage of the LHWCA.

ii. Green v. Vermillion1. Club/ camp exclusion to the LHWCA was applied2. Since P fell into a specific exclusion of the LHWCA the

LHWCA did not apply to him. Although he was precluded from recovering compensation and medical benefits under the LHWCA, he was entitled to proceed with his GML unseaworthiness and negligence claims--- so the camp worker became a remnant sieracki seaman

iii. Cormier1. A welder working aboard a vessel in a foreign country was

beyond the reach of the LHWCA 2. Entitled to sieracki seaman status3. However--- true seaman---JA who is specifically exempt

from the LHWCA is not entitled to Sieracki seaman status for seaworthiness other than from the vessel to which he is assigned

b. Breached WWLP as a defense to an indemnity claim.i. The vessel may use the contractors breached WWLP as a defense

to an indemnity or contribution claim by the contractor1. Stevens --- 5th circ approves the use of the Ryan Doctrine

in cases where the LHWCA is not applicablea. P was a JA seaman assigned to a towboat. P himself

secured the line to the barge improperly. b. The employer sought indemnity form the vessel

owner pro hoc vice - Avondale.c. Court: p ‘s employer owed a WWLP to Avondale,

since the employer had been hired to provide towboat services and impliedly agreed to provide such services properly

d. The Ryan indemnity doctrine had been extended to various marine contracts not covered by the LHCWA and that the Sieracki seaworthiness still applies in such situations

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e. The 1972 amendments do not affect the applicability of the warranty of workmanlike performance to contractors not covered by the LHWCA

c. WWLP WHERE THE VESSEL WAS AT FAULTi. 5th circ has declined to allow Ryan-type indemnity where the vessel

seeking indemnity was itself at fault. F. ACTION II ACTION AGAINST A Vessel FOR NEGLIGENCE UNDER

SECTION 905 (b) of the LHWCAa. The statutory 905 (b) action

i. Purpose- curtail availability of third party actions in admiraltyii. There must be a vessel in navigation and there must be admiralty

jurisdictionb. Def of Vessel

i. The term vessel means any vessel upon which or in connection with which an [person entitled to benefits under this Act suffers injury or death arising out of or in the course of employment, and said vessel’s owner, owner pro hoc vice, agent, operator, charter or bare boat chartered, master, officer or crew member.

G. The 905 (b) negligence action against the vessel which was also plaintiffs employer

a. Longshoremen—equivalent of the Yaka unseaworthiness action against the vessel employer.

i. Post 72 longshore workers seaworthiness action was proscribed, but he still has negligence action against the vessel

ii. In Reed v. Yaka the exclusive remedy provision of the LHWCA did not protect the employer vessel owner from unseaworthiness liability

iii. 905 (a) made workers comp the exclusive remedy against the employer but the 905 (b) reaffirmed the longshoreman’s negligence against the vessel owner

1. What if vessel owner is employeea. Jones

i. Exclusive remedy provision of the LHWCA did not protect the employer from 905 b negligence action where the employer was also the vessel owner

ii. If a vessel or crew apart from its stevedoring crew in its employ was negligent in such a way as to cause a longshoremen –a member of the stevedoring crew- injury the vessel may be liable for its negligence, even though the vessel also employed the stevedoring crew-----that is IF THE VESSEL NEGLIGENTLY CAUSED INJURY TO A LONGSHOREMAN WHILE WHEARING

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ITS VESSEL HAT, AND NOT WHILE WHEARING ITS STEVADORING HAT, THE VESSEL MAY BE LIABLE IN NEGLIGENCE TO THE INJURED LONGSHOREMEN--- A MEMBER OF THE STEVADORING CREW---EVEN THOUGH THE VESSEL EMPLOYED THE STEVADORING CREW

b. SHIPBUILDERS, SHIP REPAIRERS AND SHIP BREAKERSi. 84 amend to LHWCA

1. If such person was employed to provide shipbuilding repairing or breaking services and such persons employer was the owner, owner pro hoc vice –agent operation or charterer of the vessel no such action shall be permitted, in whole or in part or directly or indirectly against the injured persons employer—in any capacity or against the employees of the employer

a. In these specifically named occupations the injured worker is very limited to the compensation remedy against his employer, even though the employer may also wear a vessel hat.

H. Parameters of the longshoreman’s negligence action against the vessel under 905ba. Scindia---

i. The turnover duty---- the vessel owner has a duty to intervene in the operations when he has actual knowledge both of the hazardous condition and that the stevedore, in the exercise of improvident judgment, intends to continue work in spite of that condition.

1. Open and obvious condition----- once loading operations have begun, the owner can be liable for injuries to employees of the stevedore resulting from open and obvious dangers ONLY in the event of ACTUAL KNOWLEDGE OF THE DANGER AND ACTUAL KNLOWLEDGE THAT HE CANNOT RELY on the stevedore to remedy the situation

b. Fundamental duties –absent these duties, the vessel owner doesn’t have any duties

i. The turnover duty to warnii. Active involvement duty

iii. The active control dutyiv. The duty to intervenev. NO duty to supervise and inspect unless imposed by contract

positive law or customc. Application of the Scindia standards in non longshoremen’s situations

i. The oil patch1. Theriot

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a. Vessel owner does not bear a duty of keeping his ship hazard free when the requested repairs would remedy the hazards which cause the injury----one cannot be found to have acted unreasonably in not preventing a workers exposure to a condition that he was hired to repair.

I. Allocation of liabilitya. Edmonds

i. Longshoremen injured on vessel sues vessel for negligence under 905 b

ii. P may recover 90 % form vessel; vessel has no contribution right against the stevedore

1. A longshoremen’s award in a suit against a negligent shipowner would be reduced by that portion of the damages assignable to the longshoremen’s own negligence; but as a matter of maritime tort law the shipowner would be responsible to the longshoremen in full for the remainder, even if the stevedores negligence contributed to the injuries.

