Article III, Section 2, Clause 1:
The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The admiralty and maritime jurisdiction of the federal courts had its origins in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the states established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation. 1 Since one of the objectives of the Philadelphia Convention was the promotion of commerce through removal of obstacles occasioned by the diverse local rules of the states, it was only logical that it should contribute to the development of a uniform body of maritime law by establishing a system of federal courts and granting to these tribunals jurisdiction over admiralty and maritime cases. 2
The Constitution uses the terms
admiralty and maritime jurisdiction without defining them. Though closely related, the words are not synonyms. In England the word
maritime referred to the cases arising upon the high seas, whereas
admiralty meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. A much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country. 3 At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance
of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it . . . . 4 This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe. 5
Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues, 6 it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that
whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed. 7 The Court thereupon proceeded to hold that admiralty had jurisdiction in personam as well as in rem over controversies arising out of contracts of affreightment between New York and Providence.
Power of Congress to Modify Maritime Law
The Constitution does not identify the source of the substantive law to be applied in the federal courts in cases of admiralty and maritime jurisdiction. Nevertheless, the grant of power to the federal courts in Article III necessarily implies the existence of a substantive maritime law which, if they are required to do so, the federal courts can fashion for themselves. 8 But what of the power of Congress in this area? In The Lottawanna, 9 Justice Bradley undertook a definitive exposition of the subject. No doubt, the opinion of the Court notes, there exists
a great mass of maritime law which is the same in all commercial countries, still
the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. 10
The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend ‘to all cases of admiralty and maritime jurisdiction.’ But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it . . . .
One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states. 11
It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed. 12 That Congress’s power to enact substantive maritime law was conferred by the Commerce Clause was assumed in numerous opinions, 13 but later opinions by Justice Bradley firmly established that the source of power was the admiralty grant itself, as supplemented by the second prong of the Necessary and Proper Clause. 14 Thus,
[a]s the Constitution extends the judicial power of the United States to ‘all cases of admiralty and maritime jurisdiction,’ and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature and not in the state legislatures. 15 Rejecting an attack on a maritime statute as an infringement of intrastate commerce, Justice Bradley wrote:
It is unnecessary to invoke the power given the Congress to regulate commerce in order to find authority to pass the law in question. The act was passed in amendment of the maritime law of the country, and the power to make such amendments is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends. 16
The law administered by federal courts in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by congressional amendment, the common law of torts and contracts as modified to the extent constitutionally possible by state legislation, and international prize law. 17 The Supreme Court has said that courts exercising common-law authority in this area of the law should be guided by legislative enactments. 18 Courts may only “depart from the policies found in the statutory scheme in discrete instances based on long-established history,” and must “do so cautiously.” 19 This body of law is at all times subject to modification by the paramount authority of Congress acting in pursuance of its powers under the Admiralty and Maritime Clause and the Necessary and Proper Clause and, no doubt, the Commerce Clause, now that the Court's interpretation of that clause has become so expansive. Of this power there has been uniform agreement among the Justices of the Court. 20
Admiralty and Maritime Cases
Admiralty and maritime jurisdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters, and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act, while in the second category subject matter is the primary determinative factor. 21 Specifically, contract cases include suits by seamen for wages, 22 cases arising out of marine insurance policies, 23 actions for towage 24 or pilotage 25 charges, actions on bottomry or respondentia bonds, 26 actions for repairs on a vessel already used in navigation, 27 contracts of affreightment, 28 compensation for temporary wharfage, 29 agreements of consortship between the masters of two vessels engaged in wrecking, 30 and surveys of damaged vessels. 31 That is, admiralty jurisdiction
extends to all contracts, claims and services essentially maritime. 32 But the courts have never enunciated an unambiguous test which would enable one to determine in advance whether or not a given case is maritime. 33
The boundaries of admiralty jurisdiction over contracts – as opposed to torts or crimes – being conceptual rather than spatial, have always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract. . . . 34
Maritime torts include injuries to persons, 35 damages to property arising out of collisions or other negligent acts, 36 products liability suits, 37 and violent dispossession of property. 38 Unlike contract cases, maritime tort jurisdiction historically depended exclusively upon the commission of the wrongful act upon navigable waters, regardless of any connection or lack of connection with shipping or commerce. 39 The Court has now held, however, that in addition to the requisite situs a significant relationship to traditional maritime activity must exist in order for the admiralty jurisdiction of the federal courts to be invoked. 40 Both the Court and Congress have created exceptions to the situs test for maritime tort jurisdiction to extend landward the occasions for certain connected persons or events to come within admiralty, not without a little controversy. 41
From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases. 42 Also, in contrast to other phases of admiralty jurisdiction, prize law as applied by the British courts continued to provide the basis of American law so far as practicable, 43 and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction includes the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or municipal law, such as illicit trade, 44 infraction of revenue laws, 45 and the like. 46
Procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant. 47 Suits in admiralty traditionally took the form of a proceeding in rem against the vessel, and, with exceptions to be noted, such proceedings in rem are confined exclusively to federal admiralty courts, because the grant of exclusive jurisdiction to the federal courts by the Judiciary Act of 1789 has been interpreted as referring to the traditional admiralty action, the in rem action, which was unknown to the common law. 48 The savings clause in that Act under which a state court may entertain actions by suitors seeking a common-law remedy preserves to the state tribunals the right to hear actions at law where a common-law remedy or a new remedy analogous to a common-law remedy exists. 49 Concurrent jurisdiction thus exists for the adjudication of in personam maritime causes of action against the owner of the vessel, and a plaintiff may ordinarily choose whether to bring his action in a state court or a federal court.
