I'm honored that Federal Lawyer magazine, the journal of the Federal Bar Association, published an article I wrote entitled "Batterton v. Dutra Group and the Latest Circuit Split on Admiralty Punitive Damages."  The print version will be out later this month in the July 2018 edition of Federal Lawyer.

If you would like to read the article, a link to it is below.  It should either open the article in a new web browser window/tab OR give you a download option, depending on your browser settings.

Batterton v. Dutra Group and the Latest Circuit Split on Admiralty Punitive Damages

I hope that you find it informative and entertaining.

This post moves away from the sea and focuses on the Texas Rules of Civil Procedure and Evidence.  Specifically, if a party moves for summary judgment and the opposite party responds with objectionable evidence (such as hearsay or conclusory statements in an affidavit), does the moving party have to obtain a ruling on the objection to preserve error for appeal?

On June 29, 2018, the Supreme Court of Texas (“SCTX”) issued a per curiam opinion in Seim v. Allstate Texas Lloyds, et al, 02-16-00050, ____ S.W.3d ____ (Tex. 2018) wherein SCTX made clear that parties must obtain rulings on objections to summary judgment evidence from a trial court before the trial court decides a motion for summary judgment.

As the case lacks citations, I will cite to the page numbers on the SCTX opinion, which may be viewed or downloaded (depending on your browser settings) here:

http://www.txcourts.gov/media/1441949/170448.pdf

Background & Relevant Facts

By way of background, Richard and Linda Seim sued Allstate and Lisa Scott (an Allstate claims adjuster) for a breach of the duty of good faith and fair dealing relating to Allstate’s denial of a storm damage claim.  02-16-00050, ____ S.W.3d ____  at p. 1 (Tex. 2018).  The basis for Allstate’s denial was an inspection by Ms. Scott, wherein Ms. Scott apparently noted water damage in the home but did not find wind or hail damage (which were necessary to trigger coverage under the policy in question).  Id. at p. 1.

Allstate eventually moved for summary judgment.  The Seims responded in writing, but did not file their summary judgment evidence seven days before the hearing date (as required by the Texas Rules of Civil Procedure.  Id. at pp. 1-2.  The Seims then filed a response providing the evidence on the day of the hearing, without leave of the trial court.  Id. at p. 2.

Allstate objected to the evidence on multiple grounds, and even provided an order sustaining the objections to the Seims’ evidence.  The trial court granted the MSJ, but did not rule on the objections.  Id. at p. 3.  The Seims appealed to the Fort Worth Court of Appeals, which upheld the trial court’s decision but also held that the Seims summary judgment evidence was “incompetent” because the expert reports provided “were not verified or authenticated,” and the expert affidavit only attested to the truth of the statements in the affidavit, not to the statements made in the expert reports.  Id. at p. 3.  These are defects in the form of the evidence, not the substance of it.  After the Seims requested an en banc rehearing, the Court of Appeals issued a new decision wherein it still upheld the trial court’s ruling, but clarified its prior statements on the evidence issues.  The Seims then appealed to the SCTX.

The Supreme Court's Analysis

The SCTX begins its analysis by stating the same evidence rules govern the evidence evaluated both a trial as well as a summary judgment determination, and that likewise the rules of error preservation also apply equally at trial and in summary judgment proceedings.  Id. at p. 4, citing to United Blood Servs. V. Longoria, 938 S.W.2d 29, 30 (Tex,. 1997)(per curiam) and Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 317-18 (Tex. 2012)(per curiam).  The Court also held substantive defects in summary judgment evidence can be raised for the first time on appeal, but if there is a defect in the form of the evidence, it must be raised and ruled upon at trial, or it is waived.  Id. at 4, citing to Tex. R. Civ. P. 166a(f).

Seim involved SCTX resolving a split among the intermediate Courts of Appeals related to an amendment to Texas Rule of Appellate Procedure 33.1.  Without getting into too much of the divergent case lines, the Second Court of Appeals read the amendment to allow for implicit or explicit rulings on summary judgment evidence to preserve error for appeal.  The Fourth and Fourteenth Courts of Appeals held that any rulings, in order to preserve error, must be made prior to resolution of the motion for summary judgment, and should be done in writing to avoid waiver.  02-16-00050, ____ S.W.3d ____ at pp. 6-7.