J. ACTION III AGAINST A NON-VESSEL THIRD PARTYa. Application of GML and federal safety regulations

i. Melerines1. Vessel was in ship yard undergoing major conversion2. P (non seamen—he was a ship repairmen covered by the

LHWCA) sues shipyard as a third party for negligence claming it had violated several OSHA regulation and such neg was neg per se

3. To establish that a violation of a statute is negligence per se plaintiff must prove

a. That he is a member of a class of persons which the statute or regulation is intended to protect

b. That the violation was the proximate cause of his injury

4. In this situation if the injured plaintiff is not an employee of the entity which violated the regulation ---such violation is not negligence per se

5. Since p was not an employee of the shipyard, the violation did not result in negligence per se

K. The employers Compensation Lien; intervention; apportionmenta. Injured employee is not required to elect between receiving compensation

from his employer (or its insurer), & claiming damages from a third party ------HE CAN PERSUE BOTH REMEDIES DURING THE 6 MONTHS FOLLOWING THE INJURY

b. IF employee receives compensation benefits but does not sue a third party within 6 months ---his acceptance of the compensation operates as an

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assignment of his rights to recover damages against 3rd party to his employer or its insurer

c. The rights revert to the employee if the employer does not sue the 3rd party tortfeasor within 90 days

d. If the statutory assignment occurs and the employer files suit and recovers against the third party, it may retain the statutory amount and turn over the excess if any to employees

e. Employer may intervene--- if employer files suit against the 3rd party tortfeasor---either within the first 6 months of after reversion of his rights---the employer or its insurer may intervene in his lawsuit for recovery of the benefits paid ------THIS IS A JUDICIALLY CREATED LIEN AND A RIGHT TO INTERVENTION

f. If fault found on either employee or employer --- the employers right t recover its full payment of benefits is not reduced

g. The employer is not required to reduce its lien by some proportion to assist P in funding the lawsuit even though employer/ intervenor obtains the entire benefit of Ps efforts in making the recovery against the 3rd party tortfeasor

i. Bloomer1. The employer who has paid benefits under LHWCA is

entitled to full recovery of the amounts paid, and is not required to reduce its lien by any amount in order to partially pay the P’s litigation costs.

VIII. Seaworthiness1. The Seaman’s action against the Vessel: seaworthiness

a. Vessel and its owner are liable to a seaman for injuries resulting from the unseaworthiness of the ship.

b. Seaworthiness is owed by a vessel in navigation—deadships have no duty of seaworthiness

c. Nature of the duty of seaworthiness; absolute liability; transitory unseaworthiness

i. Mitchell--- is the shipowners liability limited by negligence concepts in cases of “transitory unseaworthiness”

1. A breach of the obligation of unseaworthiness gives rise to absolute liability---liability without fault; the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones act to exercise reasonable care.

2. There is no distinctions between conditions arising after the vessel leaves her home port and those arising during the voyage; duty of seaworthiness is no less with respect to a condition which may only be temporary

3. Actual or constructive knowledge of the unseaworthy condition on the part of the vessel owner is not necessary to a finding of liability

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4. Standard---the duty to furnish a vessel and appurtenances reasonably fit for their intended use

d. The action for breach of duty of furnishing a seaworthy vesseli. Action---for injuries or damages caused by a defective condition of

a vessel (including hull, machinery, appurtenances, provisions and crew.

2. Aspects of the duty of seaworthinessa. Relationship to negligence

---An unseaworthy vessel can arise from negligence of a fellow crew member

- Mahnich- negligence of a fellow crew member does not bar unseaworthy claim--- cts transform the liability of seaworthiness into a strict liability obligation.

- Operational negligence—a single act of a crew member may not render the vessel unseaworthy

- Burden of proof---standard of causation is more demanding and requires proof of proximate cause

o Plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and the injury was either a direct result of a reasonably probable consequence of the unseaworthiness

b. Non-delegable duty—obligation is non-delegablec. Strict liability

i. Breach of duty gives rise to a species of liability of faultii. Proof of unseaworthiness required no proof of fault on the part

of the ship owner other than an unsafe injury causing condition of the vessel—even though the condition was caused created or brought into play by the stevedore or its employees

d. Not necessary for whole ship to be rendered unfit for its intended purpose---- vessel may be unseaworthy if only that part causing injury is unfit

e. Duty applies also when sip is moored at dockf. Contributory negligence of the seamen does not bear recovery but only

mitigates the recovery of damagesg. Assumption of risk---not a defense to unseaworthiness claimh. Supplies and material aboard a ship must also be seaworthyi. Ship may be unseaworthy due to a defective crew

F. To whom duty is oweda. True seamen---JA SEAMAN-- member of the crew of a vesselb. A vessel owner or operator owes duty of seaworthiness to all

crewmember regardless of whether the owner or operator of the vessel is not the employer of the seaman

i. Martin----owner of flatboat--- plaintiff was using flatboat owned by the company that hired his employer. Owner of

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flatboat owed a duty of seaworthiness to plaintiff with regard to he faltboat.

c. Remnant sieracki seaman—VI. d. Duty is not owed to passengers or visitorse. Duty not owed by a vessel to a seaman employed aboard another

vesselG. By whom duty is owed

a. By vessel ownerb. Bareboat Charterer

i. Where vessel has been bareboat or demise chartered by the owner to a charterer, the charterer is responsible for the seaworthiness as its owner pro hoc vice

ii. Where a vessel has been bareboat or demise chartered by the owner still remains responsible in personam for the seaworthiness of the vessel, even if the unseaworthy condition arose after delivery of the vessel to the charterer

VI. MAINTENANCE & CUREA. GEN RULES

a. Only seamen ---true members of crew ---not sieracki. Legal test for seaman status is the same as JA

b. The employer of the seaman and not necessarily the vessel owner is obligated to pay

c. Maintenance--- designed to provide a seaman with food and lodging when he becomes sick or injured in the ships service----extends during the period when he is incapacitated to do a seaman’s work and continues until he reaches MAXIMUN CURE. Maintenance is comparable to the food and lodging provided by the vessel

d. Cure--- payment of necessary medical bills incurred as a result of injuries incurred while in the service of the ship

e. Injury during shoreside recreation does not necessarily remove the seaman from being in the service of the ship

i. Significant deviation from mere shoreside activity may take the seaman out of the realm of being in the service of the ship

f. Seaman’s right to m&c---implicit in the contractual relationship between the seaman and his employer. It may not be abrogated by contract

g. Remedy in rem----seamen may sue in rem to recover m&c, wages to the end of the voyage. Claim creates a maritime lien on the vessel

h. No fault obligation---mc due without regard to negligence of the employer or unseaworthiness of the ship.

i. Claim for mc is independent of and not contingent upon liability of the vessel for negligence under the JA or for unseaworthiness under GML

ii. Negligence or acts short of CULPABLE ISCONDUCT on the part of the seaman do not relieve the employer of the duty to pay mc.

