Tulane Maritime Law Journal

Volume 37

Issue 1


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. Read More…


OCSLA, the LHWCA, Pacific Operators Offshore, LLP v. Valladolid, and the New Substantial-Nexus Requirement
Thomas C. Galligan, Jr. | Essay

In Pacific Operators Offshore, LLP v. Valladolid, the United States Supreme Court held that Longshore and Harbor Workers’ Compensation Act (LHWCA) coverage, through the Outer Continental Shelf Lands Act (OCSLA), is available to a worker whose injuries bear a “substantial nexus” to extraction operations on the Outer Continental Shelf (OCS). Read More…


The Development of Environmental Salvage and Review of The London Salvage Convention 1989
Archie Bishop | Essay

In the later part of the twentieth century, the world developed an environmental conscience, and today, there is little that is not affected by our concern for the environment. The environment’s biggest enemy has undoubtedly been pollution, and any form of pollution has become abhorrent to the public eye. The marine world has not escaped the resultant pressure, and environmental concerns have given rise to many international conventions that impose strict civil liability and increase criminal liability. The effect of this growing concern about the marine environment has not escaped commercial salvors. Today, there is hardly a salvage operation that is not driven by environmental concerns. Recent casualties–such as the NAPOLI, the CHITRA, the RENA, and, very recently, the COSTA CONCORDIA–illustrate this prominence of environmental concerns in salvage operations. Read More…


Binding Effect of Arbitration Clauses on Holders of Bills of Lading as Nonoriginal Parties and a Potential Uniform Approach Through Comparative Analysis
Ling Li | Essay

An arbitration clause usually binds parties who have agreed to it absent any dispute regarding the validity of the clause. An arbitration clause, however, may be incorporated from one contract (the first contract) into another contract (the second contract) pursuant to an incorporating provision in the second contract. Through incorporation, the arbitration clause in the first contract becomes a provision in the second contract. A person who is a party to the second contract, but not a party to the first contract, becomes a nonoriginal party to the arbitration clause. In addition, a successor of either the first contract or the second contract also becomes a nonoriginal party to the arbitration clause. Read More…


Congress Sends an “S.O.S.” to the World: Chartering the Course for Maritime Laws on Death
Christine Nicole Burns | Comment

At present, an ocean of difference exists between the populist sense of justice and the remedy provisions of maritime law of the United States. Although it has finally awakened to this realization, Congress’s most recent attempts to update the admiralty regime to better reflect the will of the modern citizen have only complicated the law, thus creating confusion among the courts. Read More…


Dangerous Goods Liability in the Age of Containerization—Warning: This Comment May (or May Not) Self-Destruct
Joseph Z. Cavanah | Comment

Containerization significantly altered the risks and benefits associated with the global shipping industry. The rules governing the industry, however, have not evolved in lockstep with newer technology. Rather, courts and businesses apply dated rules to modern and sometimes very dangerous risks. This Comment examines rules that govern dangerous goods and surveys a sample of leading interpretations of those rules. Read More…


The Ace up the Sleeve: Federal Courts Allow Employer Counterclaims for Property Damage to Wipe Out the Jones Act Claims of Seamen
Courtney L. Collins | Comment

The nature of the maritime industry inevitably gives rise to accidents resulting in both property damage and injury to a seaman. Often, this leads the seaman to file a claim under the Jones Act, a statue that allows injured seamen to recover from negligent employers. In response to this type of situation, some employers have elected to file a counterclaim against the injured seaman for the property damage caused in the accident. Read More…


To Exhibit or Not to Exhibit?: Establishing a Middle Ground for Commercially Exploited Underwater Cultural Heritage Under the 2001 UNESCO Convention
Laura Gongaware | Comment

Although cultural heritage located on land receives extensive legal protection in almost every country in the world, cultural heritage located underwater, known as underwater cultural heritage, receives little, if any, protection. For underwater archaeologists, this difference in protection is perplexing because historic shipwrecks, a subcategory of underwater cultural heritage, are unique time capsules. Whereas most land-based archaeological sites are composed of several settlements built one on top of the other, each historic shipwreck is representative of one moment in history and provides a unique glimpse into ancient maritime trade and transportation. Read More…


