AHOY! For smooth sailing to pure comparative fault judgments, consider Amiralty Law
Katy J. Lewis
A Practitioner's Checklist for Admiralty Jurisdiction
Admiralty law is generally thought to be a specialty area of the law, limited to those attorneys who practice in coastal cities with heavy maritime commercial activity. However, Tennessee admiralty cases are not as rare as most Tennessee practitioners would assume. Thanks in large part to Tennessee's extensive system of rivers and lakes, admiralty law is indeed a viable choice of law available to many litigants.
To those unfamiliar with admiralty law, it is an area of law usually thought to be fraught with scores of archaic seafaring edicts. In truth, admiralty law, once the case law has been adequately digested, is relatively uncomplicated in practice.
A primary problem with admiralty law is the large number of misapprehensions surrounding admiralty law. Many attorneys avoid admiralty law practice due to these false impressions. Some of the most common admiralty law misconceptions are debunked below.
Admiralty law only applies to seafaring and/or commercial
vessels: FALSE
The law of admiralty is not limited to the adjudication of disputes involving vessels of the high seas or commercial vessels. Admiralty
law is also applicable to recreational vessels, such as bass boats, ski boats,
houseboats, pontoon boats, and even jet skis.
Admiralty law only applies when an accident occurs in the
ocean: FALSE
Admiralty law does not require that the location of the
accident occur in the ocean. Litigants whose accident occurred on inland bodies
of water, such as rivers, lakes, and even sloughs, may meet the requirements
for admiralty jurisdiction.
Only federal courts can adjudicate admiralty causes of
action: FALSE
Many practitioners may have qualms over filing an admiralty suit because they dread federal court actions. This is yet another myth that deserves to be discredited. Thanks to the "savings to suitors clause" found in the United States Code,1 plaintiffs are afforded the choice of filing their claim in federal or state court. Regardless of whether a federal or state court tries the admiralty suit, federal substantive law governs the resolution of all admiralty actions.
Admiralty law allows the application of pure comparative
fault: TRUE
Admiralty law is replete with advantages over the laws of
most states, including Tennessee. One of the most important distinctions
between Tennessee law and admiralty law is that admiralty law allows for pure
comparative fault allocations. To the lawyer who fears a Tennessee jury might
be persuaded his client was at least 50 percent at fault in the happening of
the accident, admiralty law appears to be an excellent way to ensure a recovery
for the client.
Now that the most prevalent misconceptions concerning admiralty law have been discredited, you should give some thought as to whether any of your cases could be brought under admiralty jurisdiction.
Does your case meet the requirements for admiralty jurisdiction?
Admiralty Jurisdiction Test
The United States Supreme Court in Grubart Inc. v. Great Lakes Dock & Dredge Co.,2 enunciated the proper test to be followed when determining whether a case properly lies in admiralty jurisdiction. To paraphrase Grubart: "A party seeking to invoke admiralty jurisdiction over a tort claim must satisfy conditions both of location and of connection with maritime activity."
The location condition is satisfied provided that the injury at issue was caused on or by a vessel on navigable water. Thus, the location prong requires a party seeking to bring his claim under admiralty law to prove both that a vessel was involved and that the vessel was on navigable waters at that time.
The connection condition likewise requires the fulfillment of two elements. First, the plaintiff must show that the accident had the potential to disrupt maritime commerce. The second element of the connection prong requires the petitioner to show that a traditional maritime activity was engaged in at the time of the accident.
Therefore, in order for admiralty jurisdiction to lie, the court must determine that the location and connection conditions, in conjunction with their essential elements, have been satisfied. The various aspects of the requisite conditions are discussed individually below.
Location Prong: vessel & navigable waters
What is a vessel?
When defining what constitutes a vessel under admiralty law, no distinction is made between commercial and non-commercial watercraft. "Vessel" has been defined by Congress and admiralty case law as "every description of watercraft or artificial contrivance used, or capable of being used, as a means of transportation on water."3 Therefore, the term "vessel" as used in admiralty law, is inclusive of just about every sort of watercraft imaginable.
The limits of this definition are rarely disputed. For practical purposes, barges, bass boats, pleasure craft, and even personal watercraft, such as jet skis, are considered to be vessels for admiralty jurisdiction purposes. Some courts have even gone so far to say that the definition of vessel may well include, "the three men in a tub," or "Jonah inside the whale." Accordingly, the location condition's "vessel" requirement is easy to meet.
What are navigable waters?