Because Allstate didn’t obtain written rulings on the form of the evidence provided by the Seims, the SCTX held it was wrong for the Fort Worth Court of Appeals to disregard the affidavit.  Thus, SCTX reversed the court of appeals and remanded the case to Fort Worth so that the Court of Appeals could reconsider the waiver issue and whether Allstate was entitled to summary judgment even if the affidavit was admissible.

An Analysis of Maritime Liens in the Fifth Circuit post-Valero Marketing & Supply

The focus of this post is maritime liens, which are a common commercial claim asserted against a vessel in rem, meaning the claimant sues the vessel directly.  Usually this happens in Federal Court under Rule 9(h), but some states, such as Florida, allow for assertion of maritime liens in state court.

An Overview of What Constitutes a Maritime Lien

Maritime liens are both a creature of common law judicial custom and statute.  Thomas Schoenbaum, a noted admiralty commentator, lists the most common maritime liens in his treatise Admiralty and Maritime Law as follows:

1. Wages for the ship master/crew
2. Salvage
3. General Average
4. Claims for breach of a charter party/vessel lease
5. Preferred ship mortgages
6. Claims under maritime contracts for repairs and other necessaries
7. Maritime tort claims, including claims for personal injury, death, or collision
8. Cargo damage or loss
9. Unpaid freight/demurrage
10. Pollution Claims

Schoenbaum, Thomas J., Admiralty and Maritime Law §9-1 pp. 687-689 (5^th Ed. Practitioner Treatise Series 2011).

In my experience, claims for necessaries provided to the vessel form the basis of many lien claims.  In order to make such a claim, a party must demonstrate they provided (a) necessaries (b) to a vessel (c) upon request or order of a person or entity authorized to bind the vessel.  See Lake Charles Stevedores, Inc. v. Professor Vladimir Popov, MV, 199 F.3d 220 (5^th Cir. 1999).

Once proved, those elements establish a right to recover the value of the lien, plus attorney’s fees and, in many instances, court costs, from the vessel or the in personam owner.

Who’s in Charge Here?

There is an ample body of case law concerning what does or does not constitute a necessary to a vessel.  That is another post for another day.  Instead, we turn our focus to the last element of a maritime lien claim: is the necessary provided on request of someone with authority to bind the vessel?  Guidance in this area comes from the Commercial Instruments and Maritime Liens Act (“CIMLA”), which is a federal statute outlining the procedure to obtain a maritime lien, including who has authority to procure necessaries for a vessel.  See 46 U.S.C. § 31341.  Those persons are:

• The owner
• The master or captain
• A person entrusted with the management of the vessel at the port of supply; or
• An officer or agent appointed by:
• The owner
• A charterer
• An owner pro hac vice
• An agreed buyer in possession of the vessel

46 U.S.C. § 31343(a)(1-(a)(4).  In 1999, the Fifth Circuit read the CIMLA (then called the MCILA) to create a presumption that those individuals listed in 31341(a) had authority to act on behalf of the vessel. Lake Charles Stevedores, 199 F.3d at 224-225.   However, the presumption can be rebutted.  Id.

When there is an absence of a contract between the vessel/vessel owner and the party asserting the maritime lien (which, due to the nature of the shipping business, is quite common), the jurisprudence, according to the Fifth Circuit in Lake Charles Stevedores, breaks down into 2 lines of cases:

1. The general contractor/subcontractor line, an example of which is Crescent City Marine, Inc. v. M/V Nunki, 20 F.3d 665 (5^th Cir. 1994); and
2. The principal/agent line, applied in Belcher Co. v. M/V Martha Mariner, 724 F.2d 1161 (5^th Cir. 1984).

In a general contractor situation, the subcontractor cannot assert a maritime lien against a vessel – only the general contractor, acting in privity with the vessel or the vessel’s agent, can do so.  See 199 F.3d at 229.  The only time a subcontractor can have a maritime lien is when “it can be shown that an entity authorized to bind the ship controlled the selection of the subcontractor and/or its performance.”  Id.  In Lake Charles Stevedores, the entity that hired the stevedores did not cede any control of the selection of the stevedore group, and the general contractor accepted all of the risk.  199 F.3d at 230.

