Admiralty & Maritime Law Pittsburgh - Moschetta Law Firm

Washington County Bar Association
2012 Winter Bench Bar
Stephen P. Moschetta, Esquire
The Moschetta Law Firm, P.C
Proctors in Admiralty
28 West Cherry Avenue
Washington, PA 15301
(724) 225-3060
www.moschettalawfirm.com
Admiralty & Maritime Law

I. What is Admiralty/Maritime Law?
II. Admiralty Jurisdiction in the U.S.
III. Origins of the U.S. Admiralty Law
IV. Development of Admiralty Law
V. Types of Maritime Torts
A. Personal Injury
1) Maritime Workers
2) Passengers
B. Property Damage (collision/allision)
VI. Limitation of Liability Act of 1851
TOPICS

I. What is Admiralty/Maritime Law?
Admiralty law or maritime
law is the distinct body of
law - both substantive and
procedural - governing
navigation and shipping

Article III, Section 1
“The judicial power of the
United States, shall be
vested in one Supreme
Court, and in such inferior
courts as the Congress
may from time to time
ordain and establish”

Article III, Section 2.
“The judicial power shall
extend to all cases . . .
arising under this
Constitution, the laws of the
United States, and . . . to all
cases of admiralty and
maritime jurisdiction . . .”
(“Admiralty Clause”)

Congress
Implemented the
Admiralty Clause by
enacting 28 U.S.C.
§1333, which provides
that U.S. District
Courts have exclusive
jurisdiction of all civil
cases of admiralty or
maritime jurisdiction.

U.S. District Courts/Courts of Appeal

Neither Article III of the Constitution nor 28
U.S.C. §1333 provides general rules for
determining admiralty jurisdiction.
Consequently, Admiralty law in the United
States is jurisprudentially developed (court’s
power to make law).

III. Origins of U.S. Admiralty Law
U.S. Admiralty law developed from English Admiralty
courts (14th
Century), which were based on maritime of
the Continent & Mediterranean Sea
Admiralty Extension building, London, UK

Early U.S. Courts were aided by the perceived link
between the Commerce Clause and Admiralty Clause in
establishing limits on admiralty jurisdiction.
 U.S. Government has fundamental interest in
potential commerce. Thus, admiralty jurisdiction
generally extends to matters occurring on navigable
waters involving some aspect of maritime
commerce.
IV. Development of Admiralty Law

A “Navigable Waterway” includes all waters - whether or
not connected to the sea - which are used or capable of
being used in interstate or foreign commerce.
A. “Navigable Waterway” Defined

Territory subject to U.S. jurisdiction includes lands
under its dominion/control, ports, harbors, bays and
other enclosed arms of the sea along the U.S. coast
and extending outward 12 nautical miles.
Norfolk Naval Station, Virginia

“The word ‘vessel’ includes
every description of
watercraft or other artificial
contrivance used, or
capable of being used, as a
means of transportation. 1
U.S.C. §3
B. “Vessel In Navigation” Defined
Given the broad definition of a “vessel” in the United
States Code, there were conflicting decisions from
courts about what constitutes a “vessel in navigation”.

The U.S. Supreme Court in Stewart v. Dutra
Construction Co., 543 U.S 481, 125 S.Ct. 1118
(2005), determined that a dredge (underwater
excavation) was a “vessel in navigation”
because it was practically capable of maritime
transportation.
To be considered “in navigation”, a vessel must
not be permanently moored or otherwise
rendered practically incapable of transportation
or movement.

Courts have held the following were
vessels in navigation:
 Tanker Ship
 Cruise Ship
 Fishing vessels
 Yacht
 Tugboat / Towboat
 Dumb Barge used for transportation v.
work flat
 Spud Barge (case-by-case basis)
 Casino Boats (case-by-case basis)
 Jet Ski
 Pleasure craft
 Semi-submersible drilling rig v. fixed
platform

A. Contracts (indemnification, coverage)
B. Personal Injury
1) Maritime Workers
i. Longshore/Defense Base Act
ii. Jones Act Seamen
2) Passengers
i. Boating Accidents
ii. Collision/Allision
ii. Cruise Ship Injuries
iii. Cruise Vessel Security & Safety Act 2010
IV. Types of Maritime Torts

Longshore Workers
 Any person who loads,
unloads, builds, repairs or
maintains vessel (not
covered by the Jones Act)
Seamen
 Connection to a vessel or fleet
of vessels substantial in duration
and nature
 Employment contributes to the
work of the vessel
1) Maritime Workers
Remedies
Indemnity (2/3 of AWW)
Medical benefits
Death benefits
Remedies
 Jones Act (Negligence)
 Unseaworthiness
 Maintenance & Cure

