NAVEDTRA 10725-BNaval Education and March 1989 Nonresident TrainingTraining Command 0503-LP-481-2100 Course (NRTC)

Navy AdmiraltyLaw Practice

Only one answer sheet is included in the NRTC. Reproduce therequired number of sheets you need or get answer sheets fromyour ESO or designated officer.

DISTRIBUTION STATEMENT A: Approved for public release; distribution is unlimited.

The public may request copies of this document by followingthe purchasing instruction on the inside cover.

Reviewed and approved for continued use on11 April 1995.

DISTRIBUTION STATEMENT A: Approved for public release; distribution is unlimited.

The public may request copies of this document by writing to Superintendent of Documents, Government PrintingOffice, Washington, DC 20402-0001 or to the ASO/NPFD, Attention Cash Sales (Code 1013), 5801 Tabor Avenue,Philadelphia, PA 19120-5099.

NAVY ADMIRALTY LAW PRACTICENAVEDTRA 10725-B

Prepared by the Naval Education and Training Program ManagementSupport Activity, Pensacola, Florida

Congratulations! By enrolling in this course, you have demonstrated a desire to improve yourself and theNavy. Remember, however, this self-study course is only one part of the total Navy training program.Practical experience, schools, selected reading, and your desire to succeed are also necessary to successfullyround out a fully meaningful training program. You have taken an important step in self-improvement. Keepup the good work.

H O W T O C O M P L E T E T H I S C O U R S ESUCCESSFULLY

ERRATA: If an errata comes with this course, makeall indicated changes or corrections before you startany assignment. Do not change or correct theTraining Manual (TRAMAN) or assignments in anyother way.

TEXTBOOK ASSIGNMENTS: The TRAMAN forthis course is (1) Admiralty Law and Its Applicationin Navy Admiralty Claims Practice: a Primer and (2)Chapter XII, Admiralty Claims and Appendix A-12-aof the Manual of the Judge Advaocate General,JAGINST 5800.7b, Change 7. The TRAMAN pagesthat you are to study are listed at the beginning ofeach assignment. Study these pages carefully beforeattempting to answer the questions in the course. Payclose attention to tables and illustrations because theycontain information that will help you understand thetext. Read the learning objectives provided at thebeginning of each chapter or topic in the text and/orpreceding each set of questions in the course.Learning objectives state what you should be able todo after studying the material. Answering thequestions correctly helps you accomplish theobjectives.

BLACK DOT INFORMATION: Black dots (.) maybe used in the text and correspondence course toemphasize important or supplemental information andto highlight instructions for answering certainquestions. Read these black dot entries carefully; theywill help you answer the questions and understand thematerial.

SELECTING YOUR ANSWERS: After studying theTRAMAN, you should be ready to answer thequestions in the assignment. Read each questioncarefully, then select the BEST answer. Be sure toselect your answer from the subject matter in theTRAMAN. You may refer freely to the TRAMANand seek advice and information from others onproblems that may arise in the course. However, theanswers must be the result of your own work anddecisions. You are prohibited from referring to orcopying the answers of others and from givinganswers to anyone else taking the same course.Failure to follow these rules can result in suspensionfrom the course and disciplinary action.

SUBMITTING COMPLETED ANSWER SHEETS:

Complete all assignments as quickly as possible toderive maximum benefit from the course. As aminimum, you must submit at least one assignmentper month. This is a requirement established by theChief of Naval Education and Training. Failure tomeet this requirement could result in disenrollmentfrom the course.

TYPES OF ANSWER SHEETS: If you are a U.S.Navy enlisted member on active duty or a drillingU.S. Naval Reserve enlisted member, you should usethe answer sheet attached at the end of this courseand follow the instructions in section A below. Ifyou are an enlisted U.S. Naval Reserve member whois not attached to a drilling unit or if you are anofficer, a civilian, or a member of the U.S. Army,Air Force, Marine Corps, or Coast Guard, youshould use the Automatic Data Processing (ADP)answer sheets included in the course package andfollow the instructions in section B.

i

A. Manually Scored Answer Sheets

If you are a U.S. Navy enlisted member onactive duty or attached to a U.S. Naval Reservedrilling unit, your course will be administered by yourlocal command. You must use the answer sheetdesigned for manual scoring, NETPMSA form1430/5, Stock Ordering Number 0502-LP-216-0100.You may get a supply of the forms from yourEducational Services Officer (ESO), or you mayreproduce the one in the back of this course booklet.D O N O T U S E T H I S F O R M F O R C O U R S E SADMINISTERED BY NETPMSA.

Recording Information on the ManuallyScored Answer Sheets: As you complete eachassignment, submit the completed answer sheet toyour ESO for grading. You may submit more thanone answer sheet at a time. Remember, you mustsubmit at least one assignment each month.

Grading: Your ESO will grade eachanswer sheet and notify you of any incorrect answers.The passing score for each assignment is 3.2. If youreceive less than 3.2 on any assignment, the ESO willlist the questions you answered incorrectly and giveyou an answer sheet marked “RESUBMIT.” Youmust redo the assignment and complete theRESUBMIT answer sheet. The maximum score youcan receive for a resubmitted assignment is 3.2.

Course Completion: After you havesubmitted all the answer sheets and have earned atleast 3.2 on each assignment, your command shouldgive you credit for this course by making theappropriate entry in your service record.

Student Questions: If you have questionsconcerning the administration of this course, consultyour ESO.

course package. You should use one blank originalADP answer sheet for each assignment. Use onlythe original ADP answer sheet provided in yourcourse package ; NETPMSA will not acceptreproductions.

Recording Information on the ADPA n s w e r S h e e t s : F o l l o w t h e “ M A R K I N GINSTRUCTIONS” on each answer sheet. Be surethat blocks 1, 2, and 3 are filled in correctly. Thisinformation is necessary for your course to beproperly processed and for you to receive credit foryour work.

As you work the course, be sure to mark youranswers in the course booklet because your answersheets will not be returned to you. When you havecompleted an assignment, transfer your answer fromthe course booklet to the answer sheet.

Mailing the Completed ADP AnswerSheets: Upon completing an assignment, mail thecompleted answer sheet to:

COMMANDING OFFICERNETPMSA CODE 0366490 SAUFLEY FIELD RDPENSACOLA FL 32559-5000

Use envelopes to mail your answer sheets. Youmust provide your own envelopes or request themfrom your ESO. You may enclose more than oneanswer sheet in a single envelope. Remember,regardless of how many answer sheets you submit ata time, NETPMSA should receive at least oneassignment a month.

N O T E : D O N O T U S E T H E C O U R S ECOMMENTS PAGE AS AN ENVELOPE FORRETURNING ANSWER SHEETS OR OTHERCOURSE MATERIALS.

B. ADP Answer Sheets Grading: NETPMSA will grade theanswer sheets and notify you by letter concerning

If you are an enlisted U.S. Naval Reserve your grade for each assignment, your incorrectmember who is not attached to a drilling reserve unit answers, and your final grade. The passing score foror if you are an officer, a civilian, or a member of the each assignment is 3.2. If you receive less than 3,2U.S. Army, Air Force, Marine Corps, or Coast on any assignment, you must rework the assignment.Guard, use the ADP answer sheets provided in your NETPMSA will enclose a new ADP answer sheet in

ii

the letter notifying you of the questions you answeredincorrectly. You will be required to redo theassignment and resubmit the new answer sheet. Themaximum score you can receive for a resubmittedassignment is 3.2.

Course Completion: When you completethe last assignment, fill out the “Course Completion”form in the back of the course and enclose it withyour last answer sheet. NETPMSA will issue you aletter certifying that you satisfactorily completed thecourse. You should make sure that credit for thecourse is recorded in your service record. YouMAY RETAIN THE TEXT.

N O T E : Y O U R O F F I C I A L C O U R S ECOMPLETION DATE WILL BE THE DATE YOURLAST ASSIGNMENT IS PROCESSED THROUGHTHE NETPMSA ADP SYSTEM--NOT THE DATEYOU DEPOSIT THE LAST ASSIGNMENT IN THEMAIL. This is especially important if you are takingthe course for Naval Reserve retirement credit. Youmust mail your answer sheets at least 60 days beforeyour anniversary date. This will provide you withenough time for delays in the mail or reworking faileda s s i g n m e n t s . D O N O T M A I L Y O U RASSIGNMENTS TO THE NAVAL RESERVEPERSONNEL COMMAND (NRPC).

Student Questions: Refer questionsconcerning this course to NETPMSA by mail (usethe address on page1366 or commercial

NAVAL RESERVE

ii) or by telephone: DSN 922-(904) 452-1366.

RETIREMENT CREDIT

If you are a member of the Naval Reserve,you will receive retirement points if you areauthorized to receive them under current directivesgoverning retirement of Naval Reserve personnel.For the purpose of Naval Reserve retirement, thisedition of the course is evaluated at 4 points. Thesepoints will be credited to you upon your satisfactorycompletion of the entire course.

N O T E : Y O U R O F F I C I A L C O U R S ECOMPLETION DATE WILL BE THE DATE YOURLAST ASSIGNMENT IS PROCESSED THROUGHTHE NETPMSA ADP SYSTEM--NOT THE DATE

YOU DEPOSIT THE LAST ASSIGNMENT INTHE MAIL. Refer to the Course Completionparagraph under section B. ADP Answer Sheets.

COURSE OBJECTIVES

Navy Admiralty Law Practice is intended foruse both by the judge advocate and the line officerwho has had little or no experience with claims orlitigation arising out of the operation of navalvessels.

As you complete this course, you shouldacquire sufficient general information to enable youto take action necessary to protect the interests of theGovernment when confronted with or involved in asituation out of which an admiralty claim could arise.You will also acquire a knowledge of the practiceand procedures applicable to handling admiraltymatters in the Navy, including procedures andrequirements for handling the preliminaries foradmiralty tort claims and the litigation that can resultfrom operations of naval vessels.

iii

Naval courses may include several types of questions--multiple-choice, true-false, matching, etc. The questions are notgrouped by type but by subject matter. They are presented in the same general sequence as the textbook material upon whichthey are based. This presentation is designed to preserve continuity of thought, permitting step-by-step development of ideas.Not all courses use all of the types of questions available. The student can readily identify the type of each question, andthe action required, by inspection of the samples given below.

MULTIPLE-CHOICE QUESTIONS

Each question contains several alternatives, one of which provides the best answer to the question.alternative, and blacken the appropriate box on the answer sheet.

SAMPLEs-1. Who was the first person appointed Secretary Indicate in this way on the

of Defense under theof 1947?

1. George Marshall2. James Forrestal3. Chester Nimitz4. William Halsey

National Security Act

Select the best

answer sheet:

TRUE-FALSE QUESTIONS

Mark each statement true or false as indicated below. If any part of the statement is false the statement is to beconsidered false. Make the decision, and blacken the appropriate box on the answer sheet.

SAMPLE

s-2. All naval officers are authorized to Indicate in this way on the answer sheet:correspond officially with any systemscommand of the Department of the Navywithout their respective commandingofficer’s endorsement.

1. True2. False

MATCHING QUESTIONS

Each set of questions consists of two columns, each listing words, phrases or sentences. The task is to select the itemin column B which is the best match for the item in column A that is being considered. Items in column B may be usedonce, more than once, or not at all. Specific instructions are given with each set of questions. Select the numbers identifyingthe answers and blacken the appropriate boxes on the answer sheet.

SAMPLE

In questions s-3 through s-6, match the name of the shipboard officer in column A by selecting from column B the nameof the department in which the officer functions. Some responses may be used once, more than once, or not at all.

A. OFFICER

s-3. Damage Control Assistant 1.

s-4. CIC Officer 2.

s-5. Disbursing Officer 3.

s-6. Communications Officer

B. DEPARTMENT Indicate in this way on the answer sheet:

Operations Department

Engineering Department

Supply Department

i v

ADMIRALTY LAW AND ITS APPLICATION IN NAVY ADMIRALTY CLAIMS PRACTICE:A PRIMER

by Lieutenant Commander Kevin P. McMahon, JAGC, USN

I. THE ORIGINS AND NATURE OF ADMIRALTY LAW1

Let us examine briefly this thing known as admiralty law, this tool forresolving the controversies which arise out of maritime damage. It is astrange thing, this admiralty law, but it has been with us a long time. Ithas its roots in antiquity.

The most ancient and at the same time the most simple law was the law ofthe jungle under which loss or damage caused by another was simply allowed tolie where it fell. The victim absorbed his loss without compensation fromanyone.

But man’s sense of justice was inflamed by the fact that a person damagedwithout fault on his part had no recourse by a peaceful means to recover hisloss from the ones who did the injury. Of course, the injured party could useself-help by way of revenge but this only added to the sum total of loss andgreatly disturbed the peace of the community.

Hence, man’s progress from a savage to a civilized state has been markedby the development of rules designed to overcome the law of the jungle. Nolonger under law does the loss lie where it falls. The law causes theresponsible party, or the party at fault, to make the injured party whole.

If you willfully or negligently injure your neighbor or damage hisproperty and he be without fault, the courts will require that you respond indamages in order that your neighbor may be made whole once again. The lawwill not let the loss lie where it fell.

1 Sections I and II of this article are derived, in large part, from apaper entitled Admiralty Law and Its Relation to Command at Sea, which wasbased on a lecture delivered at the Naval War College on 18 May 1953 by RearAdmiral Ira H. Nunn, U.S. Navy, who served as Judge Advocate General of theNavy from 1952 to 1956. For many years, Admiral Nunn’s paper, as periodicallyupdated, constituted a portion of the textual material for the Navy’scorrespondence course Navy Admiralty Law Practice. This article, whichexpands on the foundation created by Admiral Nunn, is replacing his paper as apart of that course.

1

This concept of the party at fault responding in damages to the partyaggrieved is equally applicable in admiralty law as it is in the common law.(The term “common law” is used throughout this article to describe the bodyof law extant in this country exclusive of the admiralty field, a definitionwhich, though not quite accurate, is reasonably expedient for the purposehere.) However, its implementation in admiralty has differed somewhat fromthe common law for the following reasons:

First, admiralty law is ancient. It has been evolved slowly and by minuteincrement since man first ventured upon the surface of the sea with his personand his goods.

At one time scholars opined that a Rhodian Code, perhaps dating back to900 B.C., had been promulgated, but this theory has been repudiated largely bythe complete absence of any surviving historical record of such a code.2

However, it is apparent that a body of customary maritime practices did evolveand gain general acceptance among Mediterranean seafarers by the period500-300 B.C., when Rhodes was the center of seagoing commerce.3

The earliestsurviving reference to a particular Rhodian legal principle dates to the ThirdCentury A.D., when a Roman lawyer named Paulus wrote five books of Sentences.A division of the second book, titled On the Rhodian Law, states:

“If, for the sake of lightening a ship, a jettison of goodshas been made, what has been given for all shall be made upby the contribution of all.”

(As you will see, this Rhodian law of jettison is a precursor of the distinc-tive maritime doctrine of general average, discussed later in this article).Other references to “Rhodian law” appear in Justinian’s Digests, published in533 A.D., including the rather noteworthy comment attributed to Roman EmperorAntoninus, when petitioned for relief by one whose shipwreck had beenplundered: “I am indeed lord of the world, but the law is lord of the sea.This matter must be decided by the maritime law of the Rhodians . . .”4

In contrast, the common law of England commenced its development at thetime of the Norman invasion. Therefore, it began to exist as we know it aboutthe year 1066 A.D.

2 1 Benedict on Admiralty §§ 2-3 (E. Jhirad, A. Sann, B. Chase & M.Chynsky 7th ed. 1985) [hereinafter cited as 1 Benedict].

3 See N. Healy & D, Sharpe, Cases and Materials on Admiralty 3 (1974)[hereinafter cited as Healy & Sharpe].

4 1 Benedict, supra note 2, §3; G. Gilmore & C. Black, The Law ofAdmiralty § 1-2 (2d ed. 1975) [hereinafter cited as Gilmore & Black].

2

Thus, the concepts upon which admiralty law are based are about 1500 yearsolder than those of the common law. Obviously, custom, practice and statutehave modified both systems greatly throughout the years, and, while there aremany similarities, differences still exist.

Second, admiralty law enjoys a universal character among maritime nations.It is apparent from the mobile nature of its primary subject matter (ships)that, of necessity, there must exist a worldwide similarity in the applicationof admiralty law by all of the principal maritime nations. This need foruniversality influenced the development of admiralty law.

Admiralty law grew up together with, and in similar fashion to, theancient “law merchant.” Early in its evolution, various rules were agreed toby seafarers to facilitate maritime commerce, rules which attained widespreadacceptance because of their practicality and, eventually, became enforced asthe law among seafaring communities.5

The importance of universality was apparent to the framers of the UnitedStates Constitution, who extended Federal judicial power to “all cases ofadmiralty and maritime jurisdiction."6. The wisdom of providing the FederalGovernment with the principal power over maritime commerce should be apparent;without it, both domestic and foreign shippers would have been subject tovarious states’ laws, to the probable detriment of the nation’s developingmaritime trade.

Third, throughout its development, admiralty law deliberately has beentreated as a species of law separate and distinct from the common law. InEngland, admiralty courts existed wholly apart from the general civil courtsthat entertained non-admiralty actions at law or equity. There and in theUnited States, judges in admiralty cases applied substantive admiralty law,and would refer to common law principles for guidance only when the disputeat hand could not be resolved by the application of admiralty statutes andthe “general maritime law” (a broad term which has been used to refer to boththe admiralty practices generally accepted among the world’s seafaring nationsand the particular judicially-developed body of admiralty rules enjoying theforce of law within a particular country).

Further, the admiralty courts utilized their own set of procedural rules,often differing sharply from the procedures in other civil courts. In theUnited States, a separate set of Rules for Practice in Admiralty and MaritimeCases, promulgated by the Supreme Court,7 and under which a United StatesDistrict Court would transform itself into a court “sitting in admiralty,”were in effect until July 1, 1966. On that date, the procedural rules for all

5 Gilmore & Black, supra note 4, § 1-3; Healy & Sharpe, supra note 3, 1-2.6 U.S. Const. art. III, § 2.7 Order of December 6, 1920, 254 U.S. 671.

3

civil cases, including those in admiralty, were unified;8 however, even in thisconsolidation, certain traditional admiralty practices were retained (forexample, unlike the usual civil case, there is no right to a jury trial in anadmiralty action unless such a right is specifically granted by statute9).Furthermore, supplemental rules governing the procedures in particular typesof admiralty cases were appended to the new unified rules.10

Thus, the separate character of admiralty law, both substantively andprocedurally, has been fostered historically and is largely preserved inmodern practice.

II. SOME COMPARISONS OF ADMIRALTY LAW AND COMMON LAW

A. Comparative Fault

Assume the following situations:

(1) Your automobile, being operated negligently upon a highway, is struckby a truck, also being driven in a negligent manner by its owner.

(2) Your steam vessel, being operated negligently in a navigable channel,is struck by a tugboat, also being operated in a negligent manner by itsmaster.

In each situation, you seek to recover money damages from the other party,whose negligence was indisputably the primary cause of the particularcollision. How does your own negligence affect your case? The answer, atleast until recently, was quite different in the common law case, situation(l), compared to the result in the admiralty case, situation (2).

Under the common law doctrine of contributory negligence, first announcedin England in 180911 and adopted in the United States shortly thereafter,12 anynegligence of the plaintiff which contributed to the occurrence will be acomplete bar to the plaintiff’s recovery. This result occurs even though theplaintiff’s negligence is slight compared to that of the defendant.

Admiralty law has never followed the common law doctrine of contributorynegligence. For centuries, admiralty followed a “Rule of Divided Damages”which required that property damage be divided equally whenever both parties

8 Order of February 28, 1966, 383 U.S. 1031.9 Fed. R. Civ. P. 38(e).

10 Fed. R. Civ. P. Supplemental Rules for Certain Admiralty and MaritimeClaims.

11 Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (1809).12 Smith v. Smith, 19 Mass. (2 Pick.) 621 (1824), is regarded as the

first American case. W. Presser, The Law of Torts 416 n. 1 (4th ed. 1971); 57Am. Jur. 2d Negligence § 290 (1971).

4

contributed by their fault to the collision, regardless of the relative degreeof each party’s fault. This rule traces back to Article XIV of the Rules ofOleron, a medieval maritime code promulgated in about 1150 A.D.13

The rule,adopted in the United States in the case The Schooner CATHERINE v. Dickinson,14

was grounded in the notion that equal division of damages was “just andequitable, and . . , best [tended] to induce care and vigilance on both sides,in the navigation.”15

In 1974, in the case of United States v. Reliable Transfer Co.,16 theSupreme Court agreed with numerous commentators that the Rule of DividedDamages was “illogical, arbitrary, archaic and frequently unjust.”17 Notingthat virtually all maritime nations applied a “Rule of Proportional Damages”the court adopted such a rule:

“We hold that when two or more parties have contributed bytheir fault to cause property damage in a maritimecollision or stranding, liability for such damage is to beallocated among the parties proportionately to thecomparative degree of their fault...”18

This rule has been extended to all cases of property damage andpersonal injury arising from every kind of admiralty incident.

Interestingly, many, although not all, states have abandoned the commonlaw doctrine of contributory negligence, recognizing its harshness, in favorof a system of comparative fault. In those jurisdictions, therefore, theresults in the two aforementioned situations might now be quite similar.

B. The Maritime Lien19

There are a few instances at common law in which a person may acquire aright to retain an article in his possession and look to the article forpayment of a fee or other charge. For example, a warehouseman who storesgoods may retain the goods until the storage charge is paid, and if the chargeis not paid he may sell the goods to satisfy his claim. In order to exercisehis lien, however, the warehouseman must have possession of the goods. If hesurrenders possession, he loses his common law lien.

13 1 Benedict, supra note 2, § 6.14 58 U.S. 170 (1854).15 Id., at 177-78.16 421 U.S. 397 (1974).17 Id., at 404.l8 Id., at 411.19 See Gilmore & Black, supra note 4, Ch. IX.

5

The maritime lien is quite different and gives extensive and flexiblerights. This is because admiralty law looks upon a ship as a legal personwith definite and personal needs. It requires food, servants, equipment,and many things to enable it to carry out the purpose for which it wascreated-- navigation.

Generally speaking, to all who assist it, the ship itself may becomeliable-- liable in rem (that is, the thing is liable, as distinguished fromthe liability of the owner or of some other person) --for services they haverendered. Thus, those who furnish it with supplies, fuel, towage, and manyother things have a lien against the ship itself for their compensation. Theymay hold the ship and even sell it to satisfy their claims.

Unlike the common law lien, the maritime lien is not dependent upon thelienor’s possession. The lien follows the ship wherever it goes or intowhosoever’s possession it may come --even into the hands of a bona fidepurchaser. A maritime lien may be divested only by sale under a decree of anadmiralty court in a proceeding against the ship itself--that is, in aproceeding in rem.

When questions of priority within classes of lien holders arise, the lienstake priority in the inverse order in which they were incurred. The theorybehind this rule is that what was last done for the benefit of the ship wasfor the benefit of all concerned, including the holders of earlier liens. Sothe latest lien will defeat prior liens when the liens are in competition witheach other.

There is another reason for the peculiarities of the maritime lien. Aship by its very nature travels about and often finds itself in strange placesand in need of assistance. It is a great help to the ship in securing itsneeds if the supplier knows he will acquire a lien which he will not lose whenthe ship departs and which will take precedence over other liens with whichthe ship may have been previously encumbered.

C. Salvage

The law of maritime salvage is another instance in which there isdivergence between admiralty law and common law.

If your neighbor’s house catches fire and you voluntarily go to therescue, and spend great effort and incur grave personal risk in saving hisproperty and extinguishing the fire, he is under no legal obligation to payfor your services. The Good Samaritan acquires no rights at common law.

The law of admiralty has a different concept. If a ship breaks down atsea or catches on fire, a volunteer who tows the ship to port or extinguishesthe fire is entitled to a reward for his successful salvage services. Asalvor acquires a lien upon the ship to the extent an admiralty court decidesis appropriate for the services rendered.

