Problems Arising from the Intersection of Traditional Maritime Law and Aviation Death and Personal Injury Liability

On July 28, 1968, an airplane owned and operated by Executive Jet Aviation, Inc. struck a flock of gulls as it was taking off from Burke Lakefront Airport in Cleveland, Ohio. The plane lost power, crashed, and ultimately sank in the navigable waters of Lake Erie. The suit for property damage to the plane's hull eventually reached the United States Supreme Court as Executive Jet Aviation, Inc. v. City of Cleveland, which held that certain aspects of aviation liability are governed by maritime law. The United States Constitution vests the Supreme Court with exclusive power to establish the substance of admiralty and maritime law, including the rules that govern admiralty proceedings and the remedies that are available to admiralty claimants. The Judiciary Act of 1789, which created the federal courts of the United States, granted those courts exclusive original admiralty and maritime jurisdiction over all causes of action arising from navigable waters.

Prior to Executive Jet, courts determined the existence of maritime jurisdiction by applying the “locality test,” which identified the “locality of the wrong.” In acknowledging substantial criticism of a mechanical application of the locality test, the Executive Jet Court “concluded that maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases.” Therefore, despite the broad language of prior cases like The Plymouth, the Court stated: “It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty ....”

The Supreme Court thus established that maritime jurisdiction and, therefore, maritime law are applicable to aviation accidents in which the crash occurs in navigable waters and in which a significant relationship exists between the wrong and a traditional maritime activity. Once it is determined that maritime law governs the case, the issue of which maritime law to apply is raised. Traditionally, the law of admiralty, or maritime law, has been defined as “a corpus of rules, concepts, and legal practices governing certain centrally important concerns of the business of carrying goods and passengers by water.” Although admiralty law has evolved over many centuries, it “is not created in a vacuum; legislation has always served as an important source of both common law and admiralty principles.” Two important legislative changes in the general maritime law occurred in 1920 when Congress passed both the Death on the High Seas Act (DOHSA) and the Jones Act.

As the Executive Jet Court noted, “under the Death on the High Seas Act, a wrongful-death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court.” Thus, general maritime law would apply to an accident involving an aircraft over navigable waters only if the flight had a traditional maritime nexus. However, DOHSA is applicable to any claim for wrongful death, even if the act giving rise to the suit had no relationship to traditional maritime activity, as long as the fatal injury occurred over the high seas.

Personal Injury and Wrongful Death Remedies for Maritime Passengers

Despite the current harsh economic climate, the cruise market has continued to expand at a rate of close to ten percent annually. A forecast recently reported in Lloyd's List International predicted that the current size of the world's cruise fleet will double before the end of the century, the number of cruise passengers will increase from over four million to ten million, and industry employment at sea will double. Cruise Industry News forecasts that, in light of market potential, cruise lines will continue to build cruise ships. By the end of the century, the North American cruise fleet could consist of 150 ships, capable of carrying seven million passengers each year with millions more waitlisted. As many industries have learned, growth brings problems. The cruise industry continues to market itself in America, where the industry sees its greatest potential. The industry has also become familiar with United States law and litigation, having come under the eye of the U.S. Congress and having taken litigation as far as the U.S. Supreme Court-no small feat for a maritime case. This Article will discuss some of the topics that are currently of interest to the cruise industry in litigating passenger claims.

The Impact of the Longshore and Harbor Workers' Compensation Act on Third Party Litigation

For several decades, the Longshore and Harbor Worker's Act (LHWCA) was a scow on the sea of maritime personal injury law. The Act lacked parity with other maritime laws and was shrouded in misconceptions. Understandably, the workings of the Act were not apparent to the general practitioner whose contact with the maritime law field is limited. In 1991, however, after a thirty-five year absence from the area of “seaman status” issues, the Supreme Court apparently extended additional parity to the LHWCA in McDermott International, Inc. v. Wilander. Although this decision has cleared up some of the confusion concerning seaman status, many misconceptions remain. The Court's action in Wilander makes an article on the LHWCA more than a mere historical review. Hopefully, this Article will dispel some of the misconceptions regarding the Act and will convey some insight into the Act to the nonadmiralty oriented general practitioner.

