In some cases, liability materializes between parties who are not involved in a contractual relationship. When an individual has suffered an injury, either to himself or his property, it is crucial to assess how he might sue the Wrongdoer to seek some remedy for his injury.
If there is No Contractual Relationship between the Injured Party and the Wrongdoer, then the cause of action cannot be one of Breach of Contract. Therefore, it is critical to analyze the other areas of law whereby the Injured Party may seek redress. Consequently, we are examining Non-Contractual Civil Liability. Law of Tort deals with Non-Contractual Civil Wrongs.
The word tort comes from the French “Un Tort” which means Wrong. Therefore, a Tortuous Act is a Wrongful Act, leading to liability, and the Tortfeasor is the Wrongdoer.
Types of Torts:
1- Negligence: Negligence is a tort under which most liability arises in commercial circumstances such as in the shipbroking business.
2- Conversion: Conversion is the treating of somebody else’s property in a manner that is inconsistent with their ownership of that property. In Criminal Law, Conversion would amount to theft.
3- Nuisance: Nuisance is preventing an individual from the enjoyment of his property.
4- Trespass: Trespass is interference with an individual or their property. Trespass is not just related to going onto an individual’s land.
5- Defamation: Defamation is either saying or publishing untrue statements about an individual which damages their reputation.
6- Deceit: Fraud.
A misrepresentation is a False Statement of fact rather than a physical act.
1- Innocent Misrepresentation
2- Negligent Misrepresentation
3- Deliberate Misrepresentation
Misrepresentation could be Innocent Misrepresentation or Negligent Misrepresentation.
Deliberate Misrepresentation is Fraud that could lead to a claim for damages within the Tort of Deceit. Furthermore, Fraud could also be a Criminal Offence. It is essential to assess whether liability may occur for damage caused by such a statement.
An Innocent Misrepresentation is made in a reasonable belief of its truth. There is no liability for an Innocent Misrepresentation regardless of the consequence.
In a Negligent Misrepresentation case, for example, a bank was requested to give a credit reference, to one of the bank’s clients, and the bank negligently issued a good reference. The Injured Party (Plaintiff) acted upon the bank’s information and suffered harsh monetary loss. The bank did owe a duty of care to the Injured Party (Plaintiff) even though there was no contractual relationship between the Injured Party (Plaintiff) and the bank.
In Hedley Byrne Vs Heller (1964) case, the Tortfeasor (Defendant) bank simply escaped having to pay damages in this case because the bank had given the reference without responsibility. In other terms, the bank had unquestionably and firmly denied any responsibility for the contents therein.
In another case, a company successfully took over another basing their negotiations upon facts produced from the company’s published reports drafted by the company’s auditors. The finances of the taken-over company proved to be far less attractive than they felt they had been led to believe and sued the auditors for negligence. Nevertheless, the courts held that the auditors of a public company’s accounts in carrying out the audit had a Duty of Care to the shareholders of the company. The auditors of a public company owed no Duty of Care to members of the public who relied upon the statements in determining to purchase stakes in the company.
In Negligent Misrepresentation, issues arise when the information delivered to a particular person for a particular purpose, has been used about different transactions or by different persons. In such cases, it is unlikely that the court will identify a special relationship between the maker and the recipient of the statement, and consequently, no duty of care is likely to exist.
Pure Economic Loss in Misrepresentations
The essential issue preventing the courts from identifying a Duty of Care between parties in statement cases appears to be the economic nature of the loss, where the negligent statement has caused damage to an individual or individual’s property it will be easier for the Injured Party (Plaintiff) to establish the particular relationship as between Injured Party (Plaintiff) and the Tortfeasor (Defendant), therefore, giving rise to the Duty of Care element.
In Pure Economic Loss cases where the Injured Party (Plaintiff) can establish that in the circumstances the proximity between the Injured Party (Plaintiff) and the Tortfeasor (Defendant) is adequately close to constructing a Special Relationship and a Duty of Care is be said to exist.
