This Article is part of a work in progress. At the Tulane Admiralty Law Institute a few years ago, I mentioned that there is recent scholarship that challenges the legitimacy of the general maritime law. “General maritime law” is the term of art that courts and maritime lawyers apply to the substantive rules of maritime law that have been formulated by courts to resolve issues that fall within the admiralty and maritime jurisdiction of the federal courts. I have since written a modest rebuttal to these attacks and have offered my defense of the general maritime law. In doing so, I have observed that, in my opinion, the problem is not with the general maritime law per se. The problem is that

[T]he Supreme Court has failed to develop well-calibrated rules delimiting admiralty jurisdiction that sufficiently balance national and local interests. In the same vein, the Court has failed to develop conflicts of laws rules, which are particularly essential in cases which fall only marginally within federal admiralty jurisdiction. This criticism is best illustrated by the infamous, much maligned Southern Pacific Co. v. Jensen.¹

The Jensen² case involved the following facts. Mr. Jensen worked for the Southern Pacific Co., which, in addition to operating a railroad, owned and operated a vessel. Jensen was employed as a longshoreman. On the day in question, his job was to drive an electric truck into the vessel where it was loaded with lumber and from there he drove onto a gangway that led to the
pier where the lumber was deposited. As he exited the vessel, he forgot to lower his head which struck the vessel resulting in his death. His widow and children filed a claim for worker’s compensation under a New York statute.³ The state courts affirmed the award. The United States Supreme Court agreed to decide if the New York statute “conflicts with the general maritime law . . . .”⁴ In doing so, it formulated several criteria for determining when state law may not displace the general maritime law. The Jensen criteria are stated in the following quotation from the case:

And plainly, we think, no such [state] legislation is valid if it contravenes the essential purpose expressed by an act of Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.⁵

A bare majority of the Court, without actually applying these criteria to the case, concluded that the state statute made an unwarranted inroad on the uniformity of maritime law, and, as such, could not constitutionally be applied to provide a remedy to a maritime worker or his family where the worker was killed while working on navigable waters.⁶

In the article previously referred to that provides a defense of the general maritime law, I concluded by asking: “Should not the Supreme Court develop more workable choice of law rules in deciding whether admiralty courts should apply state law where state interests are important and there is no corresponding benefit to national interests?”⁷ This is the question my lecture will address tonight.

This hypothetical is not the result of a law professor’s over-active imagination. Such cases do exist.⁸ Assume the following: Mr. Smith spent an evening on a gambling boat, the LUCKY CAJUN, where he gambled, lost a lot of money and drank a lot of alcoholic beverages. After the boat returned to its berth, Mr. Smith disembarked and got into his car which was parked in a lot provided by Gaming, Inc., the owner of the LUCKY CAJUN. Mr. Smith drove out of the lot, and on his way home his car struck another car. The accident occurred approximately 1/2 hour after he disembarked from the LUCKY CAJUN. The accident site was approximately 10 miles from the wharf where the LUCKY CAJUN was berthed. Mr. Jones and Ms. Brown were passengers in the vehicle that was struck by Mr. Smith’s auto. Both Jones and Brown suffered severe personal injuries. Mr. Smith failed a sobriety test administered by a police officer who investigated the accident. Subsequently, Mr. Smith was convicted of driving under the influence of alcohol and reckless driving.

Mr. Jones filed an in personam action against Mr. Smith and Gaming, Inc. and an action in rem against the LUCKY CAJUN in the United States District Court for the Western District of Louisiana. Ms. Brown filed an action in personam against Mr. Smith and Gaming, Inc. in the Fourteenth Judicial District Court of the State of Louisiana, Parish of Calcasieu. In each action, the injured plaintiff was joined by his or her spouse who asserted a claim for loss of consortium under Louisiana law.⁹ Mr. Smith, Mr. and Mrs. Jones and Mr. and Mrs. Brown are citizens of the State of Louisiana. Gaming, Inc. is a Louisiana Corporation with its principal and only place of business in Louisiana.

No party demanded a jury trial, and each case was tried to the respective court. Each court made similar findings on the essential facts. First, Mr. Smith drove while under the influence of alcohol and was negligent in the manner in which he drove his car. Neither the driver of the other vehicle nor the plaintiff passengers were contributorily negligent. Second, Mr. Smith’s negligence was the proximate cause of plaintiff’s injury. Third, Mr. Smith had not consumed any alcohol in the 24 hours before he boarded the LUCKY CAJUN, and he did not consume any alcohol after he disembarked from the vessel. All of the alcohol consumed by Mr. Smith in the period of time immediately preceding the accident was consumed on board the LUCKY CAJUN and was given to Mr. Smith by personnel of the LUCKY CAJUN free of charge in conformity with company policy.¹⁰ Fourth, the amount of alcohol consumed by Mr. Smith and his conduct were such that personnel on the vessel either were aware that he was intoxicated or they should have been aware of that fact. Fifth, Gaming, Inc. provides a parking lot to accommodate the vehicles of its patrons in an area immediately adjacent to the wharf where the LUCKY CAJUN was berthed. The management of Gaming, Inc. knew that a majority of the patrons of the LUCKY CAJUN drove to the vessel in their own vehicles. Sixth, Gaming, Inc. executives were on notice that several other auto accidents had occurred previously involving drivers who had become intoxicated on the LUCKY CAJUN.

In the federal district court action, the trial judge found that the LUCKY CAJUN sailed on a portion of Lake Charles, a waterway that was solely within the state of Louisiana; the vessel never left the state of Louisiana; Lake Charles was connected to a river system which ultimately flowed into the Gulf of Mexico; commercial vessels could and did navigate from Lake Charles through the rivers into the Gulf of Mexico; the LUCKY CAJUN sailed on a regular basis and engaged in shoreside gambling infrequently, i.e., only when the weather prevented her from sailing; the LUCKY CAJUN was a vessel subject to U.S. Coast Guard regulations. Consequently the court concluded that it had admiralty jurisdiction over the matter before it. In its jurisdictional analysis, the court used the approach of the Grubart¹¹ case. It found that Lake Charles was a navigable body of water, and that Gaming, Inc., through the negligence of its employees on board the LUCKY CAJUN, negligently contributed to Mr. Smith’s intoxication under circumstances whereby it was reasonably foreseeable that he would be driving a vehicle in an impaired condition. Therefore, the company’s negligence contributed to the accident. The court invoked the Admiralty Extension Act¹² and concluded that the accident on land was, in part, proximately caused by the negligence of a vessel on navigable waters. The court further found that allowing a passenger to become drunk on a vessel in navigable waters could present a threat to maritime commerce because a drunken passenger might become unruly and interfere with the navigation of the vessel thereby imperiling the LUCKY CAJUN and other vessels in the vicinity, and that serving beverages, including alcoholic beverages, to passengers is a traditional maritime activity.

In both actions, defendant Gaming, Inc. pleaded the Louisiana Anti-Dram Shop statute¹³ that essentially precludes a dram shop from being held liable for the torts committed by its patrons. The federal court, in the Jones case found that the gambling boat was a “dram shop,” but, applying criteria set forth in Southern Pacific Co. v. Jensen,¹⁴ it concluded that state law was not applicable. It held that the general maritime law of negligence extended liability to Gaming, Inc. It found that a uniform standard of liability was compelled under the Jensen rule, and that it would be inappropriate for the liability of owners and operators of vessels on navigable waters to be subject to the vagaries of the various state laws on dram shop liability. Additionally, the court rejected Mrs. Jones plea to extend the holding of the Supreme Court in Yamaha Motor Corp. v. Calhoun¹⁵ to maritime personal injury cases and disallowed the claim for loss of consortium under Louisiana law. Again, the court based it holding on Jensen and the uniform rule that loss of consortium is not recoverable in a maritime personal injury action.¹⁶

In the Brown case, the state district court agreed that the case was properly before it under the saving to suitors clause.¹⁷ It also applied Jensen. However, relying on other post-Jensen cases that found state law applicable even under the Jensen criteria, the state judge concluded that uniformity in regard to the dram shop issue was not required. It found that maritime law did not apply to automobile accidents. The matter was essentially local and the legislature of the State of Louisiana had enunciated a clear policy in this regard. It granted summary judgment in favor of Gaming, Inc. based on the Louisiana Anti-Dram Shop statute. In dictum, the court intimated that had it not been for the Anti-Dram Shop statute, it would have found for the plaintiffs on the liability issue, and, furthermore, if it had found for the plaintiffs, it would have permitted recovery for loss of consortium.

Both lower court decisions were appealed. The U.S. Court of Appeals for the Fifth Circuit affirmed the federal district court decision, and, ultimately, the Louisiana Supreme Court affirmed the decision of the state district court. The United States Supreme Court granted certiorari in both cases and consolidated them for argument. The grant of certiorari specifically requested the parties to address “the continued utility and vitality of the rule announced in Southern Pacific v. Jensen.”

What, if anything should the Supreme Court do about Jensen? Obviously, the lawyers for the litigants in the respective cases know what they would like the Court to do. Ironically,¹⁸ counsel representing the vessel owner and the vessel will argue that Jensen should not trump the application of Louisiana’s Anti-Dram Shop rule. They will assert that there is no congressional statute on dram shop liability or non-liability, and that dram shop liability is a matter of local concern. States have a special interest in regulating the dispensing of alcoholic beverages within the state and in the regulation of drunken automobile drivers and those who supply them with alcoholic beverages. Furthermore, the rules relating to dram shop liability did not originate in maritime law and have no unique or indispensable application to maritime matters. In contrast, counsel for plaintiff will argue that the issue is not about dram shop liability rules at all. The real issue is whether or not there should be a uniform, national regulation of the conduct and liability of those who operate vessels on the navigable waters of the U.S.

Adding further irony both lawyers will have to change position on the loss of consortium issue. Counsel for the plaintiff spouse will argue that if, pursuant to Yamaha, a state remedy allowing recovery for loss of consortium may be invoked in a maritime death case involving a non-seafarer decedent where the death occurs in state waters, there is no reason in law or policy why it should not be similarly available in cases where, through the miracle of modern medicine, an injured non-seafarer survives. The response of defense counsel is likewise predictable. Maritime law has always provided a uniform remedy in maritime personal injury actions. There has never been a need to supplement this remedy with state law. The rule permitting recovery of damages under state law in death cases should be regarded as sui generis and should not be extended. Maritime law does not provide recovery for loss of consortium.

