The Relationship Between the Tug and Tow in the United Kingdom

The English common law of tug and tow, particularly the duties of one to the other, were fully developed by the end of the nineteenth century. This Article explores the common-law duties of the tug and the tow and the contracts subsequently created to redistribute these duties. First, this Article sets out the relative common-law duties of the parties to a towage contract. Next, it examines the effect of two types towage contracts, the UK towage conditions and the Towcon and Towhire contracts. It concludes that the modern view is to contract on a “knock for knock” principle, which has each party bearing his own losses, being accountable for his own personnel and equipment, and insuring the resulting risks.  

Liability of Wharfingers, Fleeters, and Bailees

The rules governing the liability of wharfingers, fleeters, and bailees date back to the late nineteenth century. This Article details the various legal duties and standards of care imposed on wharfingers, fleeters, and bailees. Specifically, the Article discusses a wharfinger's duty to provide a safe berth, a fleeter's duty to adequately moor, and the presumptions, inferences, and burdens of proof which govern actions brought against wharfingers, fleeters, or bailees. The Article then turns to specific defenses to liability. If a bailee's control over the damaged property is not exclusive or if the accident occurred due to an act of God, liability may not be imposed. The Article next discusses the role of custom and practice (and specifically the warranty of workmanlike performance) in determining the contractual obligations of wharfingers and fleeters. Finally, the Article discusses the rules governing a wharfinger's liability for personal injury and death and places particular emphasis on the government regulations that set the standard of care for wharfingers.  

Exculpatory and Benefit of Insurance Clauses in Towage and Pilotage

Although tug operator's attempts to shift their liability to the towed vessel through exculpatory clauses have mostly failed, they have generally succeeded in transferring their liability to the tow's insurers through “benefit of insurance” clauses. This Article first examines the history of exculpatory clauses in towage contracts in the twentieth century, demonstrating that American courts have not enforced them. Next, the Article explores the “pilotage” clauses which the courts have enforced to shift liability to piloted vessels, despite the clause's close similarity to the exculpatory clauses rejected by the courts in the towage context. The Article concludes that all of the contractual maneuvering of tugs and tows to shift liability could best be avoided by treating exculpatory clauses in towage contracts no differently than other contractual clauses.  

Burdens of Proof Between Tugs and Tows

Historically, in negligence actions involving a tow against its tug, the burden of proof has rested with the tow. Recently, however, a trend has developed to shift the burden of proof onto the tug to explain the causes of the damage to the tow. This Article examines the history of burdens of proof in negligence actions by the tow against the tug. It explains an exception to the general rule which placed the burden of showing negligence on the tug. When the tow had been grounded, the burden of proof shifted to the tug to explain its actions. After demonstrating that some recent decisions can support shifting the burden in nongrounding cases, the Article suggests that this expansion should be limited to those cases in which the information needed to rebut the inference of the tug's negligence is with the tug.  

A Pilot is a Pilot: Compulsory Pilots--Vessel Owner's Responsibilities for Intervention and Personal Injury

Although in the United Kingdom the pilot has its own status, American law has failed to recognize the pilot as independent from the vessel's officers and crew. This Article examines two consequences of the American approach to the pilot. First, it explores the master's duty to intervene when the pilot is behaving incompetently. Second, it examines the remedies available to the pilot under the Jones Act, the LHWCA, and under the warranty of seaworthiness. The Article concludes that the pilot should be considered an independent contractor, separate from master and crew, and should have his duties and remedies parceled accordingly.  

Contribution and Indemnity: The Quest for Uniformity

When the Tulane Admiralty Law Institute addressed maritime personal injury and death in 1981, Francis J. Gorman contributed a scholarly review of the law of contribution and indemnity. The prior decade had seen dramatic changes in the substantive rules affecting contribution and indemnity in the maritime venue. The 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) had eliminated indemnity actions by shipowners against stevedoring employers, and three Supreme Court opinions, Cooper Stevedoring Co. v. Fritz Kopke, Inc., United States v. Reliable Transfer Co., and Edmonds v. Compagnie Generale Transatlantique, had broadened and shaped the allocation of loss among joint tortfeasors. This Article will analyze the development of maritime contribution and indemnity law over the last twelve years as it affects personal injury litigation. In doing so, the Article will focus on two topics that have troubled courts and commentators and have created uncertainty regarding the resolution of future claims: (1) the extent to which the so-called Ryan warranty retains vitality in personal injury litigation; and (2) the effect of settlement by one tortfeasor on nonsettling joint tortfeasors.  

Living and Dying in the Post-Miles World: A Review of Compensatory and Punitive Damages Following Miles v. Apex Marine Corp.

This Article will review Miles, the maritime traditions from which it is drawn, and the precedent it has set. In doing so, it will be necessary to review the application of damages before and after Miles with respect to both compensatory and punitive damages. From this analysis, several conclusions are drawn. First, although Miles successfully rid the law of much of the ambiguity regarding the pecuniary nature of compensatory damages, the confusion left by its wake highlights the need for comprehensive maritime legislation. Second, although most post-Miles courts addressing the issue of punitive damages, other than in a maintenance-and-cure scenario, have denied recovery, the ground on which these courts have based their decisions is less than firm. Third, a sharp split exists in post-Miles case law on the issue of recovery of punitive damages in actions for maintenance and cure, which trumpets the need for some unifying act or event. Punitive damages should properly be limited or controlled, if not by the courts, then by legislative mandate.  

Remedies for Maritime Personal Injury and Wrongful Death in American Law: Sources and Development

This Article will attempt not only to illuminate the struggle of Congress and the courts to meet the needs of the various competing interests involved in maritime commerce but also demonstrate how this struggle has produced both brilliant and erroneous decisions, depending to some degree on the viewpoint of the beholder. This Article endeavors to provide a foundation for detailed treatment of specific areas of the law that may be found in other articles appearing in this issue and discussed at the 1993 Tulane Admiralty Law Institute.

Seaman Status in Wilander's Wake

In the Wilander Court's limited wake, three areas of seaman status law remain unsettled and continue to generate confusion and conflicting decisions in the lower courts. It is unclear what effect Wilander will have on the issues it failed to resolve. First, should seaman status extend to traditional seamen, such as pilots and divers, who spend most of their time working on numerous vessels, but have no permanent assignment to a vessel? Second, does Robison's “substantial work” alternative to “permanent assignment” survive Wilander's “employment-related connection to a vessel” requirement? Third, what is the test for determining whether a floatable structure is a Jones Act vessel?  

Modern Practice Considerations in Maritime Personal Injury Litigation: Procedural Weapons for Venue Battles

Choice of forum has probably always been an important consideration in maritime personal injury litigation. It has long been recognized that the United States is a far more advantageous forum for personal injury plaintiffs than almost any foreign forum. Moreover, in recent years, the question of whether a maritime personal injury case is tried in state or federal court has grown in importance, as plaintiffs have increasingly found advantages in state court litigation. Many state judges are elected, and the politicization of judicial selection gives at least a perceived advantage to particular lawyers and parties in particular courts. Moreover, federal district court judges tend to exercise more control in the scope of voir dire examination and the conduct of trial and are more prone to grant motions raising legal defenses than their state counterparts. Finally, there is at least the perception that state appellate courts are less likely to disturb jury findings in personal injury cases than are federal appellate courts. Accordingly, maritime practitioners devote considerable effort attempting to fix or avoid jurisdiction and venue in particular courts. This Article provides an overview of the procedural tools available to the combatants grappling with these issues.