Case Law Interpretation. The Daniel Ball,4 an 1871 United States Supreme Court case, set forth the definition of "navigable waters" as it relates to admiralty law issues. This definition is ostensibly comprehensive. However, The Daniel Ball's definition is also incredibly difficult to digest. The gist of the court's definition of "navigable waters" rests on the notion of the waterway's susceptibility of being used as a highway for interstate commerce. That is to say, if any sort of vessel can navigate the waterway, courts are to consider that as evidence that the waterway is susceptible of being used as a highway of commerce. A recent summary judgment opinion by the Hon. Allan R. Edgar, a federal district court judge in Chattanooga, in Vanderpool v. Edmondson5 illustrates this principle.
In Vanderpool, a guest passenger was struck and injured by a boat propeller. At the time of the accident, the boat was anchored in a narrow and shallow slough off the Tennessee River. The slough was accessible only by pleasure craft. The Vanderpools brought their claim to federal court under admiralty law. The Edmondsons, arguing that the requirements for admiralty jurisdiction were not met, moved for summary judgment on the basis that the slough was not a navigable waterway.
When addressing the issue of what constitutes "navigable waters," particularly with respect to recreational boating accidents, Judge Edgar held that the fact that the slough in question may only be used by pleasure craft does not defeat the application of admiralty law. Specifically, Judge Edgar stated, "that the slough may be used only by pleasure craft, or that is may be a narrow or shallow waterway, is irrelevant where the slough is clearly navigable [even if only for recreational boating]. The slough is susceptible of being used as a highway of interstate commerce, even if it is not used as such on a regular basis. Accordingly, the tort occurred on navigable waters." This brief paragraph within the Vanderpool opinion is a fundamental recitation of the navigable waters requirement of admiralty law.
Federal Agency Interpretation. United States Army Corps of Engineers: The United Army Corps of Engineers definition of navigable waters of the U.S. in 33 CFR Part 329 et seq. closely conforms to the The Daniel Ball's definition of navigable waters. The Corps of Engineers' definition of navigable waters similarly rests upon the concept of a waterway's susceptibility for use as a highway for interstate commerce. However, the latter portion of the Corps of Engineers' definition goes further than The Daniel Ball's definition and provides that "a determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity." This latter portion Corps of Engineers' definition provides a measure of assurance to practitioners who fear the condition of the waterway at the time of the accident will prevent the application of admiralty jurisdiction.
When considering a potential admiralty cause of action, it is strongly recommended that you contact your local district office of the Corps of Engineers to ascertain whether a determination of navigability has been made as to that particular water body. If such a finding has been made by the Corps of Engineers, it carries substantial weight to a reviewing court's decision.
In order to shore up your grounds for bringing a cause of action under admiralty law, you should ask your local district office of the Corps of Engineers to provide you with an affidavit stating that the waterway on which that accident occurred is a navigable waterway.
Although the determination of navigability made by a federal agency is to be accorded substantial weight by the reviewing court, it is within the exclusive province of federal courts to conclusively establish a water body as navigable. Once a federal court has identified a waterway as navigable, such authority should be followed.
Tennessee Valley Authority (TVA): TVA, a federal agency, possesses a great deal of control over rivers, lakes, reservoirs and creeks in Tennessee. One of TVA's primary objectives is to improve the navigability of the Tennessee River and other waterways. Therefore, an affidavit by a TVA official, preferably one employed in the Navigation division, as to the navigability of a particular body of water should buttress your argument as to the water's navigability. Again, since TVA is a federal agency, its findings will carry substantial weight with the reviewing court.
United States Coast Guard: The United States Coast Guard definition of a navigable waterway is located at 33 C.F.R. Part 2. The Coast Guard's navigability definition appears to be particularly dense. However, Section 2.05-25, Navigable Waters of the United States; Navigable Waters; Territorial, contains the relevant information: unless Congress has specifically declared water not to be navigable, all water is navigable to the Coast Guard. The Coast Guard often undertakes navigability studies and makes public their findings of whether a body of water is navigable for purposes of Coast Guard jurisdiction. Upon request, the Coast Guard may undertake a navigability study of a particular water body or revise its previous finding.
Steps to determining whether a water body is navigable. First, look to the case law to see if a court has previously held the water body at issue in your present litigation to be navigable. Federal authority is more likely to be more persuasive than state court authority as to a waterway's navigability. If no case law exists to support your proposition of the navigability of the particular waterway, look to federal agencies such as the United States Army Corps of Engineers, the Tennessee Valley Authority, and the United States Coast Guard for determinations of navigability. Obtaining affidavits from these agencies will bolster your argument and should carry significant weight with the reviewing court.