Forfeiture to the crown for violation of the laws of the sovereign was in English law an exception to the rule that admiralty has exclusive jurisdiction over in rem maritime actions and was thus considered a common-law remedy. Although the Supreme Court sometimes has used language that would confine all proceedings in rem to admiralty courts, 50 such actions in state courts have been sustained in cases of forfeiture arising out of violations of state law. 51
Perhaps the most significant admiralty court difference in procedure from civil courts is the absence of a jury trial in admiralty actions, with the admiralty judge trying issues of fact as well as of law. 52 Indeed, the absence of a jury in admiralty proceedings appears to have been one of the principal reasons why the English government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts, since they provided a forum where the English authorities could enforce the Navigation Laws without
the obstinate resistance of American juries. 53
Territorial Extent of Admiralty and Maritime Jurisdiction
Although he was a vigorous exponent of the expansion of admiralty jurisdiction, Justice Story for the Court in The Steamboat Thomas Jefferson 54 adopted a restrictive English rule confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended. 55 The demands of commerce on western waters led Congress to enact a statute extending admiralty jurisdiction over the Great Lakes and connecting waters, 56 and in The Genessee Chief v. Fitzhugh 57 Chief Justice Taney overruled The Thomas Jefferson and dropped the tidal ebb and flow requirement. This ruling laid the basis for subsequent judicial extension of jurisdiction over all waters, salt or fresh, tidal or not, which are navigable in fact. 58 Some of the older cases contain language limiting jurisdiction to navigable waters which form some link in an interstate or international waterway or some link in commerce, 59 but these date from the time when it was thought the commerce power furnished the support for congressional legislation in this field.
Admiralty and Federalism
Extension of admiralty and maritime jurisdiction to navigable waters within a state does not, however, of its own force include general or political powers of government. Thus, in the absence of legislation by Congress, the states through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore. 60
Determination of the boundaries of admiralty jurisdiction is a judicial function, and
no State law can enlarge it, nor can an act of Congress or a rule of court make it broader than the judicial power may determine to be its true limits. 61 But, as with other jurisdictions of the federal courts, admiralty jurisdiction can only be exercised under acts of Congress vesting it in federal courts. 62
The boundaries of federal and state competence, both legislative and judicial, in this area remain imprecise, and federal judicial determinations have notably failed to supply definiteness. During the last century, the Supreme Court generally permitted two overlapping systems of law to coexist in an uneasy relationship. The federal courts in admiralty applied the general maritime law, 63 supplemented in some instances by state law which created and defined certain causes of action. 64 Because the Judiciary Act of 1789 saved to suitors common-law remedies, persons suing in state courts or in federal courts in diversity of citizenship actions could look to common-law and statutory doctrines for relief in maritime-related cases in which the actions were noticeable. 65 In Southern Pacific Co. v. Jensen, 66 a sharply divided Court held that New York could not constitutionally apply its workmen's compensation system to employees injured or killed on navigable waters. For the Court, Justice McReynolds reasoned
that the general maritime law, as accepted by the federal courts, constituted part of our national law, applicable to matters within the admiralty and maritime jurisdiction. 67 Recognizing that
it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified or affected by state legislation, still it was certain that
no such legislation is valid if it works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony or uniformity of that law in its international and interstate relations. 68 The
savings to suitors clause was unavailing because the workmen's compensation statute created a remedy
of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court and is not saved to suitors from the grant of exclusive jurisdiction. 69
Congress required three opportunities to legislate to meet the problem created by the decision, the lack of remedy for maritime workers to recover for injuries resulting from the negligence of their employers. First, Congress enacted a statute saving to claimants their rights and remedies under state workmen's compensation laws. 70 The Court invalidated it as an unconstitutional delegation of legislative power to the states.
