Time charter: owner retains management and control of vessel
Chaterer designates the ports of call and cargo carried
Designation of time
Time can be designated as a "voyage" or more than voyage
Time is usually designated in terms of "about"
In the case of an underlap, it is possible for a charter to send the boat on another
If there is an overlap, the charter hire is adjusted
Implied Warranties
Will furnish a seaworthy ship at commencement
Declarations may count as warranties
There can be a right to designate the port that the vessel will call
Safe birth clause
Clauses for modification
Implied efficient operation
Off-hire = suspension of rent when the vessel is down for repairs
Frustration
Consequential damages
Charter ordinary can not recover for loss of use or profits caused by damage to the vessel
Maters duties are conflicted
Agent of shipowner
Agent of Chaterer in handling of the cargo
Protest clause: the charterer orders only actions that the master thinks are reasonable
Voyage: voyage to a designated port (can be all of ship or just a part of it)
Standardization
Gencom
Australian
Usually stipulate that there is a duty to pay expenses and it is under COGSA
Owner only needs to exercise due diligence to find a seaworthy vessel
Cesser clause
Usually charterers have to pay for dead freight
Under a Cesser clause, the charter pays part of the fright in advance, and is relieved of any other obligations -- anything else the owner of the ship will get from the cargo (i.e. the lien on the cargo)
Lateness
If the vessel arrives late, the cargo must be loaded, unless frustration
Can be contractually opted-out of substantial compliance (ie time is of the essence)
Demise (owner of ship surrenders control of vessel
All of the rights transfer (so even if there is a charter with a crew and a captain, it doesn't matter)
Owner may be liable to third parties for pre-existing torts
Similar to bailment: Chaterer bear the burden of producing evidence that the damage was caused by something other than his negligence
Warranties
Assumption that the ship is warranted to be seaworthy
Bills of lading (carriage of goods) under COGSA and Harter -- these are common carriers, or liners
Functions of BOL
Shippers receipt
Negotiable unless agreed otherwise (Pomorone Act)
Can be used to borrow money on good while the goods are in transit
Allocation of risks as provided by Harter Act (Brussels convention) -- also COGSA
Carrier must use due diligence to send out a seaworthy vessel
Carrier is not responsible for other things due to errors in navigation, or mismanagement
Visby convention tried to amend Brussels, but the US didn't sign
Acts
Harter: applies to all voyages
Allocates risks from delivery to the carrier until redelivery to the consignee at a fit and customary wharf
Allocates risks from delivery to the carrier until redelivery to the consignee at a fit and customary wharf
On a voyage between an American port and a foreign port
Hart Act applies from delivery to the shipper until loading and from unloading until delivery and the consignee
COPGSA applies between loading and unloading
On a voyage between American ports
Harter act applies at all times between delivery and redelivery
Hart act
Due diligence
Seaworthiness
No absolute duty to be seaworthy
Duty isn't necessary delegable
Duty to use due diligence arises at to each shipper at the port at which his or her cargo is loaded
Improper procedures do not necessary make the vessel unseaworthy
Carrier is responsible to load, hardly carry, the goods -- if they know what the goods are
Clean bills of lading, which does not provide for storage on the deck requires storable below decks
Carrier isn't responsible for loss arising from act, neglect, or default of the master, mariner, piliot or servants in the carrier
Risks
Shipper has risk of insufficiency of packing.