The question I pose, however, is not addressed to counsel in my hypothetical case. The question is addressed to the lawyers in the audience who are members of the Maritime Law Association of the United States (MLA). What position, if any, should the MLA take? To many of you, perhaps most of you, the question may be very easy to answer. That answer is a simple and resounding response that the Court should reaffirm the Jensen rule in every particular. The reason underlying this answer presumably stems from the MLA’s historical position on “uniformity”. Lizabeth Burrell, in her article on Jensen tells us that one of the purposes of the MLA, as stated in its Articles of Association, is “to advance reforms in the Maritime Law of the United States, . . ., to promote uniformity in its enactment and interpretation, . . . .”¹⁹ Later, quoting from an amicus brief, she reminds us that the:

MLA believes uniformity in maritime law, both national and international, is of great importance. * * * . . .[I]n 1975 the MLA Standing Committee on Uniformity of U.S. Maritime Law recommended that steps be taken to persuade congressional committees that “nationwide and, in fact, world-wide uniformity in the Maritime Law is highly desirable, not only from the standpoint of those involved in maritime commerce but from that of the public as well.”²⁰

The MLA’s criteria for determining when the Association should file an amicus brief include “Whether or not the outcome would adversely affect uniformity.”²¹ Finally, Ms. Burrell, speaking for herself and not as spokeswoman for the MLA, concludes:

Jensen still appears to supply the only test for determining when the uniformity can be sacrificed without producing a degree of unpredictability that damages all maritime interests.²²

Support can be found for this commitment to uniformity in the academic community. Professor David Bederman has written: that “the Admiralty Clause²³ was a constitutional command for uniformity in the maritime law, irrespective of whether it was made by Congress or the courts.”²⁴ In one of his articles on “uniformity” he makes the case for the following propositions:

(1) The Admiralty Clause empowers federal courts to formulate rules of maritime law.²⁵ In this respect he has substantial support.²⁶

(2) Where either Congress or the courts have created rules of maritime law, state courts are not free to ignore federal law. In other words federal maritime law preempts contrary state law.²⁷

(3) Under the “implied preemption” doctrine or the “dormant Admiralty Clause,” as Professor Bederman prefers to call it, states may not legislate on maritime matters within the scope of the Admiralty Clause even if Congress has not legislated in the area.²⁸

(4) Congress may not delegate legislative authority to the states with regard to matters that lie within the Admiralty Clause, because to do so would violate the constitutional mandate that there be a uniform, federal maritime law.²⁹

Now, I offer you the “Force Heresy”. I submit that the pursuit of “uniformity” is more complex than may appear, and it is the purpose of this Article to persuade lawyers and the MLA to reassess Jensen and the quest for uniformity. I do not suggest abandoning the goal of uniformity, but simply that the MLA provide courts with a more refined test for determining when and whether national interests are such that they can best be served only if the matter before the court is subjected to a uniform, federal rule.³⁰

Associate Justice Holmes of the U.S. Supreme Court believes strongly in the constitutional structure of the federal system. He knows absolutely nothing about maritime law or the maritime industry, never having taken a course in Admiralty and having specialized in Securities law in private practice. In reflecting on the cases involving the Joneses and Browns against Gaming, Inc., he muses aloud to his law clerk that he doesn’t understand why an automobile accident in Louisiana involving only citizens of Louisiana should be in federal court. But more perplexing, he wonders why this dispute shouldn’t be resolved under Louisiana law. His law clerk has supplied him with the quartet of admiralty jurisdiction cases, Executive Jet,³¹ Foremost,³² Sisson³³ and, the most recent, Grubart.³⁴ Justice Holmes has read Jensen, but his private reaction is confusion. He cannot understand how, in the absence of preemptive Congressional legislation, the Jensen court could preclude the application of a state workers’ compensation law to the beneficiaries of a longshoreman simply because the employee was killed while working on navigable waters.

Justice Holmes has also read Professor David Robertson’s analysis³⁵ of all of the Supreme Court’s post-Jensen cases. He has read many of the cases cited therein and has been unable to formulate any theory or criteria to apply to the Jones and Brown cases. He is struck by the fact that, although the post-Jensen Supreme Court cases pay lip service to the Jensen criteria, they likewise acknowledge not only the difficulty of applying them but also the absence of any consistent and meaningful rationale. He is struck by the admission in the Jensen Opinion that:

[I]t 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. That this may be done to some extent cannot be denied.³⁶

The Jensen Court itself cites numerous instances where state law had been upheld, and a more detailed list is provided in Justice Pitney’s dissenting Opinion.³⁷ More recently, in American Dredging Co. v. Miller, the Court also acknowledges that:

It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty jurisprudence or indeed is even entirely consistent within our admiralty jurisprudence. * * * Happily, it is unnecessary to wrestle with that difficulty today.³⁸

Justice Holmes concludes that the Jensen criteria are unhelpful, unclear and, in general, unsatisfactory.

The law clerk with whom the Justice conversed had graduated from a highly regarded law school where she was privileged to take a Federal Courts course with one of the leading authorities on the U.S. judicial system. The text for the course was Hart & Weschler’s, The Federal Courts and the Federal System,³⁹ a leading casebook in the area. The law clerk remembered her Professor stated that decisions of the federal courts that formulate rules of substantive law in admiralty cases (referred to by admiralty lawyers as the general maritime law) are the preeminent example of “federal common law.” The Professor also commented that the authority of federal courts to formulate such rules is controversial, and she referred interested students to pages 61–62 of the 2000 Supplement to their casebook. At page 61 of the supplement the authors instruct:

Page 801 Add a new paragraph (6)

(6) Contemporary Debate about the Sources of Law in Admiralty. Recent commentary has disputed the justification for and proper scope of federal lawmaking in admiralty. Young, Preemption at Sea, 67 Geo. Wash. L. Rev. 273 (1999), contends that admiralty jurisdiction was established primarily to reach a limited set of cases—crimes on the high seas, prize cases, and revenue cases. He acknowledges that from the outset the jurisdiction extended more broadly to private commercial disputes—a contention forcefully advanced by Gutoff, Original Understandings and the Private Law Origins of the Federal Admiralty Jurisdiction: A Reply to Professor Casto, 30 J. Mar. L. & Com. 361 (1999). But Young contends that a primary purpose of the broader jurisdiction was to ensure fair treatment of foreigners, as under the diversity-of-citizenship and alien-as-party clauses of Article III. Insofar as federal jurisdiction may have been expected to promote uniformity, Young contends that it was to do so through application not of genuine federal common law (in the post-Erie sense) but rather of “general common maritime law”—a supranational body of law analogous to the general common law of Swift v. Tyson. Unlike the spurious common law of Swift, however, admiralty law came to be seen in the Jensen and Chelentis cases (Fourth Edition p. 797) as “real federal law, applicable in state court and preempting state law—a development that Young believes to be at odds with the thrust of Erie and with the limits on federal common lawmaking that are recognized today.^a

a. For an earlier analysis similar in outlook to Young’s, see Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1332–60 (1996).

Surveying modern cases, Young finds that states have significant regulatory interests in maritime matters that ought not to be routinely displaced by politically unaccountable federal judges. He also contends that maritime commerce does not require uniform rules today any more than do other forms of commerce, which are governed by the laws of the different states. Young also notes that although the federal common law of admiralty retains a role for state law, the Supreme Court’s shifting formulations have failed to provide a clear dividing line between federal and state authority.^b The application of federal law, unless called for by a federal statute, should be reserved, he argues, for cases that fall outside state competence (e.g., outside territorial waters) or that implicate a compelling federal interest (e.g., the conduct of foreign affairs). He acknowledges that the regime he proposes might also lack sharp clarity in distinguishing federal from state spheres but claims that it would at least respect basic constitutional principles. As to the objection that “states would be free to impose a crazy-quilt of restrictions that would bring maritime commerce to a virtual halt,” Young replies, “[t]wo reasons that does not happen in other areas of interstate or international commerce are, first, Congress’s power to impose uniformity by statute, and, second, the Constitution’s prohibition on measures that discriminate against or unduly burden commerce between the states or with other nations” (p. 349).

b. He describes as unsatisfactory the tests that permit state law to (1) provide remedies but not rights (Chelentis, Fourth Edition p. 797), (2) fill gaps in federal maritime law (Western Fuel Co. v. Garcia, Fourth Edition p. 800), (3) regulate matters maritime but local (id.), (4) govern where state interests outweigh federal interests (Kossick v. United Fruit Co., Fourth Edition p. 798), or (5) govern procedure but not substance (American Dredging Co. v. Miller, Fourth Edition pp. 800–01 note 10).

Responding to Young’s argument, Professor Force questions whether Erie necessarily supplies the proper framework for analyzing maritime matters. Force argues, inter alia, that (1) admiralty law reflects a valuable evolution over time, one that has previously considered and rejected the Erie-based objection; (2) the original understanding of the admiralty jurisdiction embraced private law cases, and from early on private cases, whether brought in state or federal court were treated as governed by a single body of judge-made law; (3) the grant of admiralty jurisdiction is sui generis, based as it is on a particular subject matter, and that grant must be taken to extend beyond cases involving foreigners (which are embraced by the party-based clauses) or asserting claims under federal statutes (which are embraced by the arising under jurisdiction); (4) admiralty law often involves international matters, and uniformity in such matters is an international objective; (5) any effort today to de-federalize admiralty law would generate chaos, for as to many maritime matters there is no existing state law that could be substituted; (6) the creation of a body of federal admiralty law is consistent with the original wording of the Rules of Decision Act, whose obligation to apply state law extended only to “trials at Common law” and not to admiralty; and (7) admiralty jurisprudence leaves considerable room for the application of state law. See Force, An Essay on Federal Common Law and Admiralty, 43 St. Louis U. L. Rev. 1349 (1999). In another response, Professor Friedell echoes many of these points; he adds that Congress, in enacting the Admiralty Extension Act of 1948 (which extends admiralty jurisdiction to injuries on land caused by vessels on navigable waters), was operating on the assumption that federal admiralty law, not state law, governs cases within the admiralty jurisdiction. See Friedell, The Diverse Nature of Admiralty Jurisdiction, 43 St. Louis U. L. Rev. 1389 (1999).

The authors of the casebook express no opinion on the merits of the dispute.

The Justice’s appetite has been whetted, and he instructs his clerk to get all of these articles. After reading them, the judge is persuaded that the analysis by Professor Young is more compelling than that made by Professor Force and that Young’s assertion that the scope of the general maritime law must be radically restricted is correct and that Professor Force who asserts a contrary position is wrong. In other words, Justice Holmes concludes that judicial lawmaking in admiralty has gone far beyond that which was originally contemplated and even further beyond what is needed. He is convinced that Jensen was wrongly decided, and that the drafters of the Constitution would be appalled that the Supreme Court invalidated the application of a state law on the scant authority of the grant of federal jurisdiction in the Admiralty Clause. He then instructs his law clerk to prepare a memo deconstructing Jensen.

The law clerk prepared the memo which then was edited substantially by Justice Holmes himself. In preparation for oral argument, he circulated to the other members of the Court the articles and his memo which he titled “Deconstructing Jensen” . None of the other members of the Court ever had a course in Admiralty, although they all had courses in Federal Courts. No member of the Court had ever been involved in an admiralty case in private practice. The only exposure of the Justices to maritime law had been on the bench, and those experiences had been very limited. As you will learn, Justice Holmes’s Memorandum will become an important factor in the resolution of the Jones’s and Brown’s cases.

1. Jensen and the cases on which it relied and the subsequent cases which embellished its holding have incorrectly interpreted the constitutional provision giving federal courts jurisdiction over admiralty and maritime cases.

That jurisdictional provision is not a short-hand grant of carte blanch authority to formulate a catalog of rules of law applicable to water transport. As a matter of constitutional policy, uniformity is required only where states are not competent to provide applicable rules or where the interests of international comity so require. [The Memorandum then summarized the research and analysis that appear in Young, Preemption at Sea, 67 Geo. Wash. L. Rev. 263 (1999); Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1332–60 (1996); Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers and Pirates, 37 Am. J. Leg. Hist. 117 (1993). The Memorandum continues.]