Congress enacted the Longshore Act in 1927 in
an effort to protect workers engaged in
maritime activity. 33 U.S.C. §§901, et. seq.
However, the Act covered only those workers
injured or killed on navigable waters, while
workers injured on land were limited to state
workers' compensation remedies.
Thus, maritime workers continuously walked in
and out of coverage.
The Longshore Act

Given advances in
technology, which
effectively moved the
loading and unloading
apparatus farther “up the
bank”, Congress amended
the Longshore Act in 1972
and 1984 in order to
expand coverage.
The Longshore Act

The amendments also
extended the definition of
“navigable waters” to include
“any adjoining pier, wharf,
dry dock, terminal, building
way, marine railway or other
adjoining area customarily
used by an employer in
loading, unloading, repairing
or building a vessel.”
The Longshore Act

With this addition, Congress intended to create a
uniform compensation plan for those maritime
workers who would otherwise have been entitled
to varying amounts of coverage under land-
based, state compensation laws.
The Longshore Act

 Enacted in 1941
 Administered by the Longshore & Harbor
Workers’ Compensation Act
 Provides workers’ compensation
protection to civilian employees working
outside the United States on U.S. military
bases or under a contract with the U.S.
government for public works or for national
defense.
The Defense Base Act

Military action in Afghanistan
and Iraq dramatically
increased number of civilian
workers employed by U.S.
gov’t contractors.
Civilian workers help
support troops by:
• acquiring/delivering
products and services
• security
• translators in combat and
non-combat situations.
The Defense Base Act

The Jones Act, officially known as the Merchant
Marine Act of 1920, was originally enacted in
order to provide protective legal rights for
American Merchant Marines along with U.S.
crews, known as seamen.
The author of the Jones Act - Senator Wesley
Jones of Washington State - recognized that
American sailors were being neglected when it
came to medical and financial assistance.
Seaman’s Remedies – The Jones Act

If injured at sea, there was little that could be done
to compensate or lend assistance to the wounded
seaman.
Recognizing the extreme danger of working at sea
and the absence of adequate compensation for
injuries, the Jones Act established specific rights
and benefits for merchant marines and ship crews
and incorporated by reference the Federal
Employers Liability Act, 45 U.S.C. §51 et seq.
(1908)

46 U.S.C. §30104, et seq. Personal injury to or
death of seamen
A seaman injured in the course of employment or, if
the seaman dies from the injury, the personal
representative of the seaman may elect to bring a
civil action at law, with the right of trial by jury,
against the employer. Laws of the United States
regulating recovery for personal injury to, or death
of, a railway employee apply to an action under this
section.
(formerly 46 U.S.C. §688, 41 Stat. 1007 (1920))

General Maritime Law Imposes two (2) Duties on the
Employer and provides two rights and remedies to injured
seamen:
1) Seaworthiness - Employer has a duty to provide a safe
place to work, furnish a safe and seaworthy vessel,
personnel, equipment.
- A species of Strict Liability (liability without fault)
2) Maintenance & Cure
Seaman’s Remedies – General
Maritime Law of the U.S.

A shipowner owes an absolute, non-delegable duty
to provide “maintenance and cure” to a seaman
who is injured or falls-ill in the service of a vessel,
irrespective of how the injury or illness occurred,
save willful or deliberate misconduct.
Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63
5. Ct. 930, 933-34, L. Ed. 1107 (1943).
Seaman’s Remedies – Law of M&C

 “Maintenance” refers to a shipowner’s obligation
to provide ordinary living expenses, such as room,
board, food, etc., while the seaman is incapacitated.
 The “cure” element of the obligation relates to
the shipowner’s duty to provide necessary medical
care.
Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 82
L.Ed 993, 996 (1938)
Seaman’s Remedies – Law of M&C

Recreational Boating
Accidents
 Primary causes:
 operator inattention
 careless operation
(excessive speed)
 failure to maintain a
proper lookout
 alcohol use
 pleasure boat struck
by towboat/barges
Passenger Injuries

Delaware River near Philadelphia, PA July 8, 2010.
Passenger Injuries – Collision/Allision

 International Regulations for
Preventing Collisions at Sea
33 U.S.C. §1602 (1972)
 Inland Navigation Rules
(33 CFR part 83 1981)
Applied to Great Lakes
(1983)
Passenger Injuries – Collision/Allision