The principal/agent theory is also referred to as the “middle-man” line of cases.  A good example of this, according to the Fifth Circuit, is found in Marine Fuel Supply & Towing, Inc. v. M/V Ken Lucky, 869 F.2d 473 (9^th Cir. 1988).  Therein, the subcharterer of a vessel ordered fuel from its managing agent, who, in turn hired a fuel trader, who in turn hired a bunkering service who then bought fuel from a physical supplier, Marine Fuel Supply & Towing.  869 F.2d 473, 475.  On those facts, the Ninth Circuit found that since the order originated with the subcharterer, it originated from an entity having authority to bind the vessel.

A New Decision Offers Guidance

On June 19, 2018, the Fifth Circuit Court of Appeals issued a 2-1 panel decision in the case of Valero Marketing & Supply Co. v. M/V Almi Sun, et al., ____ F.3d _____, 2018 U.S. App. LEXIS 16525, No. 16-30194 (5^th Cir. 2018). 

Verna Marine Co., Ltd. (“Verna”) owned the Almi Sun.  Verna’s agent for the Almi Sun was Almi Tankers, S.A. (“Tankers”), and Tankers hired a fuel trader named O.W. Bunker Malta, Ltd. (“O.W.”) to procure fuel bunkers for the Almi Sun while she was in Corpus Christi, Texas.  Tankers later inquired of O.W. who the actual supplier would be for the fuel, and O.W. advised Tankers it was Valero Marketing & Supply Company (“Valero”).

Valero provided the fuel, at O.W.’s instruction, directly to the Almi Sun.  The vessel agents verified the bunker quality, and an officer of the Almi Sun signed the bunkering certificate.  Valero then submitted an invoice to O.W., who did not pay it and instead later filed for bankruptcy.  2018 U.S. App. Lexis 16525 at *2-3.

Valero then sued in rem, asserting a maritime lien against the Almi Sun.  Verna appeared for the vessel and contested the validity of the lien, arguing that Valero did not have a contract with Tankers (the vessel’s agent) but rather O.W., who Verna claimed did not have authority under the CMILA to bind the vessel.  Id. at *3.

The district court ruled in favor of Verna, holding O.W. did not have the required authority for a maritime lien to exist.  In a 2-1 decision, the Fifth Circuit upheld the district court’s reasoning, ultimately holding that this case fell into the general/subcontractor genre.  Id. at *8. 

Judge Higginbotham, writing for the majority, noted that the facts of the case did not establish that O.W. was “a ‘person presumed to have authority to procure necessaries’” because, among other things, Valero “dealt with O.W., not Verna or Tankers, and the record does not establish” O.W. acted as Verna or Tankers’ agent.  With this observation, the majority found the facts did not reach the necessary level of privity so as to invoke the principal/agent line of cases.

There was some evidence that the vessel interests knew of O.W.’s retention of Valero.  Obviously, the vessel crew signed paperwork and certified the quality of the fuel.  Also, at some point in time Tankers expressed concern about O.W.’s ability to pay Valero.  2018 U.S. App. LEXIS 16525 at *7-8.

The dissent, from Judge Haynes, asserted two basic arguments.  First, the Lake Charles Stevedores decision adopted a two-tiered analysis on whether a subcontractor could have a maritime lien: either a § 31341(a) person/entity directed the general contractor to hire a particular subcontractor OR the subcontractor was identified and accepted by a §31341(a) person/entity prior to performance.   2018 U.S. App. LEXIS 16525 at *16.  Second, Judge Haynes argued the facts of this case fell into the second line of subcontractor cases, and the majority did not follow Lake Charles Stevedores, creating “an unnecessary circuit split with the Eleventh Circuit.”  2018 U.S. App. LEXIS 16525 at *15.  Unfortunately, for Judge Haynes, these arguments could not persuade Judge Jones, who sided with Judge Higginbotham in the majority.

Lessons Learned

What lessons can a vessel owner take from Valero Marketing & Supply to minimize the potential existence of a maritime lien in the Fifth Circuit? 

