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

The Historical Evolution Of European Union Shipping Law
Vincent J.G. Power | Article

Traditionally, there have been two sources of maritime law: national maritime law and international maritime law. Today, however, there is a third source, namely, European Union (EU) maritime law. EU maritime law is not national maritime law because the EU is not a nation. Nor is it international law because the EU is not simply a network of international treaties but is instead sui generis. This means that EU maritime law is sui generis. The purpose of this Article is to examine aspects of how EU maritime law has evolved historically and to discuss briefly the nature of this growing third force of maritime law in the world. Before examining the evolution of EU maritime law, it is useful to discuss briefly the nature of the EU and to outline some general observations about the EU and shipping. Read More…

Adrift At Sea—The Duty Of Passing Ships To Rescue Stranded Seafarers
Robert D. Peltz | Article

Twenty-six cruise lines headquartered in North America, which form the Cruise Lines International Association (CLIA), presently sail 225 ships throughout the world. In addition, numerous cargo ships, tankers, and other vessels are operated by companies maintaining their bases of operations in the United States. As a result, it is not uncommon for these vessels periodically to pass in the vicinity of distressed ships of all types needing assistance. Such occurrences are especially common for those ships sailing in the vicinity of Cuba and Haiti, where politically oppressed and economically deprived individuals often attempt to escape to other countries, including the United States, in rafts and all manner of unseaworthy crafts or vessels. Read More…

The New Removal Regime
Matthew H. Ammerman | Essay

This Essay will focus on (1) changes to the statutes governing removal of lawsuits by the “Federal Courts Jurisdiction and Venue Clarification Act of 2011” (Clarification Act)and (2) how those changes have been interpreted by courts within the United States Court of Appeals for the Fifth Circuit’s jurisdiction. The Clarification Act makes removal of maritime personal injury claims easier, especially when the Outer Continental Shelf Lands Act (OCSLA) applies. Read More…

Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits
David W. Robertson; Michael F. Sturley | Recent Development

This is the thirteenth Article in a series of annual reports on U.S. admiralty and maritime law and practice.In these articles, we try to call attention to the principal national-level developments that bear on the work of admiralty judges, lawyers, and scholars, and we look more closely at the relevant work of the United States Courts of Appeals for the Fifth and Eleventh Circuits. We do not warrant full coverage, although with respect to the Fifth and Eleventh Circuits, we try to be fairly thorough.  Read More…

The Cruise Passenger’s Rights and Remedies 2014: The Costa Concordia Disaster: One Year Later, Many More Incidents Both On Board Megaships and During Risky Shore Excursions
Justice Thomas A. Dickerson | Recent Development

While a cruise vacation may very well be the best travel value available, consumers should be aware that a cruise line’s duties and liabilities are governed not by modern, consumer-oriented common and statutory law, but by nineteenth-century legal principles, the purpose being to insulate these companies from legitimate passenger claims. … For example, if CLIA really wants to help cruise passengers, then cruise lines should stop inserting Miami, Florida, forum selection clauses into ticket contracts and allow injured passengers to sue in a forum convenient to them. Read More…

International Recent Developments: Australia
Kate Lewins; Ashwin Nair | International Recent Development

This Article focuses on the significant decisions that have emanated from Australian courts over the past year. It aims to provide readers with an insight into Australian maritime law and its development over this period. Read More…

International Recent Developments: Denmark
Anders Møllmann | International Recent Development

In 2010, the general rules of the Act on Safety at Sea (Safety at Sea Act), which divide the responsibilities regarding safety at sea between the shipowner, master, etc., were amended. Previously, section 9 of the Safety at Sea Act only placed responsibility on the shipowner for ensuring that faults and defects that the shipowner had knowledge of were repaired and that the ship conformed with the legislation’s requirements as to inspections and certifications. In other respects, the master was the primary person responsible. With the technological advances in facilitating communication between ships and their land-based organizations, allocating most of the responsibilities to the master was found to be outdated.  Read More…

International Recent Developments: New Zealand
Bevan Marten | International Recent Developments