6

For purposes of determining an appropriate salvage award, the court willevaluate these six elements: the degree of danger from which the property isrescued, the value of the property salved, the risk incurred by the salvers,the salver’s promptitude and skill, the value of the property employed by thesalvers and the danger to which such property was exposed, and the time andlabor expended by the salvers in effecting the rescue.20

Of these sixelements, the most important (and the one engendering the most lawyer debateand judicial discussion) is the value of the property salved, measured as ofthe completion of the salvage. For a ship, this is ordinarily accomplished byestimating the vessel’s sound value (i.e., its value before the collision orother occurrence resulting in the damage) and then deducting from that amountthe cost of necessary repairs.

Because the judge’s determination of the award is highly subjective, theaward in any one case has only limited precedential value for future cases.One respected admiralty text draws this succinct conclusion regarding salvageawards: “Eventually, the trial judge will pull an arbitrary figure out of theair.”21 However, a survey of 25 salvage awards reported in the AmericanMaritime Cases Table of Salvage Awards between 1963 and 1982 revealed thefollowing statistics: the high award was 50 percent of the value of the salvedvessel; the low award was less than 1 percent; the average award was 11.9percent; the median (13th) award was 6.2 percent; and the majority of theawards fell in the range between 1.2 percent and 14 percent.

Salvage awards are categorized as “high order,” “medium order,” and “loworder,” based primarily on the dangers faced by and the skill and ingenuityrequired of the salvage crew in effecting the rescue.22 As might be expected,a judge would tend to be more generous in “high order” cases, and more parsimo-nious in “low order” cases. The 50 percent award referred to above was the“high order” salvage of the Coast Guard vessel INVINCIBLE, then “entirelyimpotent” and “in extreme peril” off the Oregon Coast after being struck by asneak wave during violent weather. The salving vessel was the small fishingboat BARBARA ANN, which left its safe position and proceeded to INVINCIBLE torender aid. The heroic efforts of BARBARA ANN enabled the larger Coast Guardvessel to hang on until additional assistance arrived. Unfortunately, theexceptionally heavy sea caused the loss of BARBARA ANN and two of its crewduring the salvage process. Under these circumstances, it is not at allsurprising that a generous award would be made to the owner of BARBARA ANN,the estates of its two deceased crewmembers, and the one surviving member ofits crew.23

20 The BLACKWALL, 77 U.S. 1 (1896).21 Gilmore & Black, supra note 4, at 563.22 Id., §§ 8-9, 8-10.23 BARBARA LEE-INVINCIBLE, 229 F. Supp. 241 (D. Ore. 1963).

7

In contrast, the “low order” salvage cases are characterized by "thesimplicity of the operation, its short duration, the relative ease ofaccomplishment, and the minimal risk to both the salved and the salvingvessels."24

In Vernicos, the USS ALTAIR (AKS-32) and USS MERCURY (AKS-20),nested together in St. George’s Bay, Piraeus, Greece, broke free from the quayduring “a sudden and violent squall.” The vessels radioed for assistance andchecked their drift by use of their anchors. The Vernicos salvage tugs arrivedabout an hour after the storm had passed and, in calm weather, returned thenaval vessels to their berth. The salvage award was less than 1 percent of thevalue of the salved vessels.

The law of maritime salvage is not limited to the salvage of a ship indistress, but may apply in any case of the rescue of another’s property fromperil at sea. Thus, the Navy has paid awards for claims made for the salvageof a seaborne powered target, a torpedo, and a communications buoy. In onerecent case, an award of $400,000 was paid to the owners and crew of a Frenchmerchant vessel on which a disabled Navy helicopter made an emergency landingat sea. The helicopter could not have made it back to its ship; but for thefortuitous presence of the merchant vessel, the helicopter would have beenlost at sea. Aircraft in peril at sea are considered to be maritime objectssubject to the law of salvage.25 The Navy’s award represented about 5 percentof the value of the helicopter.

Finally, it should be noted that only successful salvage is entitled to asalvage award. If the vessel or other property is not saved, there can be noreward, regardless of the heroic efforts of those who attempted the salvage.Furthermore, in accordance with longstanding tradition, there is no rewardwhen the only thing salved is human life; however, a salver of life isentitled to an award from the value of any property concurrently salved.

The law of salvage is a by-product of the unwritten law of the sea whichrequired that assistance be rendered to those in distress. Life at sea isstill dangerous and a ship in distress desperately needs assistance fromothers. The property in peril is usually of substantial value and human livesoften are involved. It is well, therefore, that the unwritten law of the seaexists and that assistance will be prompted by the fact that a salver has alegal right of compensation as well as a moral duty to respond.

D. General Average26

The doctrine of general average in maritime law has no counterpart atcommon law. As previously mentioned, it derives from the ancient Rhodian lawof jettison.

24 Vernicos Shipping Co. v. United States, 223 F. Supp. 116 (S.D.N.Y.1963).

25 Lambros Seaplane Base v. M/S BATORY, 215 F.2d 228 (2d Cir. 1954).26 See Gilmore & Black, supra note 4, Ch. V.

8

This doctrine is based upon the concept that a ship’s voyage is a jointventure among the various participating interests, vessel and cargo, who placeproperty “at risk” in undertaking the voyage. The vessel interest is thevalue of the vessel itself and the value of any “freight” (i.e., the compensa-tion which the vessel owner is to receive for carrying the cargo) due at theconclusion of the voyage; during the voyage, these properties are “at risk”because of the perils and uncertainty attending sea travel. The cargointerest is the value of the cargo being carried; it, too, is “at risk” duringthe voyage. Of course, since there may be many merchants shipping cargo on asingle vessel, the voyage may have more than one cargo interest.

A general average situation arises when the property at risk in a voyagecomes into a position of peril, and a consequent voluntary sacrifice of aportion of that property is made for the purpose of preserving the remainderfrom the peril. Typically, such a situation arises when a vessel masterorders that some cargo be jettisoned to save the ship and the remaining cargo,or that a portion of the vessel be damaged in order to save the rest, or both.

In these cases, the law allows the value of the abandoned cargo, togetherwith any other expenses incurred in saving the vessel, to be subject togeneral average. Each of the interests involved in the voyage will contributeto the cargo loss and other expenses in the proportion which the value of hisinterest bears to the total amount of the loss. Thus, no single interest isallowed to succeed at the expense of any other; the merchant whose cargoarrived unscathed will pay a sum to the owner and merchants whose vessel andcargo were sacrificed so the voyage could be completed.

E. Limitation of Liability27

Still another unusual provision of admiralty law is the one under which ashipowner may, in certain situations, limit his liability against claims tothe value of his ship immediately after the accident.

There are, of course, certain circumstances at common law in which aperson’s liability is limited. The liability of a stockholder in mostcorporations is limited to the extent of his holdings, and the liability of abankrupt person is limited to the value of his assets. But the common lawgenerally is wary of permitting persons to insulate themselves from liabilityfor their acts.

27 See Id. Ch. X.

9

The rule permitting limitation of the shipowner’s liability in admiraltycame about in the United States by statute passed in 1851.28 The doctrine hadbeen a part of the admiralty law of most maritime nations for many years beforethat date. The incentive which prompted the legislation was the desire by theUnited States to encourage the investment of capital in shipping enterprises.

It was urged in support of this legislation that a shipowner cannotcontrol his vessel to the same degree that the owner of a factory ashore cancontrol his plant.

“[B]ecause of the extraordinary hazards of seabornecommerce and because the owner can exercise only nominalcontrol over his ‘servants’ once the ship has broken groundfor the voyage, the owner should be entitled to exonerationfrom liability, or at least to a limitation of liability,for whatever happens after the ship has passed beyond hiseffective control. Contrariwise, he should be held toliability for all loss from his failure to exerciseeffective control when he had the chance.”29

Therefore, if a shipowner was not “in privity” with the act causing theloss, damage or injury, the owner could, in good conscience, limit hisliability to the value of the vessel immediately after the accident, eventhough this value may be only scrap value,’30 or the value of a singlelifeboat,31 or nothing at all.32

Such was the law for several years until the MORRO CASTLE disaster.

The MORRO CASTLE, a passenger ship, caught fire while bound from Havana toNew York. She was beached on the New Jersey coast. One hundred and thirty-five lives were lost and serious injuries were sustained by many of thesurvivors.

The ship had been completely gutted by fire and had only scrap value. Theshipowner could, of course, limit his liability to that value. The conse-quence was that those who suffered serious injury and the next of kin of thedead received practically no compensation.

28 Limitation of Shipowner’s Liability Act, 46 U.S.C. §§ 181-196 (1982).29 Gilmore & Black, supra note 4, § 10-20.30 For example, a badly damaged vessel thrown onto the beach during a

storm may have only scrap value.31 This was the situation in the American limitation proceeding which

followed the stranding and sinking of the oil tanker TORREY CANYON off thesouthwest coast of England; the value of the lone salvaged lifeboat was $50.In re Barracuda Tanker Corp., 281 F. Supp. 228 (S.D.N.Y. 1968).

32 For example, when the ship sinks and nothing is salvaged.

10

The unfairness of this situation led Congress, in 1935, to amend the lawso as to require, in those cases where the ship’s value after the accident wasinsufficient to care for all claims and the fund portion available for payingpersonal injury and death losses was less than $60 per ton for that ship’stonnage, that the personal injury/death portion of the limitation fund beincreased by a sum equal to $60 per ton --this additional amount to be availablesolely for distribution to death and personal injury claimants.33

It should benoted that a limitation fund established or supplemented as a consequence ofthis statute does not benefit claimants seeking recovery for property damage.

In 1984 the statute was again amended, this time increasing the limitationfund sum for death and personal injury claimants to $420 per ton,34 Thetonnage to be used in all cases is the gross tonnage of a motor vessel or theregistered tonnage of a sailing vessel.

III. ADMIRALTY JURISDICTION IN THE UNITED STATES

A. Generally

The term “jurisdiction” may be defined as the power of a court to hear anddecide a particular case or class of cases. Most of the cases that arise inadmiralty concern disputes involving maritime contracts or allegations ofadmiralty torts (a “tort” is a civil wrong, independent of contract, for whichthe victim may be entitled to money damages or other relief), and the power todecide these cases is spread among federal and state courts.

As mentioned earlier, in Article III of the United States Constitution itis specified that the federal judicial power includes the power to decideadmiralty cases. Therefore, any case which truly arises “in admiralty” may bebrought for decision to an appropriate United States District Court.35

However, federal jurisdiction is not exclusive in admiralty matters, and sometypes of admiralty cases may be brought in state courts.

Two types of suits exist in admiralty: an action in personam and anaction in rem. The action in rem, previously discussed in the section on themaritime lien, is a suit brought against the ship itself. In the UnitedStates, all actions in rem must be brought in an appropriate United StatesDistrict Court; there is no option to bring such a suit in a state court.36

33 49 Stat. 960 (1935).34 46 U.S.C. § 183(b) (Supp. II 1984).35 28 U.S.C. § 1333 (1982).36 The MOSES TAYLOR, 71 U.S. (4 Wall.) 411 (1867); The HINE v. Trevort 71

U.S. (4 Wall.) 555 (1867).

11

An action in personam is one brought against a named natural person orcorporation. An action in personam which arises in a maritime setting may bebrought in an appropriate United States District Court as an admiralty action.Alternatively, the plaintiff may elect to bring the case in an appropriatefederal court as an ordinary, non-admiralty, civil action (if other require-ments for obtaining federal jurisdiction over the matter are satisfied), or inan appropriate state court as an ordinary civil actions.37 However, certainadmiralty actions in personam may be limited by statute to a particular court;for example, an admiralty suit against the United States must be brought onlyin a United States District Court.38

B. Cases: Maritime Contracts

Admiralty jurisdiction includes cases arising from contracts of a maritimecharacter. No precise definition has been formulated for the term “of amaritime character.” Generally, any contract to provide goods and servicesdirectly to a vessel for the purpose of furthering the vessel’s navigation andoperation is considered maritime in character; thus, the seaman’s contract ofemployment is maritime, as is a contract to insure, tow, pilot, load or unloada vessel. Other common maritime contracts are ocean bills of lading, charterparties (contracts to lease vessels), and ship repair contracts.39

Interestingly, a contract to build a ship is not considered maritime.40

This longstanding principle was grounded in the idea that a vessel did notcome into existence until its launching; accordingly, anything occurringbefore the vessel’s launching was not properly “in admiralty.”41

C. Cases: Admiralty Torts

The traditional American Rule for determining which torts were “admiraltytorts” was one of locality: if the wrong complained of occurred upon navigablewaters, the tort was within the admiralty jurisdiction.42 For most of the tortcases brought before the admiralty side of the federal courts (seaman’s

37 Madruga v. Superior Court of San Diego County, California, 346 U.S.556 (1954).

38 Suits in Admiralty Act, 46 U.S.C. §§ 741-752 (1982).39 Gilmore & Black, supra note 4, § 1-10.40 Northern Pacific Steamship Co. v. Hall Brothers Co., 249 U.S. 119

(1919).41 “A ship is born when she is launched, and lives so long as her

identity is preserved. Prior to her launching she is a mere congeries of woodand iron--an ordinary piece of personal property--as distinctly a landstructure as a house... In the baptism of launching she receives her name, andfrom the moment her keel touches the water she is transformed, and becomes asubject of admiralty jurisdiction.” Tucker v. Alexandroff, 183 U.S. 424, 438(1901).

42 The PLYMOUTH, 70 U.S. 20 (1866).

12

injuries, passenger and other visitor injuries, and ship collisions), there wasno doubt that the cases were properly and logically admiralty matters.However, carrying the locality rule to its logical extreme, an assault (anintentional tort) by one swimmer on another swimmer in a navigable lake orriver was cognizable in admiralty, notwithstanding that the tort had noconnection whatsoever to the navigation of vessels or the business of carryinggoods and passengers over water.

The American Rule was modified in the case of Executive Jet Aviation, Inc.v. City of Cleveland, Ohio.43 In that case, a small jet taking off from BurkeLakefront Airport in Cleveland, bound for Portland, Maine, struck a flock ofseagulls, causing the plane to crash into the navigable waters of Lake Erie.The company sought damages for the loss of the airplane from the owner/operatorof the airport and certain persons employed there. Rejecting a pure localitytest, the Supreme Court decided there was no admiralty jurisdiction by applyinga test of locality plus a maritime nexus:

“[T]he mere fact that the alleged wrong ‘occurs’ or ‘islocated’ on or over navigable waters. . . is not of itselfsufficient. . . It is. . . require[d] also that the wrongbear a significant relationship to traditional maritimeactivity.” 44

While a transoceanic passenger flight arguably bears a significant relationshipto traditional maritime activity because it performs afunction traditionally accomplished by a ship, a flight between two points inthe continental United States does not demonstrate this linkage; thus, thecase was dismissed.

In a subsequent case, the court ruled that the phrase “traditionalmaritime activity” was not restricted to maritime commerce, and sustainedadmiralty jurisdiction over a tort lawsuit arising from the collision of twopleasure boats on a navigable river in Louisiana.45

Another thorny problem with determining which torts were within admiraltywas addressed by Congress with the passage of the Admiralty JurisdictionExtension Act.46 This statute extended admiralty jurisdiction to situations inwhich a tort is caused by a vessel on navigable waters but the damage or injuryis consummated on land; examples would include a heaving line being negligentlythrown from a vessel to a quay and striking a bystander or the windshield of acar, and a vessel negligently alliding with a wharf or pier (traditionallyviewed as an extension of the land).

43 409 U.S. 249 (1972).44 Id. at 268.45 Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982).46 46 U.S.C. § 740 (1982).

13

IV. ADMIRALTY SUITS BY OR AGAINST THE UNITED STATES

There has never been any difficulty about the Government bringing suitagainst others in admiralty matters; however, at one time private persons hadno legal remedy against the United States for damages caused by Governmentvessels.

This was the result of the doctrine of sovereign immunity which the UnitedStates inherited from Great Britain. Under this doctrine “the King can do nowrong.” As the Government had not given its consent to be sued in admiraltycases, the natural consequence of this lack of a judicial remedy was thatCongress was burdened with numerous bills for the relief of private personswho had been injured by the negligent operation of Government vessels.

In 1920 Congress passed the Suits in Admiralty Act,47 which provided that,while Government merchant vessels would be exempt from seizure or arrest, anaction in personam could be filed against the Government for any case in whicha like proceeding in admiralty could be maintained if the Government vesselwere, instead, privately owned.

The Suits in Admiralty Act covered only merchant vessels of the UnitedStates and there was still no waiver of sovereign immunity with respect topublic vessels. All naval vessels are public vessels of the United States.

The Act which governs suits against the United States for damage caused byits public vessels is the Public Vessels Act.48 This 1925 statute permits anaction in personam to be brought in admiralty against the United States fordamages caused by public vessels. Like Government merchant vessels, publicvessels of the United States are exempt from seizure or arrest.

The net result is that Government vessels of all kinds, public andmerchant, are now subject to similar liabilities as commercial vessels, withthe exception that arrest, seizure, or the existence of a maritime lienagainst a Government vessel is not allowed. The personal credit of the UnitedStates is substituted for the security which arrest or a lien affords.

v. ADMINISTRATIVE SETTLEMENT OF ADMIRALTY CLAIMS

While the Public Vessels Act allowed suit against the Government fordamages caused by a naval vessel, it made no provision to enable the Depart-ment of the Navy to settle these cases administratively,

47 46 U.S.C. §§ 741-752 (1982).48 46 U.S.C. §§ 781-790 (1982).

14

Prior to 1944, the Navy had a very restricted authority to settleadmiralty claims administratively. Settlement could be accomplished only ifthe claim did not exceed $3,000. This was useless in settling anything otherthan very minor claims. Hence, most of the Navy’s admiralty business wasplaced into litigation where it was either settled by the Department ofJustice or actually tried in the federal courts.

The great increase of naval activity in World War II, with the resultantincrease of admiralty business, induced Congress in 1944 to authorize theSecretary of the Navy to settle admiralty claims against the United States inamounts up to and including $1,000,000.49

The Secretary was grantedcorresponding authority to settle the Government’s claims for damage to navalproperty caused by vessels or floating objects.5O

The authority and procedures for the administrative settlement ofadmiralty claims are discussed in detail in Parts C and D (§§ 1212-1224) of theNavy Manual of the Judge Advocate General, Chapter XII, which follows thisarticle in the course book.

The remainder of this article presents a brief discussion of the substan-tive law which is applied by the adjudicating attorney (or by the trial judge)in evaluating an admiralty claim (or in deciding a lawsuit).

VI. PERSONAL INJURY CLAIMS

A. Proper Claimants

Under the Public Vessels Act, the United States may be held liable for“damages caused by a public vessel of the United States.”51 Early casesinterpreting that phrase concluded that relief was appropriate only in thosecases involving property damage. However, in American Stevedores, Inc v.Porello, 52 the Supreme Court decided conclusively that, under the Act, theUnited States could be held liable for personal injuries occurring on publicvessels.

Of course, a wide variety of persons may suffer injuries while onboard anaval vessel, and not every such victim is entitled to relief under the PublicVessels Act. As far back as 1928, a Federal Appeals Court reasoned that thesystem of benefits provided by the Government indicated a congressional intentnot to permit suits by naval personnel for death or injuries sustained on a

49 58 Stat. 726 (1944); the current codification of this authority isfound at 10 U.S.C. § 7622 (1982).

50 59 Stat. 596 (1945); the current codification of this authority isfound at 10 U.S.C. § 7623 (1982).

51 46 U.S.C. § 781 (1982).52 330 U.S. 446 (1947).

15

public vessel.53 Under the well-known doctrine of Feres v. United States,54

the United States may not be held liable for injuries to servicemembers whichoccur incident to their service. This doctrine has been extended to casesarising in admiralty under the Public Vessels Act.55 Because the payment of anadministrative claim is permitted only in cases in which the legal liability ofthe United States would be the probable outcome of litigation, this doctrinebars payment of administrative claims seeking money damages for injuriessustained by servicemembers incident to service on naval vessels.

Similarly, civil service officers and seamen who man Military SealiftCommand (MSC) vessels cannot maintain suit against the United States forpersonal injuries suffered thereon. These persons are, of course, employeesof the United States, and as such are limited to the benefits and remediesprescribed in the Federal Employees Compensation Act.56 Their rights,therefore, are substantially different from the merchant seamen who man MSCvessels operated by private contractors pursuant to contracts with MSC. Theseindividuals enjoy the usual rights of merchant seamen in case of injury orillness, including the right to bring suit against their employer for wages,maintenance and cure, and compensation for personal injury, Although theUnited States is not the direct employer of these individuals, it has beendetermined that the United States, as shipowner, is a proper defendant in sucha personal injury actions.57

Generally, the injured party in the admiralty claims adjudicated by theNavy will fit into one of two broad categories: “shoreworker” (a persononboard the naval vessel to accomplish work pursuant to a contract between theNavy and a civilian firm) and “ship’s visitor” (a person onboard the navalvessel for any other reason, including general visitors, special tour guests,salesmen, and individual crewmember guests).

B. Visitor Injury Cases

Liability of the United States in a visitor injury case occurs when theGovernment fails in its duty, as a shipowner, to exercise reasonable care toprovide for the safety of the visitor.58 Application of the Kermarec standardto Navy ships has been judicially recognized.59 An identical standard isexplicitly set forth in Article 0714(3), United States Navy Regulations, 1973,

53 S 51 - CITY OF ROME, 27 F.2d 807 (2nd Cir. 1928).54 340 Us. 135 (1950).55 Charland v. United States, 615 F.2d 508 (9th Cir, 1980);

Beaucoudray v. United States, 490 F.2d 86 (5th Cir. 1974),56 5 U.S.C. §§ 8101-8150 (1982); Johansen v. United States, 343 U.S. 427

(1952).57 ELNA II - MISSION SAN FRANCISCO, 289 F.2d 237 (3d Cir. 1966).58 Kermarec v. Compagnie Generale Transatlantique, 385 U.S. 625 (1959).59 Cobb v. United States, 1979 A.M.C. 1375 (M.D. Fla. 1979);

Sherman v. United States, 283 F. Supp. 269 (E.D. Wise. 1968).

16

which requires “. . . reasonable care to protect the persons and property ofvisitors.” The following cases provide examples of how the United States,through the actions or inaction of naval personnel, breached this duty and,accordingly, paid damages to the injured victims:

(1) The aft brow of USS STARK (FFG 31) collapsed during public visitinghours in Chicago, causing serious injuries to two elderly women who were onthe brow at the time of its collapse. Crewmembers on USS STARK had beennegligent in utilizing an undersized platform on which to rest the piersideend of the brow, in failing to rig safety chains or some other apparatus thatmight have prevented the collapse, and in failing to inspect the aft brow forsusceptibility to collapse when the forward brow (which was mounted on aplatform twice as large) was noted to be in danger of rolling off its platformshortly before the aft brow rolled off its platform. A total of $200,900 waspaid to the two claimants in settlement of their claims.

(2) An elderly gentleman, attending a change of command ceremony onboardUSS RANGER (CV 61), tripped at an uneven place in the deck (a lip ranging from2 to 3 3/4 inches at the aircraft elevator number one door well). He fell,struck his face on the nonskid deck, and sustained serious facial injuries.Crewmembers were negligent in failing to correct the uneven deck at theaircraft elevator number one door well. Alternatively, if the condition wasnot correctable, they were negligent in failing to erect a rope barrier or tomark the hazard with yellow caution stripes or other peculiar markings so thelip in the deck would not blend in with the rest of the dark gray deck. TheNavy paid the claim for the victim’s medical expenses.

(3) The mother of a USS AMERICA (CV 66) crewmember was visiting thevessel after sunset. From the end of the brow it was necessary to step downon two steps and a pallet before arriving on deck. Unlike the brow itself,there was no handrail alongside these final steps to assist the visitor.Furthermore, there were no signs warning of the descending steps, no assis-tance was offered to the victim by personnel on watch at the quarterdeck, andthe quarterdeck area was lighted with only a single 20-watt light (normallighting of the brow and quarterdeck was burned out or not yet installed).Not surprisingly, the victim misstepped from the brow and fell, breaking herankle. Ship’s personnel had not exercised reasonable care for her safety, andthe United States paid $15,000 in settlement of her claim.