2. The Jensen criteria are meaningless and provide no guidance to the Supreme Court, lower federal courts or to state courts.

In Jensen, after acknowledging that the general maritime law may, in certain circumstances, be changed by a state statute and commenting on the difficulty in determining when it is appropriate to do so, the Court then articulated its view of the criteria that should be used in making that determination.

And plainly, we think, no such [state] legislation is valid if it contravenes the essential purpose expressed by an act of Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.⁴⁰

The first criterion is reasonably clear. It merely states the rule of Congressional preemption.

The second criterion, however, is less clear for it is difficult to know exactly what are the “characteristic features of the general maritime law” or what state variant “works material prejudice” to them. Under the view expressed by Justice Scalia in the majority Opinion in American Dredging Co. v. Miller,⁴¹ if the particular rule did not originate in maritime law and does not have exclusive application in maritime law, then it is not a “characteristic feature of the general maritime law.” Although I disagree strongly with this extraordinarily narrow view, to the extent it represents the Court’s view, it has rendered this aspect of the Jensen criteria virtually irrelevant. There are precious few rules that have originated in admiralty cases or that have exclusive application in admiralty cases.

This then leaves the third criterion that focuses on the “harmony and uniformity” of the general maritime law. The scope of this criterion is somewhat narrowed because it refers not merely to harmony of the general maritime law in the abstract but to harmony of the general maritime law “in its international and interstate relations.” It is not clear what this means. Does it mean that state law may not be applied if its application could under any circumstances affect the result in a case involving international or interstate maritime transport, or does it mean only that the state rule cannot be applied in actual cases involving international or interstate maritime transport? For example, suppose, in Jensen, the shipping company operated only between two ports in the state of New York. Would the Court have concluded that the New York statute did not affect the general maritime law in its international or interstate relations, or would the Court have found that because injuries sustained on navigable waters could have an impact on international and interstate commerce and, as such, are subject to the general maritime law, the New York statute may not be applied? In other words, would the displacement of state law follow the approach used in determining the “nexus” prong of admiralty tort jurisdiction where the jurisdictional inquiry is made at an intermediate level of abstraction and the emphasis is on the potential impact that the tort might have had (fire on a vessel that could disrupt commerce), rather than on what actually occurred (fire on a pleasure craft that did not disrupt commerce)?⁴² Another difficulty is presented by the fact that state law is displaced only where that law “interferes with the “proper harmony” of the general maritime law in its international and interstate relations. What is “proper”? That term is purely subjective and provides no guidance to courts.

Corroboration for the conclusion that Jensen has not provided appropriate guidance to the courts is found in Professor David Robertson’s analysis of the Supreme Court’s “fifty-three significant decisions” beginning with Jensen “in which state law and federal maritime law came into conflict.”⁴³ Professor Robertson states:

In twenty-nine of those, state law triumphed over the competing claims of federal maritime law. The other twenty-four held that federal maritime law displaced state law. . . . [T]he Court’s opinions do not give intelligible reasons, just conclusions. Thus, one must look at the aggregated results in the hope of discerning useful patterns. When viewed as a whole, this body of jurisprudence discloses few useful patterns.⁴⁴

Professor Robertson reaches two conclusions from his study. First, all of the five standard theories⁴⁵ that have been formulated to rationalize choice-of-law decisions “are untenable”.⁴⁶ Second, “the recent trend is moving steadily in the direction of upholding state law.”⁴⁷

Over a course of fifty-three cases, the Court has had an opportunity to develop a coherent body of law out of the Jensen criteria, and it has failed to do so. If Jensen doesn’t work because it has failed to provide a principled and meaningful basis for deciding when state law may be applied in admiralty cases, it should either be modified or overruled and another approach formulated.

Additional corroboration for the conclusion that the Jensen criteria have not provided principled guidelines for the courts is reflected in the lack of respect for Jensen expressed by subsequent members of the court. A host of references disparaging Jensen has been collected by Professor Robertson prompting him to conclude that: “Jensen, while not yet overruled, has been subjected to a steady barrage of criticism by the U.S. Supreme Court.”⁴⁸

Recent cases reflect Jensen’s lack of authority. In American Dredging Co. v. Miller,⁴⁹ a majority of the Court held that Louisiana courts could apply a Louisiana statute precluding dismissal of a maritime claim on grounds of forum non conveniens rather than the federal admiralty rule on forum non conveniens. Although the majority purports to pay lip service to the Jensen criteria, a fair reading of the Opinion by Justice Scalia clearly reveals that it was the characterization of the state law as “procedural” and the fact that its application was not “outcome determinative” (because federal substantive law would apply regardless of the forum) that were the controlling factors in deciding the case.⁵⁰ Justice Stevens, in his concurring Opinion, characterized Jensen as “untrustworthy as a guide” and its criteria as “unhelpful abstractness.”⁵¹ Justice Kennedy, in his dissenting Opinion cites Jensen once, but does not apply the Jensen criteria.⁵² Instead, he formulates a different approach, one that in many respects is similar to the approach I will suggest later. Essentially, he focuses on the importance of the federal forum non conveniens rule to international and interstate commerce and to comity. He then contrasts those national interests with the relatively marginal state interest. On balance, he finds that the national interest in a uniform rule of forum non conveniens should prevail.

In Calhoun v. Yamaha Motor Corp.,⁵³ where the Court concluded that state wrongful death remedies were available in a case that fell within admiralty jurisdiction, Jensen was not a factor in the Court’s analysis. In this choice-of-law case where the defendant and numerous amici had urged the Court to use the general maritime law of wrongful death to preempt state wrongful death laws, not only were the Jensen criteria not applied, the Jensen case was not even cited. It is doubtful that the Court’s disregard for Jensen is accidental. One may conclude that the Court derived no guidance from Jensen.

Thus, although Jensen has not been expressly overruled by the Court, it has been so undermined that its value as precedent has been eroded. In light of the constant criticism by various Justices, the present Court should have no reluctance in reexamining it, modifying it or even overruling it.

3. Not only is Jensen unhelpful, but also it is so amorphous that it can be readily invoked to support virtually any conclusion in virtually any case.

This is evident in the American Dredging case where both the majority and dissenting opinions purport to rely on Jensen (although neither really does) to support diametrically opposed conclusions.⁵⁴ Furthermore, this weakness can be illustrated by applying the Jensen criteria to the facts of the Jensen case itself, an analysis the Jensen Court neglected to make. Ironically, such application seems to lead to a result contrary to that reached by the Jensen majority.⁵⁵

As a preliminary matter, the credibility of Jensen is impaired because the majority was incorrect in one of its basic factual assumptions, to wit, upholding the New York statute would subject a maritime employer to multiple state laws. The Court in Jensen stated:

If New York can subject foreign ships coming into her ports to such obligations as those imposed by her Compensation Statute, other states may do likewise. The necessary consequence would be the destruction of the very uniformity in respect to maritime matters that the Constitution was designed to establish; and freedom of navigation between the States and with foreign countries would be seriously hampered and impeded.⁵⁶

By that statement, the majority revealed its ignorance about the maritime industry and how it operates. The Jensen majority portrayed the situation as one in which a shipowner whose vessel travels from state to state could be confronted with multiple and differing workers’ compensation schemes and be subjected to great uncertainty in its obligations to its employees. Nothing was further from the truth. In Jensen, Southern Pacific decided to be its own stevedore. In a maritime context, it was two companies.⁵⁷ It was a shipping company because it owned and operated a vessel, and it was a stevedoring company because it utilized its own employees to work as longshoremen loading and unloading its vessel. Typically, vessel owners who contracted with stevedores to load or unload their vessels were not subject to workers’ compensation liability for injuries to longshoremen. In such cases, the stevedore-employer, an independent contractor, would be liable for the compensation payments, not the owner of the vessel on which the employee was injured or killed. Stevedores are locally based, and they would be liable under the New York law for injuries to their employees.

Thus, in terms of burdening international or interstate commerce, the statute did not place the burden on shipowners but on stevedores. Shipowners whose vessels moved from state to state and who engaged the services of local stevedores would not be burdened with different requirements because these vessel owners were not subject to the state compensation laws which covered only local workers. Likewise, stevedores would not be burdened by non-uniform state laws because stevedoring operations do not move from place to place like vessels. Theirs is a local, land-based business. It was fortuitous that Southern Pacific was covered under the New York law, but that was only because they elected to become a land-based, local stevedore. It is important to note that the New York statute and other similar state statutes did not involve the possibility of subjecting maritime employers to the requirements of different states. Both the services rendered to ships and the employees who performed those services were land-based in a particular port.

Furthermore, Jensen didn’t necessarily invalidate the New York law even as to stevedores. It merely held that an employer could not be held liable to pay compensation under the statute where a worker is injured or killed on navigable waters. Jensen should not be viewed as removing from the “maritime” industry the burden of paying workers’ compensation benefits just because Southern Pacific, Jensen’s employer, owned the ship on which he had been working. Southern Pacific was still liable as a local stevedore under the statute for injuries to its workers that occurred on land. The burden to pay compensation for injuries that occurred in New York, however, was now subject to an exception where an employee was injured on navigable waters. Southern Pacific by obtaining commercial insurance or by self-insuring would still have to cover its employees in the event they were injured on land.

Under the “locality” test that, at that time, served as the basis for admiralty tort jurisdiction.⁵⁸ Jensen would have had no action in maritime tort if he had been injured on the land even through the fault of his employer. If Jensen had been injured on the land, his action, in tort or for compensation, would have been under New York law.⁵⁹ In those circumstances, there would have been no conflict with admiralty jurisdiction or the general maritime law. Federal courts could not exercise admiralty jurisdiction over personal injuries that occurred on land.⁶⁰ The Court perceived a conflict between state law and the general maritime law only because Jensen was killed while working on navigable waters. Although, the Jensen Court did refer to the employment contract as being a maritime contract, it characterized the injury as being a “maritime injury.” The characterization of the injury as a being a “maritime injury” was correct because Jensen was injured on navigable waters, the sine qua non for admiralty tort jurisdiction at that time. Notwithstanding the exception created in Jensen, stevedores were still subject to the New York statute.

If anything, the Jensen decision led directly to the imposition of additional burdens on stevedores. When Congress finally enacted the federal Longshoremen’s and Harbor Workers’ Compensation Act of 1927,⁶¹ it provided workers’ compensation benefits for workers injured on navigable waters. Longshoremen work both on land and on navigable waters. Often their work requires them to go from land to ship and from ship back to land as in Jensen’s case. Stevedores became subject to two different legal regimes with regard to their employees. The state compensation regime applied to land-based injuries and the federal regime to injuries occurring on navigable waters. If the court had upheld the New York statute, employers would have been subject to only a single statute and would not have been subject to different rules relating to the right to compensation and levels of compensation benefits. Rather than achieve uniformity, the decision imposed on every stevedore non-uniform compensation systems.

