Admiralty and maritime law / by Thomas J. Schoenbaum ; with the assistance of Jessica L. McClellan.
2012
KF1104 .S361 2012 (Map It)
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Author
Title
Admiralty and maritime law / by Thomas J. Schoenbaum ; with the assistance of Jessica L. McClellan.
Published
St. Paul, MN : West, [2012]
Copyright
©2012
Call Number
KF1104 .S361 2012
Edition
Fifth edition.
ISBN
9780314911575
031491157X
031491157X
Description
xvi, 1,110 pages : forms ; 27 cm.
System Control No.
(OCoLC)775439039
Summary
Previous editions published : 4th (2004) and 1st (1987).
Bibliography, etc. Note
Includes bibliographical references and index.
Supplement Note
Kept up-to-date by supplements.
Series
Record Appears in
Gift
Purchased from the income of the Jaffe Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Jaffe Fund
Table of Contents
Preface
iii
ch. 1
Admiralty Jurisdiction
1
Sec. 1-1
The Constitution and Statutory Basis of Admiralty Jurisdiction
1
Sec. 1-2
Admiralty Jurisdiction: General Considerations
6
Sec. 1-3
Navigable Waters: The Locality Aspect of the Jurisdiction
12
Sec. 1-4
The Admiralty Extension Act
19
Sec. 1-5
Admiralty Tort Jurisdiction
24
Sec. 1-6
What Is a Vessel?
37
Sec. 1-7
Seamen
44
Sec. 1-8
Longshore and Harbor Workers
46
Sec. 1-9
Continental Shelf Operations
49
1.
Jurisdiction
55
a.
Situs
56
b.
Choice of Law
57
2.
The Longshore Act on the OCS
59
Sec. 1-10
Admiralty Contract Jurisdiction
62
Sec. 1-11
Products Liability
73
Sec. 1-12
Admiralty Criminal Jurisdiction
80
1.
U.S. Flag Vessels
86
2.
Foreign Flag Vessels
87
3.
Stateless Vessels
89
ch. 2
Federalism and Admiralty
92
Sec. 2-1
The Sources of Substantive Admiralty Law
92
Sec. 2-2
The Application of State Law in Admiralty
96
Sec. 2-3
Preemption in Admiralty
103
Sec. 2-4
State Concurrent Jurisdiction Over Admiralty Claims
108
Sec. 2-5
Removal Jurisdiction
110
ch. 3
Admiralty and the General Maritime Law
116
Sec. 3-1
The General Maritime Law: An Introduction
116
Sec. 3-2
The General Maritime Law of Negligence
119
Sec. 3-3
Causation
126
Sec. 3-4
Comparative Fault
131
Sec. 3-5
Passengers and Visitors
133
Sec. 3-6
Classification Societies
144
Sec. 3-7
Products Liability in Admiralty
146
Sec. 3-8
Marine Service Contracts, Shipbuilders and Ship Repairers
153
Sec. 3-9
Marine Service Contracts and the Warranty of Workman-like Performance
160
Sec. 3-10
Unseaworthiness
170
Sec. 3-11
Intentional Wrongs
171
Sec. 3-12
Assumption of Risk
172
Sec. 3-13
Last Clear Chance
172
Sec. 3-14
Contributory Negligence
172
Sec. 3-15
Joint and Several Liability
173
Sec. 3-16
Damages
174
1.
Lost Earning Capacity
176
a.
Past Wage Losses
176
b.
Future Earning Capacity
177
2.
Medical and Other Expenses
179
3.
Pain and Suffering
179
Sec. 3-17
Loss of Society and Consortium
183
Sec. 3-18
Punitive Damages
186
Sec. 3-19
Contribution and Indemnity
191
1.
Contribution
191
2.
Indemnity
193
a.
Tort Indemnity
193
b.
Ryan Indemnity
196
3.
Contribution and Indemnity Against Persons With Immunity
196
Sec. 3-20
Contribution and Settlement
198
Sec. 3-21
Contract Indemnity
202
Sec. 3-22
Interest
209
Sec. 3-23
Time for Filing Suit
211
Sec. 3-24
Choice of Law and Conflicts of Law
213
ch. 4
Seamen
219
A.