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Contributory negligence is not a defense—no reduction for comparative fault on the part of the seaman

iii. Assumption of the risk by the seaman is not a defenseiv. Fellow servant doctrine not a defense

B. Max cure, length of obligation to pay mca. Maintenance paid as long as seaman is OUTSIDE hospital and has not

reached maximum cureb. Cure payment of medical expenses NOT OTHERWISE FURNISHED to

the seaman until point of max. Curec. Max cure

i. Achieved when further treatment will result in no betterment of the seaman’s condition.

1. Where it appears the seaman’s condition is incurable or that future treatment will merely relieve pain and suffering but not otherwise improve the seaman’s physical condition

2. Entitlement to mc then endsii. mc may extend beyond the term of voyage

iii. there is no definite obligation toiv. no lump sum awardsv. an award of future mc is justified when supported by a physicians

testimonyd. effect of reemployment

i. involuntary--- where seaman returns to work at a lesser job while suffering from injuries before reaching maximum cure because he is forced to do so by the employers failure to pay mc,

1. earnings during the period are not deducted from mc awardii. voluntary---- if seaman is certified by a physician as fit for duty

and returns to employment in his accustomed trade of his own volition--- maintenance need not be awarded

C. chronic and incurable diseases not caused by fault of vessela. which manifests during voyage-- - duty to pay mc may extend beyond the

voyage measured in each case by the reasonable cost of that mc to which the seaman is entitled to at the time of trail

b. in Calmer--- there is a hint that if the chronic or incurable disease was caused by the fault of the vessel a more extended obligation to pay mc might be imposed

D. seaman may recover for mc where he is disabled by emotional or psychic injury incurred while in the service of the ship----even if there was no physical injury or impact

E. maintenance is not due to a seaman who does not actually incur the expense of lodging—e.g. – while hospitalized

F. seaman’s right to unearned wages ---wages to the end of the voyage---may not be abrogated by contract

G. a vessel owner has a duty to adequately investigate the seaman’s claim foe mc

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a. when there is inadequate investigating----vessel owner may be liable for seaman’s attorney’s fees. Any doubts regarding eligibility for mc must be resolved in favor of seaman

H. if an employer tenders free medical care for seaman but seaman refuses and seeks care from private physician---he will have forfeited his right to cure

I. rate of maintenancea. Hall ---food and lodging of the kind and quality received on the ship

i. Maintenance extends beyond the end of voyage to the point of max cure

ii. Maintenance awards should be based on the reasonable cost of food and lodging for a seaman living alone in the seaman’s locality

iii. Shipowner is obligated to pay the seaman no more than the seaman actually spends to obtain reasonable food and lodging

iv. If seaman’s actual expenses are not sufficient to afford him reasonable food and lodging--- court should award maintenance sufficient to provide reasonable food and lodging even if it exceeds the seaman’s actual cost

J. Defensesa. Seaman ashore, off duty, not subject to callb. Willful misconduct---intoxication

i. That the willful misbehavior occurred prior to the employment even may years prior does not remove the employers defense

c. Intentional misrepresentation or concealment of material medical facts upon employment if there is a causal link

d. Medical insurance ---- paid by employers vs. medical insurance premiums paid by the seaman

K. Reasonable failure to pay if the failure to pay mc is not unreasonable then employer may only be held liable for amount of mc due

a. Unreasonable failure to pay --- renders employer liable for compensatory damages

b. Arbitrary failure to pay----permits recovery of attorneys fees and costsc. Punitive damages for failure to pay not recoverable

L. Procedural mattersa. Joinder

i. Seaman may but isn’t required to join his claim for mc with his claim for negligence and unseaworthiness

b. Claims for mc subsequent to judgment awarding damages for negligence and or unseaworthiness

i. A seaman is not precluded ---e.g.—barred res judicata or collateral estoppel --- from bringing a claim for mc after being awarded damages in a lawsuit based on negligence and or unseaworthiness but court may deduct duplicative elements to prevent a double recovery

VII. The JONES ACT1. backgrounds

a. OSCEOLA

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b. JAi. Provides the ONLY negligence remedy for a seaman employee

against his employerii. Provides a right to trail by jury

iii. Makes applicable to injured seaman all statutes of the US modifying or extending the common law right or remedy in cases of personal injury i.e. –FELA

c. Aspects of FELA INCORPORATED IN JAi. Contributory negligence not a defense

ii. P damages to be reduced proportionately to his own negligenceiii. Contributory negligence shall not be assigned to an employee

where a violation by the employer of a safety statute contributed to the injury or death of the employee

iv. Assumption of risk not a defense where the employee was injured or killed in whole or in part by the negligence of the employer or where a violation by the employer of a safety statute contributed to the injury or death

v. Employer cannot be contractually exempted from liability created by the FELA (JA)

vi. Employer may set off any sum it has contributed or paid to or on behalf of the injured employee on account of the injury or death

vii. 3 year prescription begins to run from the time the injured seaman becomes aware that he has received a work related injury

viii. concurrent state and federal jurisdictiond. seaman –member of crew or vessel—interchangeable termse. seaman---wards of the court---have been assigned a high standard of duty

towards themf. JA should be liberally construed in favor of the injured seaman

2. requirements for recovery a. need dual status: seaman and vessel status required