Furthermore, in terms of transaction costs, Jensen created an additional burden on stevedores. The state and federal compensation schemes were mutually exclusive.⁶² In gray areas, where it was not clear whether an employee was injured on land or on navigable waters, it might be necessary to litigate the matter to determine which regime applied. To ease this burden the courts created the doctrines of “maritime but local”⁶³ and the “twilight zone.”⁶⁴ In fact, there was such confusion in the area that ultimately Congress had to amend the federal compensation statute to extend coverage to maritime workers who were injured on land, that is, in areas adjoining navigable waters.⁶⁵

Let us now apply the Jensen criteria to the Jensen facts. First, there was no federal statute with which the New York law conflicted. There was no federal statute at all. Therefore, congressional preemption could not have been a basis for displacing state law.

Second, the state workers’ compensation statute did not work “material prejudice to the “characteristic features of maritime law.” In order to find that the New York statute worked “material prejudice to the characteristic features of maritime law,” it is first necessary to identify a “characteristic feature of maritime law” and to compare it with the state law to see if it was in conflict with the federal rule. With respect to tort liability for personal injuries, the general maritime law required a showing of fault. The New York statute provided for compensation without fault. Nevertheless, under the approach adopted in Justice Scalia’s majority Opinion in American Dredging, a “characteristic feature” of maritime law is one that either originated in maritime law or had some exclusive application in maritime law.⁶⁶ The fault-based rule of recovery applied in maritime personal injury cases did not originate and was not exclusively applied in admiralty cases. Certainly, fault was the basis for tort liability under the common law as it is today in most states. Under Justice Scalia’s unduly restrictive approach to the “characteristic features” criterion, the New York statute should not have been displaced.

Even if one follows the view expressed in Justice Kennedy’s dissent, which I believe to be the better approach, there was no federal rule, statutory or in the general maritime law, that precluded a state from creating a “compensation” scheme for workers who sustained employment-related injuries without the fault of their employers.⁶⁷ Therefore, even if one gives a broader meaning to the concern for the “characteristic features” of the general maritime law, the requirement of “fault” as a predicate to liability, was not a characteristic feature of maritime law. In fact, the contrary was true. In the employment context, seamen who were injured or became ill in the service of their ships were entitled to maintenance and cure from their employer as well as wages until the end of the voyage, regardless of employer fault. In this sense, maintenance and cure is similar to workers’ compensation. If the general maritime law extended a no-fault remedy to a group of transient workers (seamen), why couldn’t New York provide an analogous remedy to a local, land-based group of workers (longshoremen)?

Finally, there is the “uniformity” criterion. As pointed out above, the Court assumed incorrectly that exposing shipowners to different workers’ compensation liability regimes as their vessels sailed from state to state would create non-uniformity in the law and threaten the harmony of the general maritime law. It has already been shown that workers’ compensation laws would not include the crew of ships that moved from port to port. The law covered local, land-based employers of local, land-based employees.

Admittedly, the obligation to pay workers’ compensation could make the stevedoring business more expensive, and that cost could have been passed on to shipowners in the form of higher stevedore charges. If states had different workers’ compensation schemes with some being more costly than others, shipowners might pay higher stevedore costs in some states than in others. But this point is totally irrelevant to Jensen, and it is not what Jensen is all about. Any non-discriminatory local tax imposed on stevedores, ship suppliers, ship repairers, etc., would have the same effect. Yet, no one would suggest that, under Jensen, stevedores are exempt from paying lawfully imposed local taxes.⁶⁸

To compound matters, the Jensen Court offered no principled explanation as to why certain state wrongful death remedies were available in admiralty but others were not.⁶⁹ The Court had previously held that an admiralty court could apply a state wrongful death law in cases where deaths occurred on navigable waters, notwithstanding the fact that the general maritime law would not permit recovery.⁷⁰ State wrongful death laws were far from uniform at this time. Why should state laws that provide dependents with death benefits under workers’ compensation laws be treated differently? In fact, the Court attempted no explanation at all.

Finally, the Court gave no weight to the fact that the New York statute furthered uniformity in that it gave to longshoremen a remedy similar to that already provided by the general maritime law to seamen.⁷¹ The Court did not address the fact that that the New York statute promoted uniformity by providing the same remedy for maritime workers injured in New York, regardless of whether they were injured on the land or on navigable waters. The Court did not take into account the fact that the New York statute promoted uniformity in extending to longshoremen the same compensation benefits that were available to the other seventy-nine categories of New York land-based workers engaged in hazardous employment. The only uniformity about which the court seemed to be concerned was the uniformity of not making stevedores liable to their employees for injuries on navigable waters in the absence of fault.

In sum, the Court never explained how the New York statute made some aspect of the general maritime law non-uniform or demonstrated how that non-uniformity would undermine the “general maritime law in its international or interstate relations.” The Jensen Court never applied the criteria it articulated to the situation before it; if it had, it may have reached a different result. The fact that the application of Jensen strongly supports a conclusion contrary to that reached in Jensen undermines the efficacy of the Jensen rule. Jensen never explains why it is important to some national interest for longshoremen injured in California waters to be under the same workers’ compensation scheme as workers injured in New York waters, or stevedores in California to be under the same obligations as stevedores in New York.

4. The Jensen criteria leave no room for assessing the importance of state law in promoting or protecting state interests They do not even attempt to weigh the local interest against the benefits of uniformity, that is, against the national benefit that supposedly results from uniformity.⁷²

Jensen purported to promote uniformity that inheres in the general maritime law, not as an end in itself but in its effect on international and interstate relations. As stated above, the Court never showed how the New York statute undermined uniformity in the general maritime law in its international or interstate relations. The era in which Jensen was decided was the era in which state compensation laws were being enacted in many states. Surely the Court could not have been unaware of the movement to provide workers with some minimal compensation for job-related injuries and to shift to industry part of the loss that resulted from industrial accidents. The New York statute under attack in Jensen applied to workers involved in dangerous employment. The statute did not single out shipping, but was part of a larger scheme.⁷³ No one can deny that states had a legitimate interest in imposing liability for compensation benefits on employers whose employees were injured or killed in the course of their employment. Jensen completely disregards the economic interest of the state that, in the absence of workers’ compensation, might have to bear some of the financial burden for providing for disabled workers and their families.

The Jensen majority overlooked the fact that although the loading and unloading of ships are crucial to international and interstate maritime commerce, it is also a local activity carried out completely within a state. Furthermore, the work force is a local, land-based workforce, dependent for its protection on the state. Congress had not enacted a federal maritime employees compensation scheme, nor was it in the process of doing so. It had enacted the Federal Employers’ Liability Act,⁷⁴ but that applied to railroad workers. The courts had not formulated rules providing compensation to maritime workers except for maintenance and cure.⁷⁵ But even that remedy was available only to seamen and not to other maritime workers. Thus, the situation in Jensen was one in which there was a national interest because the compensation scheme applied to stevedores whose employees loaded and unloaded ships. Undeniably, there was also a state interest because the activities in question were carried out solely within a state, the employees were land-based and the industrial accidents within the state had important economic implications for the state and its employee citizens. The weakness of Jensen is not only in its failure to weigh the impact of displacing state law against a corresponding benefit to some national interest that is best promoted by uniformity of law, but that it did not give any weight to the state interest at all.⁷⁶ In other words Jensen makes no attempt to accommodate state interests. It ignores federalism.

If the Court, instead of focusing on Southern Pacific as a shipowner, had focused on Southern Pacific as a local stevedoring company, it might have concluded that the burden of the workers’ compensation law fell on a local employer engaged in activity that is essentially land-based and that the beneficiary of the legislation was essentially a land-based, non-mobile work force. The employer would not have been subjected to varying state laws and this was not an area where international or interstate commerce required uniformity of law. The Court in Jensen could have accommodated the state interest in a variety of ways:

1. Inasmuch as the statute applied to land-based employment, the Court could have found that the incremental extension of the statute to cover land-based employees who are injured or killed while performing part of their duties on navigable waters does not undermine admiralty jurisdiction or uniformity in admiralty law.

2. The court could have created a “maritime but local exception”⁷⁷ to its choice-of-law rules.

3. The court could have created a “twilight zone”⁷⁸ for workers whose employment required them to walk in and out of coverage under the New York law.

4. The court could have characterized the New York law as a “gap” filler in the absence of congressional legislation.

Let us now return to the final segment of the hypothetical. After oral argument on the Jones and Brown cases, the Supreme Court decided to overrule Jensen. Four Justices joined in a plurality Opinion, three Justices joined in a concurring Opinion and two Justices joined in a separate concurring Opinion. The plurality Opinion, written by Justice Holmes, virtually tracked the “Deconstructing Jensen” memo that he had earlier circulated among the Justices. Three Justices, in their separate concurring Opinion would prohibit preemption of state law by the general maritime law, reserving displacement of state law only to an Act of Congress. Two Justices concurred in the result only, and their separate Opinion stated that maritime law should not be applied to automobile accidents. These Justices dissented from the overruling of Jensen and suggested a case-by case-approach.

It has been learned afterwards that one of the factors most influential in persuading 7 of the 9 Justices to overrule Jensen was the belief that maritime law had penetrated too deeply into matters far removed from the purposes underlying the Admiralty Clause, even viewing that clause broadly. Those Justices were amazed that federal courts were adjudicating personal injury and death actions involving recreational boaters arising out of incidents in state waters. Those cases and the issues they present do not affect interstate and foreign commerce, do not harmonize U.S. maritime law with that of other nations, or protect maritime commerce from inconsistent and prejudicial state regulation.

In the Jones case, the Supreme Court had been asked to affirm the application of a uniform rule of maritime tort law to an automobile accident involving Louisiana citizens and a Louisiana corporation authorized by the state to conduct gaming activities and dispense alcohol in Louisiana waters. The 7 Justices who voted to overrule Jensen simply could find no compelling national interest to justify the abrogation of the state Anti-Dram Shop law. As three of the concurring Justices opined, suppose the state law had imposed liability on dram shops, as most states do,⁷⁹ that knowingly served alcoholic beverages to visibly intoxicated persons. Should state policy regarding alcohol be eviscerated in the interests of uniformity? Pointing to the XXI Amendment,⁸⁰ they underscored the substantial role of the states regarding the regulation of alcohol.

The maritime bar’s worst nightmare had been realized. From an era in which the Supreme Court had paid at least lip service to the goal of “uniformity of maritime law,” the Court had suddenly plunged maritime law into an era of uncertainty and non-uniformity.⁸¹

My concern is based on an assumption that the scenario described above could happen. As my previous publications attest, I believe strongly in the need for a general maritime law. I disagree with those who would vastly reduce its scope. On the other hand, I also disagree with those who espouse “uniformity” in every case in which a vessel and navigable waters are somehow involved.

We all recognize that uniformity of maritime law is convenient, not only for lawyers and judges but also for those engaged in maritime transactions or activities. Uniformity facilitates predictability and promotes an even-handed administration of the law. Nevertheless, I submit to you that if the general maritime law and its by-product “uniformity” are to persevere, they must be principled. “Principle” and “convenience,” in my opinion, are not the same thing.