Introduction
Sec. 4-1
Seamen's Rights---In General
220
B.
Protection And Welfare
Sec. 4-2
Seamen's Documents
223
Sec. 4-3
Contract of Service
224
Sec. 4-4
Wages
227
Sec. 4-5
Loss of the Vessel
237
Sec. 4-6
Discharge
237
Sec. 4-7
Accommodation and Welfare
239
C.
Employment Related Injuries
Sec. 4-8
Seamen's Remedies---In General
240
Sec. 4-9
Seaman Status
241
Sec. 4-10
Scientific Personnel
257
Sec. 4-11
Claims Against the United States
258
Sec. 4-12
Claims Against State and Local Governments
261
Sec. 4-13
The Foreign Seaman, Choice of Law, Arbitration, and Forum Non Conveniens
261
Sec. 4-14
Survival and Wrongful Death
272
Sec. 4-15
Seamen's Suits Against Third Parties Under the General Maritime Law
275
Sec. 4-16
The Time for Filing Suit
276
Sec. 4-17
Release and Settlement
279
Sec. 4-18
Damages
280
1.
Past (pre-judgment) Loss of Wages
280
2.
Loss of Future Earning Capacity
281
3.
Past and Future Medical Expenses
284
4.
Pain, Suffering, and Loss of Life's Enjoyments
284
5.
Interest
285
6.
Contributory Negligence
285
7.
Jury Awards
286
8.
Punitive Damages
286
Sec. 4-19
Contribution and Indemnity
287
D.
The Jones Act
Sec. 4-20
The Jones Act: Procedural Issues
291
Sec. 4-21
The Jones Act: Duty and Liability Issues
296
Sec. 4-22
The Jones Act: Standard of Care and Causation
302
Sec. 4-23
The Jones Act Defendant
312
Sec. 4-24
The Primary Duty Doctrine
315
E.
Unseaworthiness
Sec. 4-25
Unseaworthiness: Elements and Defenses
318
Sec. 4-26
What Is an Unseaworthy Vessel?
326
Sec. 4-27
Persons to Whom the Duty of Seaworthiness Is Owed
331
F.
Maintenance, Cure And Unearned Wages
Sec. 4-28
Maintenance and Cure---The Obligation in General
334
Sec. 4-29
Unearned Wages
339
Sec. 4-30
In the Service of the Vessel
341
Sec. 4-31
Defenses to Maintenance and Cure
342
Sec. 4-32
The Amount of Maintenance and Cure Recoverable
345
Sec. 4-33
When the Obligation to Pay Maintenance and Cure Terminates
351
Sec. 4-34
Compensatory and Punitive Damages for Refusal to Pay Maintenance and Cure
354
Sec. 4-35
Indemnity and Contribution for Maintenance and Cure
355
Sec. 4-36
Laches
357
ch. 5
Longshore and Harbor Workers
358
Sec. 5-1
Background
358
Sec. 5-2
Coverage Under the Longshore Act
360
Sec. 5-3
Offshore Workers
374
Sec. 5-4
The Exclusivity of the Longshore Act
376
Sec. 5-5
Administration and Practice
385
Sec. 5-6
Compensation and Benefits
397
1.
Medical Services and Supplies
399
2.
Disability
400
a.
Permanent Total Disability
402
b.
Temporary Total Disability
403
c.
Permanent Partial Disability
403
d.
Temporary Partial Disability
404
3.
Death Benefits
405
4.
Rehabilitation
405
Sec. 5-7
The Special Fund and the Credit Doctrine
418
Sec. 5-8
Settlements
426
Sec. 5-9
Attorneys' Fees
429
Sec. 5-10
Suits Against "Vessels" and Other Third Parties
431
1.
The Turnover Duty of Safe Condition
442
2.
The Turnover Duty to Warn
443
3.
The Active Involvement Duty
445
4.
The Active Control Duty
445
5.
The Duty to Intervene
445
6.