First, I think this decision could encourage vessel owners and their designated managing agents/local agents to remove themselves from any decision-making as to who provides the necessaries for their vessels.  On the one hand, this already seems to occur, especially with foreign vessel owners who rely upon

On the other hand, some safety concerns (fuel quality, the source of food for the crew members, etc.) may require persons or entities with § 31341 authority to learn more about the origin point of the vessel’s necessaries.

Second, I think this decision may encourage persons with § 31341 authority to avoid exclusivity agreements.  In the insurance industry, many large insurance companies have such agreements with law firms, legal support providers, private investigation firms, etc. wherein, in exchange for being the sole and exclusive provider of those services, the service providers accept below-market rates for their services.  These savings ostensibly either serve as part of the profit margin or are passed back to the ultimate consumers. 

Third, as the operative standard in the general contractor line of cases is control (according to the Valero Marketing & Supply majority), the decision could lead to a conscious decision by vessels and persons/entities empowered by § 31341 to remove themselves not only from the selection of their necessaries providers, but also control of any operations related to the provision of those necessaries before performance occurs.  Obviously, the vessel has to certify fuel quality and confirm that the right amount of containers were loaded.  However, these things occur during or after performance.  Could a safety meeting between the Master of the vessel or the ship’s agent and a stevedoring company hired by the terminal constitute an exercise of control? 

An arbitration clause is, essentially, a forum selection clause on steroids.  While the latter merely selects the court or forum ( EX: …” any claims arising out of this contract shall be brought in the United States District Court for the Southern District of Texas, Houston Division …”), the former replaces the existing public judicial system for, in essence, a private one.  

This post provides a basic overview of the legality and applicability of arbitration clauses in Admiralty law, and is relevant because of a Supreme Court of the United States (“SCOTUS”) decision, Epic Systems Corp. v. Lewis, issued about a month ago.

Epic Systems

On May 21, 2018, SCOTUS issued a 5-4 decision in Epic Systems Corp. v. Lewis, 584 U.S. _____, No. 16-285 (2018), a case wherein several employers and employees entered into employment contracts providing for an individual arbitration in the event of any employment disputes between them. 

To generalize, the contracts at issue in Lewis prohibited class action lawsuits, juries, or even the use of the state or federal court system as the primary mechanism for resolving a dispute.  Rather, any employment-related dispute (including over wage/hour claims under the Fair Labor Standards Act [“FLSA”]) would be resolved by a neutral arbitrator under pre-determined rules.   The employees had to sign these contracts to begin working for their employers.

Leading up to this decision, the National Labor Relations Board (“NLRB”) determined in 2012 that the National Labor Relations Act (“NLRA”) nullified any such arbitration agreements.  As SCOTUS noted in its syllabus of the Lewis decision, “since then other courts have either agreed with or deferred to the [NLRB’s] position.”

The majority in Lewis held the arbitration agreements were enforceable, and the NLRA did not nullify them as the NLRB previously held. Moreover, the Lewis Court held the Federal Arbitration Act (“FAA”) does not preclude arbitration agreements between an individual employee and their employer, but rather the FAA actually mandates that such agreements be enforced.

Many labor and employment attorneys already provided commentary on Lewis.  That is not the purpose of this post.  Instead, Lewis provides an excellent transition into the applicability of arbitration clauses in a saltier context.  There are several different scenarios under Admiralty law in which arbitration agreements/forum selection clauses are permissible to limit the options of an aggrieved or injured party, should that party wish to institute litigation.

Scenario 1 – Maritime Breach of Contract

It is routine for any maritime commercial contract (i.e., a charter party or contract to provide food/water to a vessel) to now contain either a forum selection clause or an arbitration clause.  These clauses are normally enforced, as there is a triumvirate of SCOTUS cases supporting the general enforceability of such clauses:

-a-        M/V Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum selection clause between Texas company and German company is enforceable because, inter alia, the parties were sophisticated and negotiated at arm’s length);

-b-       Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991)(forum selection clause mandating a Washington resident must sue in Florida courts is enforceable, even though the clause was part of a form contract);

-c-        Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528 (1995)(a forum selection/arbitration clause in a bill of lading does not necessarily offend or violate the Carriage of Goods by Sea Act [“COGSA”], allowing for arbitration of a dispute in Japan as opposed to a federal lawsuit in Massachusetts).