I submit that uniformity in maritime law must serve some national interest, that is, an interest compatible with the grant of admiralty and maritime jurisdiction to the federal courts. In this respect, I sympathize with the imaginary majority of the Court in my hypothetical that was troubled by the application of federal admiralty law to incidents that involve only pleasure craft. Is this what the founders contemplated when they drafted and approved the Admiralty Clause? What national interest is promoted or preserved by the application of the general maritime law to determine whether the wife of the operator of a pleasure boat can recover damages from her husband for injuries she sustained as a result of his negligent operation of the boat?⁸² The fact that pleasure boat operators may be subject to federally formulated rules of the road and to U.S. Coast Guard regulations has absolutely nothing to do with the choice-of-law issue as to whether federal or state law should be applied in a suit to recover damages brought by an injured recreational boater against another recreational boater.⁸³ If we continue to extend substantive maritime law to situations that implicate no clear national interest and if we continue to displace state law in situations where, by contrast, there is a clearly discernible state interest, we may ultimately be supplying the linchpin for the undoing of the general maritime law as we know it and as we need it.

The same may be said with respect to the hypothetical. What national interest is promoted by the application of the general maritime law to the automobile accident that occurred in Louisiana? What detriment to shipping and commerce would occur if the Louisiana court or the federal court applied Louisiana law? Asked differently, what benefit to shipping and commerce would occur if the Louisiana and federal courts applied federal law? Application of a preemptive maritime rule to cases in which no national interest is served is an extravagant application of maritime law and may result in a significant restriction in the scope of the general maritime law.

The research by the law clerk for Justice Holmes in the hypothetical disclosed that there now exists a body of law review literature that undermines the very legitimacy of the general maritime law and provides the legal basis for destroying it.⁸⁴ I am concerned that there could be a backlash or overreaction by a court lacking familiarity with maritime law in a case in which the national interest is at best marginal and the state interest is strong.⁸⁵ That scenario, like my hypothetical, might actually come to pass. We all know that hard cases can make bad law.

Admiralty lawyers should not keep their heads in the sand and read only the views with which they agree. They must confront the fact that there is a respectable body of literature of relatively recent vintage that asserts a position that is almost the polar opposite of the conventional admiralty uniformity cant.⁸⁶ That literature and its potential for mischief, in my opinion, should not be ignored. You may scoff at my apprehension. I submit, however, that my hypothetical situation is not as far-fetched as some of you would like to believe. You may think that it couldn’t possibly happen. But, twenty years ago,⁸⁷ would you have been willing to bet that a federal court would ever hold, in a death case involving a 12-year old child killed in state waters when her jet ski collided with another recreational vessel, that the general maritime law would determine whether or not her plaintiff parents had a cause of action, but that the law of Pennsylvania would determine the remedy, that is, damages for loss of society, and the law of Puerto Rico would determine whether or not plaintiffs could recover punitive damages? Yet, this is precisely what the Court of Appeals for the Third Circuit has held in the most recent decision in the Yamaha case.⁸⁸ Twenty years ago, before Foremost⁸⁹ was decided, you might even have asked, is this an admiralty case at all? The latest Yamaha decision shows that anything is possible.

The application of state law to resolve disputes, rather than federal law, will sometimes result in non-uniformity. Therefore, in any given case, if the question is asked: “should a federal court formulate a uniform rule that will preempt state law?,” it begs the question to simply respond: “if it doesn’t, the application of differing state laws will result in non-uniformity.” If non-uniformity per se is the critical factor, that is, if uniformity itself is the only goal, the answer to the question will always be that we should have a uniform rule. This, however, is not a realistic or legally correct approach. As maritime lawyers, we all understand the benefits that could be achieved under a comprehensive and uniform system of federal maritime law. We do not, however, have a comprehensive code of maritime law, and, in my opinion, we never will. The general maritime law will never be a substitute for a comprehensive maritime code.

In espousing the uniformity cause, commentators point to statements in Panama Railroad Co. v. Johnson⁹⁰ to support their view that the Admiralty Clause signifies an intent to place the entire subject of maritime law under federal control where a uniform maritime law could evolve.⁹¹ Nevertheless, the advantages of uniformity must be weighed against other constitutional factors such as federalism. The Admiralty Clause does not exist in a vacuum. The reality is that we live under a Constitution that has adopted the doctrine of federalism. The national government is a government of delegated powers. The Tenth Amendment admonishes that there are local matters that must be left to local solutions.

Drawing the line between national and local interests in the maritime area may not have been all that difficult at the time the Constitution came into effect. The “jurisdiction” over admiralty and maritime cases that the founding fathers initially gave to the federal courts was based on a narrower scope of jurisdiction than we have today.⁹² It was not until many years later that the jurisdiction rules changed and the scope of admiralty jurisdiction greatly enlarged.

As the country expanded, maritime activity expanded from the Atlantic seaboard to the inland waters. As the scope of admiralty jurisdiction expanded with the growth in commerce, the line between national and local interests has become more difficult to draw. Our friends from abroad may complain that our law in the United States is unduly complex with federal law prevailing in some areas and state law in others. There are also areas where federal and state laws co-exist. The bottom line is that our system is a federal system. We take the best of it as well as the worst of it.

Maritime law, however, in one way or another, has accommodated the doctrine of federalism.⁹³ From the outset, the saving to suitors clause gave litigants the right to seek common law remedies in state courts.⁹⁴ The Cooley decision⁹⁵ approved state regulation of pilotage to the extent not preempted by congressional legislation. State wrongful death remedies were enforced in federal admiralty actions.⁹⁶ Workers covered by the Federal Longshore and Harbor Workers’ Compensation Act may opt for state remedies in certain circumstances.⁹⁷ Furthermore, the rules whereby contracts to build vessels⁹⁸ and contracts to sell vessels⁹⁹ are not maritime contracts and the rule that similarly excludes preliminary contracts,¹⁰⁰ are accommodations with federalism. In the jurisdictional context, the “nexus” requirement for tort jurisdiction,¹⁰¹ by restricting the broad reach of admiralty tort jurisdiction, delimits the line between national and state interests.

More recently, there have been other examples of how maritime law has accommodated the Constitutional doctrine of federalism. The Yamaha decision¹⁰² allowed the parents of a non-seafarer to invoke state wrongful death remedies in an action in federal court despite the availability of a general maritime law remedy. The Miller decision¹⁰³ upheld the right of a state court to ignore the federal rule on forum non conveniens and to apply a state law to the contrary. Also, Congress has amended the Limitation of Liability statute to permit the owner or operator of a vessel or the employer of a seaman who is held vicariously liable for medical malpractice to invoke any limitation of liability available to the doctor under the law of the state where the medical services were rendered.¹⁰⁴ Even more recently, Congress amended the Death on the High Seas Act explicitly to provide that whenever a death occurs from a commercial aviation accident on the high seas twelve miles or closer to the shore of any state, the rules “applicable under Federal, State and other appropriate law shall apply.”¹⁰⁵ In the last situation, the amendment specifically allows recovery for loss of society.¹⁰⁶ These are but a few examples.¹⁰⁷

It is apparent then that the question is not whether federal law should always preempt state law or whether maritime law should accommodate federalism. Those questions have already been answered. The real and difficult question, in my opinion, is, under what circumstances, should the general maritime law preempt state law. The crux of this question is, and has always been: what are the criteria for determining whether or not the general maritime law should preempt state law? I submit that if we don’t answer this question in a principled and persuasive way, in a way that remains true to the Admiralty Clause, then we may be facing a new question: why shouldn’t the Erie¹⁰⁸ rationale be applied in maritime cases? In my opinion, simply saying that application of state law would result in non-uniformity is not enough, and adding that uniformity provides convenience is not enough either.

I don’t think that the dispute between those who would virtually abolish the general maritime law and those who would go so far as to adopt the “dormant Admiralty Clause” position can be resolved by examining the literal language of Constitution itself or in its scant legislative history. I do not believe the answer can be discerned in the decisions of the Supreme Court. I do not think that the study of history will resolve the dispute. I don’t think anyone will find a long lost trunk containing documents that provide the definitive explanation of why the Admiralty Clause was included in the Constitution, its intended scope and how it was to be squared with the doctrine of federalism. Even if such documents could be found, their impact on current law would be questionable.

If the Supreme Court ever decides to revisit the Jensen standards, to some extent, it will write on a clean slate. Professor Robertson has carefully reviewed the application of Jensen in all of the Supreme Court cases, and he has concluded that there is no discernable pattern to be derived from the cases.¹⁰⁹ Members of the Court have admitted as much.¹¹⁰ It is as though each case has been decided in a vacuum that makes generalization and consistency impossible. Therefore, I will not try to pretend to see a pattern that does not exist. The lack of a pattern and the lack of fleshing out of Jensen by subsequent cases raise serious doubt as to the efficacy of the Jensen factors as meaningful guidelines for courts. In approaching what I regard as the crucial question of preemption of state law, I have a modest suggestion.¹¹¹ Instead of merely asking whether or not the application of state law in a particular situation would interfere with the uniformity of the law, I suggest that the inquiry be refined to include two additional questions:

1. In the context of the precise issue to be decided in the dispute before the court, would a uniform rule substantially promote some national interest underlying the Admiralty Clause or would non-uniformity substantially undermine some national interest inherent in the Admiralty Clause? “Substantial” means something more than minimal or marginal.

2. If uniformity would only minimally or marginally promote a national interest or non-uniformity only minimally or marginally undermine a national interest, what is the conflicting state interest and how important is the application of state law to the promotion or protection of that interest?¹¹²

In making the preemption decision, a court should be required to consider whether a failure to preempt state law would undermine some national interest, or whether preemption of state law by applying a uniform federal rule would advance some national interest. In other words, the inquiry should not stop with a consideration of whether the application of the state rule would result in non-uniformity of law, but in regard to the issue presented in the case at hand, the court should also consider whether or not non-uniformity of law would promote or undermine some national interest.

I suggest that we devise a choice-of-law rule tailored to one area of the law, maritime law, rather than trying to formulate a grand choice-of-law rule. Also, I suggest that the choice-of-law rule be tailored only to the choice between federal and state law. Furthermore, I suggest that “a need for uniformity” be the point of departure in the application of the rule.

The determination as to whether there is a “need” for a uniform rule, however, should not be made in a vacuum. In admiralty, it is well accepted that the Admiralty Clause was included in the Constitution to promote uniformity in maritime law (to a greater or lesser degree depending on one’s view). Thus, the key to my approach is to link “uniformity” to some “national interest that the Admiralty Clause should promote or protect.”¹¹³ These may include interests that bring into play sovereign, transnational or international considerations and those that may affect commercial activities. There may be other interests as well, and the following are not intended to be all inclusive.

How then does a court determine whether or not the particular choice-of-law issue before it is one as to which a uniform rule is required to promote or protect some national interest that is inherent in the Admiralty Clause? What are national interests? I would start at the same point that Jensen did and determine whether or not Congress supplied the rule on the matter at issue. When Congress legislates in the maritime area, the national interest is determined by the objectives of the legislation.¹¹⁴ The Court has developed criteria for determining when congressional legislation and concomitant regulations preempt state law. Those preemption criteria should be applied as the Court recently did in the Locke case (Intertanko).¹¹⁵

The preemption decision is easier where Congress has legislated. In Jensen, there was no congressional statute. The Jensen majority reasoned that if Congress had wanted to provide workers’ compensation benefits to longshoremen killed or injured on navigable waters, it could have done so by enacting appropriate legislation. As Congress had not done so, presumably, it did not intend for those workers or their families to have the benefits of compensation in the absence of fault, the standard for liability under the general maritime tort law. Yet, the actions of Congress itself, in the period immediately following Jensen, admonish us to be very careful in drawing inferences from congressional silence.¹¹⁶ The fact that there was no remedy under the general maritime law for non-seaman employees who were injured or killed in the absence of fault while working on navigable waters, and the fact that Congress had failed to supply one did not support the inference that Congress tacitly approved of the denial of any remedy. We know, in the aftermath of Jensen, that Congress had been relying on the states to provide a remedy for what it considered to be a local problem. We know that Congress twice tried to make state workers’ compensation benefits available to maritime workers injured or killed on navigable waters.¹¹⁷ Both times the Court struck down these statutes.¹¹⁸ Although, the presence of a national interest can be readily discerned or even presumed when Congress enacts rules of maritime law, the absence of legislation, that is, congressional silence, does not readily lend itself to making inferences as to what national interests are undermined by the application of state law. There are many reasons why Congress fails to enact legislation. Look at how long the MLA proposal on amendments to COGSA has been pending. Congressional silence may signify nothing more than that Congress has more important matters to address or, as in the case of compensation benefits for longshoremen, that it prefers to see a matter dealt with at the state level.