Fire statute:
Carrier exempted (either shipowner or demise charter) exempted by COGSA
Usually need visible flame
Act of god or peril of the sea: shipper bears the risks
No liability resulting from navigational faults or in management of vessel or losses arising from damages
If an owner defaults, he can't claim the benefit of exculpatory language in the bill of lading, even though the unseaworthiess did not play any port in the loss or damage to the cargo
No sol, but general rules of maritime ( i.e. unreasonable delay) apply
Cogsa: applies only to risks of the voyage between loading at the point of departure and unloading at the point of destination
Applies to 3very bill of lading which is evidence of a contract for the carriage of goods by sea to or from ports of the US
Applies only to the risks of the voyage between loading at the point of departure and unloading at the port of destination
Carrier's failure to use due diligence to send out a worthy vessel imposes liability upon it only if the unseawothy ness was a cause of the damage to the goods (i.e. under Harter doesn't need to be a cause of the damage to the cargo)
Carrier can only limit is liability to $500 per package or freight unit
COGSA has a one year SOL
Carrier relieved from
Acts of war
Restraint of princes
Strikes or lockouts
Cathall
Relief from liability from any other cause arising without the actual fault and privity of the carrier
Stipulations
If Harter applies
Parities can stipulate the their rights will be governed by COGSA either from delivery to loading and unloading to redelivery (in voyages between American and foreign ports) -- frequently
Coastwise opti9on: Or for the entire voyage in shipment between American ports
Carrier may limits its liability to damage to any amount
Impossible to stipulate to a foreign law
Burdens of Proof
Plaintiff must establish a prima facie case that the goods were damaged or lost while in the possession of the carrier
Shipper can show that they were delivered in undamaged conditioned
When the BOL is issued, it must show the apparent order and condition of the goods
The shipper must also prove the failure of the carrier to redeliver the goods
Burden on the shipper: If the defective or damaged condition could have been observed by the carrier at the time the goods were shipped, the shipper may have met his burden of establishing that the goods were received by the carrier in good condition by introducing the bill of lading reflecting receipt "in apparent good condition" the shipper must prove the failure of the carrier to redeliver the goods, or their receipt in a damaged condition -- COGSA will provide the carrier (not the shipper) with a favorable presumption
If the shipper fails to give notice in writing, such removal shall be prima facie evidence of the delivery
If there is a prima facie showing that the goods were damaged or lost in transit, the burden is own the carrier
Could show that it was caused by vessel negligence
Could show that the loss or damaged resulted from other causes for which it is not charterable under COGSA (i.e. unseworhiness)
Could show that the damaged resulted from other causes which it is not charterable under COGSA
Unseaworthiness which developed after ht e voyage began
Pre-voyage unseaworthiness that could not have been discovered by due diligence
Peril or fire of the sea
Other cause: carrier bears burd3en of proving that neither the actual fault or privity of the carrier contributed to the loss or damage
Damages could be divisible
Deviation from bills of lading route
route
Common law: made carrier liable
COGSA: no answer
Recent
Could oust the contract (but there is a $500 per package limitation)
Stowage
If BOL specifies storage above deck, COGSA doesn't apply
Cl: carrier liable for negligence causing damage to the goods
If it is a clean BOL, the courts will determine where it is best to store things
Damages
Common law: carrier is libel for the market value of lost cargo at destination
If cargo was damaged for difference between market value and value damaged at destination
Allowance for limitation of liability
Harter: Common law provisions probably valid, if the shipper could pay a higher price
Limitation on liability can't be so low as to violate public policy
COGA: limits to 500 per package
Carrier must give the shipper an opporuntiyt to declare the value of the goods
If a limitation a bill of lading is limited to under $500 per package or customary freight unity is valued under Harter, but not COGSA
Courts hold that the Harter Act springs back
Others disagree
Question of whether a bill of lading is valid with a charter party is still unresolved
