Lifting “The Great Shroud of the Sea”: A Customary International Law Approach to the Domestic Application of Maritime Law

David W. Denton Jr. | Article

1953 was a year of symbolic developments for American maritime law. In August, Congress enacted the Outer Continental Shelf Lands Act (OCSLA), requiring state law to apply to a broad range of legal disputes arising from the new industry of offshore oil drilling in the Gulf of Mexico. Then in December, the Supreme Court of the United States decided Pope & Talbot, Inc. v. Hawn, formally expressing what had long been assumed–that the rejection in Erie Railroad Co. v. Tompkins of the federal courts’ power to define general common law did not apply to their parallel power over admiralty law. On the one hand, OCSLA reflected a view that state law was better suited to deal with a variety of private disputes, even those occurring at sea. On the other, Pope & Talbot traces its lineage through a long line of cases that enshrine admiralty law as a unique species of federal law with special–and often unpredictable–preclusive power.

The interpretation of both OCSLA and Pope & Talbot gets at two questions that have long plagued the domestic practice of admiralty. First, when does maritime law apply? Second, what does it mean for maritime law to apply to a given dispute or class of cases? Over time, the Supreme Court has significantly expanded the reach of maritime law. But this breadth has come with consequences; as maritime law governed more and more disputes, greater concerns were raised about the preemptive effect admiralty had on state law, leading to a disjointed jurisprudence aimed at cabining this preclusive force.

Modern scholarship of international law, however, offers the tools by which sense can be made of all these aspects of maritime law. By treating the Admiralty Clause of Article III of the United States Constitution as a jurisdictional grant defined by the application of a particular substantive law–not unlike federal question jurisdiction–courts can anchor their admiralty power to specific principles. And that substantive law, derived historically from the law of nations, should be defined like another aspect of the law of nations: customary international law. Courts can deploy this familiar tool to identify consistent norms of maritime law, and when such norms exist, consider them incorporated into federal law through the Admiralty Clause. But when the customs of the sea provide no such rule, courts should not exercise an unmoored discretion to make law that can preempt even some congressional legislation.

In making this proposal, this Article will proceed in four Parts. Part II uses OCSLA as a framing device to illustrate the practical difficulties presented by the current application of maritime law. The Supreme Court’s sometimes strained interpretation of OCSLA to ensure widespread application of state law is a useful vehicle for examining the diverse problems presented both by the unique litigation context of incidents at sea and by the Court’s common law maritime jurisprudence, which has departed in varying ways from the original understanding of the grant of admiralty jurisdiction.

Part III considers the first question this Article posed regarding the proper nexus required to obtain maritime jurisdiction. It is necessary here to recount at some length the doctrinal evolution that has led to the current “on the navigable waters” test, because that position is the product of a long-term mutation of admiralty law and not a single sweeping statement adopting a particular principled theory. Moreover, this doctrine stands in substantial contrast to an alternate theory more recently in vogue, which would limit admiralty jurisdiction to specific cases of “public law” concern, such as the capture of prizes of war and the prosecution of piracy. In responding to this public law theory, this Article considers the text of the Admiralty Clause, both by itself and in relation to other provisions of the United States Constitution, to reach a *4 textual and structural interpretation that suggests maritime jurisdiction is more appropriately defined by the substantive law that applies than by the place where the dispute arose.

Part IV considers the second question about what substantive law should govern admiralty disputes. After Erie, it can be difficult to make the case that there is a general federal common lawmaking power in any area, and some scholars have indeed urged that maritime law suffer the same fate as the law merchant. This question is complicated as well by the famous “saving to suitors” clause of the Judiciary Act of 1789, which preserved some state remedies in admiralty disputes. The Supreme Court has reached quite far in its jurisprudence in this area, suggesting that admiralty law–defined by the Court as any time a case arises on navigable waters–has aspects so deeply embedded in the Constitution that Congress might not even have the power to alter them.

Part V proposes that a customary international law approach offers a way to reconcile the broad grant of admiralty power with the concerns of a federalist system. First, courts have traditionally viewed maritime law as a species of international custom. Although the terms of art and tests applied today may be unknown to historical admiralty decisions, the way early courts decided maritime cases has much in common with the current standards for the application of customary international law. Second, the standard attacks on the incorporation of customary international law are less relevant in the admiralty context because the Constitution expressly provides a basis for the use of customary maritime rules of decision in federal courts. This Part also considers the effect that such a proposal would have on the extant maritime jurisprudence, suggesting that while some controversial cases such as Southern Pacific Co. v. Jensen7 can still provide useful benchmarks for the relationship between maritime and state law, the reach of others, like Knickerbocker Ice Co. v. Stewart,8 should be limited to ensure the proper constitutional delegation of power. By way of illustration of this customary maritime law approach, this Part concludes where this Article began, discussing the way this method would approach a typical OCSLA problem–the interpretation of an indemnity or insurance contract in the Gulf of Mexico.