In the absence of legislation, it is submitted, therefore, that before a court articulates a substantive rule of general maritime law that is intended to preempt state law, the court should identify the national interest the preemptive rule is intended to promote. Simply saying that a federal rule promotes uniformity, in my opinion, is not enough.

In accord with international law, nations exercise “limited sovereignty” over certain waters that lie off their coasts as well as their internal waters.¹¹⁹ As an incident of this “limited sovereignty,” and subject to the rules of international law, nations have the power to provide rules that regulate the use of certain waters that lie off their coast and to determine the legal consequences of events and transactions that occur on those waters.¹²⁰ I will simply refer to these waters as “coastal waters.”¹²¹ This power includes the right to prescribe rules that govern all activities in those coastal waters including commercial activities.¹²² The United States has strategic, environmental, safety and economic interests in these waters that have led it to adopt rules to promote and protect those interests. Beyond self-interest, there is another reason for nations to promulgate rules to apply in their coastal waters. Under and subject to international law, only the country off whose coast these waters lie is entitled to exercise “limited sovereignty” and to formulate rules applicable to those waters.¹²³ Thus, there is a necessity for the United States to provide rules to be applied in U.S. coastal waters to avoid a legal vacuum.

With respect to the formulations of legal regimes for coastal waters, it is important to note that historically there has been an international effort to promote uniformity in these various national laws. That uniformity movement has never been stronger than it is today. The United States has entered into and implemented various international agreements that relate not only to the high seas but also to United States waters. Also Congress has enacted legislation that applies to U.S. waters. Pursuant to this legislation, administrative agencies have promulgated regulations that apply in U.S. waters. These laws trigger the rules of congressional preemption.¹²⁴

The United States, however, has not enacted a comprehensive code to govern activities in its waters. Thus, there are transactions and events that occur in U.S. waters for which Congress has not provided rules. For example, Congress has enacted a “Death on the High Seas Act”¹²⁵ but, except for seamen, has not legislated with regard to injuries that occur in U.S. waters or on the high seas. Therefore, it was not only appropriate, but it was necessary for the courts to formulate a rule of general maritime law to apply in such situations. Likewise, Congress has enacted no law that deals with liability for collisions that occur in U.S. waters or the high seas, and it was appropriate and necessary for the courts to do so. It is submitted, that in these situations, a uniform rule of the general maritime law promotes an important national interest because such rules are expressions of national sovereignty and fill a vacuum in the law just as statutes and international agreements do. A uniform rule, to be applied in situations that are beyond the jurisdiction of any state, whether formulated by Congress or the courts is within the “national interests” inherent in the Admiralty Clause.

Having said this, it should be acknowledged that as waters approach the coast of the various states, the interest of the respective states in events, transactions and resources in or under those waters becomes evident. There has been some debate as to whether waters lying within three miles off the coast of states are subject to “state sovereignty” except to the extent that the Constitution has given the national government specific powers with respect to those waters, such as under the Commerce power, the War power, etc.¹²⁶ The United States Supreme Court has held that the federal government and not the states has “sovereignty” over these waters.¹²⁷ Some have said that this decision has been rejected subsequently by Congress itself.¹²⁸ For purposes of this Article the issue is moot because both Congress and the courts have confirmed that, under certain circumstances, states have interests in matters that occur off their coasts.¹²⁹ Thus, in applying my suggested choice-of law analysis the complicating factor in using “sovereign interests” as a type of “national interest” is that, in the United States, sovereignty can be shared between the federal and state governments.

From as early as 1789 Congress permitted state regulation of maritime commerce by authorizing states to adopt pilotage laws to apply to ports in the United States.¹³⁰ The United States Supreme Court upheld this statute in
the well-known Cooley case.¹³¹ More recently, Congress has provided for
the application of state law in certain U.S. waters. The Submerged Lands
Act (as successor to the Lands Act) essentially gives the states rights in the lands under waters extending seaward three miles from their coasts.¹³²
The Outer Continental Shelf Lands Act also provides that state law, to the extent it is not inconsistent with federal law, applies to events and transactions that occur on the outer-continental shelf beyond the three mile limit.¹³³ Likewise the Abandoned Shipwreck Act gives states title to sunken vessels embedded below state waters not only within state territorial limits but also extending seaward three miles from the coast.¹³⁴ That statute specifically abrogates the maritime law of salvage and finds in such cases. The Death on the High Seas Act does not apply to deaths that occur within three miles from shore and specifically preserves the application of state law.¹³⁵ The Yamaha case not only confirmed this view of the statute but also, in certain cases, refused to preempt state remedies in favor of the general maritime law remedies. The Supreme Court, itself has recognized a special state interest in the natural resources of the sea such as its marine life within the three mile limit.¹³⁶ The upshot of all of this is that both Congress and the courts have recognized that states have interests and state law may apply to events that occur in waters over which the United States has “sovereignty.” As a matter of fact, it is common to refer to the waters that lie seaward within three miles off the coast of a state as “state territorial waters.”¹³⁷ State interests are even more evident in regard to navigable waters that lie within the body of a state.

Despite the willingness of Congress to grant states certain rights with respect to both coastal waters and inland waters, and despite the willingness of courts to recognize, in certain instances, that states have special interests in waters off their coast or within their boundaries, the interests of the United States do not evaporate as vessels navigate from U.S. waters to port or as vessels navigate inland waters. On the other hand, not everything that happens on coastal and inland waters implicates national interests and does not necessarily require uniformity to protect or promote national interests. Just as Congress has been sensitive to state interests, so courts in determining whether or not to formulate a preemptive rule or to apply state law should be sensitive to state interests.

It seems generally agreed that, at the time the Admiralty Clause was inserted into the Constitution, the phrase “admiralty and maritime law” embraced customary rules that were applied by seafaring nations. Thus, part of the maritime law of that time was transnational in form.¹³⁸ The rules that related to collisions on the high seas, for example, were not considered the particular, parochial province of any single nation. The same may be said today of the law of salvage, maritime liens and the rules of general average. Each nation must adopt or incorporate these rules into its own system of law as it sees fit. In part, the transnational aspect of certain rules of maritime law reflects the reality that no nation owns the high seas, and no nation may impose its law on other nations whose vessels travel the high seas. In part, transnational law reflects custom, tradition, commercial practice, necessity and convenience. It is also evolving and not fixed. Thus, where a case involves issues that lie within a sphere of what can be truly considered as transnational in character, there is an important national interest in articulating a uniform, preemptive federal rule.¹³⁹ This is particularly true where a dispute arises out of events that occur on the high seas beyond the jurisdiction of any country. It is also true when a dispute arises in an area where unique rules of maritime law have been developed and are applied by most maritime nations, as for example, salvage,¹⁴⁰ maritime liens, maintenance and cure and general average.

Even where courts are not called upon to adjudicate disputes in the context of transnational law, there are situations where there may be a dominant or important international aspect to a case. Courts are sometimes faced with situations where foreign nations or their citizens are involved in a dispute
and where only some or none of the underlying facts occurred in the
United States. These situations can and do occur because the scope of admiralty jurisdiction in the United States, is very broad. In such situations, in the absence of statute, it is appropriate for federal courts to fashion rules of general maritime law to resolve such disputes. Commentators have observed that one of the purposes underlying the Admiralty Clause was the need to protect the interests of foreign litigants and to give due regard to the interests of foreign nations.¹⁴¹ It is in this context that the federal admiralty doctrine of forum non conveniens is applied to enable courts to determine which of these disputes remain in the U.S. and which must be dismissed and relegated to a foreign tribunal. For those suits that remain in the U.S., the courts must decide which rules of law apply. The application of uniform rules to disputes that have an international dimension accords proper respect to international litigants and generates confidence in the U.S. judicial system.¹⁴² Although not always the case, such disputes almost invariably grow out of activities or transactions involving maritime commerce which, as discussed below, presents its own strong case for uniformity.

Some maritime disputes do not fall within the sphere of transnational law or may have no international dimension. Many maritime disputes implicate only U.S. parties, U.S. law and stem from events or transactions that occurred solely within the U.S. Nevertheless, even in such cases, there may still be a clearly identifiable national interest that requires the formulation of preemptive federal rules. No one can deny that there is a relationship between the conferral of congressional authority over interstate and foreign commerce and the Admiralty Clause.¹⁴³ Interstate and foreign commerce in the era of the Constitution was virtually synonymous with waterborne commerce. It is accepted that the Commerce Clause reflects the view that the country is a single economic unit and that among the purposes of the Commerce Clause is the promotion of commerce and the prevention of interference by the states. Thus, a lack of uniformity may interfere with or burden maritime commerce as vessels move from state to state or country to country.¹⁴⁴ In this sense, there is a national interest in uniformity. National rules in the form of the general maritime law may be necessary to subject an industry to a single standard where the imposition of multiple standards would make it commercially burdensome for maritime commerce to operate efficiently. National rules in the form of the general maritime law may be necessary to remove provincial, discriminatory measures. In some instances, the burden of non-uniformity on the maritime industry is simply too great.

The determination of whether a “national interest” is implicated should be made in the context of the particular case, thus differing from the approach used in making the “nexus” inquiry in determining admiralty tort jurisdiction. In the latter situation, the jurisdictional inquiry is made at an intermediate level of abstraction. In other words, a court is not required to find that, under the facts of the case before it, there was some interference with traditional maritime activity, but only that in events and activities similar to the one at hand, there could have been an interference with traditional maritime activity. Under the choice-of-law approach suggested in this paper, the impact on the national interest must be determined in the context of the facts and issues before the court.¹⁴⁵ In other words, uniformity should not be viewed as an end in itself but as a means of protecting or promoting important national maritime interests. Thus, if there was a collision involving a vessel engaged in interstate commerce, the national interest in the protection of commerce could be implicated. By contrast, if a water skier was injured by a recreational boater, one might find it difficult to identify any national interest that would be promoted by the application of a uniform rule or any national interest that would be undermined by the application of non-uniform state law.