Liens – can be a provision that the charterer will not allow a lien on the vessel
No liens are when the vessel is in the custody of the court
Courts can authorize a continuation of services
State law liens
Old law was no home port maritime liens
Maritime lien act: home port liens under admiralty law, enforceable in rem in admiralty – state law liens are of little relevance now
Since liens are hidden, and there can be a prohibition of lien clause
Old law: no liens arise when the charter knew, or had reason to know of the old lien
Now, the law is that a lien will not arise if the lienor could have ascertained a lien
Cargo
Default: vessel has a lien on the cargo for the freight (e. g. possessory lien)
Liens can exist past unloading, depending on the conduct
This does not arise out of the contract itself
Ship mortgages are not maritime contracts
Could be loans secured on cargo or ship, but were discharged upon the completion of the voyage
If there is a Cesser clause, they will look to the consignee
Implied lien
Arises the moment the debt occurs
Can only be judicially discharged by an in rem proceeding
Creation
Seaman has a lien on the vessel for wages
By statutes the master does to
Maritime workers don't have liens against the vessel for compensation benefits
Maritime torts, do too
Seaman's negligence against his employer does not
Salvage is secured by a lien
General average is secured by a lien
Necessaries are secure by liens
Must actual be delivered to the vessel
Supplier must rely on the credit of the vessel for payment
Must be authorized by the owner
Under the ship mortgage act there is now a preferred mortgage on a vessel
Must be on documented vessel
Must be on whole vessel
Mortgagee must be citizen of US
Can include more than one ship or nonmaritime property
No limitation on interest
Preferred statutes can be waved
Substantial compliance is enough
Ship mortgages can be enforced in rem or in persona
In rem
Same as implied maritime lien
Actual notice must be given
Self-help repossession must be given by state law
In persona
Extinction of liens
Discharge by judicial sale
Loss or destruction of vessel discharges lien – would be reinstated in salvaged
Bankruptcy courts can discharge
Priority of liens (class and time) -- last to accrue is first to be paid (all contract liens occurring in a certain period of time are paid at the same time)
Court costs
Seaman's wages
Penalties may not be include
Salvage
Both contract and quasi-contracts
Tort liens
Seaman's employment (seaman are awards of admiralty)
Owner and master, and vessel are both liable for wages
No need to prepay court costs
Double wages for non-payment
Seaman can demand ½ of wages that are earned at any port
Compromise of claims
If, under all circumstances, the seaman would have done it
Adequacy of consideration doesn't necessarily matter
Mary Carter agreements: settling defendants can retain interest in Plaintiff's claim against the non-settling agreement
Full disclose is require
Please visit
Salvage
Contractual
Only will be set aside of grossly exorbitant
Equitable (pure)
Requirements
Long criteria
Peril
Risks
Few potential rescuers
Risks are great
Temptation to take the property is strong
Only maritime property
No dry-docks
Short criteria
Value of property saved
Value of property used
Skills
risks
Must be direct and voluntary
E. G. indirectly saving a ship by putting out a fire doesn't count
One who cause a collision is under a pre-existing duty to help
Ironically, one still get salvage, even though all are required to help
Pre-existing duties of firefighters
Usually don't get salvage unless extraordinary
Navy sometimes claims slave
Salvage can be refused if the owner is on board – but it is assumed that is is wasted (quasi-derelict)
If there is any aid (e. g. radio message) that may be enough
Towage
If the towage did not merely expedite the voyage, but relieved it from present or danger, there could be a salvage towage award
Old rule: Mails and non-negotiable bills are not under salvage (since the reward theoretically comes from a judicial sale)
New rule: now mostly quantum meruit
Liability
Salved vessel is liable in rem
Salvors are held to a reasonable person standard (salvors have to have the most "scrupulous fidelity)
Other forms of wards
Finds
Federal government has asserted title to all wrecks firmly affixed
Prize
Prize (of enemy ships)
General Average (can be secured by in rem lien)
Reasons
Maritime peril
Lack of vessel fault
Voluntary sacrifice
Elements
There is a danger to which both vessel and cargo are exposed
Danger is inevitable
Voluntary sacrifice
Attempt to save is successful
Party seeking contribution is free from fault
Variations
Can be which arise to part of the ship (damages)