The Duty to Supervise and Inspect
447
Sec. 5-11
The Compensation Lien and Third Party Suits: The Effect of the Stevedore's Concurrent Negligence
453
Sec. 5-12
Settlement of Third Party Suits
457
Sec. 5-13
The Stevedore/Employer's Burnside Remedy Against the Third Party
460
Sec. 5-14
Indemnity and Contribution
461
ch. 6
Wrongful Death
466
Sec. 6-1
Background
466
Sec. 6-2
The Death on the High Seas Act
468
Sec. 6-3
Wrongful Death and Survival Actions Under the General Maritime Law
474
Sec. 6-4
The Jones Act
480
Sec. 6-5
Longshoreworkers
481
Sec. 6-6
Platform Workers
482
ch. 7
Carriage of Goods
484
A.
The Business Of Shipping
Sec. 7-1
The Commercial Context: The Underlying Transactions and Contracts
485
Sec. 7-2
Government Regulation of Ocean Transportation
492
1.
Vessels and Mariners
492
2.
Regulation of Business Practices of the Ocean Transportation Industry
493
a.
Historical Background
493
b.
The Shipping Act of 1984 and the Ocean Shipping Reform Act of 1998
495
(1).
Ocean Common Carrier Agreements
496
(2).
Shippers and Shippers' Associations
497
(3).
Ocean Transportation Intermediaries
497
(4).
Publication and Filing of Ocean Transportation Rates
498
(5).
Prohibited Acts
500
(6).
Foreign Shipping Practices
502
(7).
The Federal Maritime Commission
504
(8).
The Surface Transportation Board
504
3.
Promotion of the U.S. Merchant Marine
505
a.
The Merchant Marine Acts
505
(1).
The Merchant Marine Act of 1920
505
(2).
The Merchant Marine Act of 1936
506
b.
Citizenship Requirements
508
c.
Cargo Preference
509
d.
The Maritime Administration
509
4.
Other Cabotage Restrictions
510
5.
Miscellaneous Regulations and Agencies
510
a.
Department of Homeland Security and Department of Treasury
510
b.
Department of Agriculture
511
c.
Department of Transportation
511
d.
Maritime Security
511
Sec. 7-3
Common Carriage and Private Carriage
512
Sec. 7-4
Multimodal Carriage of Goods
513
Sec. 7-5
The Contract of Affreightment
527
Sec. 7-6
Freight
529
Sec. 7-7
Freight Forwarders, Agents, Brokers, and Non-Vessel Operating Common Carriers
532
Sec. 7-8
Terminal Operators, Stevedores, and the Himalaya Clause
535
1.
Jurisdiction
536
2.
Liability
537
a.
Terminal Operators
537
b.
Stevedores
538
3.
Limitations and Defenses: The Himalaya Clause
538
Sec. 7-9
The Carrier
542
Sec. 7-10
The Proper Party to Bring Suit for Loss or Damages to Cargo
543
B.
The Bill Of Lading
Sec. 7-11
Bills of Lading: Applicable Laws, Function, and Use
544
1.
The Clause Paramount
551
2.
The Responsibility for Conveyance Clause
552
3.
Discharge and Delivery
552
4.
Acknowledgement of Weight/Quality Marks
552
5.
Voyage Clause
552
6.
Deck Cargo
552
7.
Carriers' Liberties in the Event of Blockade or Delay
552
8.
Container Clause
553
9.
Port Customs, Consular, and Other Regulations
553
10.
The Transshipment Clause
553
11.
Dangerous, Inflammable, or Radioactive Goods
553
12.
Claims
553
13.
Freight
553
14.
Lien
553
15.
General Average
553
16.
Both-to-Blame Collision Clause
553
17.
The New Jason Clause
554
18.
Rights and Immunities of All Servants and Agents of the Carrier
554
19.
Agency Clause
555
20.
Jurisdiction Clause
555
Sec. 7-12
The Misleading or Inaccurate Bill of Lading: The Doctrine of Estoppel and Protection of the Consignee
555
C.
The International Conventions
Sec. 7-13
The International Conventions Relating to the Carriage of Goods by Sea
562
Sec. 7-14
The Hamburg Rules Verses the Hague-Visby Rules
565
1.
Scope of Application
567
2.
Period of Responsibility of the Carrier
567
3.
