Comment by Ugo Colella
Federal maritime law is comprised of federal statutes and judge-made law known as the general maritime law. Two policy objectives have shaped the contours of the general maritime law-special solicitude and uniformity. Special solicitude embodies the humanitarian side of maritime law, and although the policy of conferring special solicitude first emerged in the nineteenth century, no systematic attempt to define the scope of special solicitude has been undertaken. The intersection of vague conceptions of special solicitude with the competing goal of uniformity, coupled with the uncertain role federal maritime statutes should play in the general maritime law, has produced confusion about the rights and remedies available under the general maritime law. This Comment attempts to resolve the confusion in the general maritime law by proposing an approach to special solicitude which properly balances uniformity, special solicitude, and separation of powers concerns. The theory traces the historical development of special solicitude and suggests that special solicitude requires courts to be the most generous to those who make a living on the sea. Because maritime workers are largely protected by federal statute, a proper conception of special solicitude requires admiralty courts to adopt by analogy the remedial scheme of the federal statutes as that which should govern the general maritime law. The Comment suggests further that tying recovery under the general maritime law to that received by seamen, to “enlarged principles of justice,” or to the rule of recovery among the majority of states does not comport with the historical development of special solicitude. Finally, the theory of special solicitude advanced in this Comment compels the conclusion that (1) damages for loss of society ought to be excised from the general maritime law (therefore laying the theoretical foundation for overruling the Supreme Court's ill-conceived decision in Sea-Land Services, Inc. v. Gaudet), (2) state statutes cannot provide substantive rights and remedies for the general maritime law, and (3) survival actions for deaths occurring within state territorial waters (but not the high seas) should be available under the general maritime law.
About the Author
Ugo Colella. Editor in Chief. B.A. 1989, Stanford University; J.D. Candidate 1996, Tulane Law School.
Citation
70 Tul. L. Rev. 227 (1995)