Cruise Line Accidents
Cruise ship operators have
the responsibility to ensure
the safety of all passengers
while on the ship.
Accidents, such as slips and
falls, fires, and food
poisoning, can all be
prevented by reasonable
diligence of cruise ship
employees.
Passenger Injuries

Malpractice by Ship’s
Doctor
• Cruise lines use the
“independent contractor”
defense to escape being
held accountable by their
incompetent physicians
(not “employees”).
• A victim of malpractice
must sue the actual doctor
while the company sails
away safely.
Passenger Injuries

Malpractice by Ship’s
Doctor
• It is difficult to get justice
against the doctor because
he or she probably lives
overseas
• You will be forced to chase
them around the globe while
trying to serve papers on
them.
Carnival Corp. v. Carlisle
953 So.2d 461 (Fla. 2007)
Passenger Injuries

Other Injuries
 Missing/Overboard
 38 Carnival (’98 to present)
 15 Royal Caribbean
 7 Holland America, Princess & Cunard
 6 Norwegian Cruise
 Assaults (by crew)
 Theft
 Rape
Passenger Injuries

In 1999, Carnival Lines admitted in court that its
crew members assaulted passengers and fellow
crew 108 times from 1993 to 1998 (almost twice
a month)
– 22 rapes (16 involved crew & passengers)
– 86 involved unwanted kissing, touching and
other improper advances.
• Accused crew included a cabin
steward, an assistant cook,
supervisors, engineers and even a
chief security officer.
Cruise Ship Dangers

• A ship's nurse on Carnival Cruise accused
crewmember of raping her in her cabin in 1998
• Cruise lines' policy was to make the victims decide
whether to report crimes to law enforcement
• Nurse told ship's security about the rape, but ship
officers convinced her to not file an official report
• Nurse reported to FBI once at Port of Miami
• Before agents could reach the man she had
accused, another standard policy had stepped in:
Carnival had already fired him and put him on a plane
to Italy, his home, where he remains free
Cruise Ship Dangers

• H.R. 3360 signed into
law July 31, 2010
• Response to Safety
issues in Cruise Industry
Cruise Vessel Security
& Safety Act of 2010
• Establish requirements to ensure security and safety of
passengers and crew, transparency in reporting crime,
and crime scene response

• Guardrails 54 inches in height
• Peepholes and security latches installed on cabin doors
• Establish fire safety codes and technology that would act as an alert
when a passenger falls overboard
• Free, immediate and confidential access to a National Sexual Assault
Hotline and the FBI
• Maintain supplies of anti-retroviral medications and medications to
prevent STD’s following an assault onboard the ship
• Enact a program designed by the Coast Guard and FBI, and certified by
the Administrator of Maritime Administration, to train appropriate
crewmembers in crime scene investigation.
• Maintain log book recording all deaths, missing individuals, alleged
crimes, and passenger/crewmember complaints regarding theft, sexual
harassment and assault (electronically available to FBI, Coast Guard)
Cruise Vessel Security
& Safety Act of 2010

Read
Your
Cruise
Ticket
Contract!!!
If Injured on a Cruise

12. JURISDICTION, VENUE, ARBITRATION AND TIME
LIMITS FOR CLAIMS
(a) Carnival shall not be liable for any claims whatsoever for
personal injury, illness or death of the guest, unless full
particulars in writing are given to Carnival within 185 days
after the date of the injury, event, illness or death giving rise
to the claim. Suit to recover on any such claim shall not be
maintainable unless filed within one year after the date of
the injury, event, illness or death, and unless served on
Carnival within 120 days after filing. Guest expressly waives
all other potentially applicable state or federal limitations
periods.
Carnival Cruise Lines
Time Limitations

Holland America Line
300 Elliott Avenue West
Seattle, WA 98119
Re: Our Client :
Date of Injury : 03/03/2010
Vessel : The Eurodam
Dear Sir/Madam:
Please allow this to serve as WRITTEN NOTICE OF CLAIM, which shall
also include a brief factual account of the basis of the claim. This notice is being
provided pursuant to, and in full compliance with, paragraph A (3) of the “Holland
America Line Cruise and Cruisetour Contract.”
This notice is being provided as defined in the passenger contract ticket.
Our brief investigation to date reveals that Holland America Line, through
its agents, servants and/or employees, negligently and wantonly caused, permitted
and allowed _______ to sustain injuries on March 3, 2010. On that date ______ was
. . . when, suddenly and without warning . . .. She was unconscious . . .. Due to the
negligence of Holland America Line, ____has suffered serious, permanent and
debilitating injuries.
Written Notice of Claim < 6 months

