71 The Alabama Lawyer 296 (2010). Admirality Law for the Land-Side Alabama Lawyer.

• Author: By Norman M. Stockman

Alabama Lawyer

2010.

71 The Alabama Lawyer 296 (2010).

Admirality Law for the Land-Side Alabama Lawyer

Admirality Law for the Land-Side Alabama LawyerBy Norman M. StockmanAlabama has an active seaport and an extensive network of inland waterways, many of which support maritime commerce.

Introduction

Admiralty law can be a fascinating and challenging practice area, with rules and customs dating back to the Middle Ages and an abundance of case law that at times can be difficult for even the most weathered practitioner to sort out. With its mysterious procedures like "arresting" a ship and references to obscure Latin phrases such as uberrimae fidei, most Alabama lawyers north of the salt line probably give little, if any, thought to the possible application of admiralty law in their practice. Indeed, I learned early on that answering "admiralty law" in response to the question, "What type of law do you practice?" invariably resulted in perplexed looks and glazed eyes among the uninitiated.

So what is admiralty law, and why does admiralty law matter to the land-side Alabama lawyer, at least one not mulling a change in career path? Black's Law Dictionary defines "maritime law" and, by reference, "admiralty law," as "[t]he body of law governing marine commerce and navigation, the carriage at sea of persons and property, and marine affairs in general; the rules governing contract, tort, and workers'-compensa-tion claims or relating to commerce on or over water." Black's Law Dictionary 988 (8th ed. 2004). In practice, many admiralty lawyers are specialized general practitioners, drafting contracts, preparing cases for trial and handling employee injury claims, all with a general relation to water-based commerce (or "salty flavor," see Kossick v. United Fruit Co., 365 U.S. 731, 742 (1961)). And, while Alabama has a short coastline compared to many other coastal states, it has an active seaport and an extensive network of inland waterways, many of which support maritime commerce. This means that even for Alabama lawyers far from the waters of the Gulf of Mexico, the possibility exists for admiralty law to apply to a particular situation, even to situations where the salty flavor may not be apparent. And, admiralty law may apply in ways unfamiliar to the land-side lawyer, meaning that a lawyer who ignores admiralty law when it applies may well miss the boat.

This article describes some of the highlights of admiralty law and points out common practice areas where admiralty law may apply. Obviously, space and time do not permit a review of all of the aspects of admiralty law or a discussion of every area touched by admiralty law, and this article is not intended to provide a comprehensive study of the subject matter. Nonetheless, it may prompt the land-side Alabama lawyer unfamiliar with admiralty law to consider admiralty law's potential application to situations where otherwise it might have been ignored to the detriment of both lawyer and client.

Admiralty Jurisdiction

So, where does the land-side lawyer begin? The general rule is that "[w]ith admiralty jurisdiction comes the application of substantive admiralty law." E. River S.S. Corp. v. TransAmerica Delaval Inc., 476 U.S. 858, 864 (1986). Therefore, the logical starting point is to consider the scope of admiralty jurisdiction. At the risk of oversimplification, admiralty jurisdiction covers three main areas: maritime torts, maritime contracts and injuries to employees in maritime fields. Admiralty law also has a criminal law component that is not addressed in this discussion.

Admiralty Tort Jurisdiction

Admiralty tort jurisdiction requires a maritime tort. See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, (1972). To be a maritime tort, a tort must meet a two-pronged test. First, the tort must occur on navigable waters (the "locus test"). See Bunge Corp. v. Freeport Marine Repair, Inc., 240 F.3d 919, 923-24 (Uth Cir. 2001). Second, the wrong must have a significant connection to a traditional maritime activity (the "nexus test"). See id. For the locus test, a "body of water is considered navigable 'if it is one that, by itself, or uniting with other waterways, forms a continuous highway capable of sustaining interstate or foreign commerce.'" In re Bridges Enters., Inc., 2003 A.M.C. 2811, 2814-15 (S.D. Fla. 2003) (citing The Daniel Ball, 77 U.S. 557,563 (1871)). The nexus test requires a two-part analysis. First, the court must "'assess the general features of the type of accident involved,' to determine whether the incident has 'a potentially disruptive impact on maritime commerce.'" Alderman v. Pac. N. Victor, Inc., 95 F.3d 1061, 1064 (11th Cir. 1996)(citing Jerome B. Grubart, Inc. V. Great Lakes Dredge and Dock Co., 513 U.S. 527, 539-40 (1995)). Second, the court "must determine whether the 'general character' of the 'activity giving rise to the incident' shows a 'substantial relationship to traditional maritime activity.'" Id.

In Alabama, this jurisdictional analysis can lead to unexpected results. For example, a pleasure boat collision on Lake Guntersville, a body of water over which interstate commerce is possible, almost certainly would meet the locus test for admiralty tort jurisdiction; an otherwise similar collision on Lake Martin, which is located entirely within Alabama and which is not navigable in interstate commerce because of its position between two lockless dams, would not. See Guillory v. Outboard Motor Corp. ,956 F.2d 114, 115 (5th Cir. 1992) (inland reservoir upstream from a lockless dam was not a navigable waterway for purposes of admiralty tort jurisdiction because it was not navigable in interstate commerce). Because a collision between pleasure boats on navigable waters generally meets the nexus test, see Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 (1982), it is almost certain that the collision on Lake Guntersville would be governed by admiralty law, while the collision on Lake Martin would not. This result could have significant implications for any tort claims arising out of the collisions, as discussed later in this article.

In addition to those torts meeting the locus and nexus tests, the Admiralty Extension Act extends admiralty tort jurisdiction, and therefore the application of admiralty tort law, to all injury or damage "caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land." 46 U.S.C. § 30101(a). The Death on the High Seas Act ("DOHSA"), 46 U.S.C. §§ 30301-30308, extends admiralty jurisdiction to claims arising out of deaths caused by acts occurring on the high seas more than three nautical miles offshore, or 12 nautical miles in the case of commercial aviation accidents, and regardless of whether the maritime nexus test is met. See Motts v. M/V GREEN WAVE, 210 F.3d 565, 571 (5th Cir. 2000). On the other hand, the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. §§ 1331-1356a, provides that in most situations state law, as a "surrogate" for federal law, applies to torts occurring on offshore platforms that are "permanently or temporarily attached to the seabed" of the Outer Continental Shelf. See Dupre V. Penrod Drilling Corp., 993 F.2d 474, 476 (5* Cir. 1993).

Admiralty Contract Jurisdiction

Admiralty contract jurisdiction requires a maritime contract. "To determine whether a contract falls within maritime jurisdiction we look to 'the subject-matter, the nature and character of the contract. .. the true criterion being the nature of the contract, as to whether it have [sic] reference to maritime service or maritime transactions.'" Misener Marine Constr, Inc. v. Norfolk Dredging Co.,-----F.3d-----,No. 09-10083, 2010 WL 184012, at *3 (11th

Cir. Jan. 21,2010) (quoting iV. Pac. S.S. Co. v. Hall Bros. Marine Ry. and Shipbuilding Co., 249 U.S. 119,125 (1919)). Stated another way...