(4) A salesman visiting USS EISENHOWER (CVN 69) slipped and fell in apassageway while being escorted to a supply office. One side of the passage-way deck was being stripped of wax at the time, and, because of a slight listby the ship, some rivulets of stripper ran over onto the otherwise dry side ofthe passageway. The escorting petty officer gave a general warning to “watchyour step” as he preceded the salesman through the passageway, but thesalesman slipped on the rivulets of stripper. The crewmembers were negligent

17

in allowing the “dry” side of the passageway to become dotted with rivulets ofthe very slick stripper, and in failing to provide a warning which would beadequate to alert the salesman to the nature and extent of the hazard. TheGovernment paid a judgment of over $14,000.60

While a duty is imposed to exercise reasonable care, a shipowner is not aninsurer of the safety of visitors.61 A shipowner will not be held liable forunforeseeable injuries; accordingly, the United States was held not liable inCobb62 (a guest onboard USS MEREDITH (DD 890) was injured when the ship, thenunderway, was struck by an unforeseen “freak wave”) and Sherman63 (an 11-yearold boy was pushed out of a gun tub by another boy during public visitingonboard USS PORTAGE (PCE 902)).

Furthermore, a shipowner does not guarantee an accident-free ship.64

Indeed, any shipowner, including the United States, knows that a vessel will,of necessity, have appurtenances, protuberances and structural conditionswhich may be hazardous to visitors unfamiliar with them. In determiningwhether the United States has breached its duty of reasonable care when avisitor suffers an injury as a result of a shipboard condition, a court willexamine the nature of the particular hazard (is it “open and obvious” or is ithidden from view) and the nature and extent of warnings given or othermeasures taken in an attempt to negate the potential for harm. As a generalrule, the more “open and obvious” a hazard is, the less a duty is placed onthe shipowner to warn of the hazard and undertake steps to mollify it.

In Esau v. United States,” the plaintiff fell after stepping into a 1.5-inch deep, 12-inch wide scupper running adjacent to the deck plating of USSCHICAGO (CG 11). The court noted that the condition should have been obviousas it existed along a topside deck during daylight hours, even though it wasnot painted a contrasting color from the rest of the deck. Furthermore, theship had taken the following precautions to ensure the safety of “Visitor’sDay” guests: posted warning signs to “Watch your step” and “watch your head”in a number of places throughout the tour route, verbally instructed visitorsat the outset of the tour to exercise care and caution in walking about theship, and stationed crewmembers throughout the tour route to act as guides andto correct any hazardous conditions brought to their attention. The courtdecided the United States had not breached any duty to the plaintiff, anddismissed her suit. Likewise, in Owens v. United States, 66 the court deniedrecovery to a plaintiff who injured himself when leaping from the USS BRUNSWICK(ATS 3) accommodation ladder into the well of the ship’s motor whale boat,

60 Diaz v. United States, 655 F.Supp. 411 (E.D. Va. 1987).61 Marshall v. Westfall-Larsen Corp., 259 F.2d 575 (9th Cir. 1958).62 Supra note 59.63 Id.64 Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960).65 1979 A.M.C. 736 (S.D. Cal. 1978).66 Civ. No. 82-0247 (D. Hawaii Mar. 29, 1984).

18

instead of utilizing the available services of three sailors then stationed onthe gunwale of the motor whale boat to assist visitors in descending the ladderand boarding the boat.

C. Shoreworker Injury Cases

In a general sense, the United States, as a shipowner, owes theshoreworker the same duty of reasonable care to provide for his or her safetyas is owed to any visitor to the vessel. Traditional common law distinctionsbetween business invitees and other guests were expressly rejected by theSupreme Court in Kermarec. 67 Notwithstanding this, courts have attempted todefine with particularity the duty of a vessel owner to the employees of anindependent contractor hired to perform work aboard the vessel, althoughcommentators may differ on whether the more particular standards are clearerthan the general standard of reasonable care applicable in ship’s visitorcases not involving shoreworkers.

As an initial matter, shoreworkers have available to them the benefitsprovided pursuant to the Longshore and Harbor Workers’ Compensation Act.68

Under this statute, any firm whose employees are employed, in whole or in part,upon the navigable waters of the United States or on any pier, wharf, terminalor other adjoining area customarily used for loading, unloading, building orrepairing a vessel, is obligated to maintain workmen’s compensation coverage inspecified amounts for its employees.69 If an employee is then injured (orkilled) in a work related accident, the compensation program is the exclusiveremedy of that employee vis a vis his or her employer;70 the firm is immunefrom suit, even if the employer’s negligence, or the negligence of some fellowemployee of the same firm, caused the employee’s injury (or death). However,as against the owner of the vessel on which the employee was working at thetime of the accident, the employee may recover if he or she can demonstratethat negligence attributable to the vessel was a proximate cause of theaccident.”

The Supreme Court set forth the duty of a vessel owner to a shoreworker inScindia Steam Navigation Company, Ltd. v. De Los Santos.72 As a startingpoint, the duty of exercising reasonable care toward shoreworkers entailshaving the ship and its equipment in such condition that the experiencedshoreworker will be able to come aboard and conduct his or her work withreasonable safety to persons and property.73 If there are hazards onboard theship which are known to the vessel owner or crew, or which should be known to

67 358 U.S. at 630-32.68 33 U.S.C. §§ 901-948a (Supp. II 1984).69 33 U.S.C, § 904 (Supp. II 1984).70 33 U.S.C. § 905(a) (Supp. II 1984).71 33 U.S.C. § 905(b) (Supp. II 1984).72 451 U.S. 156 (1981).73 Id, at 167.

19

them in the exercise of reasonable care, and which are likely to be encounteredby the shoreworker, then the vessel owner has the obligation to warn theshoreworker of the hazard.74 Again, as with other ship visitor cases, if theshipboard hazard would be open and obvious to a reasonably competentshoreworker, there is no duty to warn. If a vessel owner fails in this “dutyto provide a reasonably safe working place,” the owner is liable to theshoreworker for resulting injury (or death). Thus, the United States paid theclaim of a shoreworker injured in a fall down a steep ladder leading into thefireroom of USS GUADALCANAL (LPH 7), where the worker was engaged in shiprepairs. Near the top of the ladder, crewmembers were cleaning a deck withsoapy water, through which the worker walked before beginning to descend theladder. The presence of soapy water on the deck in a well-lighted spacearguably would constitute an open and obvious hazard about which there is noduty to warn and against which the competent shoreworker should takeprecautions, and were that the only alleged negligence recovery might havebeen denied. However, other crewmembers had been working on the ladder andhad cleaned and left bare every other tread of the ladder in anticipation ofthe application of new nonskid pads. Unfortunately, the new nonskid pads hadnot yet been applied and no warnings were posted of this unquestionablyhazardous condition, which was a proximate cause of the claimant’s injuries.

As a general rule, the vessel owner has no obligation to supervise andinspect the shoreworker’s activities for the purpose of discovering dangerousconditions which may develop as a result of those activities. Once theshoreworker is in control of the work space or equipment, the shipowner isentitled to rely on the shoreworker’s expertise and duty to care for himselfor herself, and if an accident occurs, the shipowner ought not be heldliable.75 Of course, the vessel owner could, pursuant to contract provisions,undertake a duty to supervise and inspect shoreworker activities, but thiswould be unusual as it would markedly increase the shipowner’s liabiiityexposure. Similarly, the vessel owner’s liabiiity exposure will be increasedif the owner or crewmembers exercise “active involvement and control” over theindependent contractor operations; that is, control over the operative detailand actual methods of work used by the shoreworker, regardless of whether suchcontrol is permitted under the terms of the contract.76 The United Statesfrequently reserves the right to approve the quality of a contractor’sworkmanship in competing each item of the contract before accepting that itemas conforming to the contract specifications. However, the mere reservationof a right to inspect and approve the work of an independent contractor doesnot subject the United States to the markediy increased liability exposurementioned above.77

74 Id.75 Id. at 172.76 Taylor v. Moram Agencies, 739 F.2d 1384 (9th Cir. 1984);

Cowsert v. Crowley Maritime Corp., 680 P.2d 46 (Wash. 1984).77 West v. United States, 361 U.S. 118 (1959); Williams v. Fenix &

Scisson, Inc., 608 F.2d 1205 (9th Cir. 1979).

20

The Supreme Court in Scindia did create one exception to the general rulethat a shipowner has no duty to intervene in a shoreworker’s operations: ifthe owner has actual knowledge of a dangerous condition, and knows that theshoreworker is continuing to work despite the unreasonable risk of harmpresented, and cannot reasonably expect that contractor personnel will remedythe situation, then a duty to intervene arises.78

Thus, the Navy paid theclaim of a shoreworker who was injured in an explosion onboard USS JUNEAU (LPD10). The claimant, a welder, and the ship’s force firewatch assigned to theclaimant reported that a temporary exhaust blower in the vicinity of thewelding operation was not effectively removing smoke and fumes generated by thehotwork. A “safe for hotwork” certificate had been posted in the space wherethe welding operation was ongoing; however, the certificate was a number ofdays old and no inspection had been conducted by the contractor’s gas freeengineers during the intervening period between the date of the certificate andthe date of the explosion, despite a contractual obligation to conduct suchinspections. All of these facts were known to members of the ship’s crew.Under these circumstances, where a hazardous condition existed and continuationof work was obviously improvident, the Navy, as the shipowner, had a duty tointervene. Failing in that duty, the Government was liable to the claimant.

In summary, Government liability in shoreworker injury cases may arisewhen the Government breaches the duty of reasonable care it owes to theshoreworker (1) by failing to provide a reasonably safe place to work, (2) byfailing to intervene in shoreworker activities once a dangerous situation ismade known to the shipowner (and other conditions necessary to create a dutyto intervene are present), or (3) by failing to inspect and discover hazardoussituations if a duty of inspection and supervision exists because of contractprovisions or active involvement and control in the contractor’s operations.

VII. PROPERTY DAMAGE: ALLISION CLAIMS

Perhaps the most common property damage claim in admiralty is the allisionclaim. An allision occurs when a moving vessel strikes a stationary vessel orstructure. Not unexpectedly, the law applied in such cases is weightedheavily in favor of the stationary vessel or structure; a presumption of faulton the part of the moving vessel exists when an allision occurs.79 To rebutthis presumption, the moving vessel must show that it was faultless, or thatthe allision was occasioned primarily through the fault of the stationaryobject or was the result of inevitable accident.80

78 451 U.S. at 175-176.79 The OREGON, 158 U.S. 186 (1895).80 Carr v. Hermosa Amusement Corp., 137 F.2d 983 (9th Cir. 1943),

cert. denied 321 U.S. 764 (1944).

21

The Navy routinely handles numerous allision claims, both by and againstthe United States, in cases involving moving vessels striking piers, bridges,buoys, and other vessels which are anchored or moored. For example, USS JOHNHANCOCK (DD 981) allided with a buoy in the approaches to the Humber River,England, causing severe damage to the buoy. A presumption of fault existed onthe part of the ship, so the adjudication of the claim focused on possibleevidence which might rebut the presumption. The allision occurred duringclear visibility approximately one hour after sunrise, and the buoy’s lightshad been properly working in the twilight period before sunrise (when lookoutsinitially spotted the buoy visually), so it could hardly be said that theallision was primarily due to fault on the part of the structure. The shipwas contending with a 25 knot wind, virtually perpendicular to her intendedtrack, which was causing the vessel to be set toward the left side of thechannel, but the otherwise satisfactory weather conditions were not so severeor unusual as to constitute a “force majeure” or an “Act of God” that mighthave exonerated the vessel and rendered the occurrence an accident. In short,the ship had ample time, power and clear water to pass the buoy safely in thechannel (upwind of the buoy) or, if the set made it apparent that a successfulupwind passage was unlikely, then to pass the buoy downwind and regain thechannel following the passage. Since no evidence existed to exculpate theship, the presumption of fault remained intact and the Navy paid the claim forthe damaged buoy.

VIII. PROPERTY DAMAGE: COLLISION CLAIMS

A collision occurs when a moving vessel strikes another moving vessel. Itis unusual for a major collision case (thankfully, a rather infrequentoccurrence) to be settled completely via the administrative claims process,but minor collisions are often settled through a claim by or against theUnited States.

In analyzing a collision occurring outside the inland waters of the UnitedStates, the primary law applied will be the International Regulations forPreventing Collisions at Sea, 1972 (commonly called 72 COLREGS). 72 COLREGS

22

were developed by the Inter-Governmental Maritime Consultative Organization(now known as the International Maritime Organization) and were formalized inan international convention which was ratified by the United States.81 AllU.S. flag vessels are obligated to comply with these rules,82 and the failureto do so may subject the vessel operator to a fine.83 72 COLREGS are strictlyconstrued in admiralty courts.84

Similarly, in analyzing a collision occurring within the inland waters ofthe United States, the primary law applied will be the Inland NavigationRules, 1980 (Inland Rules), which were enacted in the Inland Navigational RulesAct of 1980.85 These rules consolidated and replaced the old Inland Rules,Western River Rules, Great Lakes Rules, their respective pilot rules andinterpretive rules, and parts of the Motorboat Act of 1940. These oldnavigation rules, many of which were enacted in the 19th century, formed aconfusing patchwork of requirements that was simplified by the new InlandRules. Like the 72 COLREGS, the Inland Rules are strictly construed inadmiralty courts and compliance is mandatory. The vessel operator who fails toadhere to these rules is liable for a civil penalty in the form of a fine notto exceed $5,000 for each violation.86

You may recall from earlier in this article that when two or more shipscontribute by their fault to a collision, liability for the consequent damageis allocated proportionately according to the relative fault of each vessel.87

Predictably, the Steering and Sailing Rules found in Part B of both 72 COLREGSand the Inland Rules provide the most guidance in evaluating the respectiveliabilities of the vessels involved. It would be unusual, although notimpossible, to have a major collision occur in which one of the vessels wasabsolved of any responsibility whatsoever for its occurrence. This is becauseof the usual presence of at least some violation of the navigation rules, eventhough a minor one, and the application of the PENNSYLVANIA Rule, firstannounced by the Supreme Court in SS PENNSYLVANIA v. Troop.88 Under this

81 33 U.S.C. foil. § 1602 (1982). The Convention on the InternationalRegulations for Preventing Collisions at Sea, 1972, was proclaimed by thePresident on January 19, 1977. The proclamation provided that theInternational Regulations would enter into force for the United States on July15, 1977. See also 33 U.S.C. §§ 1601-1608 (1982).

82 33 U.S.C. § 1603 (1982).83 33 U.S.C. § 1608 (1982).84 Gilmore & Black, supra note 4, § 7-3.85 33 U.S.C. §§ 2001-2073 (1982).86 33 U.S.C. § 2072 (1982).87 U.S. v. Reliable Transfer Co., 421 U.S. 397 (1975).88 86 U.S. 125 (1874).

23

doctrine, a vessel, having violated a navigation rule, has the burden ofproving not only that the particular violation was not a contributing causeof the incident, but also that the violation could not have been a contributingcause. Because it is extremely difficult to prove that a violation, even aminor one, could not have contributed in any way to the collision, completeexoneration is rare.

An example of a collision in which the U.S. Navy vessel was completelyexonerated occurred when USS DAHLGREN (DDG 43) collided with the freighterEURYBATES in the Caribbean Sea near the entrance to the Panama Canal. USSDAHLGREN was leading a column of naval ships on a generally southwesterlycourse, and EURYBATES, on a northerly course, had USS DAHLGREN to itsstarboard, creating a crossing situation in which USS DAHLGREN was theprivileged vessel. Applying the navigation rules in effect then (which wereidentical in pertinent part to 72 COLREGS), EURYBATES, as the burdened vessel,was obligated to keep out of USS DAHLGREN’s way, to avoid crossing ahead ofthe naval ship, and to take positive early action to lessen the risk ofcollision.89 In addition to failing to abide by these obligations, EURYBATESalso failed to maintain a proper and vigilant lookout.90 USS DAHLGRENcorrectly maintained course and speed91 until a sudden and late turn byEURYBATES caused the freighter to cross close ahead of the naval ship. Atthat point, USS DAHLGREN’s evasive actions could not avoid the collision.Despite allegations to the contrary by EURYBATES, the trial court specificallyfound that USS DAHLGREN had maintained a proper and vigilant lookout, bothvisually and with radar, had shown proper navigational lights, and had actedcorrectly under the relevant steering and sailing rules; the court ruled thatEURYBATES was entirely responsible for the collision.92

Of course, in a collision interests other than the respective vesselowners may suffer losses. For example, cargo may be damaged, either directlyas a result of the collision or as a result of being jettisoned during effortsto save the vessel and remaining cargo. The cargo owners are innocent victimsof the incident when they suffer such losses. The rule regarding liability toan innocent cargo interest is as follows: if the non-carrying vessel is atall responsible for causing the collision, that vessel is liable to the cargointerest for all of its losses. This applies even though its negligence isslight compared to that of the cargo-carrying vessel.93 This rule avoids thesituation in which a cargo owner would be placed in an adversarial position visa vis the carrier of his goods. The non-carrying vessel then can seek torecoup from the cargo-carrying vessel all or a portion of any amount paid tothe cargo interest, in accordance with the relative degree of fault of the

89 Rules 15 and 16, 72 COLREGS.90 Rule 5, 72 COLREGS.91 Rule 17, 72 COLREGS.92 in the Matter of TA CHI Navigation (Panama} Corp., 512 F. Supp, 148

(E.D. La. 1980),93 The ATLAS, 93 U.S. 302 (1876).

24

cargo-carrying vessel.94In the USS DAHLGREN - EURYBATES case, the United

States, apparently believing that it would be found partially liable for thecollision at trial, paid a claim of over $600,000 to the owners of the cargodamaged onboard EURYBATES. When It was determined at trial that EURYBATES wassolely responsible for the collision, a judgment was rendered in favor of theUnited States for that entire amount.95

IX. PROPERTY DAMAGE: OTHER CLAIMS

Any loss, damage or destruction of property, afloat or ashore, whichoccurs incident to the operation of a naval vessel, may result in an admiraltyclaim against the United States. Similarly, any damage caused to Navy propertyby a privately-owned vessel or floating object may result in an affirmativeclaim by the Government against the offender. The Navy processes admiraltyclaims for property damage resulting from a wide variety of incidents otherthan allisions and collisions, but the most common are claims arising fromdamage to fishing nets or lines and claims arising from wake damage.

A. Net Damage Cases

Traditionally, fishermen have been recognized as favored in admiralty andtheir economic interests receive the fullest possible legal protection.96 Whena fisherman suffers damage to fishing lines or nets as a result of another’snegligence, he may recover from the offending party not only the cost ofrepairing or replacing the the damaged or destroyed property but also theestimated value of his lost or diminished catch. Naval vessels that becomeinvolved in net damage cases include ships, small boats and amphibiousvehicles; amphibious landing operations seem to be a particularly fertilesource of these claims, with the damage being caused both by landing craft andby special operations personnel.

Provisions of 72 COLREGS or the Inland Rules usually apply in these cases,particularly Part C (Lights and Shapes), Rule 5 (maintaining a properlookout), Rules 9 and 10 (concerning the privileges of a vessel operating in anarrow channel or in accordance with a traffic separation plan, and theobligation of fishing vessels not to impede the use of the channel), and Rule18 (responsibilities between vessels when special circumstances are present,such as a vessel restricted in its maneuvering ability). The circumstancewhich most frequently results in a determination of Navy liability for netdamage is the failure of the lookout to see or appreciate the significance oflights or dayshapes on a vessel indicating fishing or trawling in progress, orto see floats or buoys in the water indicating the presence of fishing lines

94 The CHATTAHOOCHEE, 173 U.S. 540 (1899).95 In the Matter of TA CHI Navigation (Panama) Corp., 728 F.2d 699 (5th

Cir. 1984).96 The DEL RIO, 209 F.2d 178 (9th Cir. 1953).

25

or nets. When claims for net damage are denied, the reason usually is thefailure to show proper lights or dayshapes on the fishing vessel, the failureto secure floats or buoys adequate to indicate the presence of a fishing lineor net in the water, or the presence of the lines or nets in navigationchannels or other prohibited areas.

B. Wake Damage Cases

The force of a vessel’s wake can cause property damage or personal injury,or perhaps both. The Navy has paid property damage claims to owners of boatsthrown onto sandbars and shoals, and to owners whose vessels were slammedagainst piers, as a result of naval vessel’s wake, and personal injury claimsto occupants of such craft. Similarly, the Navy has paid claims to the ownersof piers and other shoreside property when wakes have caused property damage,

A vessel causing damage or injury to another vessel or its occupants, orto a shoreside structure, as a result of its wake will be held responsible forany failure to appreciate the reasonable effect of the vessel’s speed andmotion through the water at the particular place and under the particularcircumstances where the incident occurred. The vessel’s officers and crew areobligated to note the presence of others who might reasonably be affected andto take all reasonable precautions to avoid causing harm. It is no defensethat a vessel was proceeding at its customary speed at the time of theincident. 97 Balanced against the rule of GEORGIE MAY is the principle that amoving vessel is not an insurer against all damage resulting from its wake, butrather is liable only for damage or injury caused by unusual swells orsuction.98

Liability of a vessel is established upon a showing that the allegeddamage was caused by a wake, that the wake was created by the passing vesselwhich is being charged with responsibility, and that the damaged vessel wasable to withstand the effects of ordinary swells and hydraulic suction, eitherby virtue of being properly moored or anchored, or, if the damaged vessel wasunderway at the time, by virtue of its general seaworthiness. Once thesefacts have been established, the offending vessel can absolve itself of faultonly by showing that it was powerless to prevent the damage or injury byadopting any practical precautions,99 a result difficult to achieve sinceusually one of the precautionary measures available to the moving vessel is toreduce its speed, thereby reducing the size and effect of its wake.

97 Moran v. M/V GEORGIE MAY, 164 F. Supp, 881 (S.D. Fla. 1958).98 State Bank and Trust Co. v. DEL-CO Marine Inc., 1981 A.M.C. 1301 (E.D.

La. 1980).99 Shell Pipe Line Corp. v. M/T CYS ALLIANCE, 1982 A.M.C. 389 (E.D. La.

1981).

26

An example of the analysis used in a wake damage case may be found in theclaim of the owner of the boat TUCY, which was sunk by the wake of USS ATLANTA(SSN 712). The incident occurred approximately four nautical miles offVirginia Beach while the submarine was outbound on the surface in thesoutheast separation channel at a speed of 16 knots. The operator of TUCY,then on a pleasure voyage, decided to close the submarine to get a better viewof it. At a position about 300 yards abeam of the submarine, TUCY was struckby the submarine’s wake, and the boat sank shortly thereafter. Notwithstand-ing that the submarine’s speed was considered ordinary in view of its locationat sea in a major shipping lane (rather than in a harbor or other “closequarters” situation), the Government did not escape liability for theaccident. Members of the submarine’s crew denied noting the presence of TUCY,notwithstanding calm seas and clear weather. Under these circumstances, acourt likely would have found a presumption of fault on the submarine’s partfor failing to maintain a proper and vigilant lookout.100 Having violated anavigation rule, the United States would then have the burden of proving thatUSS ATLANTA’s violation was not and could not have been a contributing cause ofthe incident (the PENNSYLVANIA Rule101), a result considered unlikely sinceawareness of the presence of other vessels and then taking all reasonableprecautions to avoid damage are the indicia of innocence in wake damage cases.

Of course, the operator of TUCY was not blameless, as he elected tonavigate TUCY to within approximately 300 yards of a submarine when theprudent action would have been to open the distance between his craft and themuch larger vessel. This comparative negligence of the operator of TUCYreduced his recovery by 50%.

100 Rule 5, 72 COLREGS; Circle Line Sightseeing Yachts v. City of NewYork, 283 F.2d 811 (2d Cir. 1960).

101 Supra note 88.

27

THIS PAGE INTENTIONALLY BLANK

28

CHAPTER XII

ADMIRALTY CLAIMS

PART A - INTRODUCTION

1201 SCOPE

1202 ORGANIZATION

PART B - REPORTING AND INVESTIGATING ADMIRALTY INCIDENTS

1203a.b.c.d.e.f.g.h.i.jk.l.m.

1204

1205a.b.c.d.e.f.

1206

1207a.b.c.d.

1208

1209a.b.c.d.e.f.g.