Claimant must be a seaman assigned a vessel in navigationb. there must be an employment relationship with an employer who has assigned the claimant to work on a vessel or fleet of vessels. JA REMEDY EXISTS ONLY IF THIS RELATIONSHIP EXISTS

ii. employer need not be owner or operator of the vessel iii. a borrowing employer may become an employer for JA purposes

1. being borrowed does not relieve the lending employer of liability under JA and it may be possible for a seaman to have more than one JA employer

iv. A JA seaman ---except in a case of intentional tort--- cannot proceed against the master of a vessel. This is a result of the application of the fellow servant rule

c. The injury must occur while the seaman is in the course of employmenti. Situs of the injury not determinative---may take place on vessel or

land

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ii. Injury need not occur while on the service of the ship but in the course of employment

3. neg, causation, BOPa. causation rule---if the employer’s fault played even the slightest role in causing the injury---case goes to the juryb. slightest negligence rule; featherweight rule

3 cases escalated the employer’s duty from one of exercising ordinary care under the circumstances to one exercising great care . And the P only owed a slight duty to protect himself from the injury

c. return of slightest causation Gautreaux 5th applied ordinary care --- there are two aspects of a plaintiffs

BOPo negligence on the part of the employer o causation

slightest part rule is one of causation---under Gautreaux--- proper standard of care is reasonable care under the circumstances

4 part analysiso duty –employer to seaman-- - reasonable persono extent to which breach caused the injury ----slightest ruleo duty owed by the seaman to protect himself---reasonable

persono extent to which breach of this duty caused the injury

d. featherweight standard of causation remainsi. the burden of proving the second element –causation--- still

remains “featherweight”. Normal trot standard for determining negligence

4. nature of injurya. emotional or psychological--- P must show offensive physical contact or a

threat of physical harm5. situs

a. applies to high seas, in domestic territorial waters in foreign territorial waters and on land

6. vessel statusa. Parsons--- means of propulsion does not effect vessel status so long as

vessel is engaging in commerce and navigation. Dry-docks are not a vessel

b. Robinson---jack up drilling rig held to be a vesselc. Roper---WWII ship used as grain storage facility---not a vessel in

navigationd. Williams--- new ship undergoing seatrail ---not a vessel in navigatione. Cook--- structure not a vessel where its transportation function was

minimal or incidental to its use as a work platformf. Hicks--- Submersible oil storage structure was a vesselg. Guidry---floating oil rig---vesselh. Colomb---inland submerged drilling barge----vessel

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i. Bernard--- work punt ---not a vesselj. Davis--- a barge anchored to the shore and used only as a work platform

was not a vessel k. Richendollar--- incomplete drilling rig under construction on land----not

vessell. Rosetti--- unfinished hull floating but under construction---NVm. Ducrepont---present purpose and not the original purpose of the craft

should controln. Orgeron---work barge held vesselo. Ducote---spud barge fitted with dragline crane----not a vesselp. Pavone--- floating dockside casino attached to pier by steel ramps---not a

vessel in navigationi. Court notes three common features of non vessels

q. Burchett--- a mid stream bulk cargo transfer unity----not a vessel—permanently moored to the bottom of Miss Riv that had not been moved for over 10 years

1. structure was constructed primarily to be used as a work platform

2. structure is moored3. any transportation function is merely incidental; to the

structures primary purposer. Manuel--- 2 prong test on vessel status

i. Purpose for which the craft is constructed 1. if the craft was constructed for the purpose of transporting

passengers, cargo or equipment across navigable waters it is a vessel

a. if intended purpose not clear other factors may be considered

i. intention of the owner to move the structure on a regular basis

ii. the length of time the structure has remained stationary

iii. objective vessel features such as navigational aids raked bow lifeboats

ii. the business in which the craft is engaged –transportation function1. where the use of the craft in transporting passengers, cargo

or equipment was an important part of the business in which the craft was engaged ----vessel

s. spar platform –NVt. sologub

i. while a drydock is not a vessel a vessel in drydock may still be deemed a vessel in navigation

7. SEAMAN STATUSi. More or less permanent assignment to a vessel in navigation, or

perform a substantial part of work on a vessel

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ii. Contribute to the function of the vessel or the accomplishment of its mission or the welfare of the vessel in terms of its maintenance during movement or anchorage

b. Chandrisi. Employees duties must contribute to the function of the vessel or

to the accomplishment of its missionii. A seaman must have a connection to a vessel ( or a group of

vessels) in navigation than is substantial in terms of both its duration and its nature

c. Barrett--- worker must spend at least 30 % of his time on a vessel. Allowance made for new employee

d. Harbor tug--- the identifiable group of vessels part of the Chandris test for seaman status is refined to read that the group f vessels must be under common ownership or control

e. Hufnagel--- P housed and fed aboard quarters vessel while performing work on a fixed platform

i. No JA seaman ---he did not contribute to the vessels function. Connection-transitory/ fortuitous

f. St. Romain--- P did not work aboard any vessels under common ownership or control

g. In re : endeavor Marine: D claimed P was not a JA Seaman because the nature of his duties were longshore work

i. CT: it is not the employee’s particular job that is determinative of seaman status, but the employee’s connection to a vessel. Thus even a ship repairman may qualify for seaman status if he has the requisite employment related connection to the vessel

ii. Court does not adopt going to sea test--- h. Necessity of the vessel---Must be a vessel in navigationi. To be JA seaman ---required relationship with a vessel in navigation. JA

suit is against the employer but it isn’t necessary that the vessel be owned or oven operated by the seaman’s employer. Jones act employers cannot escape liability by placing its employees on a vessel owned operated and chartered by some other entity

j. JA and LHWCA are mutually exclusivei. The longshoremen is limited to a compensation remedy against his

employerii. Whereas the JA seaman is entitled to bring a negligence action

against his employer and to recover damagesk. Seaman status not lost be temporary work ashore

i. A seaman assigned to work ashore for a long period of time will not continue to maintain JA seaman status

ii. Intention of seaman or employer that he return to work on a vessel after being assigned to work ashore does not by itself suffice to maintain the employees seaman status

iii. Length of time ashore necessary to deprive seaman of status is a fact question

