Thursday, January 9, 2014



   File:Brandeisl.jpg   EDITOR'S NOTE:  Our Admiralty Legal Correspondent and Analyst, the late Justice Louis Brandeis. See Our post of Sunday January 5, 2014  for an explanation by the Great Namazu of how we were able to retain the services of a ghost who writes. Also if you didn't catch Justice Brandeis's earlier essays on the Pennsylvania -Reyes Doctrine or Punitive Damages, or The Walker -Reinhart Doctrine in Admiralty you might want to check them out; there is a strong correlation between these earlier essays and today's post.

  Just because I died doesn't mean that I don't still follow the progress of the law. I'm not here to provide revelations about the after life, but I can tell you that your compelling interests linger. One of the big changes in admiralty law that I've noticed evolving since the 1970s and continuing on today is the greater ease with which a finding of unseaworthiness based on clear statutory and regulatory duties may be made today. Today I think we may apply the term "Statutory Unseaworthiness" to such a finding, though it was not long ago that jurists would have scoffed at the concept.

Basically what appears to have happened since I left the bench is something of a statutory merging of the concepts of a "Safe Work Place" and a "Seaworthy Vessel". The duty of the ship owner to provide a "seaworthy vessel" has existed in the general maritime law of the English speaking peoples for centuries. Labor law came later. In the United States the Occupational Safety and Health Act (OSHA) (P.L.91-596) established  in 1970 a "general duty" for all employers to provide a workplace "free of recognized hazards. Over the years as additional laws addressed areas not covered in the original OSHA Act incorporated similar "general duties" and there came to be something of a blending of the ancient duty to provide a "seaworthy vessel" with the newer statutory duty to provide a "safe workplace". You might say that in the maritime context today the duty of the ship owner is to provide a safe work place aboard a seaworthy vessel.

 Rather early on a number of cases began to equate the duty to provide a safe work place with the duty to provide a seaworthy vessel. See: John R. Buckner v. State Boat Operators, Inc. et al, Civ. A, No. 86-898 USDC, E.D. Louisiana ( 680 F.Supp. 239)  and  Herbert v. Otto Candies [402 F. Supp 503 (E.D. LA 1975). The appearance of this language in the case law in this time frame reflects language in Section 5 of the Occupational Safety and Health Act of 1970 (29 USC 651-678). This blending of the duty to provide a "seaworthy vessel" and a "safe work place" has broadened the meaning of a "seaworthy vessel" to some considerable extent. These is no doubt that a "seaworthy vessel" in the eyes of the American courts today is more than sound of hull , appurtenances, and rigging. A "seaworthy vessel" today is a "safe work place" with proper crew levels , safe access and egress, safe walking and working surfaces, and many other considerations previously un-thought of . Today , the duty to provide a "safe work place "aboard a commercial vessel is often a matter of quite specific statute or regulations.

 To fully understand and apply or defend against the concept of "statutory unseaworthiness" the advocate must completely understand the relevant vessel's status relative to the several statutes imposing the "general duty" to maintain the vessel "free of recognized hazards", the definition of "recognized hazards", and the specific regulations that apply to the relevant class of vessels. I suggest as a starting point that the advocate review the discussions and cases cited in the American Admiralty Bureau's COMMENTATOR VOL .1 , COMMENTS 3 and 4 which appear on line here in updated form in the AAB's AUTHORITATIVE LITERATURE SECTION. Once in the section just scroll down to the American Admiralty Bureau Publications section. When I was a live justice on a real bench I had my doubts about "statutory unseaworthiness", not today however, the law has grown.

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