ADMIRALTY INCIDENTSGenerallyCollisionAllisionPersonal injury or deathProperty damageSwell wash or wake damageNavy maritime target rangesSpecial Services boats and marinasNavy aircraftSalvageVessel seizuresGroundingSignificant maritime incidents

INITIAL REPORT OF ADMIRALTY INCIDENT

SUBSEQUENT INVESTIGATIVE REPORTGenerallyLetter reportJAG Manual investigationCourt of InquiryRelation to damage surveyRelease of investigative report

SURVEYS

DOCUMENTARY EVIDENCEOriginal documentsUse of documents at trialPhotographs and videotapesLogs

COLLISION AND ALLISION CASES

DOCUMENTING COLLISION DAMAGE AND REPAIR COSTSElements of Navy damagesCollision repairsRepair costsNoncollision workCommercial shipyard repairsDetention costsPrompt repairs

29 12-1Change 7

1210a.b.c.d.e.f.

1211

PERSONAL INJURY CASESGenerallyTypes of victimsConsiderations in any investigationShoreworker injuriesGeneral visiting and ship toursCivilian Federal employees

CORRESPONDENCE WITH PRIVATE PARTIES

PART C - ADMIRALTY CLAIMS AGAINST THE NAVY

1212

1213

1214a.b.

1215a.b.

1216a.b.c.d.e.f.

1217a.b.c.d.e.f.

1218a.b.c.d.e.f.g.

1219

1220a.b.

NAVY LIABILITY

AUTHORITY FOR CLAIMS SETTLEMENT

STATUTE OF LIMITATIONSuits under the Suits in Admiralty Act or the Public Vessels ActAdmiralty claims

ADMINISTRATION OF ADMIRALTY CLAIMSGenerallyAssistance to claimants

PROPER CLAIMANTDamage to property casesPersonal injury casesDeath casesAgent or representativeSubrogation casesLimitation on transfers and assignments

PRESENTMENT OF AN ADMIRALTY CLAIMPresentment definedBasic content of claimSupporting evidence: generallySupporting evidence: property damage casesSupporting evidence: personal injury casesSupporting evidence: death cases

ACTION BY THE ADJUDICATING AUTHORITYAction upon receipt of the claimStandard for adjudicationAdjudicationFavorable settlementPayment of claimsDenialReconsideration

ADJUDICATING ADMIRALTY CASES AS FOREIGN CLAIMS

ACTION UPON NOTICE OF SUIT AGAINST THE UNITED STATESGenerallyLitigation reports

12-2Change 7

30

PART D - AFFIRMATIVE ADMIRALTY CLAIMS

1221 AUTHORITY FOR AFFIRMATIVE CLAIMS SETTLEMENT

1222 STATUTE OF LIMITATION FOR AFFIRMATIVE CLAIMS

1223 AFFIRMATIVE CLAIMS PROCEDURESa. Generallyb. Action upon notification of an admiralty incidentc. Determination and notice of claimd. Standard for claim settlemente. Favorable settlementf. Deposit of proceedsg. Release from liability

1224 FORWARDING AFFIRMATIVE CLAIMS TO THE DEPARTMENT OF JUSTICE

PART E - MISCELLANEOUS

1225

1226

1227

1228

1229

a.b.

SALVAGE

TOWAGE AND PILOTAGE

INTRAGOVERNMENT ADMIRALTY INCIDENTS

FOREIGN GOVERNMENT CLAIMS

COAST GUARD AND NATIONAL TRANSPORTATION SAFETY BOARDINVESTIGATIONSCoast Guard investigations of marine casualtiesNational Transportation Safety Board (NTSB) investigations of marine casualties

31 12-3Change 7

12-4Change 7

THIS PAGE INTENTIONALLY BLANK

32

PART A - INTRODUCTION

1201 SCOPE

a. This chapter applies to admiralty tortclaims, including claims against the UnitedStates for death, personal injury, or propertydamage caused by a naval vessel or otherproperty under the jurisdiction of the Navy, orresulting from a maritime tort committed byany agent or employee of the Navy, andaffirmative claims by the United States fordamage to Navy property caused by another’svessel or maritime tort. Also, this chapter brieflydiscusses salvage claims by or against the UnitedStates and claims by the Government fortowage services rendered to privately ownedvessels. This chapter does not apply to admiraltyincidents involving only U.S. Government vesselsor property. See section 1227.

b. Part B of this chapter provides guidanceto commanders on reporting and investigatingadmiralty incidents. Parts C and D of thischapter discuss procedures for processingadmiralty claims by judge advocates involved inadmiralty claims adjudication.

c. Effective handling of admiralty claimsdepends on immediate notice of any admiraltyincident, however trivial, to the Judge AdvocateGeneral (Code 11). See sections 1203 and 1204.Prompt reporting facilitates properinvestigation and resolution of admiraltymatters, whether the case is settledadministratively under the Secretary of theNavy’s statutory claims authority or results inlitigation.

1202 ORGANIZATION

a. The Secretary of the Navy has authorityfor administrative settlement and directpayment of claims for personal injury orproperty damage caused by naval vessels orother property under the Navy’s jurisdiction, orby a maritime tort committed by an agent oremployee of the Navy, and for towage orsalvage services rendered to naval vessels, when

the amount paid does not exceed $1,000,000and the matter is not in litigation. 10 U.S.C. §7622 (1982). The Secretary also has authority tosettle affirmative admiralty claims for damageto property under the Navy’s jurisdiction causedby a vessel or floating object. 10 U.S.C. § 7623(1982).

b. The Judge Advocate General (Code 11)processes admiralty claims for adjudication bythe Secretary of the Navy, or the Secretary’sdesignee, and acts as principal liaison withDepartment of Justice for admiralty tort cases inlitigation. The address of the Judge AdvocateGeneral (Code 11) is:

Department of the NavyOffice of the Judge AdvocateGeneral (Code 11)200 Stovall StreetAlexandria, VA 22332-2400

c. Other organizations may process someadmiralty claims. Four naval commanders(Commander in Chief, U.S. Naval Forces, Europe;Deputy Commander in Chief, U.S. Naval Forces,Europe; Commander Sixth Fleet; andCommander, U.S. Naval Activities, Caribbean)have been delegated limited authority toadjudicate and settle admiralty tort claimsagainst the United States arising in theirrespective jurisdictions. See section 1213b.Additionally, contract claims arising fromoperation of chartered vessels, including claimsfor charter hire, cargo damage, generalaverage, and redelivery repairs, are handled byOffice of Counsel, Military Sealift Command.Similarly, claims for damage caused by Navy-contract stevedores are under the cognizance ofOffice of Counsel, Naval Supply SystemsCommand. However, all tort claims arising fromthe operation of any naval vessel, includingMilitary Sealift Command (MSC) vessels, arehandled by the Judge Advocate General (Code11) or, as appropriate, one of the four navalcommanders above.

33 12-5Change 7

PART B - REPORTING AND INVESTIGATING ADMIRALTY INCIDENTS

1203 ADMIRALTY INCIDENTS

a. Generally, Any tort arising, in whole orin part, from the operation of a vessel uponnavigable waters is within admiraltyjurisdiction, and thus, an admiralty incident.Furthermore, damage occurring ashore causedby a vessel or afloat object usually falls withinadmiralty jurisdiction, as does damage tocertain structures located on navigable waterswhich traditionally are not thought of as vessels.Paragraphs b through m list common admiraltyincidents which often generate admiralty claimsor litigation. Whenever one of these incidentsoccurs, notify the Judge Advocate General(Code 11) immediately. See section 1204.Similarly, if a command receives a complaint,claim, invitation to a survey, or othercorrespondence alleging such an incident (evenif the receiving command believes thecomplaint or allegation has no basis in fact),notify the Judge Advocate General (Code 11)immediately. If a command is uncertainwhether a particular occurrence is an admiraltyincident, contact the Judge Advocate General(Code 11) for guidance.

b. Collision. A collision occurs when amoving vessel strikes another moving vessel.See sections 0906, 1208 and 1209 for specialconsiderations when investigating a collision.

c. Allision. An allision occurs when amoving vessel strikes a stationary vessel orstructure; for example, a vessel underwaystrikes a pier, bridge, buoy, or anchored ormoored vessel. See sections 0906, 1208 and1209 for special considerations wheninvestigating an allision.

d. Personal injury or death. Death orpersonal injury to an individual not an activeduty member of the Armed Forces of the UnitedStates, occurring on board a naval vessel, on thebrow of a naval vessel, or on a boat transportingthe individual to or from a naval vessel, is anadmiralty incident. All personal injuries ordeaths in those circumstances must be reportedto the Judge Advocate General (Code 11)despite how the injury occurred, whether thereis any Navy responsibility for the injury, whetherthe injury appears minor, or whether theinjured party stated an intention not to file anyclaim against the Government. Additionally,death or personal injury occuring ashore or on

12-6Change 7

board another vessel not owned by the UnitedStates, and arising, in whole or in part, incidentto any aspect of operation of a naval vessel, is anadmiralty incident and must be reported.Examples include a person struck by anythingthrown or dropped from a naval vessel, a ship’sbrow rolling over the foot of a person standingon a pier, or an individual sickened by gases,smoke, or fumes from a naval vessel. See section1210 for special considerations in death orpersonal injury investigations.

e. Property damage. Any loss, damage, ordestruction of property, afloat or ashore, whicharises, in whole or in part, incident to theoperation of a naval vessel, or damage to Navyproperty caused by a privately owned vessel orfloating object, is an admiralty incident.Examples include:

(1) Fishing nets, lines, lobster pots, orother gear in the water, cut or damaged bynaval vessels, including amphibious vehicles.Also, fishing gear damaged or lost by becomingfouled on Navy submarine cables, underwaternaval ship or aircraft wreckage, or navalordnance.

(2) Automobiles or other propertylocated on a pier damaged by an object thrownor dropped from a naval vessel, or by paintoverspray from the vessel, or by smoke, fumes,or chemicals from the vessel.

(3) Air orcaused by a vesselwaters.

(4) Damage

water pollution damageor occurring on navigable

or loss of a civiliancontractor’s property on board a naval vessel.

(5) Significant damage to afloat navalproperty, including a vessel in dry-dock, fromsubstandard performance by a civiliancontractor.

f. Swell wash or wake damage. Civilianpersonal injury or property damage allegedlyresulting from the wake or swell created by anaval vessel is an admiralty incident. Propertydamage includes damage to other vessels, shorestructures, oyster beds, or clam flats. Similarly,damage to Navy property from the wake orswell from a privately owned vessel is anadmiralty incident.

34

g. Navy maritime target ranges. Civilianpersonal injury or property damage allegedlyresulting from maintenance or use of a navalmaritime target range is an admiralty incident.

h. Special Services boats and marinas.Civilian personal injury or property damageallegedly resulting from use of Special Servicesrental boats, or damage to privately ownedvessels moored at Special Services marinasallegedly resulting from Governmentnegligence, is an admiralty incident. A waiverof liability, signed as consideration to use arental boat or for permission to moor a privatelyowned boat at a marina, does not obviatereporting the incident to the Judge AdvocateGeneral (Code 11).

i. Navy aircraft. Civilian personal injury orproperty damage caused by naval aircraft on orover navigable waters is an admiralty incident.Examples include a minesweeping helicoptercutting fishing gear, and debris or ordnancefalling from an aircraft and damaging a civilianboat or injuring its passengers.

j. Salvage. Salvage of any naval propertyby a civilian from navigable waters and salvageof civilian property by a naval unit are admiraltyincidents.

k. Vessel seizures. A naval unit’s seizure ofany civilian vessel is an admiralty incident. Anexample is seizing a civilian boat during a druginterdiction operation.

l. Grounding. The grounding of a navalvessel is an admiralty incident. See section 0905for special considerations when investigating agrounding.

m. Significant maritime incidents. Proximityof a naval vessel to any significant maritimeincident should be reported to the JudgeAdvocate General (Code 11) because the UnitedStates, even if not directly involved, is oftenjoined in litigation arising from these events.Examples include witnessing the loss or damageof a civilian merchant vessel, or the rescue at seaof survivors from a sunken or disabled vessel.

1204 INITIAL REPORT OF ADMIRALTYINCIDENT

a. Every admiralty incident must bereported immediately by telephone ((202) 325-9744, AUTOVON 221-9744) orJAG ALEXANDRIA VA) to the

message (NAVYJudge Advocate

General (Code 11). This initial report is inaddition to other reports required by higherauthority and may be accomplished by makingNAVY JAG ALEXANDRIA VA an informationaddressee on a message report required byother directives (example: an OPREP 3message).

b. The initial report of an admiraltyincident should include all information anddetails available at the time of the report.Normally, an initial report includes date, time,and place of incident, a brief description of theincident and any resulting injury or damage,and identification of the parties involved in theincident (naval vessel, aircraft, or unit; civilianvessel, individual, or organization).

c. Immediate notice enables an admiraltyattorney to examine the admiralty claimsconsiderations of a particular case at an earlystage. Liability may not be apparent to the navalcommand considering the operational,administrative, or disciplinary features of a case.The admiralty attorney provides advice onadmiralty issues and assists in preparing theinvestigation considering a potential claim orcivil lawsuit. Also, admiralty claims andlitigation practice requires action soon after theevent. Common examples include: engagingthe services of an independent marine surveyorfor attendance at a formal joint survey ofdamages (see section 1206); developingdetention data on a naval vessel to be repaired;and ensuring segregation of repair work ordersand cost data for an admiralty incident fromother work, not arising from the admiraltyincident, accomplished during a repair periodfor the convenience of the Navy.

1205 SUBSEQUENT INVESTIGATIVE REPORT

a. Generally. The initial report of anadmiralty incident, discussed in section 1204,must be supplemented as soon as practical by awritten investigative report of the facts andcircumstances of the incident, includingdocuments, witness statements or interviewsummaries, photographs, diagrams, and otherdata as required. Because this report isprepared in contemplation of a claim orlitigation, the assigned admiralty attorney willadvise and assist the investigating officer inpreparing the report, and normally will requestparticular items as enclosures. This writteninvestigative report will be either a JAG Manualinvestigation,manual, or a

35

as defined in chapter II of thisletter report as set forth in this

12-7Change 7

section. For most admiralty incidents, a letterreport is appropriate to explain the facts of anincident and transmit relevant materials forclaims adjudication. A JAG Manualinvestigation is used in serious cases where, inaddition to civil liability issues, there areoperational, organizational, or managementissues, which a convening authority in hisdiscretion may wish to examine.

b. Letter report. The letter report is aconvenient reporting method that is less timeconsuming than a JAG Manual investigation.The precise form of a letter report is lessimportant than the requirement that thecircumstances of an incident be completely andpromptly explained. The letter report usuallyconsists of a letter from the commandprincipally involved in an admiralty incident,addressed to Judge Advocate General (Code 11),with the facts of the case in narrative form. Itincludes witness statements or interviewsummaries, copies of documents, photographs,or other items which provide the basis for thefactual narrative in the letter, as enclosures.

c. JAG Manual investigation. For someadmiralty incidents, a convening authorityorders an administrative fact-finding body,known as a JAG Manual Investigation. Theseinvestigations usually do not require a hearingand are completed under chapter V of thismanual. A serious casualty may be the subjectof a court of inquiry or board of investigationwhere a hearing is required, conducted underchapters IV and V of this manual. The JudgeAdvocate General (Code 11) will assist theinvestigating officer or panel to includeInformation needed for potential claims orlitigation which may arise from the incident. Anadvance copy of every JAG Manual investigationof an admiralty incident should be forwarded tothe Judge Advocate General (Code 11) as soonas available. Delays in receiving an investigativereport may prejudice the compromise of claims.Provide copies of endorsements on the JAGManual investigation to the Judge AdvocateGeneral (Code 11) as the investigation isforwarded through the chain of command.

rights. They may, however, be invited to appearas witnesses with counsel while testifying. Suchinvitations are usually declined on advice ofcounsel. If invitees elect to appear, neitherthose individuals nor their counsel may bepresent when other witnesses are testifying.

(2) Witnesses from a privately ownedvessel testifying before a naval investigationshould be furnished a copy of their testimony asa matter of written record, and the witnessesshould be requested to inform the investi-gating officer or convening authority of anyerrors in the transcript. This increases the valueof the record for its possible effectiveness forimpeachment in later litigation. Opposinginterests are not furnished a copy of theinvestigation report or any information on thetestimony of Navy witnesses.

(3) In a court of inquiry, it usually is notadvisable to subpoena witnesses from theprivate vessel involved in a collision with a navalvessel because the record of the Navy inquirywould then be discoverable.

(4) If submission of the investigationreport will be significantly delayed, an advancecopy of the transcribed testimony at theinvestigation should be forwarded to the JudgeAdvocate General (Code 11).

e. Relation to damage survey. A formaljoint survey of damages, described in section1206, is not a substitute for a command’sinvestigative report of an admiralty incident.

f. Release of investigative report. Nocommand, other than the Office of the JudgeAdvocate General, may release the investigativereport of an admiralty incident, or any portion,to a potential claimant, an attorney purportingto represent a claimant, or any other privateperson or organization. All requests forinvestigative reports shall be forwarded to theJudge Advocate General (Code 11) for action.See section 1211.

1206 SURVEYS

d. Court of Injury. The following a. When a claim for damage to properlyadditional considerations are relevant in arising from an admiralty incident is asserted,admiralty cases involving courts of inquiry. the party contemplating such a claim usually

invites the allegedly responsible party or parties(1) When Investigating collisions or to a formal joint survey of the damage. A survey

allisions with civilian vessels, personnel of the minimizes subsequent disputes on the natureprivately owned vessel will not be designated and extent of damage attributable to aparties to the Investigation or accorded such particular incident, and provides a reliable

12-8 36Change 7

estimate of the cost of repairs. If a claim is notsettled administratively, the survey report caneliminate questions of proof during litigation.Failure to give opposing interests anopportunity to survey damage allegedlyresulting from an admiralty incident places aheavy burden of proof on the party laterseeking to establish such damage at trial. Inmost admiralty cases with substantial damage,whether involving potential claims by or againstthe United States, a joint survey of the damagewill be desired.

b. The survey is the formal, technical, jointsurvey held by representatives of the two (ormore) parties involved. R is not an ex parteappraisal, as is used in the Navy’s internalinvestigation of an incident or with the disposalof worn or damaged naval material. Nor shoulda joint survey of damage be confused with thesurvey conducted on civilian vessels by represen-tatives of marine underwriters followingdamage incidents. Rather, for a formal jointsurvey of damage, each party normally appointsits own surveyor who, with the othersurveyor(s), examines the damage and attemptsto reach agreement on the extent of damagefrom the casualty. The survey report lists itemsof damage and recommended repairs. When allparties agree, the surveyors sign the report torecord their concurrence; surveyors normallysign without prejudice as to liability. If there isdisagreement, disputed points are specificallynoted. No surveyor subscribes to any statementin the survey report when he or she disagrees.

c. Surveys should be held as soon after thecasualty as possible. See section 1204. TheNavy’s survey is accomplished under a contractbetween the Navy and a commercial marinedamage survey firm. Survey services are alsoprovided to the Army and Air Force under theNavy’s contract.

d. Only the Judge Advocate General (Code11) may accept survey invitations from potentialclaimants, extend survey invitations to personsallegedly responsible for damaging Navyproperty, and request representation by amarine surveyor at the survey.

e. If any naval activity receives aninvitation to attend a survey of damage, theJudge Advocate General (Code 11) must benotified immediately by telephone or prioritymessage to permit a timely response.

1207 DOCUMENTARY EVIDENCE

a. Original documents. The Government’sposition may be materially prejudiced if anoriginal document is not available at trial. Noapparently relevant original document shouldbe destroyed or discarded without the priorapproval of the Judge Advocate General (Code11). Photocopies of pertinent officialdocuments are acceptable for investigativereports under section 1205; however, originallogs, rough statements, chronologies, and otherdocuments must be segregated andsafeguarded for possible future use at a trial.Because a trial may occur years after theincident, the custodian must ensure thematerials are not inadvertently discarded bypersons unfamiliar with the admiralty incidentand the reasons for preserving the documents.

b. Use of documents at trial. Althoughoriginals are required at trial, the original isproduced for inspection only and does notbecome part of the court record. The courtattaches a copy to the record of trial and returnsthe original to the Judge Advocate General(Code 11) for forwarding to the appropriatecommand.

c. Photographs and videotapes. Photographsand videotapes can be valuable enclosures toadmiralty investigations, especially when takennear in time to the incident. They illustrateproperty damage, angle of collision, size andcondition of equipment, and physical layout ofa space where an injury occurs. Commands mayuse official photographers or other persons totake photographs. Record on the reverse side ofeach photograph: the hour and date it wastaken; a brief description of the location or areaphotographed; the full name, rank or rate, andSocial Security number of the photographer;and full names and addresses of persons presentwhen the photograph was taken. Similarinformation should be on a label affixed to avideotape. This information is important sophotographs or videotapes can beauthenticated and identified by witnessesduring litigation. Photographic negativesshould be segregated and safeguarded forpossible future use.

d. Logs. No erasures should be made in alogbook or original navigation record. Makecorrections by lining through the original sothat it is still legible and inserting the

37 12-9Change 7

correction. The person making the changeshould initial the original entry and correction.

1208 COLLISION AND ALLISION CASES

a. The ship’s crew should gather andsafeguard documentary evidence immediatelyafter any collision or allision involving a navalvessel. Not all original logs and records listedbelow are relevant in every case; for example,some contain no information of value for aminor allision with a pier or other shorestructure. The following are among the originalrecords which normally must be preserved forthe investigative report of the incident:

(1) deck log

(2) bell book

(3) engineering log

(4) chart in use (do not erase markingsonce a collision or allision has occurred)

(5) bearing book

(6) magnetic compass record

(7) deviation data, azimuth records,and course recorder records (to include SINSprintout if installed)

(8) CIC log(s)

(9) radar log(s)

(10) DRT plot (should be annotated withthe DRT Operator’s name and scale used for theplot)

(11) Bridge and CIC maneuvering boardworksheets (signed and dated by the individualwhose work is reflected)

(12) photographs of Bridge and CICstatus boards (if possible, should be doneimmediately after the incident so the boardsshow data at time of incident)

(13) radar plot

(14) communication and signal logs

(15) Bridge and CIC voice radio logs

12-10Change 7

38

(16) all messages on the incident(classified and unclassified, from every net,whether transmitted or received)

(17) Bridge, CIC, and EngineeringStanding Orders, and Night Orders

(18) fathometer record

(19) any audio or video tapes whichrecorded any aspect of the incident

(20) damage control reports

(21) records on training andqualifications of individual watchstanders onthe bridge, in CIC, and in the engine room

b. To preserve all records of first entry,collect and safeguard rough logs, notebooks,and individual sheets of paper containingnavigational or other data later recorded in asmooth log, noting who recorded the particularinformation.

c. Conflicts between times of entries invarious logs often cause difficulty in litigation.Comparisons of the clocks in the bridge, CIC,engine room, radio room, etc., should berecorded as soon as possible after a collision orallision.

d. Completely list all officer and enlistedwatchstanders on the bridge (includinglookouts), signal bridge, CIC, and engine roomat the time of the incident, as soon as possibleafter the incident. The identity of any otherperson who was in CIC, on the bridge, orotherwise topside when a collision or allisionoccurred, also should be noted. This list shallcontain the full name, rank/rate, Social Securitynumber, and watchstation of each individual.