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l. Exceptions to JA statusi. Oceanographic research vessel act

1. a defense to a Jones Act negligence but not GML claim---exempts scientific personnel engaged in scientific research

ii. sailing school students1. precludes recovery for negligence under JA ,

unseaworthiness and mc under GML8. Borrowed servant doctrine

a. Permits injured worker to recover from the company that was actually directing his work

b. Places risk of a workers injury on his actual rather than his nominal employer

c. Borrowed servant statusi. An injured worker may show that he was a borrowed servant at the

time of his injury by establishing:1. that the employer against whom recovery is sought had the

power to control and direct the servant in the performance of his work

ii. Baker criteria for borrowed servant status applyiii. That a seaman is a borrowed servant of one employee does not

mean that he ceases to be an employee of his nominal payroll employer

d. Choice of employer Defendanti. Unless the payroll employee has completely divested himself of

control over the employee, the employee may consider himself the JA employee of the payroll employer and may sue the payroll employer under the JA

1. HE MAY ALSO CHOOSE TO JOINTLY SUE THE BORROWING EMPLOYER

2. if injured seamen chooses to sue the payroll employer only, that entity may sue the borrowing employer for contribution

e. suits against the borrowing employerf. still must prove an employment entity with that entity

i. Where a normal JA seaman is assigned to work on land under the supervision of another entity which is land based, that land based entity will not become a JA employer of the worker and the worker cannot proceed against the land based entity under the JA

g. Piercing corporate veil : parent corporation as Jones act employer of a seaman on the payroll of a subsidiary

i. Baker v Raymond international Inc 656 f2d 173h. Maintenance and cure ---borrowing employer may be liable

9. Vicarious liabilitya. A borrowing employer may become vicariously liable without even

becoming an employer IF

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i. Borrowing employer assumes control over the acts of the employee and is directing him at the time when liability arises

b. Guidry: Vicarious liability is a question of fact for the jury normally10. Jury trails :FRCP 38,39

a. JONES ACT PMAY PROCEED IN FED CT:i. Under diversity jurisdiction---pursuant to the saving the suitors

clause , with trail by jury available to both P and D.ii. may proceed under federal question in which case a P may demand

or forgo a jury trail at his electioniii. in admiralty under 9 h designation without a jury

b. ST CT: i. At law with jury

ii. Or without, if so permitted by state law. c. Federal sources of jury right

i. Seventh---provided by saving the suitors clause/diversity jurisdiction ------ either P or D may choose jury

ii. JA statutory right --P ONLY CAN CHOOSE1. Admiralty case ---no right to a jury for either P or D 2. right of D to get a jury trail in state court will be

determined by state procedures11. venue: proper venue for a JA claim is in the district where the D employer

resides, in the district where his principle office is located, or in any district in which he is doing business(i.e.---where there is personal jurisdiction over the defendant)

a. Statutory provisions:i. For JA: jurisdiction will be under the court of the district in which

the defendant employer resides or in which his principle office isii. Application of statutory jurisdiction provisions to venue- - this has

been held to refer only to venueb. Expansion of statutory provisions

i. Corporations--- Pure Oil: corporations may be sued under JA not only in either of the statutory venues-----resident of employer and district office----BUT ALSO in any district in which the employer is doing business. In affect the JA defendant may be sued anywhere he is subject to jurisdiction

ii. Partnerships---Penrod Drilling: made Pure oil rule applicable to partnerships.

1. a partnership that was a JA employer could be sued not only where the partners reside and principle office, but also any district it was doing business

12. REMOVAL : generally: JA cases brought in state court are not removablea. Pleading at time of removal to determine whether a Jones act claim was

alleged in state court the removal court is limited to a review of the plaintiffs pleadings but the court may pierce the pleading if fraudulent pleading is adequately demonstrated. It is a plaintiffs complaint as it existed at the time the petition for removal was filed which controls

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13. Separate and independent claims:a. Whenever a separate and independent claim is joined with one or more

otherwise nonremovable claims or causes of action, the entire case may be removed

b. Joinder: where a mc claim ---removable due to diversity---is joined with a JA claim the JA claim is not separate and distinct so as to make the entire case removable because both claims arise from a single wrong or incident or involve the same facts

c. Joinder-- in rem against the vessel with Jones act claimi. Admiralty claims are not removable absent diversity and Jones

ACT claims are not removable. Therefore a joinder of two non-removable cases is not removable.

d. Failure to object to removal---If a JA case is removed--- even though improperly--- but P does not object to the removal –seek remand--- then the right to object to the removal is waived and cannot be raised on appeal.

e. Designation of claim in state court as one of admiraltyi. Where P wants to proceed in a state court, his use of a state

procedural provision that allow him to designate his claim as ‘admiralty---so as to proceed without a jury----is Not jurisdictional i.e.; it doesn’t convert his state court case into one of exclusive federal admiralty jurisdiction(which would be removable)

f. Lack of seaman or vessel status: where a D can show there is no vessel status and therefore no seaman status and obtain summary judgment---a denial of remand is proper

14. foreign seamana. foreign oil workers injured in foreign waters may be excluded from the JA

unless they can prove no remedy available to them in their country or the country of the accident

i. also precludes mc and for damages for injury or death who was not a citizen or resident alien at the time of incident

ii. Jackson : Section 688 b of the JA will bar all claims of foreign seaman to whom the section applies. Even if P files in state court—the state court may apply 688 b and dismiss the claim under JA and GML. This may preclude bringing it in fed ct b/c of res judicata

b. Choice of law if plaintiffs claim is not thrown out because of 688b, then you must make choice of law analysis to determine if Us or foreign law will be applied

c. Forum non conveniensi. Case may be dismissed on theory that the forum seaman should

litigate in a foreign venue for convenience even though jurisdiction and venue proper

ii. D may not be able to change the venue of a JA case brought in a Louisiana court on grounds of forum no conveniens.