Unraveling the Tangled Web: A Discussion of the Development and Effects of the Supreme Court’s Substantial-Nexus Test as it Applies to the Outer Continental Shelf Lands Act
Ryan T. Martin | Comment

In 2012, through Pacific Operators Offshore, LLP v. Valladolid, the United States Supreme Court resolved a longstanding federal circuit split regarding the scope of the Outer Continental Shelf Lands Act (OCSLA) provision contained in 43 U.S.C. § 1333(b). In relevant part, § 1333(b) provides Longshore and Harbor Workers’ Compensation Act (LHWCA) benefits to employees who are injured “as the result of operations conducted on the Outer Continental Shelf” (OCS). Read More…


Equitable Personification: A Review of Res Judicata’s Historical Application to Successive In Personam and In Rem Admiralty Actions in the United States
Bradley J. Schwab | Comment

From time to time, multiple claims arise out of a single transaction or event. This occurrence is especially common in maritime cases, where a single tort or breach of contract often entitles a plaintiff to both an in personam claim against the responsible party and an in rem claim against the vessel itself. However, for both practical and economic reasons, admiralty claimants do not always pursue both of these distinct remedies when first seeking relief. Read More…


An Issue of Enforcement: Foreign Arbitration and Choice-of-Law Clauses Within a Jones Act Seaman’s Employment Contract
Ashley M. Wheelock | Comment

Generally speaking, when employers include an arbitration agreement in conjunction with a choice-of-law clause within a seaman’s employment contract, the intention is to require the seaman to arbitrate any negligence claims against the employer in a named nation subject to foreign law. Courts have grappled with the enforceability of arbitration and choice-of-law clauses in seamen’s employment contracts in light of the federally enacted Jones Act and the United Nation’s Convention on the Recognition and Enforcement of Foreign Arbitral Awards, more frequently referred to as the New York Convention, codified in chapter 2 of the U.S. Federal Arbitration Act (FAA). Read More…


Ignoring its Wards: The Fifth Circuit Restricts Cure Awards for Seamen in Manderson v. Chet Morrison Contractors
Michael Dehart | Note

Plaintiff Leon Manderson (Manderson) began working for defendant Chet Morrison Contractors (CMC) in November 2006. Until January 2008, Manderson worked for CMC as a licensed engineer aboard the M/V JILLIAN MORRISON, a CMC dive vessel operating in the Gulf of Mexico. In January 2008, Manderson abruptly left work aboard another CMC dive vessel and was subsequently hospitalized. Manderson had procured his own health insurance completely independent of his employment with CMC and paid all insurance premiums from March 2008 to January 2009. Read More…

Issue 2


War, Memory, and Culture: The Uncertain Legal Status of Historic Sunken Warships Under International Law
Valentina Vadi | Article

In February 2012, seventeen tons of artefacts and silver coins recovered from the Spanish galleon NUESTRA SEÑORA DE LAS MERCEDES, which was sunk in 1804 by British warships in the Atlantic Ocean, were returned to Spain. Spain’s ambassador to the United States emphatically noted: “This is history. . . . This is not money. This is historical heritage.” Reportedly, the coins will be exhibited in Spanish museums. Read More…


The Derailment of a Transport Statute: How Regal-Beloit Shipwrecked the Carmack Amendment on the Shoals of COGSA
O. Shane Balloun | Article

In 2010, the United States Supreme Court decided that only the Carriage of Goods by Sea Act (COGSA), and not the Carmack Amendment, governs the domestic legs of international intermodal shipments coming into the United States by sea. While the Court sought to preserve uniformity in general maritime law, whatever meager uniformity the majority decision in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. did preserve came at the expense of a plain-meaning interpretation of the relevant statutes and sensible jurisprudence. Meanwhile, the interpretation proposed by the Regal-Beloit dissent also would ignore the plain meaning of the Carmack Amendment, which otherwise arguably allows for the result reached by the majority. 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 Developments

This is the twelfth 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.
Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits. Read More…


International Recent Developments: Australia
Kate Lewins & Ashwin Nair | International Recent Developments

This Article focuses on the significant decisions that emanated from Australian courts from 2011 to 2012. It aims to provide readers with an insight into Australian maritime law and its development over this period.1 The cases reveal that litigation tied to the mining and offshore industries have had a significant impact on the development of maritime jurisprudence in Australia. Read More…