1209 DOCUMENTING COLLISION DAMAGEAND REPAIR COSTS

a. Elements of Navy damages. In almostall collisions where the other vessel is at leastpartially at fault, the United States will assert aclaim against that vessel for the costs incurred inrepairing the naval ship. Establishing the valueof the Navy’s damage claim is often extremelydifficult. The Navy’s claim arising from acollision or allision may include the cost of--

(1) temporary and permanent hullrepairs;

(2) dry-docking;

(3) lost or damaged equipment, stores,provisions, fuel, and ammunition;

(4) off-loading and reloading fuel andammunition;

(5) towage and pilotage;

(6) personnel claims paid tocrewmembers who suffered personal propertylosses due to the collision;

(7) survey fees;

(8) detention; and

(9) emergency assistance by other Navycommands to the naval vessel involved.

b. Collision repairs. Collision repairspecifications should concur with the findingsand recommendations in the joint survey report.If significant additional damage not covered bythe original survey is discovered during repairs,the Judge Advocate General (Code 11) shouldbe notified immediately so opposing interestsmay be contacted for a chance to survey newlydiscovered damage.

c. Repair costs. The Naval Sea SystemsCommand directs its field activities to maintainseparate and exact records of collision repaircosts and to expedite the furnishing of data tojudge advocates preparing damage statements.Usually, original repair specifications, joborders, time and material cards, dry-dockingreport, and departure report are needed fordamage statements. Coordination with therepair activity is necessary. The vessel’s logsmust contain entries establishing the specifictime the collision repairs were commenced andcompleted. A departure report must bechecked to confirm that its data is consistentwith other repair documents and that there is aproper allocation of costs between collision andnoncollision items, as reflected by the joborders.

d. Noncollision work. All noncollisionwork must be covered by separate job orders toeliminate including noncollision work in thecollision repair costs.

e. Commercial shipyard repairs. Whennaval vessels will be repaired in commercialyards rather than naval shipyards, invitations tobid are issued to commercial shipyards and thecontract is awarded to the low bidder. Thecollision repair specifications should be basedon the surveyor’s findings andrecommendations. The shipyard’s bill or invoiceand proof of Navy payment show repair costsfor those items performed by the commercialshipyard. As with repairs done by a navalshipyard, noncollision work should be coveredby separate specifications, job orders, bids, andinvoices.

f. Detention costs. When a commercialvessel must be withdrawn from service becauseof collision damage, her owner may recover thevessel’s loss of earnings and reasonableexpenses incurred during the repair period. Thisloss of earnings rule does not apply to navalvessels since they do not carry passengers orcargo for profit. When a collision causes theunexpected loss of use of a naval vessel,however, the Government may recover theoperating and maintenance costs of the ship forthe period the Navy was deprived of the vessel’snormal service. Detention is not legallyrecoverable when a vessel would haveotherwise been out of service, such as forperiodic overhaul or prospective inactivation.Detention includes out-of-pocket expenses forthe repair period, particularly--

(1) pay and allowances of officers andcrew;

(2) subsistence of crew;

(3) fuel and lube oil consumed; and

(4) supplies and stores consumed.

To support a detention claim, the Navy’sdamage statement includes documentaryevidence showing the exact subsistence, wages,and other expenses of the vessel. Affidavitsfrom the cognizant supply, disbursing, andengineering officers stating that the originalship’s records (which must be preserved) disclosesuch expenditures will support the claim. TheJudge Advocate General (Code 11) will provideadvice and assistance on preparing affidavitsand other documentation in support of adetention claim.

39 12-11Change 7

g. Prompt repairs. Collision repairs to anaval vessel should be made as expeditiously aspractical, especially when a detention claim isbeing presented by the Government. A shortrepair period avoids the “skeleton crewdoctrine,” where the Navy would recover asdetention costs only the pay, allowances, andsubsistence for a skeleton crew, rather than thefull complement of members, when anextended repair period was involved.

1210 PERSONAL INJURY CASES

a. Generally. Any shipboard death orinjury to an individual not a member of thearmed forces of the United States is anadmiralty incident. See section 1203d. Thissection applies to injuries to persons ascendingor descending a brow, gangway, oraccommodation ladder, or to injuries to personson a pier or on another vessel as a result ofevents taking place on board the Navy ship.Notify the Judge Advocate General (Code 11)immediately of such accidents so the incident isinvestigated as required by sections 1203-1205.

b. Types of victims. Generally, the injuredparty fits into one of two broad categories:“shoreworker” (a person on board the navalvessel to accomplish work under contractbetween the Navy and civilian firm); and “ship’svisitor” (a person on board the naval vessel forany other reason, including general visitors,special tour guests, salesmen, and individualcrewmember guests).

c. Considerations in any investigation.When investigating any personal injury or deathcase, consider:

(1) Logs. All shipboard injuries topersons not members of ship’s company shouldbe recorded in the ship’s Deck Log. Theoccurrence may be mentioned in other logs,such as the Engineering Log when the incidentoccurs in an engineering space, or in theMedical Log if care is rendered by the MedicalDepartment. All logs which might possiblycontain an entry about the incident should beinspected by the investigating officer, andphotocopies of each log containing a relevantentry should be included in the investigativereport. When copying a log, copy the entireday’s log, not just the page containing therelevant entry. If no entries on an injury arefound in any log, it may indicate the victim wasnot hurt seriously enough to report the injury tothe OOD or to request immediate medical

assistance. Clearly identify logs reviewed andindicate that no entry was found on the allegedoccurrence.

(2) Witnesses. Clearly identify all Navyand civilian witnesses to the accident. Identifyall persons in the space at the time of anaccident, even if they claim not to have seen orheard anything. For naval personnel, includethe servicemember’s full name, rank/rate, andSocial Security number. For civilians, include theperson’s full name, home address, andtelephone number. If the person is a civilianshoreworker, also include his or her badgenumber, employer, and shop where the personis employed. It is also useful to identify theship’s personnel normally in charge of theparticular space (division officer, LPO, DCPO) sothey may be contacted to comment on thespace’s cleanliness, upkeep, and general repair.

(3) Witness statements. Theinvestigating officer should prepare a summaryof the interview with the witness, rather thanhaving the witness write, sign, or adopt astatement. Many civilian shoreworkers may bereluctant to prepare or sign a writtenstatement, especially when one of their fellowworkers is involved. Frequently they willprovide a statement to their employer, whichthe investigating officer may obtain byrequesting a copy of the employer’s accidentreport. If an apparent witness declines toprovide any information, it is extremelyimportant to obtain the precise identifying datamentioned in the preceding paragraph.

(4) Inspection of the accident site. Aclaim or suit by an injured shoreworker or visitoris based on a contention that the ship wasnegligently maintained or operated. A post-accident inspection can be corroborated byevidence of other inspections (zone, safety, orhealth and comfort) closely preceding theIncident. Evidence that qualified personnel(DCPO, LPO, division officer, safety officer, orinvestigating officer) carefully inspected a siteimmediately following an accident and foundthe area free from defects is especiallyImportant when there is no eyewitness to theinjury. The post-accident inspection shouldfocus on conditions likely to have contributed tothe particular incident; for example, if thevictim was injured in a fall, the inspectionshould include the quality of the footing (Wasthe deck or ladder wet or greasy? Were theladder treads worn?), lighting in the space, andexistence of structural conditions and

12-12Change 7

40

protuberances that might cause an individualto fall. Similarly, if the injury resulted from thefailure or giving-way of any of the vessel’s gearor equipment, a careful examination to discoverthe cause of the failure should be made, and, iffeasible, the gear should be carefully preserved.Whenever possible, a post-accident inspectionshould include photographs of the accidentlocation (or gear involved) before any changesare made after the incident. See section 1207c.Furthermore, if a defective condition isuncovered, the inspector should attempt todetermine how long the condition has been inexistence, who (individual and employer)created the condition, and, if created bysomeone other than a United States employee,whether any crewmembers learned of thedefective condition prior to the accident.Finally, PMS records for a space or piece ofequipment should be consulted and retainedwhen a defective condition is found.

(5) Medical recorcls. Include copies ofall naval medical records of treatment by navalpersonnel in an investigative report of a deathor injury. The investigating officer should notdelay an investigation to obtain detailedmedical records from a civilian hospital,physician, or the injured party. Theinvestigating officer should determine thegeneral nature of the victim’s injuries fromreports and records readily available to theNavy.

d. Shoreworker injuries. For ashoreworker injury investigation, an accidentreport and/or an employer’s report of injurymay be obtained from the injured worker’semployer, the shipyard safety office, or thecognizant office of the Supervisor ofShipbuilding, Conversion and Repair, USN(SUPSHIP).

e. General visiting and ship tours. Inaddition to paragraph c of this section,investigative reports of an injury occurringduring general visiting or tours of the shipshould comment on warnings given to visitors(conspicuous signs, printed warnings onbrochures provided, and verbal warnings by atour guide), and presence of crewmembers onthe tour route to assist visitors and correct anyhazardous conditions noted.

f. Civilian Federal employees. If a civilianFederal employee dies or is injured in the courseof employment in an admiralty incident, reportit immediately to the Judge Advocate General(Code 11). The Federal EmployeesCompensation Act (FECA), 5 U.S.C. §§ 8101-8193(1982), is the sole means of redress against theUnited States for such individuals. Accordingly,investigative responsibilities for these cases willbe streamlined and the Judge Advocate General(Code 11) will provide guidance. If the victim isinjured outside the course of employment, FECAdoes not apply and the case is investigated asany other personal injury or death case.

1211 CORRESPONDENCE WITH PRIVATEPARTIES

a. All correspondence received by acommand on an admiralty incident, especiallythat from a claimant or an attorney purportingto represent a claimant, shall be forwardedexpeditiously to the Judge Advocate General(Code 11) for reply. Under SECNAVINST 5820.8and the Freedom of Information Act, 5 U.S. C. §552 (1982 & Supp. IV 1986), the Judge AdvocateGeneral (Code 11) is responsible for processingrequests for Navy records, for access to Navyproperty and information, or for interviews ofnaval personnel in admiralty matters. Theserequests often precede claims or lawsuitsagainst the United States.

b. All naval personnel contacted by aclaimant, or by a claimant’s attorney on anadmiralty incident, should not give a statementor make any admissions which might prejudicethe Government’s case. Rather, theservicemember should report the contact to thecommanding officer, who will inform the JudgeAdvocate General (Code 11).

c. Naval personnel shall not advise aclaimant to forward a repair bill so the Navy can“take care of it.” This advice may mislead theclaimant and serve as the basis for a later chargethe Navy admitted liability. Similarly, avoid anyinformal, off the record assurances of probablerecognition of a claim.

41 12-13Change 7

PART C - ADMIRALTY CLAIMS AGAINST THE NAVY

1212 NAVY LIABILITY 1213 AUTHORITY FOR CLAIMS SETTLEMENT

a. The United States waived immunity andconsented to suits arising from admiraltyincidents under the Suits in Admiralty Act, 46U.S.C. §§ 741-752 (1982), and the Public VesselsAct, 46 U.S.C. §§ 781-790 (1982).

b. The Suits in Admiralty Act provides that,whenever a suit in admiralty can be broughtagainst a private party or vessel, a suit can bebrought against the United States in likecircumstances. The law specifies that aGovernment vessel or cargo shall not be subjectto arrest or seizure; rather, a complaint inpersonam shall be brought against the UnitedStates in Federal district court for the district inwhich plaintiffs (or any one of them) reside orhave their principal place of business, or inwhich the vessel or cargo charged with liabilityis found.

c. All naval vessels are public vessels andlitigation for damages caused by such vesselsmust proceed under the Public Vessels Act. TheAct allows a complaint in personam against theUnited States in the Federal district court for thedistrict in which the public vessel is located atthe time of the filing of the complaint. If thepublic vessel is outside the territorial waters ofthe United States, then suit may be brought inthe district in which the plaintiffs (or any one ofthem) reside or have an office or business, or, ifnone of the plaintiffs reside or have a businessor office in the United States, then in any districtcourt. Although the Public Vessels Act isprimarily a tort statute, it allows suits arisingfrom maritime contracts, including suits fortowage and salvage services rendered to apublic vessel, to be brought against theGovernment.

d. While admiralty jurisdiction in theUnited States originally did not extend todamage caused by a vessel to a land structure,such as a pier or wharf, the AdmiraltyJurisdiction Extension Act, 46 U.S.C. § 740(1982), may make the United States liable underthe Suits in Admiralty Act or the Public VesselsAct whether the damage occurs on navigablewaters or on land.

a. The Secretary of the Navy has authorityto settle, compromise, and pay claims up to$1,000,000 for “(1) damage caused by a vessel inthe naval service or by other property under thejurisdiction of the Department of the Navy; (2)compensation for towage and salvage service,including contract salvage, rendered to a vesselin the naval service or to other property underthe jurisdiction of the Department of the Navy;or (3) damage caused by a maritime tortcommitted by any agent or employee of theDepartment of the Navy or by property underthe jurisdiction of the Department of the Navy.”10 U.S.C. § 7622 (1982). A claim settled for anamount over $1,000,000 must be certified toCongress. Regulations on the Secretary’ssettlement authority are found at 32 C.F.R. part752.

b. The Secretary of the Navy may delegatesettlement authority when the amount to bepaid is not over $10,000. 10 U.S.C. § 7622 (1982).Under that authority, the following havesettlement authority within the limits specified:

(1) The Judge Advocate General andthe Deputy Judge Advocate General, paymentnot to exceed $10,000 per claim;

(2) The Assistant Judge AdvocateGeneral (Civil Law), and the Deputy AssistantJudge Advocate General (Admiralty), paymentnot to exceed $10,000 per claim;

(3) Commander in Chief, U.S. NavalForces, Europe; Deputy Commander in Chief,U.S. Naval Forces, Europe; and CommanderSixth Fleet, payment not to exceed $3,000 perclaim for claims within the jurisdiction of theirrespective commands; and

(4) Commander, U.S. Naval Activities,Caribbean, payment not to exceed $1,000 perclaim for loss, damage, or destruction of fishingequipment adjacent to Culebra Island andVieques Island, Puerto Rico.

c. Settlement is final when the claimantaccepts payment.

12-14Change 7

42

1214 STATUTE OF LIMITATION

a. Suits under the Suits in Admiralty Actorthe Public Vessels Act. For the court to havejurisdiction under the Suits in Admiralty Act orthe Public Vessels Act, suit must be filed within 2years after the incident on which the cause ofaction is based. This limitation cannot bewaived administratively, nor is the statute oflimitation tolled by filing a claim with theGovernment.

b. Admiralty claims. The 2 year statute oflimitation also applies to the Secretary of theNavy’s settlement authority for admiralty claimsfiled against the United States. A settlementand written approval of the Secretary ordesignee must be concluded before the end ofthe 2 year period or the claimant must file suitunder the appropriate statute. A statementdescribing the Secretary’s settlement authorityand this limitation is usually included in theinitial correspondence from the Judge AdvocateGeneral (Code 11) to a claimant or claimant’scounsel to avoid future assertions that he or shewas misled.

1215 ADMINISTRATION OF ADMIRALTYCLAIMS

a. Generally. It is the Navy’s policy to settleadmiralty claims fairly and promptly when legalliability exists. Administrative settlement ofadmiralty claims eliminates the expense anddelay of litigation while obtaining a resultadvantageous to the financial interests of theUnited States. Litigation is likely whensettlement cannot be arranged.

b. Assistance to claimants. Refer claimantsor potential claimants inquiring about rights orprocedures to the Judge Advocate General(Code 11) or other appropriate adjudicatingauthority listed in section 1213b. The cognizantadmiralty attorney will advise the individualhow to present a claim, the address the noticeof claim should be mailed to, and what, if any,evidence is required. An officer or employee ofthe Government cannot act as agent or attorneyfor another in the prosecution of any claimagainst the United States. 18 U.S.C. § 205(1982). See chapter XIX for requests for legalassistance with claims against the United States.

1216 PROPER CLAIMANT

a. Damage to property cases. The ownerof the property, or the owner’s duly authorizedagent or legal representative, shall present aclaim for loss, damage, or destruction ofproperty. “Owner” includes bailee, lessee, ormortgagor, and does not include a mortgageeor other person having title for securitypurposes only.

b. Personal injury cases. The injuredperson or the injured person’s duly authorizedagent or legal representative shall present aclaim for personal injury.

c. Death cases. The executor oradministrator of the decedent’s estate, or anyother person legally entitled, shall present aclaim for wrongful death.

d. Agent or representative. A claimpresented by an agent or legal representativeshall be presented in the name of the real partyin interest, shall be signed by the agent or legalrepresentative, shall contain the title or legalcapacity of the person signing, and shall beaccompanied by evidence of authority to act asagent or legal representative for the real partyin interest.

e. Subrogation cases. The insurer maypresent a claim as subrogee for loss whollycompensated by insurance. Parties, jointly orindividually as their respective interests appear,may present a claim with the rights of subrogeefor loss partially compensated by an insurer.When the aggregate of the claims of subrogorand subrogee exceed the adjudicatingauthority’s limit, the claims of subrogor andsubrogee may be settled and paid if the interestof each is within the adjudicating authority’sjurisdiction. The subrogee should furnishappropriate documentary evidence in supportof a subrogated claim.

f. Limitation on transfers and assignment.The transfer or assignment of all, or part, of aclaim against the United States is void unlessmade after a claim is allowed, the amount ofthe claim is decided, and a warrant for paymentof the claim has been issued. 31 U.S.C. § 3727(1982). But, assignments of a claim by operation

43 12-15Change 7

of law shall be allowed, such as a receiver ortrustee in bankruptcy, an administrator orexecutor of a decedent’s estate, or an insurersubrogated to the rights of the insured.

1217 PRESENTMENT OF AN ADMIRALTYCLAIM

a. Presentment defined. An admiralty claimis presented when a claimant, or the claimant’sduly authorized agent or legal representative,gives the Navy written notice of an admiraltyincident stating a claim for money damages in asum certain for loss, damage, or destruction ofproperty, personal injury, or death, allegedlyresulting from the incident. The claimant mayuse Standard Form 95 or a letter to state theclaim.

b. Basic content of claim. At a minimum, aclaimant shall be advised to include thefollowing information with notice of anadmiralty claim:

(1) Full name and complete address ofthe claimant and, if applicable, the claimant’sagent or legal representative;

(2) Sum certain amount being claimed;

(3) Date, time, and place of theadmiralty incident giving rise to the claim;

(4) Detailed description of facts andcircumstances;

(5) If possible, the identity of the navalvessel, other naval property, or the agent oremployee of the Navy involved;

(6) Names and addresses of anywitnesses known to the claimant; and

(7) Nature and extent of the loss,damage, destruction, or injury sustained.

c. Supporting evidence: generally. Aclaimant has the burden of providing evidenceto determine Navy liability and damages with areasonable certainty. For example, proof maybe established by witnesses’ statements,documentary evidence, and graphic orphotographic representations of the incidentsite. The claimant’s failure to providesupporting information upon request mayresult in unfavorable consideration of the claim.

d. Supporting evidence: property damagecases. To support a claim for loss, damage, ordestruction of property, a claimant may berequired to submit proof of ownership, copiesof purchase receipts, invoices, or otherdocuments showing the original cost of theproperty, and itemized independent repair orreplacement estimates or bills. Becauseproperty depreciates, a claimant may berequired to provide the age and normal usefullife of the property. For claims involvingsubstantial damage, the report of a formalsurvey attended by the claimant and the UnitedStates provides excellent supportingdocumentation. A claimant who did not invitethe Government to attend a formal survey ofthe damaged property will be held to a strictstandard to prove damage attributable to anadmiralty incident.

e. Supporting evidence: personal injurycases. To support a claim for personal injury, aclaimant may be required to submit copies ofitemized medical bills, payment receipts, andother evidence of medical expenses. A medicalreport from the claimant’s attending physician,narrative summaries of treatment, progressnotes, doctor’s orders, and nursing notes may berequired to establish the nature and severity ofthe claimant’s injuries, prognosis, periods ofhospitalization, degree of temporary orpermanent disability, and diminished earningcapacity. If the prognosis indicates the need forfuture treatment, the claimant should provide astatement of expected expenses. Additionally,the claimant may be required to submit to aphysical or mental examination by a physicianemployed by the Navy or another Federalagency. If the claim includes lost earnings, theclaimant may be required to provide a writtenstatement from the employer showing actualtime lost, whether the claimant is a full- or part-time employee, and wages or salary actuallylost. If a claimant is self-employed and claimsloss of income, appropriate documentaryevidence shall be submitted showing earningsactually lost Damages for pain and suffering orother intangible losses may be supported byproviding copies of, or citation to,representative cases, or reference to recognizedverdict reporting services.

f. Supporting evidence: death cases. Tosupport a claim for wrongful death, a claimantmay be required to submit documentsestablishing decedent’s general physical and

12-16Change 7

44

mental condition before death, itemized billsfor medical and burial expenses, or receipts forpayment of such expenses, and the full names,addresses, ages, kinship, marital status, anddegree of support, of all survivors dependent onthe decedent for support at time of death.Furthermore, the claimant may be required toprovide evidence establishing decedent’semployment or occupation at time of death,including decedent’s monthly or yearly salary orearnings, and duration of decedent’s lastemployment or occupation. If damages for painand suffering prior to death are claimed, aphysician’s detailed statement may be requiredspecifying injuries suffered, duration oftreatment prior to death, and drugsadministered for pain.

1218 ACTION BY THE ADJUDICATINGAUTHORITY

a. Action upon receipt of the claim. Whenan adjudicating authority receives an admiraltyclaim, the assigned admiralty attorney shallensure that an investigative report has beenprepared under section 1205. Additionally, theattorney determines the sufficiency of thesupporting evidence provided with the claim,and shall request from the claimant additionalinformation as necessary to adjudicate theclaim. See section 1217. Correspondence toclaimant should state it is “without prejudice”and does not constitute an admission of liabilityto avoid possible prejudice during litigation.

b. Standard for adjudication. The final testof whether settlement is justified is theprobable result of litigation.

c. Adjudication. An adjudicating authoritymay approve claims within the settlementlimitations of section 1213. The Judge AdvocateGeneral (Code 11) acts on behalf of theSecretary of the Navy and his designees inprocessing and negotiating recommendedsettlements. When the Judge Advocate General(Code 11) negotiates a settlement in excess of$10,000, the case shall be forwarded to theSecretary for final adjudication. Since denial ofa claim means the claim has no settlementvalue, an adjudicating authority may deny anyclaim, regardless of amount involved.

d. Favorable settlement. Afterdetermining a claim should be paid andnegotiating an amount acceptable to theclaimant and the United States, the assignedadmiralty attorney shall prepare and submit a

memorandum to the appropriate adjudicatingauthority detailing the incident, applicable law,and reasons why the recommended settlementis in the best interests of the United States. Anagreement to settle a claim is not concludeduntil the Secretary of the Navy or the Secretary’sdesignee approves it in writing. Adequate timeto obtain approval prior to the expiration of thestatute of limitation must be factored into thenegotiating process.

e. Payment of claims. When settlementhas been approved, a voucher is preparedrequesting issuance of a U.S. Treasury check inthe settlement amount. This check is sent to theJudge Advocate General (Code 11) oradjudicating command which conducted thenegotiations for forwarding to claimant.Usually, the claimant is requested to return anexecuted release by mail before the check isforwarded, on the understanding that therelease does not become effective until thecheck is received by the claimant. A claim maybe paid after the 2 year statute of limitation ifthe settlement agreement was approved by theadjudicating authority before expiration of thelimitation period. Claims settled under 10 U.S.C.§ 7622 (1982) are paid from annual Departmentof Defense appropriations.

f. Denial. A final denial of an admiraltyclaim shall be in writing and sent to the claimantor the claimant’s agent or legal representative,as appropriate, and may include a statement ofthe reasons for the denial.

g. Reconsideration. While there is noadministrative appeal from the denial of anadmiralty claim, the claimant can request theadjudicating authority to reconsider the denial.The claimant must support the request with atheory, evidence, or legal authority notpreviously provided.

1219 ADJUDICATING ADMIRALTY CASES ASFOREIGN CLAIMS

a. Admiralty claims arising in foreigncountries may be adjudicated under the ForeignClaims Act. 10 U.S. C. § 2734 (1982). As indicatedin chapter XXII, such claims are not handled asforeign claims without the Judge AdvocateGeneral’s prior authorization.

b. If permission is granted for an admiraltyclaim to be adjudicated under foreign claimsregulations, the Judge Advocate General (Code11) shall be provided a copy of the Foreign

45 12-17Change 7

Claims Commission proceedings and, if anaward is made to claimant, with a copy of theexecuted release.

1220 ACTION UPON NOTICE OF SUIT AGAINSTTHE UNITED STATES

a. Generally. When suit is filed in anadmiralty case, the Department of Justice hascognizance and the Secretary of the Navy can nolonger negotiate an administrative settlement32 C.F.R. part 752. Settlement negotiations atthe time of filing between the Navy and theclaimant may be continued with theDepartment of Justice representing theGovernment. Payment of final decrees ornegotiated settlements is made under

Department of Justice procedures and from itsappropriations. The Judge Advocate General(Code 11) will assist the Department of Justice inpreparing for trial.

b. Litigation reports. When litigationbegins, the Judge Advocate General (Code 11)will forward a copy of its case file to theDepartment of Justice with a litigation report.The litigation report contains a narrativesummary of the admiralty incident giving rise tothe suit and a summary of any negotiations.The admiralty attorney should highlight issues

of law and fact, especially those involvingjurisdiction and statute of limitation.

