Tulane Maritime Law Journal

Volume 38

Issue 1

The BP B1 Bundle Ruling: Federal Statutory Displacement of General Maritime Law

John J. Costonis | Article

Among the many unresolved legal questions posed by BP’s Gulf well blowout are whether and to what extent maritime tort negligence remedies escape displacement by relevant federal statutes, including, principally, the Oil Pollution Act of 1990 (OPA or OPA 90). OPA jurisprudence over two decades holds that OPA displaces these remedies. Contrarily, however, the United States District Court for the Eastern District of Louisiana’s decision in In re Oil Spill by the Oil Rig “Deepwater Horizon” (hereinafter B1 Bundle) insists that general maritime law affords a parallel track to OPA’s remedies for economic and property oil discharge losses suffered by private claimants. B1 Bundle premises its holding on two contentions. First, OPA’s “silence,” defined as the statute’s failure expressly to displace maritime remedies, demonstrates the United States Congress’s intent to quarantine OPA as a mere supplement to general maritime law. Second, the United States Supreme Court’s decisions in Exxon Shipping Co. v. Baker and Atlantic Sounding Co. v. Townsend authoritatively establish OPA’s nondisplacement of maritime law punitive damages specifically and of maritime remedies as a whole. Neither claim is persuasive. B1 Bundle’s quarantine of federal statutory law–a product of the opinion’s unyielding admiralty-centrism–replicates the misconceived defensiveness of an earlier era’s judges who likewise strained to bar the encroachment of statutes on judge-made common law. Read More…

The Changing Contours of Maintenance and Cure
John J. Walsh | Article

Litigation concerning the seafarer’s right to maintenance and cure was initially robust in the early to middle part of the twentieth century, but declined considerably for some time as more lucrative remedies under the Jones Act and for breach of the warranty of seaworthiness developed. Between 1975 and 2010, a span of thirty-five years, the United States Supreme Court did not grant a petition for writ of certiorari in a maintenance and cure case. In that same span, circuit court opinions deciding maintenance and cure cases were not as numerous as earlier in the century. Due to several developments, however, a sea change has occurred that suggests maintenance and cure issues may once again occupy a prominent position in controversies between seafarers and shipowners. Closure of United States Public Health Service (PHS) hospitals has spawned litigation over medical expenses. Maintenance rates have become variable. The burdens of proof as to entitlement and defenses have been altered. The availability of punitive damages in maintenance and cure cases looms over all of these issues, creating uncertainty for litigants. This Article will explore these changes to maintenance and cure law and provide suggestions for dealing with new issues arising from the changes. Read More…

The Practical Effects of Lozman
Lindsey C. Brock III | Article

On January 15, 2013, the United States Supreme Court created a new test for vessel status under general maritime law of the United States when it issued its opinion in Lozman v. City of Riviera Beach, Florida.1 This new test will have practical effects in the marine industry, as well as in the litigation of maritime causes of action. This Article and our panel will attempt to identify and discuss the nature and extent of those effects in the areas of towing, finance, and insurance industries. The goal is to begin a discussion on these issues so that the legal practitioner and the industry person are each prepared to navigate into these new waters. Read More…

Wrongful Arrest of Ships: A Time For Change
Sir Bernard Eder | Contrasting Views

I would first like to extend my thanks to the Tulane Maritime Law Center and its Director, Martin Davies, for extending this invitation to speak this evening. It really is a great pleasure to be here. This Center is known throughout the world for its learning and scholarship with regard to matters maritime and, in particular, the study of maritime law. So it is not only a pleasure but also a great privilege and honour to be here this evening. Read More…

“Wrongful Arrest of Ships: A Time for Change” — A Reply to Sir Bernard Eder
Martin Davies | Contrasting Views

I thank the Honourable Mr. Justice Bernard Eder for agreeing to deliver the 2013 William Tetley Lecture in Maritime Law, and also for having the good grace to allow me a short reply to his Article, in which I intend to restate some of the arguments in support of the orthodox position in relation to damages for wrongful arrest of ships.Read More…

Wrongful Arrest of Ships: Rejoinder by the Honourable Mr. Justice Eder
Sir Bernard Eder | Contrasting Views

Having campaigned for almost thirty years for a change in the law concerning “wrongful arrest,” I have read Professor Martin Davies’s response to my Article with great interest–and I frankly acknowledge that it is the best attempt at a “demolition job” that I have ever come across. He is to be congratulated! But I remain unpersuaded by his counterarguments and unrepentant about my own views with regard to the need to change the law. I am therefore most grateful to the editors of the Tulane Maritime Law Journal for this opportunity to provide this short rejoinder. I do not propose to repeat what I have said, but perhaps I may be permitted to clarify and to emphasise a few points. Read More…

Situs Unraveled: Evaluating Methods for Determining Whether an Injury Site Qualifies as an LHWCA § 903(a) “Other Adjoining Area”
Yaakov Adler | Comment

In order for injured workers to be eligible for compensation under the Longshore and Harbor Workers’ Compensation Act (LHWCA or Act), two general requirements–“situs” and “status”–must be satisfied. Fulfilling the elements of these requirements, however, is not always an easy task. In the four decades following the United States Congress’s passage of the 1972 Amendments to the LHWCA, confusion among the circuit courts of appeals over the proper interpretation of the “other adjoining area” language contained in § 903(a)’s situs requirement has produced at least four distinct approaches to resolving the situs inquiry. Read More…

Novel Charters: Considering a New Approach to Protect Injured Third Parties Against Insolvent Charterers
Katherine Clements | Comment

