Comment by James W. Shephard
‘Its depth is considerable; obscurity constantly bears sway; navigation is difficult; the winds are impetuous; and to the West, its limits are unknown.’
The above description of the Atlantic Ocean, made in the twelfth century, may well describe the impressions of practitioners and commmentators alike when trying to fathom recent developments in the maritime tort doctrine barring recovery for economic loss in the absence of physical harm. In a series of recent cases, United States and Commonwealth courts grappling with the question have vacillated on whether or not recovery should be permitted. While the outcomes of these recent cases are for the most part relatively consistent, the reasoning supporting the decisions is not. In order to understand the divergent approaches to this issue, this comment will trace the historical development of the doctrine and analyze the enumerated policies behind its continued application by the common-law courts. In addition, a comparative analysis with the approach taken in civil-law jurisdictions will be made. Finally, an approach will be proposed that attempts to reconcile the common law and civil law differences and that provides for uniform treatment of the issue.
About the Author
James W. Shephard.
Citation
60 Tul. L. Rev. 995 (1986)