What is a “Forum Selection Clause”?
A provision in a contract where the
parties agree that any dispute under the
contract will be resolved in a specific
court.
Jurisdictional Limitations

12. JURISDICTION, VENUE, ARBITRATION AND
TIME LIMITS FOR CLAIMS (Cont.)
. . . it is agreed by and between the Guest and
Carnival that all disputes and matters whatsoever . . .
shall be litigated . . . before the United States District
Court for the Southern District of Florida in Miami,
or as to those lawsuits to which the Federal Courts of
the United States lack subject matter jurisdiction,
before a court located in Miami-Dade County, Florida,
U.S.A. to the exclusion of the Courts of any other
county, state or country.
Carnival Cruise Lines

All disputes and matters whatsoever arising under,
in connection with or incident to this contract, the
cruise . . . shall be litigated . . . in and before the
United States District Court for the Western
District of Washington at Seattle or as to those
lawsuits as to which the Federal Courts of the
United States lack subject matter jurisdiction, in
the Courts of King County, State of Washington,
U.S.A., to the exclusion of all other courts.
Holland America Lines

• On March 7, 2011, the U.S. Supreme Court refused to
hear the case of Leslie, et al. v. Carnival Corporation (No.
10-715)
• In Leslie, three plaintiffs were injured on Carnival ships but
filed separate maritime negligence lawsuits in a state court
in Miami and not Federal court as required in the
ticket/contract.
• The state court dismissed the passengers’ case in Leslie
v. Carnival Corp., 22 So.3d 561 (Fla. 3d DCA 2008).
• M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12, 92
S.Ct. 1907, 32 L.Ed.2d 513 (1972) (forum-selection clauses
are prima facie valid and enforceable under the general
maritime law. See also, Carnival Cruise Lines, Inc. v. Shute,
499 U.S. 585, 590, 111 S.Ct. 1522, 113 L.Ed.2d 622
(1991).

Carnival Miami, FL
Royal Caribbean Miami, FL
Norwegian Cruise Miami, FL
Celebrity Cruises Miami, FL
Oceania Cruise Miami, FL
Disney Cruise Brevard County, FL
Holland America Seattle, WA
Princess Cruises Los Angeles County
Orient Lines Middle District of FL (Osceola)
Forum Selection Clauses

Deepwater Horizon, April 21, 2010
Limitation of Liability Act of 1851

A vessel owner (domestic or foreign) is entitled to limit its
liability after a maritime incident or casualty to the post
casualty value of the vessel and the pending freight, except
when the cause of loss was within the vessel owners
"privity or knowledge." 46 U.S.C. App. §183(a).
Privity or knowledge will be found where the acts of
negligence or unseaworthiness that caused the casualty
were known or should have been know by the vessel
owner. Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir.
1976)

 Intended to help American vessel companies
compete with European ship companies
protected by a similar law.
 This law made sense in the 1800’s before
modern insurance policies were not available
 Opponents argue that it’s unfair:
“A life on Land is worth more than a life on Water”

The Limitation Act applies to all “seagoing vessels, and
also to all vessels used on lakes or rivers or in inland
navigation, including canal boats, barges, and lighters.”
46 U.S.C. App. §186.
Owners of pleasure craft, including jet skis and house
boats, are permitted to limit liability. Keys Jet Ski, Inc. v.
Kays, 893 F.2d 1225 (11th Cir. 1990); Warnken v.
Moody, 22 F.2d 960, 962 (5thCir.1927); In re Guglielmo,
704 F.Supp. 352 (E.D.N.Y.1989) (twenty-one foot motor
boat).

 As a semi-submersible rig, the Deepwater
Horizons is a “vessel”. Stewart v. Dutra
Construction Co., 543 U.S 481 (2005)
 Gulf = navigable
waterway
 Transocean filed a
Limitation Action
in Houston

In the Limitation Act, Transocean states since “the
remains of the . . . Deepwater Horizon now lay
sunken” about a mile deep in the federal waters of
the Gulf of Mexico, the value of the rig and its cargo
comes to no more than
$26,764,083. Before the
accident, the rig was
worth approximately $650 million.
Claims will far exceed $26M

Proctors in Admiralty
28 W. Cherry Avenue
Washington, PA 15301
(724) 225 3060 phone
(724) 225-7311 fax
www.moschettalawfirm.com
Joseph P. Moschetta Stephen P. Moschetta
jpm@moschettalaw.com spm@moschettalaw.com
Questions?

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