Professor Friedell has indicated that “. . . employing some form of interest analysis to resolve federal-state conflicts in admiralty can serve the desirable goals of accommodating important state concerns and of being responsive, in appropriate cases, to the will of Congress that state interests be taken into account.” He tempers this view by stating that “interest analysis is not an ideal means for resolving all conflicts and must be used with caution.¹⁴⁶ Professor Robertson, who formerly favored an “interest analysis” approach, has now rejected it because, in the end, he finds that its subjectivity precludes it from providing meaningful guidelines to the courts.¹⁴⁷ There are others who are also critical.¹⁴⁸

My proposal, however, is not a pure “interest analysis” or “interest balancing” approach. Under a pure “interest analysis”-“interest-balancing” approach, the court identifies competing interests and then weighs them to determine which interest prevails. To the extent that “interest analysis” involves a weighing process, decision-makers allocate the weight to be given to the respective interests as appears appropriate to them. Assigning weight to an interest might entail the same subjectivity as in the application of the Jensen factors. In other words, using “interest analysis” as the choice-of-law rule creates a risk that it may not be any better guide than the Jensen rule, and that judges may manipulate the weighing process to reach results they were inclined to reach regardless of the applicable rule. Furthermore, there are cases where the competing interests are of comparable weight or where the interests do not readily lend themselves to comparison. That type of “interest analysis” and “interest balancing” is not what I propose.

My proposal is that in any situation where the burden of non-uniformity on a national interest as described above is substantial or the benefit of uniformity to a national interest is substantial, uniformity and preemption should trump federalism. Recall too that my definition of a “substantial” national interest is one that is not “marginal” or “minimal.” In such situations there should be no weighing of the federal interest against the state interest. Likewise, where there is no competing state interest or where that interest is at best minimal or marginal, uniformity and preemption should prevail. Again there would be no weighing of the federal and state interests. However, where the national interest at best is minimal or marginal and the state interest is substantial, or where there is no national interest, the state rule should prevail.

Thus, it may be possible to structure a choice-of-law rule so as to reduce some of the subjectivity that otherwise inheres in a general “interest analysis”-“interest balancing” rule in conflicts of law. Of course, in the absence of an absolute rule that uniformity always trumps state law, there will always be some subjectivity in any choice-of law-rule. Even the seemingly mechanical procedure-substantive distinction used by Justice Scalia will not be free of subjectivity. The rule that I suggest is no exception. Identifying a national interest, may be subjective to some extent and it is not foolproof. Likewise, trying to determine whether a national interest underlying the Admiralty Clause will be substantially furthered by a uniform rule or substantially undermined by a non-uniform rule may be difficult in some cases.

Nevertheless, the question I put before you is whether or not the approach I have suggested is better than Jensen or what we are doing now. I believe it is because it provides a better analytical framework for judges to resolve conflicts between federal and state law in maritime cases. It requires a court first to identify the federal and state rules that might be applicable to resolve the issue before them and to determine whether or not they are in conflict. In the absence of an established state rule, there is no conflict. In the absence of an established federal rule, the court must determine whether or not one should be formulated. In the end, if there is conflict, the court must decide whether to displace state law. That decision, however, does not invariably involve weighing competing interests and this is what distinguishes my proposal from the application of a general “interest analysis” rule in conflicts of laws. If a court finds that a uniform rule would substantially promote a national interest underlying the Admiralty Clause, then it should apply that rule, and if, no rule presently exists, it should formulate a rule. In such circumstances, the court should ignore any competing state interest. If a court finds that a uniform rule will not promote a national interest underlying the Admiralty Clause, it should apply state law.¹⁴⁹ It is only where a uniform rule would promote or protect a national interest in only some marginal or minimal degree that a weighing process would be necessary. In these situations, a strong state interest should dictate the application of the state rule. This approach can be illustrated in Jensen.

The Jensen criteria make no attempt to identify a national interest and to evaluate the importance of uniformity to that national interest. They make no concession to situations where the detriment to a national interest as a result of non-uniformity is minimal and the detriment to the state interest in not allowing the application of state law is substantial. This was the case in Jensen itself. The national interest was present only in that compensation was payable by a segment of the maritime industry that played an important role in international and interstate commerce. Although it may be more convenient to the maritime industry to have the benefit of the Federal Longshore and Harbor Workers’ Compensation Act, what was the detriment to the national interest in requiring stevedores and other land-based employers of maritime workers to pay compensation under the law of the state where their place of business was located even where an employee was injured on navigable waters? The law on this subject is not customary or transnational in nature. Compensation benefits for local workers does not impinge on national sovereignty. Providing compensation for injured land-based employees from their local land-based employers does not implicate international or even interstate transactions or activities. A contrary ruling in Jensen would not have subjected stevedores to the laws of different states. Admittedly stevedores may provide services to ships from various countries or states. But how do the rules on workers compensation affect those services? They don’t, except to the extent that they may affect the cost of those services. The cost of stevedoring services may be affected by many local factors such as state and local taxes. Furthermore, those costs would be imposed even under a uniform federal compensation scheme. The crucial point is that, although workers’ compensation laws may vary from state to state, that is, they are non-uniform, this lack of uniformity does not work to the detriment of national interests in promoting and protecting international and interstate commerce. By contrast, the interest to the state in securing compensation to injured employees or their families is evident and substantial.

Professor Robertson, who has criticized the various choice-of-law rules that have been used in admiralty cases, has proposed a choice-of-law approach of his own. This may be characterized as a two-track approach because one set of rules applies to actions in federal courts and another set applies to actions in state courts.¹⁵⁰ Under this approach, federal courts should not apply state law if the issue is controlled by an Act of Congress, is procedural, conflicts with the general maritime law or if it “would significantly impair the free flow of maritime commerce.” State courts should not apply state law if the issue in the case is controlled by an Act of Congress or if it is controlled by a clear rule of the general maritime law. Explicit in the proposal is the proposition that state law is preempted by the general maritime law only where the federal rule is “clear” and not where it is “controversial,” “unclear” or “doubtfully applicable”.¹⁵¹ Also, state courts are bound to follow clear federal rules propounded not only by the Supreme Court but those issued by lower federal courts as well.¹⁵² The touchstone is clarity. He observes that a single federal decision may provide such clarity, whereas, in other situations, the law may be unclear despite the fact that there may be numerous decisions.

It is submitted that his approach to choice of law, like all the others, also has a subjective element. Furthermore, I believe it raises a serious constitutional issue because, in admiralty cases, state supreme courts, and, perhaps, even state legislatures would be bound by the decisions of lower federal courts. In no other area of law, not even in the area of constitutional law, is that the case.

His proposed approach is also bound to promote forum shopping. If a litigant prefers the state rule over what appears to be the federal rule in the place of suit, he would be encouraged to sue in state court and to try to persuade the state court that there is no “clear” federal rule. If the litigant preferred the federal rule in the place where suit is brought, then he would sue in federal court. Likewise, the proposal would not promote uniformity because, in identical situations, state law may apply to litigants who sue in state court and, perhaps, a different rule would apply to litigants who sue in federal court. Finally, his approach denies state courts any role in the creation of general maritime law.¹⁵³ Professor Robertson believes that state courts can only make state law; they cannot formulate rules of general maritime law. I disagree. Admittedly, no decision of a state court that purports to formulate a rule of general maritime law is binding on any federal court or on a court of any other state. But similarly, no decision of a United States District Court is binding on any federal court, not even on judges within the same judicial district. Currently, decisions of federal courts, other than the Supreme Court of the United States, are not binding precedents on state courts, although Professor Robertson would change this.

The primary basis for our difference on this point is my belief that in the early period of our history, the substantive rules applied in maritime cases were presumed to be the same whether the case was tried in federal or state court.¹⁵⁴ The judges of that period, federal or state, relied on the same sources. This, presumably, was why the saving to suitors proviso was expected to be workable. Federal and state courts were expected to fashion a common body of law. With the expansion of admiralty jurisdiction and the application of maritime law to matters that could not have been contemplated when the Constitution was written, it has become impossible to retain that degree of uniformity. Nevertheless, today if a state court entertained a case arising out of a collision on the high seas that raised a novel issue of law, I would not expect the state court to feel bound to apply state law or to apply state law by analogy. I would expect a state judge to do exactly what a federal district judge would do, that is, look for analogies in collision law, search for general principles applied in collision cases, and look at how the courts of other countries have dealt with the situation, etc.

I have already applied my suggested approach to the Jensen facts, and I would now like to apply it to a few more cases. In Yamaha,¹⁵⁵ the issue was whether or not a general maritime rule on damages should displace state law in a wrongful death action filed by the parents of a deceased child against the manufacturer of a jet ski that the decedent was operating in state waters when it collided with another pleasure craft. The first step is to look for congressional preemption. Congress has passed a wrongful death statute but that only applies on the high seas.¹⁵⁶ That statute, however, expressly states that it does not affect state wrongful death statutes.¹⁵⁷ Therefore, not only has Congress not preempted state statutes, it has lent legitimacy to them. Furthermore, Congress has recently amended the DOHSA to specifically authorize the application of state remedies, including the recovery of non-pecuniary damages where death results from a commercial air crash in waters up to twelve miles from shore.¹⁵⁸

Secondly, what national interest would be promoted by a uniform rule or what national interest would be impaired if state law applied to cases involving only recreational boaters? Of crucial importance to me is the fact that the issue in the case does not come within an area of law that impinges on national sovereignty. The federal rule is not transnational. The dispute does not implicate international concerns and it has nothing at all to do with international or interstate commerce. In fact, it has nothing to do with commerce or the transportation of goods and passengers from one place to another. The absence of these factors must have carried some weight with the Court because it focused on and stressed the fact that the decedent was a “non-seafarer,” meaning that she was not in the maritime business. On the other hand, states have historically provided the primary relief in wrongful death actions, including maritime wrongful death actions, and, in the absence of some right of recovery against tortfeasors, states might have to assume some financial responsibility for a deceased’s dependents. I conclude that there was no national interest at stake that required the protection of a uniform rule.¹⁵⁹
I would apply the same rule in injury cases as well.

Next, I will apply the suggested choice-of-law rule to a decision by the Louisiana Supreme Court in which that court applied a Louisiana statute in a suit brought by a passenger to recover damages for injuries sustained as result of the crash of a helicopter on the high seas.¹⁶⁰ The Louisiana statute provided for strict liability. I believe the court was correct.¹⁶¹ This case had nothing to do with the maritime industry. It involved the aircraft industry. Admittedly, a crash on the high seas by a vehicle transporting passengers over a stretch of the sea implicates national interests. Some courts have held, in such situations, that admiralty jurisdiction is present and that substantive rules of maritime law are applicable, inasmuch as the aircraft are fulfilling a role traditionally played by ships. These courts have distinguished the Executive Jet decision where the Supreme Court held that a transcontinental flight over navigable waters did not have a sufficient connection with traditional maritime activity to come within admiralty jurisdiction.

The Louisiana court recognized that maritime law deals with the transport of goods and passengers by vessels, not transport by aircraft. Aircraft owners and their planes and helicopters are not subject to COGSA or the Harter Act, they cannot avail themselves of the Shipowners’ Limitation of Liability Act, their employees are not seaman or longshoremen or harbor workers. Their aircraft are not subject to maritime liens. In other words, aircraft are not ships, and the activities of aircraft, whether they fly over water or not, are not the type of maritime commerce that prompted the need for uniformity under the Admiralty Clause. The only fact that points to maritime law is that DOHSA would have been the exclusive remedy had the passenger been killed in the crash.