If the clauses are worded appropriately to each particular transaction, it is likely the clause will be enforced by a court in the United States, given that the SCOTUS views the FAA as a Congressional instruction “that arbitration agreements … must be enforced as written.”  See Lewis, 584 U.S. ____, No. 16-285, p. 25 (2018).

Scenario 2 – Personal Injury or Death involving a passenger

The second case mentioned above, Carnival Cruise Lines v. Shute, allows for limitation of the available forum to passenger claims for personal injury or death.  This is so even though the contract terms usually arrive after the customer books the voyage (i.e., has paid for the cruise), and in most instances can only recover some of their money in a refund.

For example, the 57 Americans injured or killed in the Costa Concordia disaster off the coast of Italy in 2012 were required to sue in Italy, as opposed to Florida. 

http://www.miamiherald.com/news/business/tourism-cruises/article56902318.html

Given the strong SCOTUS precedent on this issue, I do not anticipate much changing with the validity of forum selection clauses and/or arbitration agreements as it relates to passengers. 

Scenarios 3 and 4 – Personal Injury or Death Involving Seamen

The next two scenarios involve seamen, as that term is understood under the General Maritime Law (“GML”) of the United States.  There is no statutory definition of “seaman” in the Jones Act (although there is such a definition in other U.S. Statutes).  Instead, one must look to the SCOTUS decision of Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995), which contains a two-part test holding a person is a seaman if:

-a-        Their duties at the time of the incident contributed to the function of the vessel or accomplishment of its mission; and

-b-       Their connection, if any, to the vessel (or fleet of vessels) at the time of the incident was substantial in terms of both its duration and nature.

Foreign seamen for the purposes of this analysis are those who are not U.S. citizens or legal U.S. residents. 

Scenario 3 – Injury or Death to a U.S. Seaman

U.S. seamen receive greater protection than their foreign counterparts as to arbitration clause in employment contracts.  The FAA, specifically 9 U.S.C. § 1, carves out the employment contracts of seamen and railroad employees from the auspices of the FAA.  Thus, if an employer tries to insert an arbitration clause into the seaman’s articles (or an employment contract or other documents used as part of a hiring package), it likely would be found void.  Thus, the holding of Epic Systems wouldn’t apply to a U.S. seaman’s employment contract if the U.S. seaman worked for a U.S. company primarily in U.S. waters.

However, the FAA does allow for seamen to enter into post-injury arbitration agreements, meaning a seaman agrees to arbitrate his dispute with his employer and/or a vessel owner after the seaman is injured in the course and scope of their employment.  The ability to engage in such a transaction is not absolute, instead depending on the language used and the consideration given in return for the seaman waiving his right to file litigation.  An example of a post-injury arbitration agreement surviving court scrutiny is Terrebonne v. K-Sea Transportation Co., 477 F.3d 271 (5^th Cir. 2007).

Scenario 4 – Injury or Death to a Foreign Seaman

In 1970, Congress incorporated the Convention on the Recognition and Enforcement of Foreign Arbitral Agreements (commonly referred to as “the Convention” or “the New York Convention”) to United States statutory law as Chapter 2 of Title 9 of the U.S. Code (the same locale as the FAA).  See 9 U.S.C. § 201.  The important text of this Chapter is found in 9 U.S.C. § 202, which reads as follows:

An arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention. An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states. For the purpose of this section a corporation is a citizen of the United States if it is incorporated or has its principal place of business in the United States.

Since 1970, various appellate courts held the Convention applies not only to foreign seamen contracted to work for foreign employers or foreign flagged vessels, but also to U.S. citizens contracted to work as a seaman for a U.S. based company when the work was to be performed outside U.S. territorial waters.

Examples of the application of the Convention to allow arbitration or forum selection clause agreements in foreign seaman contracts of employment are:

Marine Chance Shipping v. Sebastian, 143 F.3d 216 (5^th Cir. 1998) – forum selection clause mandating personal injury claims of Filipino seaman must be enforced even when injuries occurred in the United States.

Francisco v. Stolt Achievement MT, 293 F.3d 270 (5^th Cir. 2002) – The Convention required arbitration of any claims made by Filipino seaman injured on the Mississippi River due to the language of his employment contract.