Recent developments in New Zealand’s maritime law have centered on the RENA disaster of October 5, 2011, and on the current government’s strategy of driving economic growth through exploitation of the country’s marine natural resources. This has resulted in a considerable amount of legislative activity from the New Zealand Parliament, complemented by a small number of lower court decisions. Read More…

International Recent Developments: United Kingdom
Theodora Nikaki | International Recent Development

Cash flow is vital for the orderly administration of the carriage of goods. Therefore, a charterer’s failure to pay hire in accordance with the terms of the charterparty is clearly a breach of contract entitling an owner to claim damages and/or suspend the services or even withdraw the vessel. In 2013, there have been a number of cases dealing with the consequences of nonpayment of hire, which resulted from the financial crisis. Read More…

Punitive Damages Stow Away in the Fifth Circuit: McBride v. Estis Well Service, L.L.C.
Laura R. Beck | Note

ESTIS RIG 23, a barge carrying a truck-mounted drilling rig, was conducting drilling operations on a navigable waterway in Louisiana. One night, the monkey boardtwisted, and the pipe in the derrick shifted. As the barge crew members were attempting to straighten it the next day, the rig and truck toppled over. One crew member, Skye Sonnier, was fatally pinned between the fallen derrick and a tank on the barge. Read More…

Pleading Insanity in Piercing the Corporate Veil: Supplemental Rule E’s Heightened Pleading Standard Protects Polluting Shipowners in the Fourth Circuit
James K. Dumont | Note

In 2005, Vitol, S.A., obtained a $6.1 million judgment from the English High Court of Justice, Queen’s Bench Division, Commercial Court, against Capri Marine, Ltd., stemming from breached warranties of seaworthiness that caused an oil spill from the ALAMBRA, an oil tanker, in an Estonian port in September 2000.Vitol filed suit to attach the vessel M/V THOR in the United States District Court for the District of Maryland, seeking to enforce the English High Court’s judgment, which then totaled over $9 million with accrued interest. Vitol argued that the M/V THOR was dominated, owned, and operated by an alter ego of Capri Marine–namely the Kalogiratos Groupand its subsidiaries. The M/V THOR was released when its owner, Spartacus Navigation Corporation (Spartacus), and its manager, Primerose Shipping Company (Primerose), posted a $9 million security bond as substitute collateral.Shortly thereafter, Spartacus and Primerose moved to vacate the attachment under Federal Rule of Civil Procedure Admiralty Supplemental Rule E and to dismiss Vitol’s complaint under Rule 12(b)(6). The district court granted both motions, finding that although it had jurisdiction over a foreign case sounding in admiralty, Vitol had failed to state a claim upon which relief could be granted under Rule 12(b)(6).In early 2011, Vitol was granted leave to amend its complaint and thereafter filed an amended verified complaint to stay the release of the $9 million bond. Read More…

Muddying Murky Waters: The Fifth Circuit’s Indecision in Barker v. Hercules Offshore, Inc., Leaves Choice of Law Under OCSLA and Zone-of-Danger Theory Under Maritime Law Unanswered
Destinee Finnin | Note

Francis Barker stood a mere two feet from the pollution pan of a jacked-up drilling unit when the pan and his coworker Frank Broussard plunged 100 feet into the water below. Barker and Broussard were employed by a company that contracted with Hall-Houston Exploration II, L.P., to install a well casing on a jack-up rig that Hall-Houston obtained from Hercules Offshore, Inc. At the time the casing was to be installed, the drilling unit “was in the ‘jacked-up’ position, meaning that its hull and work deck were lifted completely out of the water” and that “[t]he legs of the rigs extended downward through the water into the seabed.” Barker and Broussard were unaware that the pollution pan was connected to the rig by welded straps, rather than welded directly to the rig as is customary when in the jacked-up configuration. While installing the casing, they were instructed to cut the straps supporting the pan. Not knowing that the straps were the only source of support, Broussard was standing on the pollution pan when the straps were cut. Barker had his back turned when the pan fell, but turned around in time to see Broussard strike a beam and fall to his death. Read More…

One Expensive Promise: The Fourth Circuit Broadens Shipowner Liability Under the Longshore and Harbor Workers’ Compensation Act in Bunn v. Oldendorff Carriers GmbH & Co. KG
Allison Fish | Note