15. vessel not owned or operated by seamans employera. Smith:

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b. A JA seaman cannot assert a Sieracki unseaworthiness cause of action against a vessel on which he is not a crew member

16. Seamen’s release: what is seamans release----a. Garrett : BOP on the one who sets up a seamans release to show that it

was executed fairlyb. Stipelcovich—proper consideration is whether the seaman relinquished his

rights with a proper understanding of his rights and a full appreciation of the consequences when he executed the seamans release

c. Simpson:i. Shipowner has BOP in establishing validity of seamans release

ii. Factors relevant to appraising whether the seaman had proper understanding of his rights include the nature of the legal services available at time of signing, adequacy of consideration good faith negotiations, fraud or coercion

d. Resner: Seamans releases not governed by usual contract law but more like relationship between fiduciary and beneficiaries. Vessel owner has burden to prove validity of release.

VIII. THE OUTER CONTINENTAL SHELF1. Geography:

a. Definition of lands beneath navigable watersi. All lands seaward to a line 3 geographical I distant from coast

line… and to the boundary of each such state where in any case such boundary as it existed at time it became a member of the union…extends seaward beyond 3 geographic mi.

ii. Geographical mile equals a nautical mile. A marine league equals 3 geographical or nautical miles

iii. A geographic mile is equal to 1.5 statute miles.

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XII. WRONGFUL DEATHa. Wrongful death- brought by a decedents’ survivor or personal

representative to recover damages sustained by the survivor or estate as a result of decedents death. E.g.- loss of support, loss of love and affection, loss of society

b. Survival action- brought by the decedent’s estate or personal representative to recover damages which decedents himself could have recovered –loss of income, suffering.

SOURCES OF wrongful death causes are1. DOSHA 2. JONES ACT3. GML4. STATE Wrongful Death Statutes

A. DOSHA: Applies to all torts occurring on the high seas beyond a marine league (3

nautical mile from the shore) Does not apply to commercial aviation actions occurring on the high seas 12

nautical miles or closer to the shore –applies to plus 12 miles. CASES

o TWA:

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High seas were non territorial waters Pres. Proc. changed the boundaries of the US territorial waters

by moving it out from 3 mi. to 12 mi. Amendments provided for the recovery of non-pecuniary

damages for aviation. DOSHA inapplicable in US territorial waters DOSHA does not apply on fixed platforms located on the Outer Continental

Shelf of the US – where OCSLA applies DOSHA does apply with the territorial waters of foreign nations so long as

located more than 3 miles from US shoreline. DOSHA applies to commercial aviation accidents in territorial waters of

foreign nations so long as location is more than 12 nautical miles from US shoreline

BASIS FOR ACTIONo NEGLIGENCE

Action under DOSHA can be based on Wrongful act, neglect or default of the defendant.

o UNSEAWORTHINESSo PRODUCT LIABILITY- CLAIMS ARISING OUT OF DEFECTS IN

PRODUCTS DOSHA applies to actions against third parties, not to actions by employers.

This is because the action against the decedent’s employer is provided by statute- e.g. LHWCA via OCSLA or JONES ACT

o OFFSHORE OIL WORKERS- Death on an OCSLA situs would not be covered by DOSHA.

WHERE the decedents in an aircraft crash on the high seas is a PLATFORM WORKER engaged in operations conducted on the outer continental shelf for the purpose of exploring for, developing, removing or transporting…the natural resources ….of the subsoil and seabed of the outer continental shelf, the wrongful death remedy against employer is exclusively provided by LHWCA by virtue of its application via OCSLA.

o JONES ACT SEAMEN: Survivor’s remedy against the decedents employer in

negligence for the wrongful death of a Jones Act seaman would be provided by the Jones Act, The remedy in unseaworthiness would be provided by DOSHA.

o Persons not covered by LHWCA or JONES ACT (workers whose employers are not involved in mineral exploration/extraction and who are not vessel crew members)

ELEMENTS OF RECOVERYo NONPECUNIARY

Loss of society damages not available except in the case of commercial aircraft cases.

No survival actions: no recovery for decedents pre- death pain and suffering.

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The non-pecuniary damages permitted by the 2000 amendments is limited to care, comfort, and companionship.

o Prejudgment interest An award of prejudgment interest in a DOSHA case is

discretionary with the trail court 5th circ. Rule: prejudgment interest may not be awarded

with respect to future damages. TORT RECOVERY PRIOR TO DEATH AS BAR TO LATER WRONGFUL

DEATH RECOVERY.o Unlike FELA DOSH has not been interpreted to bar wrongful death

recovery in cases where the decedents have already recovered during his lifetime for his personal injuries.

o 5th circ- allows death action under DOSHA subsequent to the settlement of a personal injury claim by the decedents

EXCLUSIVE REMEDYo WHERE DOSHA APLLIES- it provides the exclusive remedy for

recovery for death P –survivor can recover only pecuniary losses. These elements of recovery cannot be supplemented with

recoveries under state law or the GMLo EXCLUSION OF STATE LAW:

Tallentire: State statutes preempted by DOSHA where it applies P ma not look to state statutes to supplement their

DOSHA wrongful death damages SECT 7 of DOSHA does not ensure the applicability of

state statutes to death on the high seas BUT was intended ONLY to preserve state courts jurisdiction to provide wrongful death remedies under state laws for fatalities on territorial waters.

Jacobs: DOSHA does NOT allow recovery for pre-death pain

and suffering and the courts are NOT authorized to supplement DOSHA with GML or state law to permit such recovery

Dooley case: SC: DOSHA provided the exclusive remedy and that decedents survivor could not look to GML to supplement their DOSHA wrongful death action

ALSO, the wrongful death remedy of DOSHA may not be supplemented with a survival action under either the GML or state survival acts

o EXCLUSION OF GML: Mobile oil corp. v. higginbottom:

Plaintiffs were limited to recovery of pecuniary losses under DOSHA

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Congress did not limit DOSHA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of no pecuniary supplements

o There is concurrent jurisdiction with state courts- DOSHA may be brought in state courts

o No right to a jury trail in cases brought under federal court under DOSHA. A DOSHA action is brought under admiralty.