The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the states all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations. 71 Second, Congress reenacted the law but excluded masters and crew members of vessels from those who might claim compensation for maritime injuries. 72
The Court found this effort unconstitutional as well, because
the manifest purpose [of the statute] was to permit any State to alter the maritime law and thereby introduce conflicting requirements. 73 Finally, in 1927, Congress passed the Longshoremen's and Harbor Workers' Compensation Act, which provided accident compensation for injuries, including those resulting in death, sustained on navigable waters by employees, other than members of the crew, whenever
recovery . . . may not validly be provided by State law. 74
With certain exceptions, 75 the federal-state conflict since Jensen has taken place with regard to three areas: (1) the interpretation of federal and state bases of relief for injuries and death as affected by the Longshoremen's and Harbor Workers' Compensation Act; (2) the interpretation of federal and state bases of relief for personal injuries by maritime workers as affected by the Jones Act; and (3) the application of state law to permit recovery in maritime wrongful death cases in which until recently there was no federal maritime right to recover. 76
(1) The principal difficulty here was that after Jensen the Supreme Court did not maintain the line between permissible and impermissible state-authorized recovery at the water's edge, but created a
maritime but local exception, by which some injuries incurred in or on navigable waters could be compensated under state workmen's compensation laws or state negligence laws. 77
The application of the State Workmen’s Compensation Acts has been sustained where the work of the employee has been deemed to have no direct relation to navigation or commerce and the operation of the local law ‘would work no material prejudice to the essential features of the general maritime law.’ 78 Because Congress provided in the Longshoremen's and Harbor Workers' Compensation Act for recovery under the Act
if recovery . . . may not validly be provided by State law, 79 it was held that the
maritime but local exception had been statutorily perpetuated, 80 thus creating the danger for injured workers or their survivors that they might choose to seek relief by the wrong avenue to their prejudice. This danger was subsequently removed by the Court when it recognized that there was a
twilight zone, a
shadowy area, in which recovery under either the federal law or a state law could be justified, and held that in such a
twilight zone the injured party should be enabled to recover under either. 81 Then, in Calbeck v. Travelers Ins. Co., 82 the Court virtually read out of the Act its inapplicability when compensation would be afforded by state law and held that Congress’s intent in enacting the statute was to extend coverage to all workers who sustain injuries while on navigable waters of the United States whether or not a particular injury was also within the constitutional reach of a state workmen's compensation law or other law. By the 1972 amendments to the LHWCA, Congress extended the law shoreward by refining the tests of
navigable waters, so as to reach piers, wharfs, and the like in certain circumstances. 83
(2) The passage of the Jones Act 84 gave seamen a statutory right of recovery for negligently inflicted injuries on which they could sue in state or federal courts. Because injured parties could obtain a jury trial in Jones Act suits, there was little attempted recourse under the savings clause 85 to state law claims and thus no need to explore the line between applicable and inapplicable state law. But in the 1940s personal injury actions based on unseaworthiness 86 were given new life by Court decisions for seamen; 87 and the right was soon extended to longshoremen who were injured while on board ship or while working on the dock if the injury could be attributed either to the ship's gear or its cargo. 88 While these actions could have been brought in state court, federal law supplanted state law even with regard to injuries sustained in state territorial waters. 89 The 1972 LHWCA amendments, however, eliminated unseaworthiness recoveries by persons covered by the Act and substituted a recovery under the LHWCA itself for injuries caused by negligence. 90
(3) In The Harrisburg, 91 the Court held that maritime law did not afford an action for wrongful death, a position to which the Court adhered until 1970. 92 The Jones Act, 93 the Death on the High Seas Act, 94 and the Longshoremen's and Harbor Workers' Compensation Act 95 created causes of action for wrongful death, but for cases not falling within one of these laws the federal courts looked to state wrongful death and survival statutes. 96 Thus, in The Tungus v. Skovgaard, 97 the Court held that a state wrongful death statute encompassed claims both for negligence and unseaworthiness in the instance of a land-based worker killed when on board ship in navigable water; the Court divided five-to-four, however, in holding that the standards of the duties to furnish a seaworthy vessel and to use due care were created by the state law as well and not furnished by general maritime concepts. 98 And, in Hess v. United States, 99 a suit under the Federal Tort Claims Act for recovery for a death by drowning in a navigable Oregon river of an employee of a contractor engaged in repairing the federally owned Bonneville Dam, a divided Court held that liability was to be measured by the standard of care expressed in state law, notwithstanding that the standard was higher than that required by maritime law. One area existed, however, in which beneficiaries of a deceased seaman were denied recovery.
The Jones Act provided a remedy for wrongful death resulting from negligence, but not for one caused by unseaworthiness alone; in Gillespie v. United States Steel Corp., 100 the Court held that the survivors of a seaman drowned while working on a ship docked in an Ohio port could not recover under the state wrongful death statute even though the act recognized unseaworthiness as a basis for recovery, the Jones Act having superseded state laws.
Thus did matters stand until 1970, when the Court, in a unanimous opinion in Moragne v. States Marine Lines, 101 overruled its earlier cases and held that a right of recovery for wrongful death is sanctioned by general maritime law and that no statute is needed to bring the right into being. The Court was careful to note that the cause of action created in Moragne would not, like the state wrongful death statutes in Gillespie, be held precluded by the Jones Act, so that the survivor of a seaman killed in navigable waters within a state would have a cause of action for negligence under the Jones Act or for unseaworthiness under the general maritime law. 102