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Pleasure Boating and Admiralty: Erie at Sea' Preble Stolz*

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Pleasure Boating and Admiralty: Erie at Sea' Preble Stolz* California Law Review VoL. 51 OCTOBER 1963 No. 4 Pleasure Boating and Admiralty: Erie at Sea' Preble Stolz* P LEASURE BOATING is basically a new phenomenon, the product of a technology that can produce small boats at modest cost and of an economy that puts such craft within the means of almost everyone.' The risks generated by this development create new legal problems. New legal problems are typically solved first, and often finally, by extension of com- mon law doctrines in the state courts. Legislative regulation and any solu- tion at the federal level are exceptional and usually come into play only as a later stage of public response.2 There is no obvious reason why our legal system should react differ- ently to the new problems presented by pleasure boating. Small boats fall easily into the class of personal property. The normal rules of sales and security interests would seem capable of extension to small boats without difficulty. The same should be true of the rules relating to the operation of pleasure boats and particularly to the liability for breach of the duty to take reasonable care for the safety of others. One would expect, therefore, that the legal problems of pleasure boating would be met with the typical response: adaptation of the common law at the state level. Unhappily this is not likely to happen. Pleasure boating has the mis- fortune of presenting basic issues in an already complex problem of fed- t I am grateful to Professor Geoffrey C. Hazard, Jr. for reading the manuscript in nearly final form, and to Professor Ronan E. Degnan for many readings at all stages. *Acting Associate Professor of Law, University of California School of Law, Berkeley. I At the close of World War II there were less than half a million pleasure boats in the United States. CouNcam oF STATE Govm=Nrs, SUGGESTED STATE LzGIsATIONr-PROGRA.r POR 1959 at 53 (1958). That figure was a rough estimate. The Federal Boating Program of 1958, 72 Stat. 1754 (1958), 46 U.S.C. §§ 527-527(h) (Supp. 1963), requires numbering of all pleasure boats of more than 10 horsepower. As a result there are now accurate statistics. The Coast Guard reports that as of Feb. 28, 1963, there were 3,516,052 boats numbered pursuant to the 1958 statute in the United States (including Guam, Puerto Rico and the Virgin Islands). U.S. COAST GuARD, RECREATIONAL BOATING IN TH UNrnED STATES, ANN. RP. (1963). That was an increase of over half a million boats from the previous year. Id. (1962). These figures significantly understate the total number of boats since many small boats need not be numbered. 2 See Hart, The Relations Between State and Federal Law, 54 CoLTJm. L. REv. 489 (1954). CALIFORNIA LAW REVIEW (Vol. 51:661 eralism: the relationship between federal admiralty law and state law.' The accepted formulation of the test for admiralty jurisdiction was laid down in The Plymouth in 1866: "Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or the navigable waters, is of admiralty cognizance." 4 That proposition has been frequently reiterated,5 and the Supreme Court has not chosen to re-examine it. Pleas- ure boating tests the proposition in a way that up to now has not been necessary.6 Relying on The Plymouth and related cases, a number of courts have held admiralty law applicable to pleasure boats.7 Admiralty law is federal law, and there are a number of important differences between admiralty law and the common law of the states. Perhaps the most striking conflict is between the admiralty rule that the contributory negligence of a claimant only reduces the damages" and the generally applicable common law rule $See generally GimoRE & BIAcX, ADmmALTY §§ 1-17 (1957) [hereinafter cited as Gm- moRE & BLACK]; D. Currie, Federalism and The Admiralty: "The Devil's Own Mess," 1960 SupRm Counr REv. 158; Stevens, Brie R.R. v. Tompkins and the Uniform General Maritime Law, 64 HAnv. L. REv. 246 (1950); Wright, Uniformity in the Maritime Law of the United States, 73 U. PA. L. Rav. 123 (1925). 4 70 U.S. (3 Wall.) 20, 36 (1866). 5 E.g., Hess v. United States, 361 U.S. 314, 318 (1960) ; Kermerac v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959). OAirplane accidents also test the proposition but in a different context. It has been held that an admiralty court has jurisdiction of an airplane tort case simply because the plane hap- pened to crash in navigable waters. Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (2d Cir. 1963); see also Noel v. United Aircraft Corp., 204 F. Supp. 929 (D. Del. 1962). The airplane cases are different from pleasure boat cases, however, in one important respect. Typically air- plane cases involve crashes occurring on the high seas and are almost entirely free of the com- plications of federalism. No state has any substantial interest in the application of its law and the analogy to supernational origins of admiralty is compelling. Some law must be applicable, and there is no reason why it should not be the law of the United States rather than the law of NewYork or any other state. Furthermore, admiralty is the only body of federal law that makes any pretension towards being comprehensive, and it is, therefore, an obvious place to begin looking for analogies. It might be better if the airplane cases were viewed not as applica- tions of admiralty law because the accident occurred on navigable waters, but rather as refer- ence to admiralty as a useful, but not necessarily binding, source of law. Airplane accidents also have the characteristic of being fatal and many claims can thus conveniently be heard under the umbrella of the Death on the High Seas Act, 41 Stat. 537 (1920), 46 U.S.C. §§ 761-67 (1958). That statute provides for hearing in the district courts in admiralty, and there is some authority that cases under the act can only be heard in admiralty. Comment, 51 CATiF. L. Rxv. 389, 399-402 (1963). Pleasure boating cases, on the other hand, typically involve residents of one state and that state can legitimately assert an interest in their welfare. 'E.g., Niepert v. Cleveland Elec. Illuminating Co., 241 F.2d 916 (6th Cir. 1957); King v. Testerman, 214 F. Supp. 335 (E.D. Tenn. 1963); Cashell v. Hart, 143 So.2d 559 (D.CA. Fla. 1962). But cf., McGuire v. City of New York, 192 F. Supp. 866 (S.D.N.Y. 1961). A number of cases are collected in 63 AJL.R.2d 343 (1959). See also CAxaroam P=Asura BoATING LAW (Cal. C.E.B. 1963); Cohan, Law and Practicalitiesfor Yachtsmen, 32 Tnrc,. L.Q. 241 (1959); Waite, PleasureBoating in a Federal Union, 10 BUFFALo L. REv. 427 (1961); Note, Pleasure Boating and the Admiralty Jurisdiction, 10 STA_. L. REv. 724 (1959). 8 Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953) ; The Max Morris, 137 U.S. 1 (1890). 19631 PLEASURE BOATING AND ADMIRALTY that contributory negligence precludes recovery altogether. There are, however, a number of other differences of almost equal importance. Apart from collision cases, 9 admiralty law does not permit contribution between tortfeasors; '0 many states have statutes allowing contribution. 1 Admiralty law holds a shipowner to a standard of reasonable care for all classes of visitors;' 2 the law of many states imposes differing standards depending upon whether the visitor is a social or a business invitee.13 There is no stat- ute of limitations in admiralty; there is in state law.'4 Rules of this nature are basic to almost all automobile litigation. In such litigation, Erie15 and its progeny have made it clear that state law is generally to be looked to for the applicable rule of decision in the absence of some strong national interest that can only be protected or promoted by application of federal law. With respect to the divergent rules noted above, there is no question that if the issue were presented in an automobile diver- sity case, the federal court would be bound to choose the state rule rather than the federal admiralty rule. In pleasure boat cases, however, the lower courts seem to be drifting toward an equally insistent- application of the federal admiralty rule' without considering whether that choice is consistent with the preference underlying Erie for local power to govern events of only local significance. No federal interest is apparent that would support such a supplanting of state law. This is not to say that there never is a federal interest in the affairs of pleasure boating. Clearly a federal interest exists with respect to such matters as the rules of navigation, right of way, and lights to be car- ried, which must necessarily control both big ships and little boats and as to which there is a clear virtue in national uniformity. But there remains a large area, particularly with what may be called remedial rules-such as the conflicts between admiralty and state law noted above-where there is no clearly ascertainable federal interest. Even absent a federal interest, is there any serious objection to the 9 In mutual fault collision cases the damages are divided equally without regard to degree of fault. GimoRE & BLAcK: §§ 7-4, 7-5, 7-18. This is to some extent modified by the "major- minor" fault doctrine. Id. at § 7-4. 30 Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282 (1952). 11 See PROSSER,TORTS § 46, at 248-49 (2d ed.
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