If diversity exists or a DOSHA Action is combined with Jones Act, then a jury trail is available.

AVIATION CASESo SMJ: CRASH IN TERRITORIAL WATERS:

Executive Jet: SC finds no federal admiralty jurisdiction in a case involving the crash of an aircraft into navigable waters of the US

Mere fact that an aircraft goes down on navigable water does not confer federal admiralty jurisdiction. In the absence of contrary legislation admiralty jurisdiction exists only when there is a significant relationship to traditional maritime activity.

Admiralty jurisdiction does not extend to tort claims arising from flights…between points within the continental US.

o SMJ: CRASH ON THE HIGH SEAS Post executive jet cases- recognizes that DOSHA applies to

wrongful death claims arising from aircraft crashes on the high seas.

B. GML: DEATH IN STATE TERRITORIAL WATERS: MORAGNE: - action by sieracki seamen arising out of an accident on a vessel in

territorial waterso Prior to Moragne – no wrongful death remedy available under GML

negligence or unseaworthiness in territorial waters DOSHA provided a statutory remedy for death on the high seas

after 1920 BUT DOSHA DOES NOT apply in territorial waters. The JONES ACT provided a wrongful death remedy based on negligence but not on seaworthiness

o RULING: federal remedy for wrongful death does exist under the GML. o Court notes 3 anomalies of the law:

An unseaworthiness vessel in territorial waters causing injury produces liability, whereas if it causes death- no liability results

Unseaworthiness producing death results in liability under DOSHA outside the three mile limit, but unseaworthiness producing death in territorial waters results in no liability

Survivors of JA seamen may not recover for death caused by unseaworthiness in territorial waters, but some state statutes allow it for longshoremen.

MILES: moragnes creation of a cause of action for wrongful death under the GML was not to be limited to its facts i.e. to claims arising from death of

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longshoremen in territorial waters due to unseaworthiness. Therefore: the personal representative of a Jones Act seaman, in addition to the Jones Act wrongful death claim by negligence would have a GML wrongful death by unseaworthiness claim

NORFOLK: SC Extends Moragne grant of a GML cause of action for wrongful death due to unseaworthiness to one caused by negligence

Sea land: Longshoremen Sieracki Seamen was injured due to unseaworthy conditions on a vessel in territorial waters. He dies after recovery for personal injuries

RULE: Moragne created a true wrongful death remedy- founded upon the death itself and independent of any action the decedent may have had for his own personal injuries. Moragne provides the widow with a compensable COA for decedents death that is wholly apart from and not extinguished by his recovery for his personal injuries.

o Elements of damages that are recoverable in a Moragne GML wrongful death action:

Loss of support Loss of services Loss of society Funeral expenses

o Court cautions against double recovery-i.e. loss of incomeo Courts holding has been limited to it facts. – Applies only in territorial

waters and only to longshoremen recovering under GML-unseaworthiness Yamaha-allowed the supplementation of sate law in order to provide a wrongful

death remedy in a case where juvenile killed in Jet Ski accident. IN RE AMTRAK: - RECOVERY UNDER GML not state law Attempts to limit

Yamaha to its factso State law must yield to the needs of a uniform federal maritime lawo Under Amtrak, the GML death remedy under Moragne preempts sate law

remedies where state law death statutes strongly conflict with GML, despite Yamaha.

C. The JONES ACT: Gives a remedy to dependants of a seaman killed in the course of employment,

regardless of where the wrong takes place. ELEMENTS OF RECOVERY:

o Pecuniary loss: Loss of service If survived by a child- loss of care, counsel, training education that

child may have reasonably received. o Non- pecuniary-

Loss of society Miles:

o SC: Because decedent is covered by the Jones act: P recovery is limited to pecuniary losses even under the GML claim. Therefore P is not entitled to loss

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of society claim Jones Act limits recovery to pecuniary loss

o Gaudet, which allowed recovery of loss of society damages under GML in the case of a sieracki seamen was held only to apply in territorial waters and only to longshoremen

o The courts ruling that only pecuniary damages are available has been held to rule out punitive damages in maritime cases

o Survival action: under traditional maritime law as under common law there is no right of survival; a seaman’s personal cause of action does not survive the seaman’s death

A deceased JA seaman’s lost future income may not be recovered in a survival action. JA/ FELA survival provisions limits recovery to losses suffered during the decedents lifetime.

XIII. Suits in Admiralty Act/ Public Vessels Act SAA and PAA – waivers to the doctrine of sovereign immunity. – They permit

suits against the US where the doctrine of sovereign immunity would otherwise nullify such action.

Allows action where it arises in respect of any vessel owned or possessed by the US or any vessel operated by or for the US

Overlap: PVA allow action as to public vessels and the SAA allow the action as to all governmental vessels. However, the PVA still applies to public vessels and the SAA does not

A. SAA JURISDICTION

o SMJ Jurisdictional – admiralty. If admiralty jurisdiction exists then

jurisdiction under SAA exists Not limited to cases involving vessels. It extends to any

situation in which the government would be liable in admiralty just as a private citizen or corp.

o Proper court: EXCLUSIVE: file in US District Court

SAA AND FTCA MUTUALLY EXCLUSIVEo Admiralty J- then SAA applies and not Fed Tort Claim Act. Doubt as

to admiralty J? - Then bring it under both IN PERSONAM ONLY

o Statute prohibits in rem against USo SAA provides that although the claimant cannot seize or arrest the

government’s vessel or cargo, he may proceed in all other respects as if it were an in rem proceeding. The effect of this is that the suit

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against the government may be maintained even where there is no basis for in personam liability.

SAA action- nonjury Must be filed within 2 years after the COA Arises Exclusivity: IF claim covered by SAA the Plaintiffs sole remedy is against the

US- suits against fellow crew members, officers or vessel owners will be dismissed.