Freudensprung v. Offshore Technical Services, Inc., 379 F.3d 327 (5^th Cir. 2004) – The Convention and employment contract language mandated arbitration of any personal injury claims made by U.S. seaman hired by U.S. company to work offshore in Nigeran waters.

Thus, there are options for the use of arbitration agreements in Admiralty law, even in the context of personal injury claims.  If you wish to learn more about options in this regard, please feel free to contact me.

“What do these objections mean?”

If you’ve ever sat for a deposition, it can be an extremely stressful experience, especially to someone who’s never given sworn testimony before.  You are unfamiliar with the process.  There is a (sometimes angry) attorney trying to get information from you.  The questions can be confusing.  And then you hear the lawyer defending your deposition say:

“Objection , form.”

One of the attorneys then tells you that you can go ahead and answer the question, and it is just for the Court for later.  But now, you’re probably thinking … “what was wrong with that question?

I've defended and taken too many depositions to keep count.  Most of them occur under the Texas Rules of Civil Procedure, as a super-majority of the cases in which I am involved are filed in Texas state court.

Defending a deposition means that you, as an attorney, present the witness to offer testimony. Sometimes the witness is your client.  Sometimes the witness is a corporate representative or an employee of your corporate client.  Sometimes the witness is an expert your side retains to offer specialized testimony to assist the jury in a particular area.  After I defend a deposition, one of the most common questions

In Texas, the Rules of Civil Procedure only allow attorneys to object on 3 grounds: form, non-responsive answer, or leading.  The latter two are easy enough to decipher as a lay person. 

When I object to form, it is because there is something about the question that doesn’t work for me, and I don’t think the question (or any answer to the question) would be admissible at trial. 

When an attorney objects to form in Texas, here are the things with which the objecting attorney could have a problem with that particular question.  I’ll list each one, and give an example of the type of question I think falls into each category below.  “Objection, Form” in a Texas deposition means the question could be:

·      Argumentative question

o   Why did you injure this man?

·      Mis-stating the deponent or other witnesses

o   Mr. Jones said Mr. Smith looked angry and confused [but Mr. Jones actually said no such thing in his deposition].  Do you agree with Mr. Jones?

·      Compound

o   It was windy and raining at the time of the incident, correct?

·      The question is vague, ambiguous, or confusing

o   What did you tell her about it?

·      Speculative

o   What do you think Mr. Jones thought Clause 10 meant when he signed this contract?

·      Assumes facts not in evidence

o   Now we know that ABC Corporation was negligent when they hired Ms. Smith to work as a child care provider.  Can we agree on that?

·      Question is too general or vague

o   What did you say to her in that conversation about the business?

§  About what aspect of the business?  Who is “her?”

·      Asked and Answered

o   This is usually a question that is asked and the lawyer doesn’t get the answer they want, so they slightly rephrase it to try to get the desired testimony.

·      Harassing and oppressive

o   When did you stop beating your wife?

·      Incomplete hypothetical

o   So if Ms. Jones attended this safety training class, this accident wouldn’t have happened, right?

§  There may be a host of other factors that went into the accident beyond safety training.  Weather, lighting, the staffing of the crew, drug use, etc.

As a witness, you will only hear the basis for an objection if the lawyer asking the question asks the objecting attorney to “state your basis” or “state your grounds” for the objection.  The objecting attorney is required under the Texas Rules of Civil Procedure to provide a short response that doesn’t coach the witness but explains the objection on the record.

Hopefully this helps potential witnesses who give depositions in Texas to understand the different things wrong with questions asked of them.  If the witness takes a second to process the question before an answer is given, it gives the attorneys in the room time to object to form, which could give the witness insight that there is something wrong with the question.

In my opinion, any witness, in any jurisdiction, should not answer a question they don’t understand.  The easiest way to work around this in the deposition is if you don’t understand a question, tell the lawyer who asked the question that you don’t understand and would appreciate if they could re-phrase the question.  If there’s a technical word in the question that you don’t comprehend, tell the lawyer you need to know what they mean by that word.

The goal of any deposition is to get truthful, complete, and accurate testimony.  Understanding the objections that will be made, as well as what those objections actually mean, can help witnesses to achieve these goals.

Hopefully, any potential witnesses find this blog post helpful in this regard, understanding and appreciating the legal disclaimer associated with this blog.