12-18Change 7

46

PART D - AFFIRMATIVE ADMIRALTY CLAIMS

1221 AUTHORITY FOR AFFIRMATIVECLAIMS Settlement

a. The United States may pursueaffirmative admiralty claims for most admiraltyincidents, and affirmative salvage claims. 10U.S.C. § 7623 (1982) and 10 U.S.C. § 7365 (1982).See also 32 C.F.R. part 752.

b. The Secretary of the Navy has authorityto settle, compromise, and receive payment forclaims by the United States for damage to anyproperty under the jurisdiction of theDepartment of the Navy, if the damage wascaused by a vessel or floating object, or isotherwise within admiralty jurisdiction. 10U.S.C. § 7623 (1982). The Secretary also hassettlement authority for damage to propertythat the Department of the Navy is responsiblefor, allowing subrogation claims accruing infavor of the United States. For example, whenthe Navy leases a privately owned pier which isdamaged by a commercial vessel, and the leaseobligates the Navy to pay the pier owner for thedamage, or when Navy property is damagedwhile leased to private interests and the Navyassumes the risk of loss or damage, the Navymay recover from the tort-feasor.

c. The Secretary’s settlement authority islimited to claims up to $1,000,000 and not inlitigation. 10 U.S.C. § 7623 (1982). Once suit isfiled, the case comes under Department ofJustice’s cognizance for settlement. 32 C.F.R.part 752. The Secretary is authorized to executea release on behalf of the United States uponpayment of the affirmative admiralty claim.Acceptance of payment and execution of arelease by the Secretary is final on all parties asto the United States’ claim.

d. The Secretary may delegate settlementauthority when the amount to be received doesnot exceed $10,000. 10 U.S.C. § 7623 (1982).The Judge Advocate General and the DeputyJudge Advocate General may exercise theSecretary’s authority in settlements notexceeding $10,000. The Assistant JudgeAdvocate General (Civil Law) and the DeputyAssistant Judge Advocate General (Admiralty)may also exercise the Secretary’s authority insettlements not exceeding $10,000. Thoseindividuals with limited authority to settleadmiralty claims against the Navy reflected insections 1213b(3) and (4) do not have

corresponding affirmative claims settlementauthority.

e. The Secretary of the Navy may consider,adjust, compromise, settle, and receive paymentfor any claim of the United States for salvageservices rendered by the Department of theNavy. 10 U.S.C. § 7365 (1982). Salvage claimsare discussed further in section 1225.

1222 STATUTE OF LIMITATION FORAFFIRMATIVE CLAIMS

The United States has a 3 year statute oflimitation to assert an affirmative claim orcommence litigation for money damages arisingfrom any tort, including admiralty torts. 28U.S.C. § 2415b (1982) and 32 C.F.R. part 752.This limitation has certain exclusions, such aslack of Government knowledge of the incidentgiving rise to the claim, an inability to prosecutea claim due to declared war or unavailability ofthe res or the defendant, and variousexemptions from legal process. 28 U.S. C. § 2416(1982).

1223 AFFIRMATIVE CLAIMS PROCEDURES

a. Generally. All claims by the UnitedStates for money damages arising fromadmiralty incidents should be timely andpursued aggressively. The Judge AdvocateGeneral (Code 11) acts on behalf of theSecretary and the designees listed in section1221d in asserting and negotiating affirmativeadmiralty claims.

b. Action upon notification of an admiraltyincident. When an admiralty incident involvinga potential affirmative claim is reported to theJudge Advocate General (Code 11), the assignedadmiralty attorney shall take immediate actionto protect the rights of the United States. Theattorney shall ensure the investigative report isprepared under section 1205 and adequatelyaddresses responsibility for the incident.Additionally, the attorney shall develop anddocument the damage suffered by the UnitedStates including, in appropriate cases, invitingthe tort-feasor to attend a formal survey of thedamage. See section 1206.

c. Determination and notice of claim. If theadmiralty attorney determines the private partyis not liable for the Government’s damage, the

47 12-19Change 7

_____ .—. =..— .-. ~_.. .

attorney shall recommend closing the file. If theattorney determines the private party is liable,the attorney shall immediately mail to thatperson or organization and, if appropriate, tothe agent, legal representative, or insurancecarrier for that person or organization, writtennotice of the Government’s claim, identifyingthe incident by date, time, and place, describingthe damaged Navy property, and stating theGovernment’s intention to hold the offendingparty responsible for the damage. Supportingdocumentation, such as a survey report orevidence of actual cost of repairs, should beprovided with the notice of claim or as soon asavailable.

d. Standard for claim settlement. The finaltest of whether settlement is justified is theprobable result of litigation, taking intoconsideration the enforceability of a judgmentfavorable to the United States and the time andexpenses saved in forgoing litigation.

e. Favorable settlement. Afternegotiating a proposed agreement acceptableto opposing interests, the admiralty attorneyprepares a memorandum detailing the incident,applicable law, and reasons why therecommended settlement is in the best interestsof the United States and submits it for approvalto the appropriate settlement authority. Theadmiralty attorney must conclude settlementbefore expiration of the statute of limitation,including obtaining approval from thesettlement authority, receiving the proceeds,and providing an executed release from furtherliability.

f. Deposit of proceeds. Amounts receivedin settlement of affirmative admiralty claims arepaid to the Treasury of the United States, exceptwhen a Navy industrial fund has been chargedfor the cost of repairs to damaged Navyproperty, that fund will be reimbursed for theamount paid out.

g. Release from liability. Upon receipt ofthe settlement proceeds, the Judge AdvocateGeneral (Code 11) shall prepare, execute, andforward to the opposing party a release fromfurther liability. Normally, all releases,regardless of amount involved, will be executedfor the Secretary of the Navy by the DeputyAssistant Judge Advocate General (Admiralty).

1224 FORWARDING AFFIRMATIVE CLAIMS TOTHE DEPARTMENT OF JUSTICE

If the Judge Advocate General (Code 11)cannot negotiate an administrative settlementfor an affirmative admiralty claim, the case maybe forwarded with a litigation report to theDepartment of Justice recommending that suitbe filed. The litigation report should contain anarrative summary of the admiralty incidentgiving rise to the Government’s claim, a detailedstatement of the damage sustained, and asummary of negotiations. When suit is filed, theJudge Advocate General (Code 11) shall assistthe Department of Justice in preparing the casefor trial.

12-20Change 7

48

PART E - MISCELLANEOUS

1225 SALVAGE

a. Salvage claims may be filed against theNavy for compensation for towage and salvageservices, including contract salvage, rendered toa naval vessel or other property under theDepartment of the Navy’s jurisdiction. TheUnited States may file claims for salvage servicesrendered by vessels or units of the Departmentof the Navy. Regulations on these claims arepublished at 32 C.F.R. part 752.

b. A successful salver is generally entitledto: (1) reimbursement of expenses, such as costof labor and materials expended; and (2) abonus or reward which is something less thanthe value of the salved property. Salvageawards encourage others to risk their ships andlives to save another’s property from the sea,but discourage unnecessary or exaggeratedservice. There is no reward to salvage onlyhuman life; however, a salver of life is entitledto an award from the value of any property alsosalved. The crew of a salving vessel may receivea share of the salvage award. A civilian crewwhich assists in salvaging a naval vessel has aseparate cause of action against theGovernment from that of the civilian vesselowner. Uniformed naval personnel cannotmaintain suit for salvage services performed aspart of their official duties.

c. Suits against the United States seekingcompensation for salvage may be maintainedunder the Public Vessels Act and the Suits inAdmiralty Act. The Secretary of the Navy maypay salvage claims under 10 U.S.C. § 7622 (1982).Salvage claims against the Navy are reportedand investigated under sections 1203-1205, andprocessed under the procedures in Part C of thischapter. Both claims and suits against theUnited States for salvage are subject to the 2year statute of limitation. See section 1214.

d. When a naval ship or unit renderssalvage assistance, the Secretary of the Navy canadministratively settle the claim against theprivate shipowner. 10 U.S.C. § 7365 (1982).Affirmative salvage claims are reported to andprocessed by the Assistant Supervisor ofSalvage, USN. See NAVSEAINST 4740.4.Affirmative salvage claims are referred to theJudge Advocate General (Code 11) only if theAssistant Supervisor of Salvage is unsuccessful.The Assistant Supervisor of Salvage normally

asserts Navy affirmative salvage claims on a perdiem basis as an administrative convenience,but the Government is not precluded fromasserting its affirmative claim on a salvage-bonus basis.

e. If the private shipowner seeks to offsetthe Navy’s per diem charges, in whole or in part,with a claim for damage to his ship allegedlycaused by the salvaging naval vessel or itspersonnel, the per diem charge usually iswithdrawn and the Navy’s claim reasserted on asalvage-bonus basis. When a private shipownerpays the per diem salvage charge and then,without prior notice, presents a claim fordamage caused to his vessel during the salvageoperation, the prior settlement of theGovernment’s salvage claim precludesreasserting that claim on a salvage-bonus basis.To avoid such liability, settlement of a Navyaffirmative salvage claim is normallyconditioned upon release from any claim fordamage to the private ship incurred during thesalvage operation. Any damage to a privatevessel during a salvage operation should beinvestigated under section 1205 andimmediately reported to the Judge AdvocateGeneral (Code 11), who may arrange for a jointsurvey of the damage.

f. A “finder’s reward” may be paid forinformation leading to the recovery of certaintypes of ordnance, mobile targets, aircraft, andoceanographic equipment. See NAVSEAINST8500.1 and NAVCOMPT Manual, paragraph046380.

1226 TOWAGE AND PILOTAGE

a. The Navy, on occasion, performs towageor pilotage services for privately owned vessels.The two services are distinct, especially forliability for damage caused by negligent towingversus damage caused by negligent pilotage.

b. When commercial firms perform towageor pilotage, they usually attempt to exemptthemselves from liability for damage by contractclauses. Exemption clauses are generallysuccessful in pilotage, but the courts haveconsistently held clauses invalid that attempt tocontract away liability for negligent towage. Toprotect the Navy from liability for negligentpilotage when a commercial firm would, bycontract, be relieved of liability, Navy pilotage

49 12-21Change 7

should be performed only upon execution ofthe suggested contract in Appendix A-12-a.

1227 INTRAGOVERNMENT ADMIRALTYINCIDENTS

a. Potential claims for collisions betweenvessels and for other admiralty incidentsinvolving property damage, when the ownersinvolved are the Navy and another Governmentagency, are subject to waiver. The waiverdoctrine is based upon Comptroller Generaldecisions that appropriations of oneGovernment department are not available topay the claims of another.

b. When it appears only FederalGovernment interests are involved, a report ofthe admiralty incident must be made undersections 1203 and 1204; an investigation ofliability and survey of damage are not required.Upon receiving the initial report of the incident,the Judge Advocate General (Code 11) confirmsthe status of the vessels or property involved bycorrespondence with the other Governmentagency, and the waiver is made a matter ofrecord. It is important to avoid unnecessarylabor and expenditures when the claim issubject to waiver. If in doubt on the status ofthe other vessel or property, request advice byrapid means from the Judge Advocate General(Code 11).

1228 FOREIGN GOVERNMENT CLAIMS

a. Admiralty incidents involving UnitedStates Navy vessels or property, and a vessel orproperty owned by a foreign government, mustbe reported to the Judge Advocate General(Code 11) under sections 1203 and 1204. Actionon such claims may be affected by treaties,international law, and Federal statutes Forexample, the Foreign Sovereign Immunities Actrecognizes a foreign nation’s immunity forsovereign or public acts of that nation in UnitedStates territory and limites immunity forcommercial or personal acts 28 U.SC. §§ 1604-1611 (1982).

b. Under customary international law, anation’s public war vessels are not subject tojurisdictional process in any other nation; allU.S. naval vessels (including MSC vessels) areimmune from arrest. If an attempt is made toarrest a U.S. Navy vessel in a foreign country,include NAVY JAG ALEXANDRIA VA as aninformation addressee in the message report ofthe arrest attempt. If requested, the Judge

Advocate General (Code 11) will then assistDepartment of Justice and Department of Stateto obtain the ship’s immediate release.

c. Government-owned merchant shipshave limited immunity from jurisdictionalprocess of a foreign state. For example, aforeign government-owned vessel is exemptfrom U.S. jurisdiction if devoted to public use orgovernment operations; however, theimmunity of foreign government-ownedmerchant vessels in competitive commercialtransactions may be restricted.

d. The United States has waiveragreements with the British and Canadiangovernments so all maritime claims between theUnited States and Great Britain or Canada,arising out of the operation of public vessels ofthese respective governments, are waived. SeeMaritime Transportation and LitigationAgreement with Great Britain, 4 December1942, 56 Stat. 1780, E.A.S. 282; and Waiver ofClaims Involving Government Ships Agreementwith Canada, 15 November 1946, 61 Stat. 2520,T.I.A.S. 1582. These admiralty incidents do notrequire the usual investigative report or surveyfor claims purposes.

e. Admiralty claims are also affected byStatus of Forces Agreements. Under article VIIIof the NATO Status of Forces Agreement, anintergovernmental admiralty claim for damageto property owned and used by the armedforces of one contracting party, caused by avessel of another contracting party, is waived ifeither the damaging vessel or the damagedproperty was used in the operation of the NorthAtlantic Treaty. Similarly, under article XVIII ofthe Status of Forces Agreement with Japan, theUnited States and Japan mutually waive claimsfor property damage caused by members oftheir defense forces if the damaginginstrumentality or the damaged property wasbeing used for official purposes. A similarprovision is in the Status of Forces Agreementbetween the United States and the Republic ofKorea.

1229 COAST GUARD AND NATIONALTRANSPORTATION SAFETY BOARDINVESTIGATIONS

a. Coast Guard investigations of marinecasualties.

(1) The Coast Guard routinely receivesreports of and investigates marine casualties or

12-22 50Change 7

accidents involving privately owned vessels.“Marine casualty or accident” includescollisions, strandings, grounding, foundering,heavy weather damage, fires, explosions, failureof vessel gear and equipment, and any otherdamage which might affect the seaworthinessof the vessel. Public vessels of the United States,and all naval vessels, are exempt frominvestigation even if involved in the incidentunder investigation. 46 C.F.R. part 4. Navalpersonnel are not required to report a marinecasualty involving a public vessel to the CoastGuard, complete any Coast Guard form or otherdocument describing the maritime incident, orparticipate in a Coast Guard investigation. Theincident must be reported to the JudgeAdvocate General (Code 11) under sections 1203and 1204.

(2) The Navy may assist the Coast Guardwith its investigation by sharing informationfrom the Navy’s own investigation and makingnaval personnel available as witnesses, but theNavy will not prejudice its claims or litigation.Information disclosed to the Coast Guardnormally becomes part of a public record of theincident and is available to interests opposed tothe United States. The Judge Advocate Generaldecides whether to disclose a Navy investigationto the Coast Guard and whether navalpersonnel will be made available to testify at aCoast Guard investigative hearing. Requests forsuch information, reports or witnesses should beforwarded to the Judge Advocate General(Code 11) by rapid means.

(3) The Judge Advocate General (Code11) may provide a copy of the Navy’sinvestigative report of an admiralty incident tothe Coast Guard investigator when issues of civilliability are not involved or have been settled.In other situations, the Judge Advocate General(Code 11) may give the Coast Guard a copy ofthe Navy report only if it is used exclusively forCoast Guard purposes and not made part of thepublic record. This practice assists the CoastGuard’s understanding of the incident, supportsthe Navy’s policy of interagency cooperation,and preserves the Government’s position onclaims or litigation.

b. National Transportation Safety Board(NTSB) investigations of marine casualties.

(1) The NTSB, an independentGovernment agency, promotes transportationsafety by conducting independentinvestigations of accidents involving

Government regulated transportation: air,highway, rail, pipeline, and major maritimecasualties. The NTSB may conduct aninvestigation of any casualty involving publicand nonpublic vessels. The NTSB shall conductan investigation when: the casualty involves aCoast Guard and a nonpublic vessel, and at leastone fatality or $75,000 in property damage; theCommandant of the Coast Guard and NTSBagree that NTSB should investigate a casualtyinvolving a public (e.g., a U.S. Navy) vessel and anonpublic vessel, and involving at least onefatality or $75,000 in property damage; or thecasualty involves “significant safety issuesrelating to Coast Guard safety functions.” See49 U.S. C. § 1901-1907 (1982), and 49 C.F.R. parts845 and 850.

(2) The NTSB investigation does nothave priority over other official inquiries intomajor marine casualties, such as the Navy’s JAGManual investigation. The NTSB conducts asimultaneous but separate investigation fromthe Navy’s own JAG Manual investigation. Aftera major marine casualty, ensure originaldocuments are preserved and witnesses (afterany exercise of their right to counsel) are madeavailable to the Navy’s investigating officer.Copies of documents and Navy witnesses shouldthen be made available to NTSB for itsinvestigation. NTSB has subpoena power,enforceable through the Federal courts, for theproduction of persons and documents. TheNavy’s policy is to cooperate with the NTSB’sinvestigation as much as possible, whilesafeguarding the rights of individuals involvedin the incident and preventing unnecessarydisruption of the Navy’s own investigation.

(3) Usually NTSB announces whether itwill investigate within one day after theincident occurs. An NTSB official in Washington,DC, notifies the type commander of the Navyvessel involved by telephone, although thegroup or squadron commander may receiveinitial notification. Upon notice of NTSBinvolvement, notify the Judge AdvocateGeneral (Code 11) by telephone of the initialnotice from NTSB and any requests from NTSB.Also, a Navy liaison officer must be appointed aspoint of contact (POC) for NTSB. The POCshould be of the rank of 0-4 or above,technically competent in shipboard navigationand engineering skills, and not a crewmemberof the vessel involved. A judge advocate shouldbe available to assist the POC and keep theJudge Advocate General (Code 11) advised ofthe status of the NTSB investigation.

51 12-23Change 7

(4) NTSB may request to inspectdocuments and interview Navy crewmembers assoon as the vessel involved arrives at the pier.The POC should insist that the JAG Manual andNTSB investigations proceed in an orderlyfashion. The following is suggested as areasonable sequence of events:

(a) When the ship returns to port,the investigating officer for the JAG Manualinvestigation should have been assigned. If nottransported to the ship while at sea, theinvestigating officer should immediately collectand review charts, logs, and other documentsaboard the ship, and may commence interviewsof crewmembers.

(b) Within a few days of the ship’sreturn, and under arrangements made by thePOC, the NTSB (generally three to four officials)arrives on board and is provided with copies ofunclassified relevant documents. NTSB officialsmay conduct preliminary crewmemberinterviews, but sworn statements should not be

permitted. Document review and preliminaryinterviews take 2 to 4 days.

(c) The NTSB advises the Navy of thedate, time, and place of the formal hearing andrequests the appearance of specifically-namedcrewmembers. The hearing is usually held 2 to 4weeks after the incident. The POC is usually theNavy’s official representative at the hearing. Ajudge advocate also should attend the hearingas an observer.

(d) The JAG Manual investigation iscompleted as soon as possible. The conveningauthority forwards an advance copy to theJudge Advocate General (Code 11) undersection 1205.

(e) The judge advocate whoattended the NTSB hearing should get a copy ofthe verbatim transcript and summary report ofthe hearing from the POC and forward them tothe Judge Advocate General (Code 11).

12-24Change 7

52

SUGGESTED FORMAT FOR PILOTAGE AND TUG SERVICES CONTRACT(See Section 1226)

It is understood and agreed that the furnishing of pilotage and associated tug services by the Departmentof the Navy for the vessel

shall not be construed to give rise to a personal contract between the namedindividuals signing this agreement; and

it is further understood and agreed that the Department of the Navy in furnishing any pilotage andassociated tug services shall have the benefit of all exemptions from and limitations of liability to which theowner of a vessel is entitled under the applicable statutes of the United States; and

it is further understood and agreed that when any pilot or a captain of any tug furnished to or engaged inthe service of assisting a vessel making use or having available her own propelling power, goes on board suchvessel, or any vessel, he becomes the borrowed servant of the vessel assisted and her owner or operator for allpurposes and in every respect, including but not limited to the handling and navigation of such vessel and inrespect to any orders given to any assisting tugs, his services while so on board being the work of the vesselassisted and not of the United States Navy and being subject to the exclusive supervision and control of theship’s personnel; and

it is further understood and agreed that the assisted vessel and her owners will assume all liability for anyloss or damage (including that suffered or caused by any assisting tug) resulting from or arising out of thenegligence or fault of the pilot or assisting tug and that neither the United States Navy, nor any pilot, nor anytug shall be liable, directly or by way of indemnity or otherwise, for any such loss or damage; and

it is further understood and agreed that if any such assisted vessel is not owned by the person or companyordering the pilotage and associated tug services, that such person or company warrants its authority to bindthe vessel and her owners to all provisions of the preceding paragraphs, and agrees to indemnify and holdharmless the Department of the Navy, its agents, servants, employees and any assisting tug or pilot from anyclaim and all damages and expenses that may be sustained or incurred in consequence of such person orcompany not having such authority.

(Signature)

(Title)

FOR(Name of Ship)

A-12-a

5 3Change 7

THIS PAGE INTENTIONALLY BLANK

54

Assignment 1

Admiralty Law and Its Application in Navy Admirlty Claims Practice: a Primer; andJAG Manual, chapter XII

Textbook Assignment: This assignment booklet, pages 1 through 15 and33 through 41.

Learning Objective: Trace thehistorical development ofadmiralty law and compareadmiralty law and common lawprinciples in selected subjectareas.

1-1. The branch of law known asadmiralty law is founded on ideasthat

1. emerged from statutoryenactments

2. evolved from the common law3. antedated common law4. accrued from international

conventions

1-2. Because ships and their saliorsmay encounter legal difficultiesin any part of the world, themajor maritime nations applysimilar principles of admiraltylaw.

1. True2. False

1-3. Which of the followingstatements correctly describesthe present law in the UnitedStates on the awarding ofdamages in an admiralty lawsuitwhen the plaintiff and thedefendant share the fault forcausing the accident?

1.

2.

3.

4.

The court will apply theRule of ContributoryNegligence to deny damagesto any party whose faultcontributed to the accidentThe court will apply theRule of Divided Damages,awarding each party 50% ofits proven damages, becauseeach party contributed tothe accidentThe court will apply theRule of Majority Fault,awarding damages in full tothe party that was less than50% responsible for causingthe accidentThe court will apply theRule of ProportionalDamages, allocating damagesto both sides in accordancewith the relative degrees ofeach side’s fault

1-4. Generally, a lein is a legalright to hold, and if necessaryto have sold, an item ofproperty in order to satisfy aclaim or a charge.

1. True2. False

55

1-5. A ship’s chandler holds a leinagainst a ship for stores suppliedby him. The ship sails withoutpaying its bill to the chandler.Which of the following statementsabout the chandler’s lein is true?

1. The lien still applies2. The lein is divested by the

ship’s departure3. The lein is suspended until

the ship returns4. The lein is revoked by the

ship’s departure, but mayeasily be reinstated if theship ever reappears in thatport

l-6. Assume that a ship with severalsuppliers’ leins against it issold at auction pursuant to acourt order from a proceeding inrem. Generally, what lien, ifany, takes precedence?

1. The first incurred2. The last incurred3. The first presented to the

court, regardless of when itwas incurred

4. None; there is no priorityamong the liens. All leinswill receive a proportionateshare of the proceeds of thesale

1-7. When a person voluntarily salvagesa vessel, what remuneration, ifany, is he/she entitled to receiveunder admiralty law for his/herefforts?

1. A reward equal to the value ofthe vessel he/she has salved

2. A fair compensation for hisservices

3. Only reimbursement for actualout–of-pocket expensesincurred in salving the vessel

4. Nothing; a volunteer salveracquires no legal rights inadmiralty

1-8. A person who attempts, butfalls, to salvage a vessel isnevertheless entitled underadmiralty law to receive anaward from the vessel ownerequal to any costs incurred inthe salvage attempt.