Parties in the shipping industry have engaged in charter arrangements for centuries. Charter arrangements allow the parties to allocate the risks and costs of engaging in business by creating agreements that fit their particular needs. While parties’ liability to each other in traditional maritime charters is well established, parties may enter into nontraditional charter agreements in which liability to injured third parties is unclear. Thus, courts have had to address shipowners’ liability to third parties in a wide variety of circumstances. In so doing, the circuit courts of appeals have split over the question of whether shipowners may evade liability to injured third parties through a charter arrangement. Most jurisdictions recognize at least one type of charter arrangement–a bareboat charter–as an avenue for the limitation of shipowners’ liability. In numerous cases, bareboat charter arrangements absolving shipowners of liability have been upheld. However, within the United States Court of Appeals for the Fifth Circuit’s jurisdiction, a shipowner may not use a charter agreement to escape liability, and an injured seaman may have recourse against a shipowner without regard to who is at fault. Given this split of opinion, the exact circumstances in which a shipowner will be held liable to injured third parties is unclear. Specifically, if a chartered oil tanker spills hundreds of thousands of gallons of oil and the charter agreement allocates liability to the charterer, who is underinsured and without assets, who is liable to injured third parties? Is the shipowner protected by the terms of the charter arrangement even if she knowingly contracted with the negligent and undercapitalized charterer? Read More…

Harbor Depth and Taxes: A Critical Examination of the Future of the Harbor Maintenance Taxes
Michael Dehart | Comment

The United States is blessed with remarkable maritime resources. With over 88,000 miles of tidal shoreline throughout the country, it is no wonder that the United States has always relied heavily on maritime commerce to fuel its economy. However, a troubling lack of meaningful investment in the ports and harbors of the United States has left much of the nation’s maritime infrastructure in an alarming state of decay. If the United States is to continue its path towards economic recovery, it is imperative that sufficient funding is provided for the revitalization of the nation’s maritime infrastructure. An effective yet simple remedy for this issue may lie in the form of the Harbor Maintenance Tax (HMT). This Comment will examine the history of the HMT from its passage and battles over its constitutionality to the current structure of the tax. Additionally, this Comment will discuss recent legislative proposals aimed at reforming the HMT and critically analyze the future of the tax. Read More…

Crisis Averted: The Supreme Court Rejects a Subjective Vessel Status Test in Lozman v. City of Riviera Beach
Caroline E. Frilot | Comment

Envision Tom, Huck, and Jim in a bathtub paddling down the Mississippi River– is the bathtub a vessel? Common sense would tell us that the bathtub could not possibly be classified as a “vessel.” In recent years, however, many courts have interpreted precedent in such a broad manner as to allow these three famed fictitious adventurers travelling down the Mississippi in a tub to fit the vessel definition. On January 15, 2013, the United States Supreme Court put an end to this absurd possibility. In Lozman v. City of Riviera Beach, Florida, the Court concluded that an unusual floating home was not a vessel because a “reasonable observer, looking to the home’s physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water.” After the Lozman decision, the blowback from the maritime law community was strong and immediate. Some practitioners lamented that the “reasonable observer” test will open “the litigation floodgates” with respect to specialized floating equipment; others simply called the decision a blunder. Read More…

Cross-Border Insolvency in the Maritime Context: The United States’ Universalism vs. Singapore’s Territorialism
Phoebe Hathorn | Comment

Cross-border insolvencies may not have been familiar to the maritime industry a decade ago, but unfortunately for many international shipping companies, they have become increasingly commonplace in recent years. As a result of the worldwide decline in demand for goods, rising oil prices, and an oversupply of oceangoing vessels, marine transportation companies, such as Overseas Shipholding Group and Korea Line Corporation, have been forced to seek rehabilitation and reorganization through bankruptcy or other insolvency proceedings. The international scope of these companies and worldwide dispersal of their assets might implicate multiple jurisdictions in these proceedings– jurisdictions that may not utilize the same, or even compatible, insolvency regimes. Read More…

Strong Headwinds: Statutes, Responsibility-Shifting, and Public Policy Continue to Frustrate Indemnity Agreements in the Offshore Oil and Gas Industry
Imran Naeemullah | Comment

Indemnity clauses are a routine feature of modern contracts. Yet, they represent one of the foremost challenges facing maritime practitioners. In particular, practitioners drafting and litigating contracts for clients in the offshore oil and gas industry must navigate unique statutory, financial responsibility, and public policy hurdles to enforce indemnity provisions. Despite considerable literature discussing the subject, the validity of indemnity clauses remains unclear. Recent case law is a double-edged sword: it sheds some light but introduces new barriers. Thus, the enforceability of a given indemnity clause requires a multifaceted analysis. Read More…

Salvaging Federal Admiralty Jurisdiction: The Eleventh Circuit Advances a Modern Test for Waterway Navigability in Aqua Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs
Bryan J. Kitz | Note

A market for submerged logs has surfaced as a result of sunken timber’s suitability for specialized purposes. Aqua Log, Inc., a company that finds and sells such timber, discovered sunken logs in two Georgia waterways: the Flint River and its tributary Spring Creek. Aqua Log used the waterways to transport three logs that it initially retrieved, but many more remained. Portions of the Flint River on the Georgia-Florida border were used in interstate commerce, but the segments of both waterways where the logs lay submerged did not support any commercial activity at the time. Nevertheless, the relevant sections of the Flint River and Spring Creek were capable of supporting commercial vessel traffic. Read More…

Issue 2

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