Consequently, it is moderately easier to succeed in a claim for Pure Economic Loss that has been caused by a Negligent Misstatement, rather than by a Negligent Act, and thus, there are substantial advantages to successfully submitting a claim as being one relating to Negligent Misrepresentation.
Pre-Contractual Negotiations may not necessarily be included as terms of the agreement. Accordingly, if one party was induced into a contract based on a False Statement of Fact, in other words, based on a Misrepresentation that is not a contractual term, there can be no action for Breach of Contract. Therefore, it will be necessary to rely on Tort and the Misrepresentation Regulations.
Under English Law, the situation regarding Pre-Contractual Misrepresentation is governed by The Misrepresentation Act 1967.
The Misrepresentation Act 1967 is exclusively concerned with Pre-Contractual Misrepresentation. The Misrepresentation Act 1967 has no application to other types of Misrepresentation.
An Injured Party (Plaintiff) who has been induced into a contract based on any Misrepresentation may nullify that contract. An Injured Party (Plaintiff) may withdraw from the contract and have the contract treated as if the contract had never been entered into. When an Injured Party (Plaintiff) nullifies a contract, an Injured Party (Plaintiff) may either traditionally claim damages or may seek an indemnity.
An Injured Party (Plaintiff) cannot claim damages in the case of Innocent Misrepresentation. However, when an Injured Party (Plaintiff) is induced into a contract based on an Innocent Misrepresentation, an Injured Party (Plaintiff) may claim an indemnity namely the expenses actually incurred as opposed to a claim for damages.
The Misrepresentation Act 1967 stipulates that when an Injured Party (Plaintiff) is induced into a contract by a False Statement of Fact that Statement will be treated as Fraudulent unless the Statement Maker can demonstrate that the Statement was Innocent. This makes the Injured Party’s (Plaintiff’s) claim in such a case more effortless. No longer does the Injured Party (Plaintiff) have to demonstrate the elements of the Tort of Deceit or Tort of Negligence, but instead, the Injured Party (Plaintiff) simply has to demonstrate that he entered a contract based on the Tortfeasor’s (Defendant’s) statement and that the statement was a False Statement of Fact. Unless the Tortfeasor (Defendant) can demonstrate that the statement was Innocent, the Injured Party (Plaintiff) succeeds the case.
After establishing the Misrepresentation as Fraudulent, the estimate of damages awarded will be for the Tort of Deceit. Damages awarded in tort are for All Direct Loss resulting from that Deceit. This is different from damages awarded for the Tort of Negligence when damages are awarded based on All Loss that is reasonably foreseeable.
The Misrepresentation Act 1967 authorizes the court in its discretion to award damages in lieu of rescission in the case of an Innocent Misrepresentation. This does not create a cause of action but does authorize the court to consider the case of an individual who in good faith innocently makes a misrepresentation and who might be unfairly prejudiced if the Injured Party (Plaintiff) was permitted to nullify the contract.
False Statement of Opinion
Normally, a False Statement of Opinion does not give rise to liability. Nevertheless, when an opinion is given as a fact and is intended to be relied upon there could be a liability. Therefore, Injured Party (Plaintiff) would be entitled to damages to compensate him for his loss in entering into the transaction.
There need be no contractual relationship between the Opinion Giver and Opinion Receiver of such an opinion. Furthermore, this case might easily arise among practitioners in the shipping industry.
For example, if an opinion is requested as to the financial stability of a company, such as a Time Charterer, with whom the enquirer, such as a Shipowner, considers accomplishing business. Opinion Giver must think most carefully before delivering an optimistic statement. If the company prove incredibly unreliable then the enquirer (Shipowner) who was relying on the statement, would have been entitled to take action against the Opinion Giver.
The case becomes even more complicated if the Opinion Giver is, for example, the Time Charterer’s Agent, and the Time Charterer’s Agent delivers a falsely optimistic opinion about the Principal’s financial situation. This case might smoothly move into Fraudulent Misrepresentation.