Waters of the Tennessee River are navigable waters
Chattanooga Federal District Court Judge Allen R. Edgar conclusively determined the Richland Creek slough of the Tennessee River to be a navigable waterway in Vanderpool v. Edmondson. The slough was accessible from the river in several locations. That the slough was accessible only to pleasure craft, and/or that it was a narrow and shallow area of water, was deemed irrelevant. Judge Edgar held the water to be navigable based upon pleasure boats' ability to run about in the water body and therefore the slough was susceptible of interstate commerce.
Apart from Judge Edgar's helpful language in Vanderpool, the Tennessee River has been adjudicated as a navigable waterway for purposes of admiralty jurisdiction in a host of Tennessee cases.6
Connection Condition: Potential to disrupt traditional maritime activity
What is required for a showing of "Potential to Disrupt Maritime Commerce"?
The court must assess "whether the incident involved was of the sort with the potential to disrupt maritime commerce."7 The practitioner should note that emphasis must be placed on potential to disrupt maritime commerce. By the Supreme Court's use of the word "potential" in it admiralty opinions,8 there is no requirement that the petitioner prove that maritime commerce was actually disrupted. The event at issue need not actually disrupt maritime commerce. Moreover, the event at issue need not affect maritime commerce at that particular area of the water body.
When courts are determining whether an accident could potentially disrupt maritime commerce, the inquiry is focused on whether the accident, if removed to the busiest of maritime thoroughfares, had the potential of disrupting maritime commerce. Therefore, it is crucial that the practitioner emphasize to the reviewing court that the dearth of maritime commerce at the location of the accident is not the issue.
The issue for the court to determine is if the accident had occurred on a busy waterway on any date in time, whether such accident would have the potential of disrupting maritime commerce. Case law demonstrates that this query is generally a simple issue for the adjudicating court to resolve.9
What is a traditional maritime activity?
The second element of the connection prong requires courts to inquire whether the activity or activities on navigable waters that precipitated the accident are closely related to an activity traditionally subject to admiralty law. Restated, was the general nature of the activity that gave rise to the accident one that is considered to be traditionally maritime?
Whether the activity and/or vessel involved was commercial or non-commercial in nature is of no import to this determination. The traditional concern of admiralty law has been adherence to navigational rules. The failure to abide such navigational rules by commercial or non-commercial vessels implicates the very core of admiralty law: the protection of maritime commerce. Therefore, the navigation of a vessel on navigable waters is a traditional maritime activity sufficient to support admiralty jurisdiction. Justice Scalia in Sisson observed that "a vessel engages in traditional maritime activities for [admiralty] purposes when it navigates … when it lies in dock … and when it does anything else that vessels normally do in navigation."
Now that the requirements of admiralty jurisdiction have been discussed, there are a few more important points that should be noted.
Additional admiralty concerns
Who can hear admiralty claims?
The United States Constitution, Article III, Section 2, vests federal courts with jurisdiction over admiralty and maritime matters. Notwithstanding this provision, Congress implemented a "savings to suitors" clause in 28 U.S.C. §1333. The savings clause operates to "give a party injured in an incident occurring on the navigable waters of the United States the option of filing a claim in a state court instead of a federal court whenever the injured party is seeking a common law remedy (i.e., money damages)." Therefore, by operation of the "savings to suitors" clause, state courts are competent to adjudicate admiralty causes of action in which the defendant is a person (i.e., in personam) and not a vessel (i.e., in rem).
What substantive law applies:
Federal or state?
In admiralty claims, the applicable law is federal admiralty law, regardless of whether the claim is actually heard by a state court. The federal substantive law is applied in order to assure uniformity in admiralty decisions.
Is pure comparative fault available to admiralty claims?
Admiralty law follows pure comparative fault, as opposed to Tennessee's McIntyre10 rule of modified comparative fault. Therefore, by bringing a claim under admiralty jurisdiction, you obtain a better chance of recovery for your client.
Conclusion
Admiralty law is a viable choice for many Tennessee litigants. Plaintiffs' attorneys are not restricted to filing their suit in federal court. The "savings to suitors" clause of 28 U.S.C. §1333 allows litigants the choice of bringing an admiralty claim in state court or in federal court. In order to apply admiralty law to a particular case, there are four elements that must be proven.