Those which arise out of extraordinary expense incurred for joint benefit
Jason clauses
General average is payable if it arises through negligence of the carrier, if he had been exculpated via the Harter act
Insert York-Antwerp rules for calculating
Collisions
General duty of owner of the vessel to protect crew and passengers from harm (but the owners will become liable in persona)
Inevitable or acts of gods there are no fault
Colregs: Rules of the road (previous four rules 1) International, American, Great Lakes, other American
Lights (rule 23)
Only five ruling light
S2white forward (one higher than the other)
One white at the stern
Green light mid on starboard
Red mid on port)
Steering (rule 14)
Vessels meeting, neither has right of way
Each must steer to the starboard or port side, so that the vessel pass port to port (each of the left of other) -- turn right so they go left
If one vessel is overtaking, the overtaking vessel is burdened – the vessel overtaking is charged with the duty to maneuver safely
The overtaken vessel has to maintain it course – rule 13
Crossing -- rule 34
Vessel on the right has right of way (stand on)
Other vessel is required to whistle or blast to show the maneuvers
Fog
Rule 19: except where it has been determined that a risk of collision does not exist, every vessel which hears apparel forward of her the signal of another vessel, or which can not avoid a close quarters situation with a vessel forward of her beam, must reduce speed to the minimum at which it can be kept on course
Periodic whistle blasts
Lookout (rule 5)
Proper lookout by sight and hearing
Radar required if fit and operational – 7b
Departure from the rule has to be shown with specific circumstances
Presumptions
Moving vessel hits a stationary object, the moving vessel is presumed to be at fault
Sheering is presumed fault
Major/Minor rule: if the fault of the vessel is, in itself enough to cause the damage, then then would not be divided damage
Last clear chance is recognized in admiralty
There are inland rules of the road as well
Torts
Collisions
Intentional torts: will be vicarious liability
Reckless disregard can get punitive damages
Maritime law doesn't have distinction of trespasser, invitee, and licensee
Injuries to seamen
Maritime workers pursuant to 905b
Pennsylvania Rule: if there is a violation of a statutory rule of behavior the burden shifts
Joint tortfeasors are jointly and severally liable
Robins bright line test:
No damage for loss or of profits, unless property is damage
Could be exception for seamen
Generally there is comparative negligence
Duty to mitigate also applies in admiralty
Doctrine of laches does apply
Can be survival damages
Tort damages
Damage to the vessel allows the owner to cover the cost of repairs
No recovery from any vessel that has been lost or destined
Cargo
Brussels convention (US doesn't adhere)
Cargo can't recover from non-carrying vessel
Consignee can't recover from the carrying vessel the damage caused by negligence in the operation and management of the vessel
If a consignee brings an action against a vessel involved in the collision other than the carrying vessel, Cogsa, and Harter doesn't apply, and the consignee can recover from a negligent non-carrying vessel
Carrying vessel s will pay a portion of the damages to its cargo caused by a risk which COGSA and Harter allocate to the cargo
Workers
Seamen: tort principles
Definition of seaman
Member of crew
Criteria -- needs to be an employment related connection to a vessel in navigation
Worker with more or less permanent attachment
Can be connected to a fleet of vessels
A vessel in navigation
Nature of his work is a seaman's work
Minority: if the vessel is a special mission vessel, aids in the special mission of the vessel
Basis ideas
Vessel owners liable if a seaman falls sick
Liable for unseaworthyness of ship
Seamen can't recover for the negligence of fellow workers beyond expense and maintenance and cure
Maintenance and cure is the rule – can't recover beyond that for negligence or accident
Has to be to maximum cure
General rule is that the master picks the hospital
The seaman can pick another hospital, and have the cost covered unless the employer proves that the seaman's choice caused the employer to incur medical expense in excess of these who he or she should have incurred
Wrongful refusal of benefits can result in forfeiture
Three year statute of limitations (no longer laches)
When maximum cure is achieved, the condition terminates
Maintenance is usually very low
Only if the seaman can show that he incurred living expenses
failure of provide cure is looked at very badly
seaman gets atty.'s fees, etc.