Parsing the Admiralty Clause: Jurisdiction of Marine Insurance Transactions

The contract of marine insurance represents one of the characteristic stereotypes of maritime contracts. This paper will explore the analytical components and anomalies of admiralty jurisdiction as it relates to marine insurance and will conjugate, if you will, the “irregular verb” that constitutes admiralty jurisdiction of marine insurance contracts.  

For Want of a Nail: Causation in Marine Insurance--The Pervasive Determinant

Causation in marine insurance is both pervasive and perverse. It is pervasive in that the cause of a particular loss must be assessed in connection with every corresponding claim under a marine insurance policy to determine whether it is a covered risk; it is perverse in that it stubbornly resists rational analysis and hence the articulation of generally applicable principles. A consequence of causation's dual personality is the occurrence of disputes between underwriters and their insureds about the answer to a deceptively simple question: What was the cause of the loss? Some of these disputes become the subject of litigation and must be resolved by the courts. Because the event immediately preceding a loss is itself preceded, in the metaphysical sense, by innumerable other events extending back to the beginning of time, the law has required a method of dispute resolution that both limits in a rational way the spectrum of events that may be considered and facilitates the selection of certain events as relevant to the contract of insurance and thus determinative of coverage. The doctrine of proximate cause developed in response to these needs.

Practitioners who resort to reported cases, texts, and articles for guidance in resolving a particular proximate cause issue will find that surfeit, not scarcity, is the burden of their research. While these resources are of value to the extent that they provide a framework for analysis, they are unlikely, given the infinite factual variations possible from case to case, to provide a complete answer. Ultimately, therefore, the practitioner must rely on a thorough analysis of the events leading to the loss in question and the best judgment possible concerning which of those events is properly labeled as the proximate cause of the loss.

The purpose of this paper is to provide some background and a few tools to facilitate thinking about proximate cause issues. We begin with a hypothetical to illustrate how proximate cause issues arise, then briefly discuss choice of law, proceed to consider whether proximate cause is a question of fact or law, and, finally, turn to a review of some of the substantive problems involved in the determination of proximate cause.

Judicial Interpretation of Insurance Contracts in Maritime Law: The Duty of Good Faith in Handling Claims

The diversity of remedies relating to the breach of the duty of good faith represents a real challenge to the uniformity of maritime law. This paper reviews judicial decisions that focus on bad faith in the claims handling stage. First, however, the current rules controlling uniformity (or, more accurately, dictating lack of uniformity) in the interpretation of marine insurance policies will be reviewed. Second, focus will shift to the diversity of state remedies available. This diversity will be illustrated by identifying representative issues and comparing their treatment under Texas law to their treatment under the laws of California, New York, Louisiana, and other jurisdictions in which the subject matter is particularly well developed. Lastly, the question of whether maritime law should treat bad faith claims uniformly will be raised and answered.  

Marine Cargo Insurance: An Overview

Marine insurance encompasses many diverse risks within its basic classes of coverage. These include hull, cargo, freight, and marine liabilities. This Article will focus on the subject of cargo insurance and will explore issues concerning some of the clauses contained in typical cargo policies, courts' interpretation of the coverage provided thereunder, and various elements necessary to obtain a recovery under a cargo policy.  

Coverage, Warranties, Concealment, Disclosure, Exclusions, Misrepresentations, and Bad Faith

The title of this Paper, Coverage, Warranties, Concealment, Disclosure, Exclusions, Misrepresentations, and Bad Faith, sounds like a catalogue of the Seven Deadly Sins or something out of a Cold War spy novel. To those in the insurance industry and its supporting legal services these simple words spell “trouble.” Before looking at what form this trouble takes and what it means in the United Kingdom and the United States, some historical background is appropriate.  

Choice and Uniformity of Law Generally

The Wilburn Boat decision has not had a significant impact on admiralty law in the United States. The need for uniformity in admiralty law, and the desire for harmony between the laws of the United States and England in the interpretation of marine insurance policies, therefore, remain persuasive and viable goals.