First, you must prove that a "vessel" was involved in the injury precipitating the claim. This is an easy burden to meet since just about anything that floats is construed by the courts to be a vessel. Second, you must prove that the vessel was on "navigable waters" when the injury occurred. When arguing to the court why your case meets the requirements of admiralty jurisdiction, you should cite the precedent Supreme Court case The Daniel Ball and the Sixth Circuit case Finneseth v. Carter11 for the definition of "navigable waters." Remember, the gist of "navigable waters" as defined by admiralty law is the susceptibility of a waterway as a highway of interstate commerce. Therefore, it is not the current use of the water that matters, but the mere susceptibility of use that is important. Look for case law that establishes the body of water at issue in your case as navigable. There are a number of cases holding the Tennessee River is a navigable waterway. Therefore, most of the lakes that have been created as a result of TVA damming up portions of the Tennessee River are navigable waters. If there is no available case law to support your contention, then turn to federal agencies such as the U.S. Army Corps of Engineers, the Tennessee Valley Authority, and the United States Coast Guard for help. Affidavits stating the body of water at issue in your case is navigable will carry great weight with the court.
Once you have proved that the injury occurred on a vessel on navigable waters, you have established the location condition of the admiralty jurisdiction test. Now the second part of the admiralty jurisdiction test must be proven, the connection condition. First, you must show that the incident had the potential to disrupt maritime commerce. Bear in mind, it is merely the potential that must be shown. Moreover, the injury at issue does not need to have the potential to disrupt maritime commerce at that particular area of water. An accident has the potential to disrupt maritime commerce for the purposes of admiralty jurisdiction if it could disrupt maritime commerce at the busiest of thoroughfares, such as the St. Lawrence Seaway or the Mississippi River at New Orleans. Second, you must show a nexus to a traditional maritime activity. A traditional maritime activity is a rather easy standard to meet, especially so after Justice Scalia in Sisson pronounced a traditional maritime activity for admiralty jurisdiction purposes to be anything a vessel normally does, such as navigation or lie in dock. Therefore, a showing that the events giving rise to the injury have a nexus to traditional maritime activity is rather easy to accomplish. If you can prove both the potential to disrupt maritime commerce and the nexus to a traditional maritime activity, you have established the connection condition. Once you have established the location and connection conditions, you have satisfied the requirements for admiralty law.
If you have a client whose case seems unlikely to recover under Tennessee rules of modified comparative fault and his injury meets the location and connection conditions described above, admiralty law is the best prospect you have to garnering a recovery for your client.
Notes
1. 28 U.S.C. § 1333.
2. 513 U.S. 527 (1995).
3. 1 U.S.C. § 3.
4. 77 U.S. 557 (1871).
5. 2002 WL 32059024 (E.D. Tenn. 2002).
6. In re Midland Enterprises Inc., 886 F.2d 812 (6th Cir. 1989); Brown v. McKinnon Bridge Co. Inc., 732 F.Supp. 1479 (E.D. Tenn. 1989); Akling v. St. Louis & Tennessee River Packet Co., 46 S.W. 24 (Tenn. 1898); Dodd v. Varady, 790 S.W.2d 216 (Tenn. Ct. App. 1990); Poss v. Dixie Sand & Gravel Co., 458 S.W.2d 625 (Tenn. Ct. App. 1970); Clayton v. Biesack, 1991 WL 18680 (Tenn. Ct. App. 1991).
7. Grubart Inc. v. Great Lakes Dock & Dredge Co., 513 U.S. 527, 534 (1995) (emphasis added).
8. Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982); Sisson v. Ruby, 497 U.S. 358 (1990); Grubart Inc. v. Great Lakes Dock & Dredge Co., 513 U.S. 527 (1995).
9. Examples of incidents held to have the potential to disrupt maritime commerce: Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674 (1982), held a collision between two pleasure craft on navigable waters posed a potential hazard to maritime commerce; Sisson v. Ruby, 497 U.S. 358, 363 (1990) held a fire on a vessel docked at a marina on navigable waters satisfied the requirement of potential disruption to commercial maritime activity; Vanderpool v. Edmondson, 2002 WL 32059024 at *2 held a recreational boating accident had the potential of disrupting maritime commerce.
10. McIntrye v. Ballentine, 833 S.W.2d 52 (Tenn. 1992).
11. 712 F.2d 1041, 1044 (6th Cir. 1983).