If you are a fan of the NPR Podcast "Planet Money," you may recall an episode from 2014 entitled "Mr. Jones' Act," wherein David Kestenbaum & Zoe Chace analyzed The Merchant Marine Act of 1920, commonly known as the Jones Act, after Senator Wesley Jones of Washington.  The law is an extremely broad statute, and is codified in various portions of Title 46 of the United States Code.

The episode is linked below.

https://www.npr.org/sections/money/2017/09/27/553990861/episode-524-mr-jones-act

I highly recommend listening to it.

The Jones Act governs the rights of maritime workers, creates causes of action in tort, and imposes restrictions on the vessels that can travel from one U.S. port to another.  The last set of restrictions are sometimes called Cabotage Laws, or in the United States, the Coastwise Trading Act.  See 46 U.S.C. 55101-55122.  The First Congress under our current U.S. Constitution passed  similar restrictions on vessel movement in the Tariff of 1789.

The original reason for the focus on Mr. Jones' Act by NPR was the winter storms of 2013-2014.  As seen in this NPR article from February 2014, Jones Act restrictions prevented a Marshall Islands-flagged vessel from moving 40,000 tons of salt between Maine and New Jersey.

https://www.npr.org/sections/money/2014/02/28/283451010/how-an-old-law-caused-a-modern-day-salt-shortage

More recently, in 2017, the Trump Administration temporarily waived the Jones Act to allow for foreign flagged vessels to travel from one U.S. port to Puerto Rico to provide relief from Hurricane Maria.  However, the waiver expired and was not renewed.

If you have any specific questions about the Jones Act, or comments about its continued necessity/viability, please feel free to leave them below.

Legal Disclaimer

The Maritime Proctor provides only general information about the law and does not, under any circumstances, constitute legal advice. 

You should not act or refrain from acting based on these materials without first obtaining the advice of professional legal counsel. 

This website contains links to third-party websites. We are not responsible for, and make no representations or endorsements with respect to, third-party websites, or with respect to any information, products or services that those websites might provide.

This blog does not create an attorney/client relationship between the author/Chamberlain Hrdlicka White Williams & Aughtry PC and the reader.

Who I am & What I do

My name is Daniel Knight.  I'm an Admiralty & Maritime attorney in Houston, Texas, as well as a shareholder at Chamberlain, Hrdlicka, White, Williams & Aughtry, P.C.  If you are interested, you can find out more about our Firm here: http://www.chamberlainlaw.com.  I'm told our website works very well on smartphones.

 This blog is primarily about Admiralty and Maritime law decisions, but will also have discuss non-Admiralty litigation as well as other legal issues.

This blog does not constitute legal advice of any kind.  Moreover, it does not create an attorney/client relationship between the reader and either myself or Chamberlain Hrdlicka. Instead, I merely endeavor to discuss, on a broad level, common issues I see in my practice, as well as recent case developments or news concerning the Maritime industry.

My first blog entry will address a common question I receive frequently from land-lubbing attorneys, and even some learned jurists.

What is the difference between Admiralty law and Maritime law?

The short answer to this question is there is not much difference between the terms "admiralty law" and  "maritime law" anymore.  However, in the ovular treatise on Admiralty & Maritime Law, aptly entitled The Law of Admiralty, Professors Grant Gilmore and Charles Black note that there used to be a difference between the two terms.  See Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, 1-1, p. 1 (2d ed 1975)("Gilmore & Black").

Admiralty, according to Gilmore & Black, stood to represent the body of common law brought over to the American Colonies by the British, which forms the foundation of our current jurisprudence.  Id.  Maritime law is a term of art used to describe the wider body of international law, much of which can trace its roots back to Eleanor of Aquitaine and her place in history as the only woman to be Queen of both England and France (through marriage to different monarchs).  Aquitaine was/is a coastal French province, and many of the rules and customs existing there when Eleanor was a child and woman found their way into both English and French jurisprudence.

Admiralty law is a specialized field.  It is the only remaining Federal common law after Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).  Admiralty law is also unique in that it is made by both the Courts, specifically the Supreme Court of the United States (when it chooses to hear a dispute) and by Congress.  It impacts, as British author Rose George notes, "90 Percent of Everything."