Shipbrokers should be careful when giving an opinion that the other party might depend on.
Tort of Negligence
Negligence is a Failure of a Duty of Care. If a Plaintiff is to succeed against Defendant in an action for Tort of Negligence, Plaintiff must prove:
1- Tortfeasor (Defendant) owed the Injured Party (Plaintiff) a Duty of Care
2- Tortfeasor (Defendant) was in breach of his duty.
3- Tortfeasor’s (Defendant’s) breach caused the damage
Duty of Care
Liability in Tort of Negligence is based on a Legal Duty not to be careless. Not all carelessness may result in liability for negligence. For one individual to be liable to another for the results of his carelessness, there must be some Legally Recognized Proximity between those individuals. Consequently, the duty of care requirement determines the scope of negligence that the courts, as a matter of law, may authorize giving rise to a claim for damages.
When an individual suffers an injury, the question is whether this situation can be reasonably foreseeable on the part of the individual whose act or omission caused the injury. Whether a Duty of Care exists or not is an inquiry of law for the judge to determine.
Duty of Care is set by placing in the Tortfeasor’s (Defendant’s) place a Hypothetical Reasonable Man and determining whether the Hypothetical Reasonable Man would have foreseen the likelihood or probability of injury, not its mere possibility. The Hypothetical Reasonable Man Test is objective, not subjective. Therefore, an individual is not liable for every injury which results from his carelessness.
Previously, the approach of the courts was to decide whether or not a Duty of Care exists between the Tortfeasor (Defendant) and the Injured Party (Plaintiff) by the application of the principle that “you must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbor”. Who then is your neighbor? The answer appears to be the individuals who are so closely and directly affected by my act contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.
Donoghue Vs Stevenson (1932) case is the landmark case that set to whom a Duty of Care is due. Donoghue Vs Stevenson (1932) case involved the injury suffered by an individual who drank a bottle of ginger beer in which there was the decayed body of a snail. The important point was that the Injured Party (Plaintiff) had not bought the ginger beer but had been given it by a companion. The Injured Party (Plaintiff) had no contractual relationship with the ginger beer factory. Therefore, the Injured Party (Plaintiff) could not sue for breach of contract. Till Donoghue Vs Stevenson (1932) case, there was no judicially set type of Duty of Care between the factory of goods and the consumer.
Donoghue Vs Stevenson (1932) case was appealed to the House of Lords. Lord Atkin propounded his now well-known Neighbor’ Principle. Lord Atkin expressed that our neighbor is the person directly affected by our acts or omissions, or the person we should reasonably consider would be so affected.
Breach of the Duty of Care
After setting that the Tortfeasor (Defendant) does undoubtedly owe the Injured Party (Plaintiff) a Duty of Care, the Injured Party (Plaintiff) must next prove that the Tortfeasor (Defendant) was in Breach of Duty. This is the actual Negligent Act or Negligent Omission:
Negligent Act Vs Negligent Omission
Negligent Act is evaluated based on acceptable standards of behavior. The test as to whether or not an individual has been negligent is judged on an objective level. The question to be asked is whether the reasonable person would have acted or failed to act in this way. This may be contrasted with the subjective test, which would ask whether the Defendant (Tortfeasor) himself considered he was acting unreasonably. What is unreasonable in one case may well not be unreasonable in a different case. Therefore, the Court would look at each case on its respective facts.
An omission is a failure to act. There are somewhat few cases where the law will impose a duty to act. Therefore, a failure to act will in far fewer cases lead to liability than an actual positive act. Consequently, it is harder for the Injured Party (Plaintiff) to show that a failure to act was unreasonable than it is for him to show that an act executed was unreasonable.
The issue of causation is critical because it is an inherent principle of the Tort of Negligence that the Tortfeasor’s (Defendant’s) Breach of Duty, in other words, Tortfeasor’s (Defendant’s) Unreasonable Act, must actually have caused the damage.