Liability of the Carrier
568
4.
Liability for Delay
568
5.
Loss
568
6.
Live Animals
568
7.
Deck Cargo
569
8.
Fire
569
9.
Saving Life or Property at Sea
569
10.
Comparative Fault
569
11.
Limits of Liability
569
12.
Multimodal and Through Transport
570
13.
Liability of the Shipper
570
14.
Transport Documents
570
15.
Time Limits for Claims and Suits
571
Sec. 7-15
The Rotterdam Rules
571
D.
Cogsa And The Harter Act
Sec. 7-16
Coverage and Application of the Carriage of Goods by Sea Act and the Harter Act
575
Sec. 7-17
The Carrier's Responsibility Before Loading and After Discharge
580
Sec. 7-18
Delivery of Cargo
581
Sec. 7-19
Deck Cargo and Other Excluded Cargoes
585
Sec. 7-20
Exoneration Clauses
588
Sec. 7-21
Choice of Law and Choice of Forum Clauses
591
Sec. 7-22
Arbitration Clauses
594
Sec. 7-23
The Shipper's Prima Facie Case
594
Sec. 7-24
Dangerous Cargo
601
Sec. 7-25
Burdens of Proof and Presumptions
602
Sec. 7-26
The Duty of the Carrier to Make the Vessel Seaworthy and to Provide a Proper Ship
608
Sec. 7-27
The Carrier's Duty to Properly Load, Handle, and Care for the Cargo
613
Sec. 7-28
Neglect of the Carrier in the Navigation or Management of the Ship
616
Sec. 7-29
Fire
620
Sec. 7-30
Overwhelming Natural Forces: Perils of the Sea and Act of God
624
Sec. 7-31
Overwhelming Human Forces: Act of War, Act of Public Enemies, Restraint of Princes, Quarantine, Strikes, Riots and Civil Commotions
627
Sec. 7-32
Faults of the Shipper, Inherent Vice, Insufficiency of Packing and Latent Defects
629
Sec. 7-33
The Q Clause: The Catch-All Exemption
634
Sec. 7-34
Deviation and Fundamental Breach (Herein Also the (l) Clause of COGSA)
637
Sec. 7-35
Limitation of Liability and the "Package" Problem
643
Sec. 7-36
Customary Freight Unit
651
Sec. 7-37
Opportunity to Declare a Higher Value
653
Sec. 7-38
Damages
655
Sec. 7-39
Damages for Delay
662
Sec. 7-40
Consequential Damages
663
Sec. 7-41
Indemnification and Contribution
664
Sec. 7-42
Notice of Loss or Damage
666
Sec. 7-43
Time Limit for Filing Suit
667
ch. 8
Charter Parties
670
A.
Contract Formation And Terms
Sec. 8-1
Charter Party Forms and Functions
670
Sec. 8-2
Charter Party Fixtures: Formation of the Contract
673
Sec. 8-3
The Demise (Bareboat) Charter
676
Sec. 8-4
The Voyage Charter
677
Sec. 8-5
Time Charter
680
B.
Bills Of Lading Under Charter Parties
Sec. 8-6
Bills of Lading Under Charter Parties
682
Sec. 8-7
Bills of Lading Under Charter Parties: Who Is the Carrier?
686
C.