On a wintry February night in Baltimore, Maryland, Richard Bunn went to work for stevedore CNX Marine Terminals, Inc., which was assigned the job of loading a vessel owned by Oldendorff Carriers GmbH & Co. KG. Before Bunn began his work that night, CNX’s shift supervisor boarded the ice-covered ship to tell its chief officer that CNX employees were going to begin loading, so they would need an ice-free path between the holds. The chief officer said that the vessel’s crew would salt and sand the areas between the holds. A few hours after this conversation, CNX’s shift supervisor instructed Bunn to board the ship and begin loading operations. Once on board the ship, Bunn noticed a clear path to the number five hatch and loaded that hatch first. After completing his work at the number five hatch, Bunn then decided to load the number three hatch, which was further back on the ship in a dimly lit area. Bunn held onto a handrail as he stepped off the cleared path onto a patch of ice, and, after only a few steps, he fell to his hands and knees. After his initial fall, Bunn stood up and attempted to continue forward, but almost immediately fell again, this time landing on his back and elbow. Read More…

Admiralty’s Vestigial Tail: The Fifth Circuit Revitalizes the Outdated Pennsylvania Rule
Bryan J. Kitz | Note

The dredge MIKE HOOKS began dredging operations near the Wax Lake intersection of the Gulf Intracoastal Waterway (ICW) in the early morning of May 31, 2008. The towboat CAP’N TOMMIE VIZIER JR. served as picket boat, assisting the dredge and passing vessel traffic. The current was particularly strong due to strong winds and high water levels. Under these adverse conditions, the towboat SARAH D collided with the dredge while traversing the Wax Lake intersection, damaging the MIKE HOOKS’s hull. The crew moored the dredge in the northwest corner of the 400- to 800-foot-wide Wax Lake intersection channel to repair her damaged hull.1 While in this location, another passing vessel, the PAT McDANIEL, allided with the MIKE HOOKS and caused further damage. The CAP’N TOMMIE VIZIER JR. did not physically assist the PAT McDANIEL in avoiding the MIKE HOOKS. The owner of the MIKE HOOKS brought suit in the United States District Court for the Eastern District of Louisiana against the owner of the PAT McDANIEL, who in response brought counterclaims and third-party claims against the owner of the CAP’N TOMMIE VIZIER JR. Read More…

Veiled Threats: Will the Second Circuit Hamstring Alter-Ego Claims by Applying Foreign Law?
David R. Maass | Note

Blue Whale Corporation (Blue Whale) entered into a charterparty with Grand China Shipping Development Company (Grand China), a Chinese company, in May 2011. The charterparty provided that Blue Whale would transport 250,000 metric tons of iron ore from Brazil to China on Blue Whale’s Liberian-registered vessel. Blue Whale alleged that Grand China failed to pay the agreed freight and held the vessel and its cargo, pending payment. The carrier further alleged that it suffered more than $1 million in damages as a result. Blue Whale submitted its claim against Grand China to London arbitration according to the charterparty’s arbitration clause. Read More…

He Does Not Deserve It, but You Can’t Have It Back: The Right to Restitution in the Face of a Successful McCorpen Defense
Graham Williams | Note

After five years and $276,263.36 in payments, Transocean Deepwater, Inc., discovered that Wallace Boudreaux had no right to maintenance and cure. Boudreaux failed to disclose a previous back injury, which he allegedly injured while working for Transocean. Acknowledging a valid McCorpen defense, the district court granted Transocean’s unopposed motion for partial summary judgment on Boudreaux’s maintenance and cure claims. Transocean then filed a counterclaim against Boudreaux seeking restitution of maintenance and cure payments already made. Transocean asserted a right to restitution pursuant to state law theories of fraud and unjust enrichment. Because of the claim’s nature, the district court declined to apply state law. Among other guiding principles, “[M]aintenance and cure is a right . . . particular to maritime law and should [therefore] be governed by federal law as much as possible.” The district court held that the claim was properly brought under general maritime law and granted the claim for restitution. Read More…