1. True2. False

1-9. Which of the followingstatements about maritimesalvage is NOT correct?

1.

2.

3.

4.

The salvage of a vesseladrift without power in cairnwaters is likely to beclassified as a “low order”salvage“High order” salvage awardstend to be more generousbecause of the dangers facedby the salversPredicting a particularsalvage award is difficultbecause the determination ofsuch awards tends to besubjective and arbitraryThe law of maritime salvageapplies only to the salvageof ships from the perils ofthe sea

1-10. The basic tenet of the doctrineof general average is that allparties in a particular voyageshare those losses occasioned bythe perils of the seaproportionately to theirinterest in the venture.

1. True2. False

1-11. A shipowner in the United Statesmay lawfully limit his liabilityfor property damage caused bythe negligent operation of hisship to the vessel’s valueimmediately after the accident,including to zero if the vesselsinks or otherwise is totallydestroyed.

1. True2. False

56

1-12. Assume that a vessel of 1,000

1-13.

1-14.

gross tons strikes a bridge,causing death and injury tovarious persons who were locatedon the bridge, and ripping a holein the vessel which causes it tosink. According to U.S. statutorylaw, the shipowner may limit hisliability to death and injuryclaimants to

1. zero, since his vessel waslost in the incident

2. $60,0003. $420,0004. under U.S. statutory law, a

shipowner is prohibited fromany limitation of liability incases involving personalinjury or death

Learning Objective: Recognizethat cases are within admiraltyjurisdiction in the United States,and under what circumstances theU.S. Government may be liable inadmiralty.

In the United States initialjurisdiction over an admiraltyaction in rem rests with whatcourt(s)?

1. U.S. Court of Claims2. U.S. Supreme Court3. U.S. District Courts4. U.S. Courts of Appeals

Which of the following contractsis NOT a maritime contract forpurposes of determining admiraltyjurisdiction?

1. A contract to build a ship2. A seaman’s contract of

employment3. A contract to repair a ship4. A contract to lease a ship

1-15.

1-16.

1-17.

1-18.

For a tort to be withinadmiralty jurisdiction in theUnited States, it is requiredthat the tortious conduct occuron

1.

2.

3.

4.

navigable waters and

that the damage caused bysuch wrongful conduct occurto a person or propertylocated on navigable watersthat the wrong complained ofbears a significantrelationship to traditionalmaritime activitythat a demonstrable nexusexists between the wrongcomplained of and maritimecommercenothing more, since any tortoccurring on navigablewaters is within admiraltyjurisdiction

The Suits in Admiralty Act of1920 provided that a Government-owned merchant vessel would notbe subject to seizure or arrest,but an action in personam couldbe filed against the UnitedStates.

1. True2. False

Before the passage of the Suitsin Admiralty Act, individualscould not sue the United Statesfor damages caused by Governmentships because of the applicationof

1. mutual fault2. proximate cause3. proceedings in rem4. sovereign immunity

Under the Public Vessels Act of1925, U.S. Navy vessels aresubject to the same laws asprivately owned vessels, andthey are exempt from which ofthe following proceedings?

1. Arrest2. Seizure3. Maritime lien4. Each of the above

57

Learning Objective: Definethe general scope of theNavy’s admiralty claimssettlement authority, andidentify how certainorganizations are involvedwith processing admiraltyclaims.

1-19. The Secretary of the Navy isentitled to settle admiraltyclaims for damage caused by Navyvessels in amounts up to andincluding $10,000,000.

1. True2. False

1-20. Chapter 12 of the JAG Manualapplies to all EXCEPT which of thefollowing incidents?

1. Damage caused by a privatelyowned ship to a Navy pier

2. Injury to a civilian swimmercaused by a Navy ship’s wake

3. An allision involving a Navyship and a Navy pier

4. A collision involving a Navyship and a civilian sailboat

1-21. When an admiralty incident occurs,what immediate action should theinvolved Navy command take?

1. Have the legal officer make atentative evaluation of Navyliability and, if it appearsthat the Navy is liable,convene a court-martial

2. Report the occurrence to theJudge Advocate General(Code 11)

3. Conduct a joint survey of thedamage

4. If it appears that a privatefirm or individuals isresponsible for damaging Navyproperty, serve a notice ofclaim on the offending party

1-22. The mission of the AdmiraltyDivision (Code 11) of the Officeof the Judge Advocate Generalinvolves which of the followingtasks?

1. To process admiralty claimsagainst the Navy

2. To process the Navy’saffirmative admiralty claims

3. To act as liaison with theDepartment of Justice forNavy admiralty litigation

4. All of the above

1-23. Only the Secretary of the Navymay adjudicate and settleadmiralty tort claims againstthe United States Navy.

1. True2. False

1-24. An admiralty tort claim againstthe United States for damage orpersonal injury caused by theoperation of a Military SealiftCommand (MSC) ship will beprocessed and adjudicated by theOffice of Counsel, MSC.

1. True2. False

Learning Objective: Recognizethe variety of incidents thatgive rise to admiralty claimsand litigation, and identify thereporting and investigatingobligations of an involvedcommand when such an incidentoccurs.

1-25. Generally, any tort (personalinjury or damage to property),whether afloat or ashore,resulting from the operation ofa vessel upon navigable watersis an admiralty incident.

1. True2. False

58

1-26. Which of the following incidentsneed NOT be reported andinvestigated under JAGMAN chapter12 as an admiralty incident?

1. Dependent son of Navy shipcrew member falls over theside while climbing on theship’s lifelines; boy drowns

2. Navy ship’s brow rolls overthe foot of Marine corporalwaiting on the pier to embarkfor a deployment; three toescrushed , requiring amputation

3. Mayor of port city beingvisited by a Navy ship slipswhile en route in thecaptain’s gig to a welcomingconference on board the ship,then at anchor in the harbor;the mayor’s minor injuries areeasily treated by a ship’scorpsman

4. All of the above must bereported and investigatedunder JAGMAN chapter 12

1-27. Assume that the mayor described inresponse number 3 of the precedingquestion, upon his arrival at theanchored ship, assures theattending corpsman and the ship’scommanding officer that he has nointention of filing any claimagainst the Navy. “After all,”the mayor says, “my concern ismaintaining favorable relationswith the Navy, because ship visitsare good for my city’s economy.”Under these circumstances, JAGMANchapter 12 does not apply and thecommanding officer may ignore theincident.

1. True2. False

59

1-28. Before a demonstrationamphibious landing held at CampPendleton for members ofCongress and other dignitaries,the Department of the Navycauses to be published in localNotice to Mariners appropriatewarnings that fishing gearshould be cleared from thecoastal waters near thedesignated landing beach.Nevertheless , two incidents,described below, occur duringthe demonstration in whichfishing gear is damaged. Whichofbean

1.

2.

3.4.

the following incidents mustreported and investigated asadmiralty incident?

A Navy minesweepinghelicopter spots markers forcrab pots about 1000 yardsoff the beach, anddemonstrates the proficiencyof its cutting gear bysevering the marker linefrom each potA Marine amphibious trackedvehicle becomes entangled infishing nets located about500 yards from the beach; aMarine enters the water and,using his knife, cuts thevehicle freeBoth 1 and 2 aboveA Navy minesweepinghelicopter inadvertentlyjettisons marking buoys;they land unremarkably 700yards from the beach

1-29. Assume that a Navy ship hearsthe radio distress call of acommercial fishing vessel andimmediately proceeds to thevessel’s location, where itstands by to render anyrequested assistance. Thisoccurrence should be reported asan admiralty incident

1. under JAGMAN chapter 122. only if the Navy ship

actually saves the strickenfishing vessel from sinking

3. only if the efforts of Navypersonnel to save thefishing vessel actuallycause it to sink

4. only if the Navy shiprescues the crew of thefishing vessel

1-30. The initial report of an admiraltyincident to the Office of theJudge Advocate General (Code 11)should be made

1. immediately2. within 15 days following the

date of the incident3. within 30 days following the

date of the incident4. within 60 days following the

date of the incident

1-31. If an admiralty incident isreported to the Office of theJudge Advocate General (Code 11),it is not necessary to report theincident to other seniors in thechain of command.

1. True2. False

1-32. A command may satisfy therequirement for initial reportingof an admiralty incident to theOffice of the Judge AdvocateGeneral (Code 11) by

1. filing an admiralty incidentreport, that is separate fromany other required reportsabout the incident

2. arranging for a survey ofdamage by a locally availablequalified marine surveyor

3. sending to the Office of theJudge Advocate General (Code11) a copy of the JAG Manualinvestigation when it isfinalized

4. making NAVY JAG ALEXANDRIA VAan information addressee onother reports required byhigher authority

60

1-33. Which of the followingstatements about a command’sresponsibilities aftersubmitting the initial report ofan admiralty incident iscorrect?

1.

2.

3.

4.

A JAG Manual investigationmust be prepared andforwarded to the Office ofthe Judge Advocate General(Code 11)A court of inquiry must beconvened in accordance withchapters IV and V of the JAGManual; a copy of itshearing transcript must thenbe forwarded to theAdmiralty DivisionA litigation report must beprepared and forwarded tothe Department of Justicefor use in defending theinterests of the UnitedStatesA letter to the Office ofthe Judge Advocate General(Code 11), setting forth thefacts and circumstances ofthe incident, and forwardingsubstantiating documentssuch as photographs, logs,and witness accounts, isusually an appropriateformat for a command’ssubsequent investigativereport

1-34. A command’s subsequentinvestigative report of anadmiralty incident must besubmitted

1. withln 30 days after thedate of the incident

2. within 60 days after thedate of the incident

3. within 90 days after thedate of the incident

4. as soon as practical

1-35. An advance copy of a JAG ManualInvestigation of an admiraltyincident should be sent to theOffice of the Judge AdvocateGeneral (Code 11) as soon as it isprepared in order to avoidprejudice to the interests of theUnited States during the periodwhile the investigation is beingreviewed and endorsed by the chainof command.

1. True2. False

1-36. When a formal joint survey ofdamage is attended by all partiesinvolved in an admiralty incident,the survey report will be anappropriate substitute for acommand’s subsequent investigativereport of the occurrence.

1. True2. False

1-37. A command may provide a copy ofits investigative report of anadmiralty incident to which, ifany, of the followingindividuals/organizations?

1. a claimant, or a claimant’srepresentative, but only upona written request

2. a private organization, suchas the shipyard at which theNavy vessel is located whenthe incident occurred

3. an individual not connected tothe incident, such as areporter

4. None of the above

Learning Objective: Demonstratean understanding of the purposeand importance of conducting ajoint survey of damage followingan admiralty incident.

1-38. Which of the followingstatements about a survey ofdamage is NOT correct?

1. A survey is intended tominimize disputes about theextent of damage in anysubsequent claim orlitigation

2. When Navy property has beendamaged in an admiraltyincident, the responsibilityfor arranging and issuinginvitations to a damagesurvey rests with the UnitedStates

3. The failure of a privateshipowner to afford theUnited States with anopportunity to surveyproperty allegedly damagedby the Navy will result indenial of any subsequentclaim against the Government

4. Only the Judge AdvocateGeneral (Code 11) may issueand accept surveyinvitations and requestrepresentation by the Navy’smarine survey firm followingNavy admiralty incidents

1-39. The survey procedure followed bythe Navy following an admiraltyincident is intended primarilyto

1.

2.

3.

4.

accomplish what purpose?

Satisfy the requirements ofmarine underwritersMaintain a close workingrelationship with the Navy’smarine surveyorsEstabllsh the specificdamage resulting from anadmiralty incidentProvide a substitute for acommand’s investigativereport of the incident

61

1-40. The Navy will issue invitations toa damage survey under which of thefollowing cicrumstances?

1. After every admiralty incidentinvolving the Navy

2. After every admiralty incidentin which the Navy isapparently responsible fordamaging privately ownedproperty

3. After the submission of anadmiralty claim against theNavy

4. After most admiralty incidentsinvolving substantial damageto Navy property

1-41. The usual procedure for conductinga formal damage survey is for

1-42.

1.

2.

3.

4.

each party to appoint its ownsurveyor, who conducts adamage survey Independently ofall other surveyorseach party to appoint its ownsurveyor , who conducts thedamage survey Jointly with allother surveyorsone surveyor to be chosen byagreement of all parties tosurvey the damageone surveyor to be chosen bythe party who has incurred themost damage

Which of the following is/are NOTintended to be a part of thereport of a joint survey ofdamage?

1. A determination of liabilityfor the incident

2. A detailed list of the damageattributable to the incident

3. Recommended repairs for thedamage suffered in theincident

4. Any disputed points regardingthe survey

1-43. Which of the followingstatements regarding a formaljoint survey is correct?

1. The Navy has retained the

2.

3.

4.

services of a civilianmarine damage survey firm toprovide the Navy’s surveyorat joint damage surveysfollowing admiraltyincidentsThe investigating officerappointed by commandinvolved in the incidentnormally will act as theNavy’s marine surveyor at ajoint damage surveyfollowing an admiraltyincidentAn attorney from theAdmiralty Division of theOffice of the Judge AdvocateGeneral normally will act asthe Navy’s marine surveyorat a Joint damage surveyfollowing an admiraltyincidentA technically qualifiedperson from a Navy shipyard,SUPSHIP office, ormaintenance activitynormally will act as theNavy’s marine surveyor at ajoint damage surveyfollowing an admiraltyincident

Learning Objective: Demonstrateunderstanding of the handllng oforiginal documents that may haverelevance to an admiralty inves-tigation.

1-44. It is an acceptable practice toinclude copies of logs anddocuments, instead of originals,in investigative reports ofadmiralty incidents.

1. True2. False

62

1-45. Which of the following statementsabout documentary evidence iS NOTcorrect?

1. The Government’s case may beprejudiced if originaldocuments are not availablefor trial

2. An original log or otherofficial naval record that isproduced at trial is copiedfor the record of trial, andthe original is then returnedto the Navy

3. Unofficial documents relatingto an admiralty incident, suchas rough statements,chronologies, and the like arenot admissible evidence andtherefore need not be retainedfor possible use at a futuretrial

4. When the custodian of originaldocuments relating to anadmiralty incident transfers,special care should be takento ensure the successorunderstands the importance ofsafeguarding the materials

1-46. Which of the following informationshould be recorded concerning eachphotograph included in theinvestigative report of anadmiralty incident?

1. Complete identification of thephotographer

2. The hour, date, and placewhere the photograph was taken

3. Names and addresses of personspresent when the photographwas taken

4. All of the above

1-47. Assume that a Navy destroyer,moored to a pier, is struck by awayward merchant vessel during aheavy fog. Flooding results infour compartments of the Navyship. Which of the followinginformation should be preservedfor inclusion in the ship’sinvestigative report?

1.

2.

3.

4.

The destroyer’s magneticcompass record, deviationdata, and navigation chartThe destroyer’s bell book,DRT plot, and photographs ofthe bridge and CIC statusboardsThe destroyer’s EngineeringLog, Deck Log, and damagecontrol reportsAll of the above

1-48. Assume that a merchant vessel,moored to a pier, is struck by awayward Navy destroyer during aheavy fog. Flooding results infour compartments of the Navyship. Which of the followinginformation should be preservedfor inclusion in the ship’sinvestigative report?

1. The destroyer’s magneticcompass record, deviationdata , and navigation chart

2. The destroyer’s bell book,DRT plot, and photographs ofthe bridge and CIC statusboards

3. The destroyer’s EngineeringLog, Deck Log, and damagecontrol reports

4. All of the above

63

1-52. While a Navy ship is undergoingrepairs for collision damage,significant additional damagenot included in the joint surveyreport is discovered. In orderto substantiate the additionaldamage as properly recoverablefrom the opposing interests, theNavy should take what action?

Learning Objective: Recognizespecial considerations applicablewhen investigating collisions andshipboard personal injuries.

1-49. Which of the following statementsabout a collision is correct? 1. Convene a new survey of all

known collision damage2. Notify the opposing

interests and provide themwith an opportunity tosurvey before the additionaldamage is repaired

3. Accomplish the additionalrepairs on a separate joborder

4. Amend the original surveyreport, and send a copy tothe opposing interests

1. Sheets of paper containingrough navigational or otherdata should be destroyed assoon as possible to avoidlater liability

2. Clocks on the bridge and inCIC and the engine room shouldbe compared as soon aspossible

3. A list should be prepared ofall persons on the bridge orin CIC, except watchstanders,when the collision occurred

4. All unclassified messagesabout the collision should becollected, and all classifiedmessages should be shredded

1-53. Under what specific circumstanceis the United States entitled torecover detention costs becauseof collision damage to a Navyship?

1. When the vessel must bewithdrawn from regularservice to accomplish therepairs

2. When the vessel must berepaired in a commercialshipyard

3. When the collision will berepaired during a regularlyscheduled overhaul

4. When the vessel’s loss ofprofits exceeds apredetermined amount

1-50. In order to properly account forcollision repairs, all suchrepairs to Navy ships must beaccomplished at Navy shipyards.

1. True2. False

1-51. While collision repairs are beingaccomplished, which of thefollowing statements describes theproper treatment of noncollisionrepairs?

1-54. Which, if any, of the followingexpenses could be included inthe detention costs asserted onbehalf of a laid up Navy ship?

1. They may not be done eventhough it may be a convenientopportunity to undertake suchrepairs

2. They may proceed concurrently,but must be covered byseparate job orders

3. They may proceed concurrently,but must not be covered by ajob order

4. They may proceed withoutregard to collision repairs;the cost of all repairs willbe asserted against the partyresponsible for the collision,since such expenses are beingincurred prematurely

1. Dry-docking expenses2. Personnel claims paid to

crew members3. Survey fees4. None of the above

64

1-55. Which of the following statementsabout investigations of shipboardpersonal injury incidents is NOTcorrect?

1. In the investigative report,identify all of the logsinspected for entries aboutthe incident, and not justthose logs in which relevantinformation was found

2. If a witness to the incidentis unwilling to provideinformation, every effortshould be made to determinethe person’s full name,address, employer, and otheridentifying information

3. The investigating officershould obtain witnessstatements instead ofpreparing summaries ofInterviews

4. The investigating officershould include relevant navalmedical records in the report,but need not attempt to obtaindetailed medical records froma civilian physician or theinjured party

1-56. Which of the following statementsexplain(s) the purpose(s) forconducting an immediate anddetailed inspection of an accidentlocation after a visitor isinjured on board a Navy ship?

1.

2.

3.

4.

To assist the accident victimin prosecuting a claim againstthe NavyTo gather information usefulin refuting an unfounded claimthat negligence on the part ofthe ship and its crew causedthe victim’s injuryTo determine the likely causeof the accidentBoth 2 and 3 above

1-57. When the individual inspectingthe location of a shipboardpersonal injury detects ahazardous or defective conditionthat might have contributed tothe accident, the individualshould take what action?

1-58.

1.

2.

3.

4.

Attempt to determine howlong the condition had beenin existence, and whether itwas known to ship’spersonnelDetermine whether thecondition was caused by Navypersonnel and, if so,correct the conditionimmediately before itbecomes known to thevictim’s attorneyLocate and discard PMS andother maintenance recordsregarding the applicablespace or equipmentPhotograph the location ifthe hazardous or defectivecondition was caused by non-Navy personnel

Because shore workers whowitness a personal injuryincident involving a fellowshore worker are likely to givestatements about the occurrenceto their employer, it isparticularly important to seekcopies of accident reports andlike materials from the victim’semployer, the shipyard safetyoffice, and the cognizant officeof the Supervisor ofShipbuilding, Conversion andRepair, USN.

1. True2. False

65

Learning Objective: Specify thelimitations on correspondence anddiscussion with potential claim-ants and their representatives.

1-59. The ship’s legal officer, uponlearning that a visitor wasinjured while on board the vessel,goes to sick bay where the victimis being given first aid. Hopingto head off a claim against theNavy, the legal officersympathetically advises the victimto send the medical bills to myattention, and I will see thatthey get taken care of. Thisaction by the legal officer is notcorrect for which of the followingreasons?

1. The legal officer does nothave settlement authority foradmiralty claims

2. The victim may be misledconcerning the fact of orextent of the Navy’s liabilityfor the accident

3. When prosecuting a claim orconducting litigation arisingfrom the accident, thevictim’s attorney is likely toargue that the advice amountsto an admission of liability

4. All of the above

1-60. Because such requests oftenprecede claims or lawsuitsagainst the United States, acommand receiving requests forcopies of Navy investigations orrecords relating to an admiraltyincident, or for access to Navyproperty or interviews withservice members about admiraltymatters, should immediatelyreport such requests to which ofthe following offices?

1. The local Naval LegalService Office

2. The Office of the JudgeAdvocate General [Code 11)

3. The Department of Justice orlocal U.S. Attorney’s office

4. All of the above

66

Assignment 2

Admiralty Law and Its Application in Navy Admiralty Claims Practice: a Primer; andJAG Manual, chapter XII (both continued)

Textbook Assignment: This assignment booklet, pages 16 through 27 and42 through 53.

Learning Objective: Demonstratean understanding of the extent ofand conditions for Governmentliability in admiralty matterspursuant to various statutes.

2-1. Under what condition if any, maya private citizen bring suitagainst the United States fordamage caused by the tug USNSMOHAWK (T-ATF 170)?

1. If Congress expressly agreesto waive immunity for thatsuit

2. If the litigation couldreasonably result in a greateraward than is likely to beoffered in settlement of aclaim

3. If a lawsuit could be broughtby that citizen against aprivate person or corporationunder similar circumstances

4. None; a U.S. citizen may notsue the Government for damagecaused by a USNS vessel

2-2. Assume that a resident of Delawareis injured when his anchoredsailboat is struck by Navy YD 99in Little Creek, Virginia, harbor,where the YD is permanentlyassigned. If the injured persondecides to bring suit under thePublic Vessels Act, where must thesuit be filled?

1. United States District Courtfor the Eastern District ofVirginia

2. United States District Courtfor the District of Delaware

3. United States District Court,Washington, DC

4. Suit may be brought in anyUnited States District Court

2-3. In order to avoid missing thestatute of limitation, theinjured Delaware resident mustfile his lawsuit within whatspecific time period?

1. 6 months after the date ofthe injury

2. 6 months after his claim isdenied

3. 2 years after the date ofthe injury

4. 2 years after his claim isdenied

2-4. In what way, if any, did theAdmiralty Jurisdiction ExtensionAct affect the liability of theUnited States for admiraltyincidents involving the Navy?

1.

2.

3.

4.

Extended the Government’sliability to include damageor injury caused by acts ofNavy employees, even thougha vessel was not involved inthe incidentMade the Government liablewhen damage occurs on land,as well as on water, as aresult of an admiraltyincidentExtended the liability ofthe Government to personalinjuries, as well asproperty damage, caused byadmiralty incidentsNo effect whatsoever

67

Learning Objective: Specify theauthority, policies, and proce-dures for settlement of admiraltyclaims against the Navy, includingthe responsibilities of theclaimant, assigned admiraltyattorney, and adjudicatingauthority.

2-5. Admiralty claims settled for anamount exceeding $1,000,000 mustbe certified to the AttorneyGeneral for approval.

1. True2. False

2-6. Suppose a claimant settles a claimagainst the Navy. A few weeksafter depositing the settlementcheck, he discovers that theagreed amount will not be suffi-cient to cover all of his losses.What recourse. If any, does hehave?

1. In order to recover hisuncompensated losses, he willhave to file suit against theUnited States

2. He may recover his uncompen-sated losses by filing asupplemental claim with theNavy

3. He may renegotiate the earnersettlement, but only with adifferent adjudicatingauthority

4. None

68

2-7. Assume that repeated efforts tonegotiate settlement of anadmiralty claim against theGovernment have been unsuccess-ful, and it appears certain thatsettlement cannot beaccomplished before theexpiration of the statute oflimitation. To ensure that theclaimant is not deniedappropriate relief , what actionshould be taken?

1.

2.

3.

4.

The claimant must submit awritten request for anextension of the limitationperiodThe Judge Advocate Generalmust toll the statute oflimitation by administrativedeclarationThe claimant must file suitin the appropriate UnitedStates District CourtThe negotiating Judgeadvocate must certify thatthe claim was receivedwithin the statutory period

2-8. What is the Navy’s policyconcerning admiralty claims insituations involving Navyliability?