Major Charter Party Issues And Problems
Sec. 8-8
The Obligation to Provide a Seaworthy Vessel Ready to Load
691
Sec. 8-9
Care of the Ship and Redelivery
694
Sec. 8-10
Safe Port and Safe Berth Clauses
696
Sec. 8-11
Freight, Hire, and the Off-Hire Clause
698
Sec. 8-12
The Charterer's Recovery for Loss of Use of the Vessel
699
Sec. 8-13
Liability for Cargo Damage
701
Sec. 8-14
Prosecution of the Voyage
703
Sec. 8-15
Loading and Discharge: Lay Time, Demurrage, and Detention
704
Sec. 8-16
Frustration and Commercial Impracticability
706
Sec. 8-17
Remedies and Liens
707
Sec. 8-18
Indemnity and Responsibilities to Third Parties
712
Sec. 8-19
Arbitration
717
ch. 9
Towage
719
Sec. 9-1
Towage Defined
719
Sec. 9-2
The Contract of Towage
722
Sec. 9-3
The Duties and Liabilities of Tug to Tow and Cargo
723
Sec. 9-4
The Warranty of Workmanlike Service
728
Sec. 9-5
The Duties of the Tow
731
Sec. 9-6
Rights of Third Parties Against the Tug and the Tow
732
Sec. 9-7
Towage and Limitation of Liability
733
Sec. 9-8
Exculpation Clauses in Towing Contracts
735
Sec. 9-9
Contracts to Procure Insurance and Waiver of Subrogation
736
Sec. 9-10
Forum Selection Clauses and Conflicts of Laws
739
ch. 10
Pilotage
741
Sec. 10-1
The Pilot
741
Sec. 10-2
Government Regulation
743
Sec. 10-3
The Pilot's Rights Against the Ship
747
Sec. 10-4
Liability of Pilots and Their Employers
748
Sec. 10-5
Pilots' Associations
750
Sec. 10-6
Liability of the Owner and the Vessel to Third Parties
750
Sec. 10-7
The "Borrowed Servant" Doctrine and the "Pilotage Clause"
752
ch. 11
Collision and Marine Casualty
756
Sec. 11-1
Introduction
756
Sec. 11-2
The Basis of Liability
760
Sec. 11-3
Presumptions, Burden of Proof, and Evidence
772
Sec. 11-4
Apportionment of Liability
778
Sec. 11-5
The Wreck Act
782
Sec. 11-6
Damages
787
Sec. 11-7
Economic Losses and Remote Claims
795
Sec. 11-8
Cargo Damages, Rights and Duties
800
Sec. 11-9
Jurisdiction and Choice of Law
803
ch. 12
Limitation of Liability
809
Sec. 12-1
Background
809
Sec. 12-2
Persons Entitled to Limit Liability
811
Sec. 12-3
Choice of Law
813
Sec. 12-4
The Insurance Underwriter
816
Sec. 12-5
Procedure and Practice
817
Sec. 12-6
Privity or Knowledge
826
Sec. 12-7
The Limitation Fund
831
Sec. 12-8
Claims Subject to Limitation
834
Sec. 12-9
Distribution of the Fund
836
ch. 13
Salvage
839
Sec. 13-1
The Nature and Elements of Marine Salvage
839
Sec. 13-2
Property Subject to Salvage
844
Sec. 13-3
Who Can Be a Salvor?
845
Sec. 13-4
The Salvor's Negligence and Misconduct
846
Sec. 13-5
The Salvage Award
847
Sec. 13-6
Contract Salvage
852
Sec. 13-7
Treasure Salvage, Historic Shipwrecks, Abandoned Property, and the Law of "Finds"
853
Sec. 13-8
Life Salvage
872
Sec. 13-9
International Salvage Conventions
874
ch. 14
Admiralty Practice and Procedure
877
Sec. 14-1
Pleading Admiralty and Maritime Claims: The Rule 9(h) Election
877
Sec. 14-2
Maritime Garnishment and Attachment: Rule B and State Attachment Remedies
880
Sec. 14-3
The Action in Rem: Rule C
894
Sec. 14-4
Possessory, Petitory, and Partition Actions: Rule D
904
Sec. 14-5
General Provisions Applicable to Actions in Rem and Quasi in Rem: Rule E
906
Sec. 14-6
Constitutional Questions and the Admiralty Rules
917
Sec. 14-7
Limitation of Liability: Rule F
920
Sec. 14-8
Third-Party Practice
923
Sec. 14-9
Supplemental Jurisdiction
925
Sec. 14-10
Jury Trials in Admiralty
926
Sec. 14-11
Venue and Transfer Between Districts
931
Sec. 14-12
Choice of Law and Forum Non Conveniens
932
Sec. 14-13
Appeals
936
Sec. 14-14
Injunctive Relief in Admiralty
939
Sec. 14-15
Maritime Arbitration
941
Sec. 14-16
Enforcement of Arbitration Awards and Maritime Judgments
949
Table of Cases
953
Index
1093