All of the parties were Louisiana citizens. The company that owned and operated the helicopters was a Louisiana company. The helicopters were based and maintained in Louisiana. The flight took off from Louisiana and was to terminate in Louisiana. If the crash had occurred in Louisiana, the statute clearly would have applied. The statute did not single out the maritime industry. It was a statute of general application. Certainly the interest of the state in protecting its citizens from injury caused by dangerous instrumentalities is not insignificant. Therefore, in the absence of a national interest linked to the Admiralty Clause that requires uniformity, I would not displace state law. If, however, plaintiff had been injured on a crew boat in the Gulf of Mexico that would be a different matter.

The American Dredging case,¹⁶² a case that held that Louisiana courts do not have to apply the federal forum non conveniens rule, will be examined now. In this case, the majority opinion did not focus on either a national interest or a competing state interest. The issue was simply whether in a Jones Act case brought in a Louisiana state court, the Louisiana court could ignore the federal forum non conveniens rule that is applied in admiralty cases and instead apply state law which precluded dismissal on such grounds. The court first applied the Jensen tests and found that they did not preclude the application of state law. The court went to great pains to point out that forum non conveniens did not originate in admiralty and was not unique to admiralty law. The court found that the application of the state law on forum non conveniens would not interfere with the uniformity and harmony of admiralty law because the state court was obligated to apply federal admiralty law to the merits of the case. Basically, the case relied on an old rule of conflicts of law in which the forum state applies its own procedural law.¹⁶³

By contrast the dissent recognized that the federal forum non conveniens rule plays a vital role in admiralty. It recognized the international nature of maritime commerce and that litigation was frequently initiated in the U.S. involving foreign litigants and transactions and events that arose outside of the U.S. The dissent found that a uniform rule of forum non conveniens did substantially promote national interests. The rule respects the sovereignty of foreign courts, it protects persons from vexatious litigation in an inconvenient forum and is necessary to prevent an exercise of extravagant admiralty jurisdiction. Even though the facts of this case involved only U.S. actors, a national interest in uniformity could have been found in the fact that a federal statute provided the substantive law for the case and there should not be a lack of uniformity in cases where federal law applied. Although the Jones Act tolerates some degree of forum shopping in that plaintiffs may select a federal or state forum, the interest in a convenient forum outweighs any state interest. Thus, the dissent made a strong case that uniformity was necessary to promote and protect national interests clearly contemplated by the Admiralty Clause. I agree with the approach of the dissent. It essentially uses an approach similar to the one I have suggested.

The last “real” case I will address is the Amtrak case.¹⁶⁴ At the outset, I suggest that particular care in appraising national interests should be exercised in cases where admiralty jurisdiction is based on the Admiralty Extension Act because it is in these situations where the doctrine of federalism is most sensitive. The Admiralty Extension Act was intended to “extend” the benefits of maritime law to persons who suffered injury on land. It is clear, in the legislative history, that the Act was primarily motivated to extend to land-based parties the maritime tort rule of comparative fault thereby ameliorating the draconian “contributory negligence” rule which otherwise would have been a complete defense to their claim. There is nothing in the legislative history to show that by extending beneficial maritime rules to persons sustaining injury on land, Congress intended that maritime law would take away remedies that persons who suffered land-based injuries had under state law.¹⁶⁵ The purpose of the AEA was to provide remedies to land-based parties not to diminish remedies that they already had.

I am reluctant to say too much about the Amtrak case, because I provided consulting services to counsel for some of the litigants. In that case, the Eleventh Circuit ruled, inter alia, that passengers on a train who were killed when a railroad bridge collapsed because its support had been damaged as a result of an allision by a vessel in navigable waters could not recover punitive damages under the Alabama wrongful death law. In reaching this conclusion, the court relied on the AEA to find admiralty jurisdiction. Applying Jensen, it then disallowed the recovery of punitive damages under state law because, the state standard for recovery of punitive damages varied from the general maritime law and state law did not allow for apportionment of damages among joint tortfeasors. The state statute breached the rule of uniformity, although the holding in Yamaha would lead one to conclude that uniformity is not critical in actions based on the wrongful death of non-seafarers in state waters. Thus, a jurisdictional statute intended by Congress to enhance the position of persons injured on the land was turned on its head because the local law provided a remedy that was more generous or different from that supposedly available under maritime law. The AEA, however, was not intended to benefit shipowners; its purpose was to impose liability on shipowners. I submit that the AEA should not be applied so as to undermine state remedies. The Act brings maritime tort law ashore. It is in situations like this that state interests are clearly implicated and should not be ignored.

This paper focuses on choice of law. It does address the criteria for admiralty jurisdiction.¹⁶⁶ One may fairly ask, why should the criteria for determining admiralty jurisdiction be different from the choice-of-law rules? Why should federal courts have admiralty jurisdiction over cases which ultimately will be resolved by the application of state law? There may be some merit in having a broad rule of jurisdiction because this would enable federal courts in cases within admiralty jurisdiction to apply the appropriate choice-of-law rule. This would allow federal courts to play a meaningful role in protecting the “uniformity” dimension of the Admiralty Clause. Professor Stolz concluded that such an approach could “be justified as some theory of ‘protective jurisdiction,’” because every case will involve a question whether there is a commercial (and, therefore, federal) concern with the case.” Under the approach suggested in this Article, federal courts in making the federal choice-of-law rule will decide whether or not uniformity is necessary to protect or protect a “national interest.”¹⁶⁷ Thus, under the approach I have suggested, the term “recreational boater” is not a talisman for the application of state tort law. There may be cases where the parties include both recreational boaters and commercial interests, for example, where a jet ski collides with a commercial vessel. Such situations will require a different analysis.

Finally, let me address the hypothetical, not as the fictional Supreme Court did, but using the approach I have suggested. Admiralty jurisdiction is based on the Admiralty Extension Act and, as stated above, the AEA was intended to extend the liability of vessel owners. In the hypothetical, there is a federal interest in defining a standard of conduct to be observed by those who operate vessels on navigable waters. Maritime law should not only protect the maritime industry, but it should also require the maritime industry to pay its way. In using the general maritime liability rule, the latter interest is promoted because Gaming, Inc. would be held liable. Furthermore, one could argue that holding vessel owners liable for the conduct of persons who become intoxicated on their vessels promotes safety because it provides an incentive to vessel owners to prevent people from becoming intoxicated on their vessels. Intoxicated persons on vessels could become disruptive and interfere with the safe navigation of the vessel.

As to the latter argument, it is merely an extension of the view that everything that occurs on a vessel in navigable waters might in some manner or under certain circumstances pose a threat to navigation. This view would always justify a uniform law for all vessels regardless of the activity in which the vessel is engaged and regardless of the fact that the national interest in uniformity may be speculative or minimal in a particular situation. I have already disagreed with this position in regard to pleasure craft. I think the same analysis applies to the hypothetical. There are much more direct and effective means for controlling behavior on vessels than by using a federal liability rule to displace state law. The prevention of automobile accidents by drivers who get drunk on ships is not, in my opinion, an objective of maritime law that fits comfortably within the Admiralty Clause and the uniformity it seeks to promote.

As stated above, the choice-of law-decision in AEA cases requires special care. The hypothetical does not involve an issue of the liability of Gaming, Inc. to its employees for injuries sustained in the course of employment. Such cases may turn on the applicability of federal rules relating to the remedies for seamen or persons covered by the LHWCA. The hypothetical does not involve injuries caused by a collision of the LUCKY CAJUN with another vessel or even an allision with a pier or bridge. The vessel sails only in state waters. It is not engaged in interstate or foreign commerce in the sense that it does not transport or facilitate the transportation of goods or people in interstate or foreign commerce. The transportation function itself is minimal. Except for the fact that the vessel derives a profit from the gambling activities on the vessel, the situation is more analogous to pleasure boating situations than to traditional maritime commerce. Most importantly, the hypothetical involves a vessel only in the most marginal way. At the time of the incident in question the vessel was safely berthed. The vehicle that really caused the injury was an automobile not a vessel. The operator of the automobile was not an employee of the vessel owner. The case is about an ordinary automobile accident that occurred ten miles from the water. What federal interest will be served by the application of federal law to resolve the dispute that the Joneses and Browns have with Gaming, Inc.?

On the other hand, there is an important state interest in providing rules to deal with alcohol consumption and the operation of motor vehicles. There is also an important state interest in providing rules relating to the dispensation of alcoholic beverages within the state, including state waters. Those rules may regulate the conduct of alcohol suppliers and impose liability on those who violate the rules. The gaming industry is under heavy state regulation as is the alcoholic beverage industry. I would conclude that the federal maritime interest that would be served by imposing a uniform rule of liability on gambling ship operators whose vessels sail only in state waters for brief periods of time for automobile accidents in which their patrons are involved is marginal at best and, that the state interest in creating laws to deal with these situations is substantial. Although the application of the Louisiana Anti-Dram Shop statute in this case would result in a decision for Gaming, Inc., the result would be otherwise in the majority of states that have adopted dram shop liability rules that impose liability on the suppliers of alcohol.¹⁶⁸

Previously, I stated that the Admiralty Extension Act provided maritime remedies to events that have their impact on land, and that the Act extends the liability of ship owners and operators to injury or damage that occurs on land. Does the application of my choice-of-law approach to the hypothetical which leads to the application of state law and the denial of relief to the injured parties against the shipowner contradict the purposes of the Admiralty Extension Act? I do not believe so. The Act was intended to level the playing field so that parties involved in a common incident would both be bound by the same rules of liability. Despite the fact that the Admiralty Extension Act literally fits the facts of the hypothetical, there is nothing in the language of the Act or in its legislative history from which one could conclude that it was intended to extend maritime law to automobile accidents that occur on land. I believe that the application of maritime law to the suit against Gaming, Inc. would be an extravagant application of the Admiralty Extension Act and would trivialize the Admiralty Clause. In my view the facts simply do not implicate any national interest.

In conclusion, I am fearful that in our quest for uniformity, we may win some battles but ultimately lose the war. As admiralty jurisdiction and maritime law encroach on matters of great local importance to states or as they move inland, political pressure is generated on Congress to temper this expansion. This is what happened with the passage of the Abandoned Shipwreck Act and the Oil Pollution Act of 1990. Furthermore, just as it would trivialize the importance of admiralty jurisdiction and the uniform general maritime law to extend jurisdiction and the application of maritime law to a “collision” between two persons swimming in navigable waters, so does the extension of admiralty law to certain incidents involving recreational boaters and automobile accidents resulting from the consumption of alcohol on local gambling ships or on so-called booze cruises. Unless we apply some brakes to the extension of admiralty law into local matters, we may undermine the integrity of the role of maritime law in furthering national interests. Unless we confine maritime law to areas where our national interests require it, we tempt a future Supreme Court with little knowledge of maritime law and the movement for international unification to subject maritime law to the rationale of Erie.

In the end, I hope I have persuaded you that, at best, Jensen is not helpful and, at worst, that it is a bad rule. I hope that I have shown that the Maritime Law Association, through its amicus briefs, can play an important role in helping the Supreme Court formulate a better rule for determining when state law may displace the general maritime law. In this respect I challenge you to come up with a better rule than Jensen.
 
 
  To view the footnotes, please use the Back button, then download the entire Report in PDF.