B. PVA: A vessel owned by the government is a public vessel. A government owned vessel operated by a private contractor is a

public vessel Private vessel bareboat chartered to the government, even is

government hires a public firm to operate the vessel- is PA NOT PA:

o A private vessel time chartered to the government o A provision in the contract between the owner an the

government designating the vessel as a public vessel is not determinative of its status as a public vessel within the meaning of the PVA

Exclusivityo If vessel public- can only be brought under the PVAo By virtue of the PVA’s incorporation of the SAA, any action

against an agent or employee of the US shall be against the US exclusively and not against the agent or employee of the US.

Cannot seize government vessel Subpoena of officers and crew members is proscribed without the

consent of the master of the vessel or of the Sec of State of the governmental department controlling the vessel

Procedure and statute of limitationo Claims under the PVA shall be subject to and proceed in

accordance with the SAA in so far as the same are not inconsistent with the PVA. Therefore the PVA adopts the SAA’s 2 yr St of Lim.

Thing SAA and PVA have in commono Permits in personam and not in rem actionso Subject to 2-year lm.o Exclusive Jurisd. In the US DISTRICT COURT

DIFFERENCES PVA applies to public vessels SAA does not.o PVA contains a reciprocity agreement which bars foreign

nationals from bringing claims under the act unless the court is satisfied that under similar circumstances, that the government of the foreign nation permits us citizens to sue in its courts.

o PVA: broader venue provision -venue proper in any US district court in certain situations

o Differing provisions regarding the payment of interest EXCEPTIONS to applicability of SAA and PVA

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o FERES EXCEPTION: Government not liable under FTCA for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. The Feres doctrine has been held to apply so as bar actions by military personnel under the SAA

o LACK OF Reciprocity under PVA WHERE PVA APLLIES (e.g. public vessel) AND P (or

beneficiaries of P in death case) is a citizen of a foreign nation, the reciprocity feature of the PVA comes into play. If reciprocity not satisfied, waiver of sovereign immunity under PVA does not occur and the suit is barred.

o Discretionary function exception: major exception to governmental liability under SAA or PVA

DEF: PROTECTS ONLY GOVERNMENTAL ACTIONS AND DECISIONS BASED ON CONSIDERATIONS OF POLICY

Exceptions to the discretionary function exception: Gov’t not obligated to undertake any duty which

is discretionary, if it does undertake such a duty, and does so in such a way that people rely on the action taken by the gov’t, then it is obligated to perform in a nonnegligent manner. If the govt does so negligently perform, the immunity provided by the discretionary rule will not apply and the govt may be held in negligence.

Employees of the USo Exclusive remedy lies under FECAo Clarification act: exception to the exception:

Gives seamen employees of the US and injured on vessels owned by the US the Same rights as those injured on a private vessel

Any crewmember employee of the US covered by the Act can bring suit based on the Jones Act and/or GML against the US pursuant to the SAA. NOTE: Act requires first the prosecution and disallowance of an administrative claim.

TIME CHARTERED VESSELSo WHERE vessel is time chartered by the US govt a claim

arising out if the operation of the vessel generally will not be covered by the SAA.

o The SAA applies only if a private vessel owner /operator would be subject to suit under the same circumstances. Generally a time charterer has no liability arising out of the operation of a vessel, since such operation is left in the ands of the owner/ operator. Thus if govt is timecharter, it will have no

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liability arising from the negligence of the crew or unseaworthiness of the vessel absent a showing that the parties to the charter intended otherwise. Therefore a JA claim by a crew member of a vessel time chartered to the government properly lies against his immediate employer (the owner/operator of the vessel) and suits against such JA employer will not be dismissed pursuant to the exclusive remedy provision of the SAA

XIV. LACHES, LIMITATION OF ACTIONSa. Laches- the courts determination of the timeliness of a suit –supplies the

rule of prescription for the many admiralty causes of action which have no statutorily fixed period

b. GENERAL rule admiralty courts were not bound by prescriptive periods of statute of limitations. Rather, the court, in the exercise of discretion, would make a decision upon the timeliness of the plaintiffs suit based primarily upon two factors

i. Whether the delay in bringing the suit was excusable ii. Whether the delay in bringing the suit would cause prejudice to the

defendantc. BOP can be on either P or D

i. P – if the analogous period has passed. Must prove 1. Delay in filing suit was not unreasonable

a. EX good faith settlementb. Prior unsuccessful attempt to arrest the shipc. D threatens P’s employment

2. Defendant has suffered no prejudice from the delayii. D if the analogous prescriptive period has not passed. Must prove

1. Delay was unreasonable

2. That he was prejudiced thereby *a. Ex: lost access to evidenceb. Become impossible to review the situationc.

XV. Apportionment of fault/ contribution/ fault1. COMPARITIVE FAULT

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a. GENERALLY US v. Reliable Transfer Co.

1. Rejects “divided damages rule2. Adopts pure comparitive fault3. Vessel owner sues US due to failure

of coast guard to maintain a navigational light

4. Rule: WHEN two or more parties have contributed by their fault to cause property damages in a maritime collision or stranding, then liability for the damages is to be allocated among the parties proportionately to the comparative degree of their fault

b. COMPARITIVE FAULT IN STRICT LIABILITY SETTING:

LEWIS: WHERE ONE D is strictly liable in product liability, the fault of that D will be compared with the fault of all other defendants and accordingly allocated

c. COMPARITIVE FAULT AS AFFECTED BY SUPERSEDING CAUSE

EXXON: doctrine of superseding cause may still apply despite the adoption of pure comparative fault in Reliable transfer

d. CREDIT FOR A SETTLING D’s PAYMENT: (the proportionate share rule)

McDermott1. Where a P has settled with a D prior

to trail & where, at trail, fault is allocated to all of the D’s (to both settling and non-settling), the non-settling D’s are entitled to a proportionate reduction or credit for the fault of the non

XVI. LIMITATION OF LIABILTYA.

XVII. DAMAGES

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