1. Settle and pay claims under$10,000 upon a determinationof Navy liability

2. Shift the burden of paymentto the Department of Justiceby refusing payment of largeclaims, thus forcing theclaimant to resort tolitigation

3. Effect a fair and promptsettlement, regardless ofthe size of the claim

4. Utilize loopholes to avoidNavy responsibility andtechnicalities to frustrateclaimant’s efforts atobtaining compensation

2-9. Assume that a Navy destroyercollides with and sinks a fishingvessel in the Atlantic Ocean.Which of the following statementsabout possible claims arisingtherefrom is NOT correct?

1. The insurer of the fishingvessel, who compensated thevessel owner for the value ofthe vessel pursuant to theterms of the insurancecontract, may properly claimfor the amount paid to theowner

2. The hospital that treated thevessel’s skipper, injured inthe collision, may properlyclaim the cost of that medicalcare and treatment

3. A crew member of the fishingvessel may properly claim forpersonal property lost in theincident

4. The surviving wife of afisherman who was killed inthe incident may claim forwrongful death

2-10. Which of the following statementsabout submission of an admiraltyclaim against the Navy is NOTcorrect?

1.

2.

3.

4.

The claimant must specify theprecise amount of money beingsought from the GovernmentIn order for a claim to bepresented, the claimant mustinclude sufficient informationto enable the Navy to identifyand investigate the incidentgiving rise to the claimThe claimant bears the burdenof demonstrating that theGovernment is responsible forhaving caused the allegeddamage or injuryA claimant may be requested toprovide a variety of support-ing information; failure toprovide the requested evidencewill result in denial of theclaim

2-11. Assume a claim has been receivedseeking $500,000 for the allegedwrongful death of a shoreworkerwho died while working on boarda Navy ship. Which of thefollowing items of supportingevidence should be sought fromthe attorney representing theclaimant?

1. Information on the victim’semployment history,including wages or salaryearned and length ofemployment with the victim’slast employer

2. A detailed physician’sstatement indicating thediagnosis, prognosis, andextent of any permanentdisability

3. Two itemized independentestimates of the cost ofrepairs

4. All of the above

2-12. What is the final test as towhether the administrativesettlement of an admiralty claimis justified?

1. Percentage of the amountclaimed

2. Difficulty of litigating theclaim

3. Availability of funds to paythe settlement

4. Probable result if the claimwere litigated

69

2-13. Assume that a Navy admiralty 2-15.attorney has offered to recommendthat an admiralty claim be settledby payment of $8,200, and theclaimant has agreed to accept thatamount as full settlement of theclaim. What is the next step tobe taken?

1. Forward, via the appropriateadministrative chain ofcommand, a memorandum to theSecretary of the Navy recom-mending that the settlement beapproved

2. Forward, via the appropriateadministrative chain ofcommand, a memorandum to theAttorney General recommendingthat the settlement beapproved

3. Forward, via the appropriate 2-16.administrative chain ofcommand, a memorandum to theDeputy Assistant JudgeAdvocate General (Admiralty)recommending that thesettlement be approved

4. Forward to the claimant thesettlement check, requestingthat it be cashed in order tofinalize the settlement 2-17.

2-14. Assume that the proposed settle-ment of an admiralty claim bypayment of $5,000 to the claimanthas been finally approved. Whatprocedure normally is followed toobtain the claimant’s release?

1. Provide the claimant with astandard Navy release after hehas received and cashed thesettlement check

2. Request return of a signedrelease before mailing thesettlement check to theclaimant

3. Arrange a meeting at alocation convenient to allparties where the release canbe signed and the settlementcheck presented

4. The claimant’s signature onthe settlement checkconstitutes his release

Assume that an injured shorewor-ker files a claim with theOffice of the Judge AdvocateGeneral (Code 11) seeking$750,000 for injuries sustainedwhile working on board USSINDEPENDENCE (CV 62). Afterreviewing the ship’sinvestigative report, the DeputyAssistant Judge Advocate General(Admiralty) determines that theNavy is not liable for theshoreworker’ s injuries. Becauseof the amount of the claim, thedecision to deny the claim mustbe approved by the Secretary ofthe Navy.

1. True2. False

When a claimant believes that anadmiralty claim has been wronglydenied, he or she may seek anadministrative appeal with theBoard for Correction of NavalRecords.

1. True2. False

Assume that an admiralty claimhas been filed with the Navy andis pending resolution when theclaimant files suit against theGovernment. What is the effectof the claimant’s action?

1. Filing suit is likely tospeed up the process ofsettling the claim

2. Filing suit will have noeffect whatsoever on thepending claim

3. Fillng suit deprives theSecretary of the Navy of theauthority to settle theclaim

4. The lawsuit will bedismissed because theclaimant failed to exhausthis administrative remedybefore fillng suit

70

2-18. An admiralty claim may be paidafter the expiration of thestatute of limitation if thesettlement was agreed between theparties and approved by the properNavy adjudicating authority beforethe expiration of the limitationperiod.

1. True2. False

2-19. A claim arising from an admiraltyincident overseas may be settledpursuant to the Foreign Claims Actwith the permission of the JudgeAdvocate General.

1. True2. False

2-22.

2-23.

Learning Objective: Specify theauthority, policies, and proce-dures for asserting and settlingthe Navy’s affirmative admiraltyclaims, particularly the respon-sibilities of the assigned admi-ralty attorney and adjudicatingauthority.

2-20. When persons or vessels causedamage to Navy property, the Navyis entitled to pursue affirmativeadmiralty claims by virtue of theauthority contained in the Suitsin Admiralty Act.

1. True2. False

2-21. The Secretary of the Navy hasauthority to settle affirmativeadmiralty claims up to whatmaximum amount?

1. $10,0002. $100,0003. $1,000,0004. $10,000,000

The Secretary of the Navy hasdelegated his affirmative claimssettlement authority, up tospecified limits, to which ofthe following individual(s)?

1. The Assistant Judge AdvocateGeneral (Civil Law)

2. Commander in Chief U.S.Naval Forces, Europe

3. Commander, Sixth Fleet4. All of the above

The United States must commencelitigation against the partyresponsible for damaging Navyproperty in an admiraltyincident within what limitationperiod?

1.

2.

3.

4.

3 years from the date of theincident2 years from the date of theincident3 years from the date of thedenial of the Government’saffirmative claim6 months from the date ofthe denial of theGovernment’s affirmativeclaim

71

2-24. Assume that the admiralty attorneyassigned a particular affirmativeclaim sends a letter to the tort-feasor asserting the Navy’sintention to hold the tort-feasorresponsible for damaging a Navyship. Accompanying the demandletter is a damage statementestablishing that the cost ofrepairing the ship was $130,000.A few weeks later the attorneyreceives, by return mail, a checkfrom the tort-feasor’s insurancecompany for $130,000 and a draftrelease to be returned to thecompany. Under these circumstan-ces, the attorney should take whataction next?

1. Deposit the check in the U.S.Treasury , and execute therelease on behalf of theSecretary of the Navy

2. Secure the check and releasewhile obtaining final approvalof the settlement from theSecretary of the Navy

3. Secure the check and releasewhile obtaining final approvalof the settlement from theJudge Advocate General

4. Cash the check, burn therelease, and flee the country

2-25. Which of the following statementsabout affirmative claims adjudica-tion is NOT correct?

1. An investigative report(either letter report or JAGManual investigatiion) must beprepared when an admiraltyincident occurs involving apotential affirmative claim

2. Proceeds received fromaffirmative claims normallyare deposited into the accountof the command suffering thedamage

3. All proposed settlements ofaffirmative admiralty claimsare evaluated by comparingthem to the likely resultswere the claims to belitigated

4. Upon approval of thesettlement and receipt of theproceeds, the Deputy AssistantJudge Advocate General(Admiralty) normally willexecute a release on behalf ofthe Secretary of the Navy

72

2-26. After the United States has

2-27.

2-28.

filed suit against the partyresponsible for damaging Navyproperty in an admiraltyincident, who may negotiate asettlement with the defendingparty?

1. The Secretary of the Navy2. The Deputy Assistant Judge

Advocate General (Admiralty)3. The admiralty attorney

assigned the case at theAdmiralty Division (Code 11)

4. A representative of theDepartment of Justice

Learning Objective: Demonstratean understanding of authorityand procedures applicable tosalvage claims by and againstthe Navy.

Affirmative salvage claims areasserted for the Navy by the

1. Department of Justice2. Assistant Supervisor of

Salvage, USN3. Office of the Judge Advocate

General (Code 11)4. Military Sealift Command

As an administrativeconvenience, Navy affirmativesalvage claims normally arecalculated and asserted on a perdiem basis, rather than byseeking an award based upon thevalue of the salved property andconsideration, of other factors.

1. True2. False

2-29. Assume that an Alaskan fishermanretrieves a reusable Navy targetdrone from the Bering Sea, whereit had been lost during a fleetexercise. The target was lost bythe Navy on 1 November 1985; itwas recovered by the fisherman on1 December 1985. In order tosucceed in a salvage claim, theclaim must be

1. filed not later than1 June 1986

2. approved not later than1 November 1987

3. approved not later than1 December 1987

4. filed not later than1 November 1988

2-30. For the case described in thepreceding question, who isentitled to claim a salvage award?

1. The owner of the fishingvessel only

2. The crew aboard the fishingvessel at the time of thesalvage only

3. Both the owner and the crew ofthe fishing vessel

4. The Assistant Supervisor ofSalvage, USN

2-31. Assume that a Navy tug salvages acommercial vessel , and a claim isasserted by the Navy against thevessel and its owner. The ownerfiles an offsetting claim againstthe Navy for damage suffered byhis vessel during the assistance.In this situation, the Navyprobably would

1.

2.

3.

4.

withdraw its per diem salvageclaim and assert a salvage-bonus claim for a higher valuewithdraw its per diem salvageclaim and file suit againstthe vessel and its owneramend its per diem salvageclaim to include the amountbeing sought by the vesselownerabandon its per diem salvageclaim on condition that thevessel owner does likewise

73

2-32. Assume that the enlisted crew ofa Navy motorwhale boat isconducting coxswain training inthe waters off Port Hueneme,California, when they see theoccupants of a small pleasureboat frantically waving at them.The crew promptly steers themotorwhale boat toward thepleasure craft and discovers itis drifting out to sea withoutpower or communicationscapability, and that one of theoccupants, an elderly gentleman,is complaining of chest pains.Assistance is called for on themotorwhale boat’s radio, and thepleasure craft is taken in tow.The ill gentleman is soon pickedup by a Coast Guard speedboatand taken to a hospital, wherehe recovers. The pleasure craftis towed to safety by the Navyboat. Which of the followingstatements regarding theseevents is correct?

1.

2.

3.

4.

The Navy is entitled to asalvage award for saving thepleasure craftThe Navy is entitled to asalvage award for saving thegentleman’s lifeThe crew of the Navy boat isentitled to a salvage awardseparate from that claimedby the NavyEach of the above

Learning Objective: Demonstratean understanding of principlesapplicable to special maritimecases involving towage, pilotage,and waiver situations.

2-33. What distinction, if any, haveU s . courts made concerningliability for negligent perfor-mance of towage services andpilotage services?

1. The Navy may not be heldliable for negligent towage,but may be held liable fornegligent pilotage

2. Persons providing towageservices may exempt themselvesby contract from liability fortheir negligent acts, butthose providing pilotageservices may not

3. Persons providing pilogageservices may exempt themselvesby contract from liability fortheir negligent acts, butthose providing towageservices may not

4. None

2-34. When the Navy agrees to provide apilot and associated tug servicesto a privately-owned vessel, whyshould the language contained inJAGMAN Appendix A-12-a be incor-porated into the contract?

1. To provide notice that theNavy does not consent toliability for any damageoccurring while it providessuch services

2. To enable the Navy to claimand recover any damagesresulting from the operation

3. To document the aided vessel’sagreement to pay for theservices provided by the Navy

4. To ensure the Navy enjoys thesame protection from liabilitythat a commercial firm enjoysunder similar circumstances

2-35. A claim arising from which ofthe following incidents issubject to waiver?

1. Damage to a Navy vessel byan Air Force helicopter

2. Damage to a Navy pier by aNational Oceanic and At-mospheric Administrationsurvey boat

3. A collision between Navy andCoast Guard training vessels

4. Each of the above

2-36. The doctrine of waiver of claimsarising from incidents involvingonly different departments oftheon

1.

2.

3.

4.

2-37. The

Federal Government is basedwhat determination?

Appropriatuons of onedepartment cannot be used topay the claims of anotherdepartmentThere can be no liabilitybetween agents of the sameemployerClaims between differentagencies of the samegovernment representconflicts of interestThere is no fair or adequatemethod for determining theextent of damages in suchcases

provision mandating waiverof claims arising from incidentsinvolving only different depart-ments of the Federal Governmentapplies to final settlement ofclaims, but does not affect therequirements that an investiga-tive report of the incident beprepared and a joint survey ofthe damage be conducted.

1. True2. False

74

2-38.

2-39.

2-40.

Assume that a British submarine,outbound from Port Canaveral,Florida, collides with a Navyescort ship, causing extensivedamage to the ship. The collisionoccurs within U.S. territorialwaters. The Navy’s claim will be

1.

2.

3.

4.

paid by the British governmentupon a demonstration that thesubmarine was negligentlyoperatedpaid by the British governmentpursuant to treaty obliga-tions, without any need todemonstrate negligence by thesubmarinebarred by application of theForeign Sovereign ImmunitiesActbarred by operation of awaiver agreement, applicableto such claims, between theU.S. and Great Britain

Although American law exempts U.S.Navy vessels from arrest, suchvessels may be lawfully arrestedin foreign ports.

1. True2. False

A vessel owned by a foreigngovernment may forfeit itsimmunity from arrest in the UnitedStates under what conditions?

1. The vessel is engaged in acompetitive commercialenterprise

2. The vessel is suspected ofviolating U.S. customs orimmigration laws

3. The vessel is involved in amaritime accident within U.S.territorial waters

4. The vessel is operated in sucha manner that it constitutes ahazard to navigation

Learning Objective: Specify thepolicies of the Navy regardingparticipation in and cooperationwith investigations of maritimeaccidents conducted by the CoastGuard and NTSB.

2-41. Naval personnel are not requiredto report a marine casualtyinvolving a U.S. Navy vessel tothe Coast Guard, complete anyCoast Guard form or otherdocument describing theincident, or participate in aCoast Guard investigation of theincident.

1. True2. False

2-42. As a matter of policy, the Navyrenders the fullest possiblecooperation to Coast Guardinvestigations of marine casual-ties, provided that which of thefollowing conditions is met?

1. Important Navy interests arenot harmed thereby

2. Only civil liabilitiesissues are involved

3. Any official recordsfurnished are included inthe public Coast Guardreport

4. Navy records are notrequired

2-43. The decision whether U.S. Navypersonnel will be permitted totestify at a Coast Guardinvestigative hearing is made bywhat individual?

1. The commanding officer ofthe affected service member

2. The local Judge advocatewhere the service member isstationed

3. The Judge Advocate Generalof the Navy

4. The commandant of the CoastGuard District where thehearing is being held

75

2-44. What is the primary considerationin determining whether Navypersonnel will be permitted totestify at a Coast Guard inves-tigation?

1. The effect on public opinionof falling to provide thewitness

2. Protection of the UnitedStates’ position in the eventof litigation arising from theincident

3. Whether the witness’ testimonywill be favorable to the Navy

4. The appearance and demeanor ofthe witness

2-45. A National Transportation SafetyBoard (NTSB) investigation of amarine casualty does not takepriority over other officialinquiries into the incident, suchas the Navy’s own JAG Manualinvestigation.

1. True2. False

2-46. Unlike Coast Guard investigators,the NTSB has the power to subpoenaNavy witnesses and documents wheninvestigating a marine casualty.

1. True2. False

Learning Objective: Demonstratean understanding of basic legalprinciples applicable to admiraltypersonal injury cases.

2-47. Assume that Military SealiftCommand’s oceanographic researchvessel USNS DUTTON (T-AGS 22) isrefueling underway from acivilian tanker operating undercontract with MSC. During theUNREP, DUTTON suffers a steeringcasualty because of poormaintenance of steeringequipment. The resultinginability to stay on stationcauses the span wire to part,and the whip action injures anumber of people on both ships.Which of the following personsmay expect to recover damagesupon filing an admiralty claimlawsuit against the Navy?

1. A Navy E-4, riding DUTTON asa member of theOceanographic UnitDetachment, who wasobserving the UNREP out ofcuriosity

2. A civil service officer onDUTTON who was supervising arefueling station during theUNREP

3. A seaman, employed by thecontractor operating thetanker, who was walkingacross the weather deck tothe galley for chow when theaccident occurred

4. All of the above

2-48. The standard for determiningliability to an injured shipvisitor is whether the ship tookevery possible measure to ensurethat the ship was made safe forvisitors.

1. True2. False

2-49. Assume that a civilian visitortrips and falls over an unevenplace in a ship’s deck during an"Open House" weekend. Liabilityof the Government likely willdepend on which of the followingconsiderations?

1. The warnings given to thevisitor about the hazard

2. How obvious or hidden thehazard was to a visitorunfamiliar with the ship

3. The reason why the unevenplace in the deck existed

4. All of the above

76

2-50. If a civilian Federal employee isinjured in the course of employ-ment in an admiralty incident, theinvestigative responsibilities ofthe Navy command are likely to bestreamlined since these personsare barred from obtaining relieffrom the Government through anadmiralty claim or litigation.

1. True2. False

2-51. Assume that a shoreworker,employed by Ace Cleaning Co., asubcontractor of West CoastShipyard, is injured while workingon board USS HEWITT (DD 966), thenlocated at the shipyard foroverhaul. The shoreworker isbarred from recovering damages forhis injury in a lawsuit againstwhich of the following parties?

1. Ace Cleaning Co.2. West Coast Shipyard3. United States4. All of the above

2-52. With respect to shoreworkers,exercising reasonable care fortheir safety includes ensuringthat which of the followingconditions is met?

1. Having the ship and itsequipment in generally safecondition when the workerenters to do his work

2. Supervising a shoreworker’soperations to ensure that nodangerous conditions develop

3. Guaranteeing an accident-freeworksite for the shoreworker

4. Each of the above

2-53. A shipowner has no general duty tomonitor a shoreworker’s perfor-mance for the purpose ofdiscovering dangerous conditionswhich may develop, unless such aduty arises pursuant to contractor because of the vessel owner’sactive involvement and controlover the shoreworker’s operations.

Learning Objective: Demonstratean understanding of basic legalprinciples applicable in variousadmiralty damage cases.

2-54. Assume that a Canadian warshiparrives at Naval Station, SanDiego, for an official portvisit in connection with itsparticipation in joint exercisesin the Eastern Pacific Ocean.The ship’s approach is too fast,and it strikes the pier hard,damaging four pier pilings.This type of incident isdescribed by what specific term?

1. A collision2. An allision3. A shore station injury4. An inexcusable blunder

2-55. Which of the followingstatements about the incidentdescribed in the precedingquestion is NOT correct?

1. The incident must bereported to the Office ofthe Judge Advocate General(Code 11) pursuant to JAGMANchapter 12

2. An investigative report(either letter report or JAGManual investigation) mustbe prepared and forwarded tothe Office of the JudgeAdvocate General (Code 11)

3. A presumption of fault onthe part of the Canadianvessel exists

4. The Navy will not recoverthe cost of repairing thepier from the Canadians

1. True2. False

77

2-56. Assume that USS JOHN HANCOCK (DD981) is making a port call atAnnapolis, Maryland, in connectionwith graduation week activities atthe U.S. Naval Academy. As theship is proceeding slowly towardits designated anchorage, asailboat with a “NO NUKES” protestmessage on its sail crosses aheadof the ship. The boat then turnsto attempt another crossing;however, a sudden gust of windcauses the sailboat to strike thestarboard bow of the ship. Whichof the following statements aboutthe incident is correct?

1. The incident is a collision2. A presumption of fault on the

part of the sailboat exists3. Because the incident is minor,

it need not be reported andinvestigated

4. Each of the above

2-57. With respect to the incidentdescribed in the precedingquestion, the primary law used toanalyze liability is theInternational Regulations forPreventing Collisions at Sea,1972), also known as 72 COLREGS.

1. True2. False

2-58. The PENNSYLVANIA Rule is best

2-59. Application of the PENNSYLVANIARule is likely to affectrecovery in which of thefollowing cases?

1. A fishing vessel off theCalifornia coast is notdisplaying the properdayshapes indicating thelength and direction of itsnets when a submerged sub-marine runs through thosenets. The fisherman claimsagainst the Navy for hislosses

2. The stern light iS notworking on a Navy YP on thenight when the YP collideswith a buoy in Charlestonharbor, knocking it offstation. The CharlestonPort Authority claimsagainst the Navy for thecosts of restoring the buoyto station

3. Neither an inbound Navyfrigate nor an outboundlobster boat sound therequired signals beforeattempting to pass eachother in the channelapproaching Bath, Maine; thevessels collide. Thelobsterman claims againstthe Navy for the damage tohis boat

4. All of the abovedefined by which of the followingstatements?

1. If a vessel involved in acollision was, at the time ofthe incident, violating anynavigation rule, that vesselwill be liable for the othervessel’s damage

2. When a collision results fromviolations of the navigationrules by both vessels, eachvessel will bear one-half ofthe other vessel’s damage orlosses

3. If an allision occurs not-withstanding the movingvessel`’s compliance with allnavigation rules, the movingvessel will not be held liablefor the damage

4. A vessel violating anynavigation rule cannot escaperesponsibility for a collisionunless it can prove that itsviolation did not cause andcould not have contributed tothe mishap

2-60. Which of the followingstatements describes a defensethat is most likely to beaccepted against an allegationthat the wake from a Navy shipcaused damage to another vessel?

1. That the Navy ship wasproceeding at its usualspeed for the channelthrough which it wastravelling

2. That the crew of the Navyship did not notice thevessel that now claims tohave been damaged by theship’s wake

3. That the vessel claimingdamage was inadequatelymoored at the time the Navyship passed it

4. That the vessel claimingdamage was not manned at thetime the Navy ship passed it

78

*U.S. GOVERNMENT PRINTING OFFICE: 1995 - 633 - 130 / 20082

NETPMSA 1550/31 (Rev. 1-95) 79

STUDENT COMMENT SHEET

THIS FORM MAY BE USED TO SUGGEST IMPROVEMENTS, REPORT COURSE ERRORS, OR TOREQUEST HELP IF YOU HAVE DIFFICULTY COMPLETINGTHE COURSE.

Date

FROM: SSNNAME (Last, first, M.I.)RANK, RATE, CIVILIAN Telephone Numbers:

DSN:Commercial:

STREET ADDRESS. APT # FAX:

ZIP CODECITY, STATE

To: COMMANDING OFFICERNETPMSA CODE 03136490 SAUFLEY FIELD RDPENSACOLA FL 32509-5237

Subj: NRTC NAVY ADMIRALTY LAW PRACTICE, NAVEDTRA 10725-B

1. The following comments are hereby submitted:

PRIVACY ACT STATEMENT

UNDER AUTHORITY OF TITLE 5, USC 301, INFORMATION REGARDING YOUR MILITARY STATUS IS REQUESTED

TO ASSIST IN PROCESSING YOUR COMMENTS AND IN PREPARING A REPLY. THIS INFORMATION WILL NOT BE

DIVULGED, WITHOUT WRITTEN AUTHORIZATION, TO ANYONE OTHER THAN THOSE WITHIN DOD FOR OFFICIALUSE IN DETERMINING PERFORMANCE.

NETPMSA 1550/41 (Rev. 1-95) 81

. . . . . . . . .(Fold along dotted line and staple or tape . . . . . . . . . .

. . . . . . . . .(Fold along dotted line and staple or tape) . . . . . . . . .

DEPARTMENT OF THE NAVY

COMMANDING OFFICERNETPMSA CODE 03136490 SAUFLEY FIELD RDPENSACOLA FL 32509-5237

OFFICIAL BUSINESS

COMMANDING OFFICERNETPMSA CODE 03136490 SAUFLEY FIELD RDPENSACOLA FL 32509-5237

82

83