Generally, the seaman can file a claim a second time for more cure
However, one court has placed the onus on the employer
Mere horseplay is not willful misconduct
Injury
Has to become manifest while the seaman is in the service of the ship
Can be far afield, because a seaman is obligated at certain times to return to the ship when in a foreign part at the master's order
Policy is that recreation is somewhat unique when vessels are away from home
Questions of concealment of illness
If a seaman incurred injury or illness while in the service of the ship he or she was entitled to maintenance ad cure to furnish a safe place to work or live on the vessel
General idea that the seamen have a duty owned to them by the master
Jones act: FELA employers are liable via respondeat superior for the actions of fellow servants
Maintenance and cure
Wages to end of the voyage
Medical expense
Living expense during the period of treatment and convalescence
Maintenance and cure is usually brought in persona as well as in rem (in rem has to be brought on the admiralty side)
Depending on the procedure, the rights to join other parties for indemnification and contribution depend on it
Can combine with Jones act unseaworthyness claims, and not doing so may be preclusive
Jones act is entitled to a jury trial
Jones act: personal injury to seamen may maintain an action for damages at law – which allowed for workmen's comp to seamen (divided authority as to how many employers a seamen can have)
Jones act applies to anything "in the service of employment"
Employers under the Jones act are liable for the actions of co-employees
Can avoid liability by saying that the employee is not an direct employee
Is it a borrowed servant
Does the other employee serve a vital part
Jones act negligence is different because employer owes a high duty of care, and is liable if only for slight negligence
There is however, comparative negligence – but some hold that the seamen's duty to protect himself is slight
Three year statute of limitations
Primary duty rule: (only in come places) if it was the seamen's primary duty to so something, and a duty that the injured persona had consciously assumed as a term of his employment
Jones acts claims can be brought in state or federal court, but can't be removed from state to federal
Unseaworthyness can be removed to the law side if diversity is present
Duties of unseaworthiness
Greater to others such as shippers and insurers
Master has to furnish a ship that is reasonable adequate
Seamen are entitled to conditions that are not unreasonable
Duty of seaworthiness is owned to people who are not seamen, but are acting like them
If an unseawothy condition arises without employer negligence, the Plaintiff must establish a lien against the vessel or the seaman is not an employee of the vessel owner
Incompetent or crazy seamen are unseawothy ships
Unseaworhty act must become a condition
Comparative negligence will not defeat, but may diminish recovery
No overlap
Spouse can recover for loss of consortium
Nonseaman maritime worker: LWHCA (workmen's comp)
If a longshoremen's injuries occurred on navigable waters, state law didn't applies --
Outer Continental Shelf lands act: applicable to injury to an employee occurring as a result of operation conduct on the shelf for the purpose of exploring for develop, removing or transporting by pipeline
Employer: largely tautological(but needs to be foreseeable)
Benefits
Disability and rehab
Employee who is permanently by partially disabled is entitled to 23 of his average weekly wages
Sieracki Seamen; Unseaworthyness remedy old doctrine where longshore men provided that longshoremen where entitled to the relief of sailors, but not entitled to breach of Unseaworthyness
People covered by Seracki: Americans who are working in international waters by an American cprp, seaman from one vessel on another vessel, federal and state employees who aren't under lhwca coverage, workers who aren't seaman or lwwca
Now the longshoremen's right to recovery from the shipowner for negligence was preserved in 905b
Nonmaritime worker: tort principles
Other claims: state law
Wrongful death (DOHSA) -- only on high seas
Common law: no removal if tort victim died
DOHSA: suit for wrongful death in admiralty limited to pecuniary loss
Survival damages could be maintained only if could be a borrowing from the state
Check this: under DOSHA can one recover for non-pecuniary loss
Summary
If a seaman is killed by employer negligence within or beyond three miles, his beneficiary can get under the Jones act only for pecuniary damages
If a seaman is killed out of three miles, there are wrongful death benethts under DOHSA. Survival action is available depended on whether there is a maritime survival action which is not preempted b 765 dos doshsif a seaman is killed inside of 3 miles by an unseaworhty condition his beneficiary may recover wrongful death benefits under moragne – but not non-pecuniary damages – unless borrowing from an adjacent state