Tulsa Law Review Volume 15 Issue 1 1979 Personal Injury and Wrongful Death--Application of Maritime Law Principles to Inland Waterways and Offshore Drilling Operations-- A Review of Jurisdiction, Status Problems, and Remedies James A. George Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation James A. George, Personal Injury and Wrongful Death--Application of Maritime Law Principles to Inland Waterways and Offshore Drilling Operations--A Review of Jurisdiction, Status Problems, and Remedies, 15 Tulsa L. J. 9 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol15/iss1/3 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. George: Personal Injury and Wrongful Death--Application of Maritime Law P PERSONAL INJURY AND WRONGFUL DEATH-APPLICATION OF MARITIME LAW PRINCIPLES TO INLAND WATERWAYS AND OFFSHORE DRILLING OPERATIONS-A REVIEW OF JURISDICTION, STATUS PROBLEMS, AND REMEDIESt James A. George* I. INTRODUCTION In the last two decades, the inland waters of the United States have been the locus of a tremendous increase in recreational boating, swim- uing, and water-skiing. During the same period the offshore oil indus- try has grown at an astounding rate. This increase in maritime traffic, coupled with the development of many new man-made lakes, has re- sulted in an inevitable increase in accidents and personal injuries on our inland waterways. Many of these inland mishaps give rise to law- suits; and lawyers who may have had no experience with maritime law may suddenly find themselves caught in the tangled web of admiralty. Indeed, lawyers would do well to acquaint themselves with the rules of admiralty because the maritime jurisdiction of the federal courts has been greatly extended since our Constitution was first written. As one author phrased it, The silver oar, long the historic symbol of admiralty practice . .. would hardly have been recognized fifteen years ago in a federal court in Nevada, Wyoming, or any of the other inland states not bordering on the Great Lakes or the Mississippi River. [T]he admiralty law has found its way upstream and is becoming an important field of law in all the districts of the federal judiciary. I 0 1979 Tulsa Law Journal t Section IV of this paper appears in 13 ARK. LAW. 180 (1979). * Partner, George & George, Baton Rouge, Louisiana. B.S. Louisiana State University; J.D. Louisiana State University. 1. McCaughan, FederalMaritime Jurisdiction Over Inland Intrastate Lakes, 26 WAsH. & LEE L. REv. 1 (1969). Published by TU Law Digital Commons, 1979 1 Tulsa Law Review, Vol. 15 [1979], Iss. 1, Art. 3 TULSA LAW JOU".AL [Vol. 15:9 This article endeavors to assist in determining whether a given case involving inland waters or offshore drilling operations is within the admiralty jurisdiction of the federal courts, the choice of courts in which suit may be filed, and the substantive law which governs when a case is in admiralty. II. HISTORICAL BACKGROUND Before discussing jurisdiction and substantive law, it is necessary to examine briefly the history of the extension of admiralty jurisdiction in the United States, since an understanding of that history is essential to an understanding of admiralty law today. The scope of the judicial power of the United States is limited by Article III of the Constitution of the United States. The federal courts may entertain only those cases enumerated in Article III over which they have been given jurisdiction by an act of Congress. While Con- gress cannot grant the federal courts the power to hear cases not enu- merated in Article III, it need not grant all the power which Article III allows.2 Article III of the Constitution of the United States extends the ju- dicial power of the United States "to all cases of admiralty and mari- time jurisdiction."3 The Congress implemented this constitutional grant of authority in section 9 of the Judiciary Act of 1789 and that provision was carried over into 28 U.S.C. § 1333 which now provides: The District Courts shall have original jurisdiction, exclusive of the courts of the States, of- (1) Any civil case of admiralty or maritime jurisdiction, sav- ing to suitors in all cases all other remedies to which they are otherwise entitled.4 Thus, the admiralty power of the federal courts extends to any case of admiralty or maritime jurisdiction with no jurisdictional requirement of an amount in controversy. While the reasons for this grant of power are not readily discernible, the great federal interest in promoting the commercial shipping industry of an infant nation and the need for a uniform law to apply to that industry may explain it.5 2. Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 273 (1809). 