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

This Article provides an overview of the most significant cases concerning charterparties and the carriage of goods by sea decided in the United Kingdom during 2012. Read More…


Come One, Come All: The Second Circuit’s Messier Approach to Maintenance and Cure
Yaakov Adler | Note

Richard Messier, a tugboat seaman, fell off a ladder and sustained a back injury while working aboard the tug EVENING MIST, a Bouchard Transportation Co. (Bouchard) vessel. After seeking medical attention, his back pain quickly abated. However, during the ensuing medical examination, routine blood tests revealed an abnormally high level of creatinine in his blood. Messier’s creatinine levels continued to rise for a week, ultimately resulting in renal failure. After his symptoms subsided, Messier’s doctors ordered additional tests to determine the cause of his kidney failure. Read More…


Pirates Without Treasure: The Fourth Circuit Declares that Robbery is not an Essential Element of General Piracy
Ashley Bane | Note

In two factually similar cases, the United States Court of Appeals for the Fourth Circuit was tasked with determining whether the piracy statute, 18 U.S.C. § 1651, encompasses attacks on vessels in international waters when the attackers do not seize or rob the vessels. Both cases were on appeal from the United States District Court for the Eastern District of Virginia, where two district judges had reached divergent conclusions on the definition of piracy. Read More…


Turning a Blind Eye to Deaf Ears: The Fifth Circuit Examines an LHWCA Claim for Hearing Loss in Ceres Gulf, Inc. v. Director, Office of Worker’s Compensation Programs
Michael Dehart | Note

Claimant Norris Plaisance began working as a longshoreman in the 1950s. From 1982 until his retirement in 1988, Plaisance worked for petitioner Ceres Gulf. He initially noticed loss of his hearing in 1976 and subsequently obtained hearing aids. Plaisance was diagnosed with both conductive and sensorineural hearing loss upon his retirement from Ceres Gulf in 1988. Plaisance filed a claim against Ceres Gulf pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA) in March 2006. Read More…


A Decade Later, $1 Billion Saved: The Second Circuit Relieves a Maritime Classification Society of Unprecedented Liability for Environmental and Economic Damages in Reino de España v. American Bureau of Shipping, Inc.
Imran Naeemullah | Note

After sailing the world for more than a quarter century, the oil tanker PRESTIGE met a sudden demise in November 2002 when she sank 140 miles off the coast of Spain, following internal structural failure. Consequently, the PRESTIGE’s hazardous cargo of fuel oil spilled into the ocean, eventually washing onto Spain’s beaches and coastline. Read More…


Chapparro v. Carnival Corp.: Playing the Game of Pleading Maritime Torts Under the Plausibility Standard
Michael G. Razeeq | Note

A Caribbean cruise ended in chaos on July 12, 2010, when rival gang members exchanged retaliatory gunfire during a funeral near Coki Beach in St. Thomas, U.S. Virgin Islands. During the altercation, gang members shot and killed an innocent bystander, Liz Marie Perez Chaparro, who was a passenger on vacation aboard the Carnival cruise ship M/V VICTORY. Read More…


Quantum Survey 2011-2012 Survey of Admiralty Personal Injury Awards
Siwei Chu, Victor M. Dantin & Terence Wise | Quantum Survey

This survey compiles personal injury awards decided by federal and state courts from 2011 through 2012. We have classified the decisions according to the nature of the injury. NB: Plaintiffs often suffer multiple injuries. Read More…


Collision Survey 2011-2012 Survey of Allision and Collision Decisions in the Federal and State Courts
Siwei Chu, Victor M. Dantin & Terence Wise | Collision Survey

This survey compiles and organizes allision and collision decisions by federal and state courts during the past two years. For allisions, incidents are classified by the type of structure with which the vessel allided. For collisions, the incidents are categorized chronologically. Many incidents could fall within multiple categories. These cases are classified according to the most significant aspect of the incident. Read More…


Forum Selection Clause Survey 2011-2012
Siwei Chu, Victor M. Dantin & Terence Wise | Forum Selection

This survey compiles and organizes case decisions regarding the enforceability of forum selection clauses (FSC) contained in bills of lading, charterparties, and other maritime contracts. The case summaries are classified by whether the FSC was enforced, not enforced, or conditionally enforced. If the court did not make one of these three determinations, then that information is provided, as well. Read More…