3. U.S. CONST. art. III, § 2, cl.1; 28 U.S.C. § 1333(1) (1976). 4. 28 U.S.C. § 1333(1) (1976). 5. See G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY §§ 1-10 (2d ed. 1975). https://digitalcommons.law.utulsa.edu/tlr/vol15/iss1/3 2 George: Personal Injury and Wrongful Death--Application of Maritime Law P 19791 MARITIME LAW PRINCIPLES The framers of the Constitution granted the federal courts the power to hear cases of admiralty or maritime jurisdiction. The exact meaning and scope of those words have troubled American lawyers and judges since the dawn of our country's history. The question with which our courts have struggled for 200 years is, just what cases are 6 included in the constitutional grant of admiralty jurisdiction. The first attempt to define an actionable maritime case was in DeLovio v. Bolt,7 decided in 1815, in which Justice Story said that ad- miralty jurisdiction "comprehends all maritime contracts, torts and in- juries."' The term "maritime" was not clearly defined until ten years later when the United States Supreme Court decided The Steam-Boat Thomas Jefferson.' In The Thomas Jefferson the Court defined "mari- time" as "the sea" or "waters within the ebb and flow of the tide," and established that this was the "prescribed limit" beyond which admiralty "was not at liberty to transcend."10 Thus, the Court held, admiralty jurisdiction did not extend to matters arising out of navigation on in- land waters, but was instead limited by the ebb and flow of the tide. The reason given by the Court for this restriction of jurisdiction was that this was the understanding in England and America at the time the Constitution was adopted. This restrictive interpretation of the constitutional grant of ad- miralty jurisdiction survived until 1851 when the Supreme Court considered the landmark case of The Propeller Genesee Chief v. Fitz- hugh,11 involving a collision between two vessels on Lake Ontario. In considering the issue of jurisdiction, to which the objection lodged was that there is no tide in the Great Lakes, the Court observed, there is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdic- tion, nor any thing in the absence of a tide that renders it unfit. If it is a public navigable water, on which com- merce is carried on between different States or nations, the reason for the jurisdiction is precisely the same.' 2 6. See Putnam, How the Federal Courts Were Given Admiralty Jurisdiction, 10 CORNELL L.Q. 460 (1925); G. GILMORE & C. BLACK, supra note 5, §§ 1-9 (2d ed. 1975). 7. 7 F. Cas. 418 (C.C.D. Mass. 1815) (No. 3,776). 8. Id at 444. 9. 23 U.S. (10 Wheat.) 428 (1825). 10. d at 429. 11. 53 U.S. (12 How.) 233 (1851). 12. Id at 238. Published by TU Law Digital Commons, 1979 3 Tulsa Law Review, Vol. 15 [1979], Iss. 1, Art. 3 TULSA L4WJOURA1AL [Vol. 15:9 The Court described The Thomas Jefferson as an "erroneous deci- sion,""3 explaining that at the time the Constitution was written "tide- water" and "navigable water" meant the same thing in England, where there was no navigable stream beyond the ebb and flow of the tide, as in the thirteen original states, where the far greater part of the naviga- ble waters were tide waters. Thus the Court upheld admiralty jurisdic- tion over the Great Lakes and the waters connecting them, concluding that "there can be no reason for admiralty power over a public tide- water, which does not apply with equal force to any other public water used for commercial purposes and foreign trade."14 In upholding juris- diction in The Genesee Chief the Court extended admiralty jurisdiction to inland waterways and announced that the new test for jurisdiction would henceforth be the navigability of the waterway. Indeed, today it is safe to say, the admiralty jurisdiction ... extends to all waters, salt or fresh, with or without tides, natural or artificial, which are in fact navigable in interstate or foreign water commerce, whether or not the particular body of water is wholly within a state, and whether or not the occurrence or transaction that is the subject-matter of the suit is confined to one state. 15 III. NAVIGABILITY-THE LOCALITY RULE AND MARITIME FLAVOR In The Pymouth,'6 the United States Supreme Court laid down the rule that [t]he jurisdiction of the admiralty does not depend upon the fact that the injury was inflicted by the vessel, but upon the locality-the high seas, or navigable waters where it occurred. Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable wa- ters, is of admiralty cognizance.' 7 Although this rule has been modified by statute,I the "locality" test, that the wrong must occur on navigable waters, remains the crucial test of admiralty tort jurisdiction.