Injured Party (Plaintiff) must show that not only was the Tortfeasor (Defendant) unreasonable but that this unreasonableness actually did cause the injury from which Injured Party (Plaintiff) suffers. If the Injured Party (Plaintiff) can only establish a Breach of Duty and also damage but cannot establish that the damage is actually the consequence of the Breach of Duty, then the Injured Party’s (Plaintiff’s) claim will fail.
A Tortfeasor (Defendant) should not be and is not liable for harm to the Injured Party (Plaintiff) of which Tortfeasor’s (Defendant’s) act or omission is not a cause.
In practice, cases are not always so straightforward as admit of only one cause. Courts seek to establish whether the Tortfeasor’s (Defendant’s) act is a sufficiently proximate cause to incur responsibility. This does not necessarily refer to the final event before the injury or damage is suffered in a case where more than one act or omission is concerned. Where two or more events can be seen to be causative concerning the Injured Party’s (Plaintiff’s) injuries both may be discovered proximate. Where the Tortfeasors (Defendants) are two or more separate parties, it will be up to the Court to determine whether damages are apportioned equally between the two causes or whether the damages are apportioned depending upon their effect on the Injured Party (Plaintiff). For example, 30/70.
The Court considers whether there are any Policy Reasons which ought to negate or reduce or limit the scope of the duty or the class of person who might claim damage.
In some cases, the Courts are prepared to consider the demands of public policy when deciding whether to extend or limit a legal principle. The courts are prepared in certain cases to look beyond regulation and precedent and to consider extra-legal factors. The Courts consider a variety of subjects, for example, whether the scope of conduct in an issue is appropriate for legal intervention, whether the imposition of a principle would discourage people from undertaking socially desirable activities; whether inconsistencies might be created in the law and whether the imposition of a principle would impede the administration of justice, especially in overwhelming the judicial procedure in a mass of claims which is named the Floodgates Argument.
Pure Economic Loss
The most crucial point of public policy is Pure Economic Loss, because a claim may be brought in a commercial case within the Tort of Negligence, as there was no contractual relationship between the individual who had suffered damage and the wrongdoer. Apparently, in commercial cases, the parties are most concerned with either damage to their goods or with loss of profits.
In contractual cases, there is no issue with recovering for Loss of Profit, because the method in which damages are assessed for contractual disputes envisages that the claimants will be seeking to recover Loss of profit. Courts’ decisions are based upon what the situation would have been if the contract had been properly completed.
In tort cases, the remedy for which is merely to place the Injured Party (Plaintiff) back where Injured Party (Plaintiff) would have been if the tort had not occurred. Therefore, if the claim in Tort is for Loss of Profit solely, in other words, not including loss or damage to goods, then the Injured Party (Plaintiff) is unlikely to be able to recover that loss. Even where the Injured Party (Plaintiff) succeeds in establishing negligence against the Tortfeasor (Defendant), there will be no Award of damages if the loss is Pure Economic Loss.
Spartan Steel and Alloys Ltd Vs Martin Co Ltd 1972 Case
This was a case of a contractor (Martin Co Ltd) who negligently caused a power cut by damaging a cable owned by the Electricity Board. As a consequence, production was lost in an adjacent manufacturer. The manufacturer owner was able to claim, in the Tort of Negligence, for machinery and materials which were being processed at the time and which were damaged when the power supply was cut. Furthermore, the manufacturer owner was able to recover any loss of profit arising from those damaged materials. Nevertheless, the manufacturer owner was not able to claim for production losses that occurred because the machinery was unable to work whilst the power supply was cut, namely those goods which, although not damaged when the power supply was cut, only could not be processed and sold due to a shortage of power supply. The loss in consideration of these goods was a Loss of Profit which was caused by the failed power supply but was not a result of damaged goods.
The Tort of Negligence has been involved with providing compensation for damage to an Injured Party (Plaintiff) or Injured Party’s (Plaintiff’s) property and not with safeguarding an individual’s finances. This is the justification for the policy decisions whereby the courts will not award damage for Pure Economic Loss.
There are occasional cases where Pure Economic Loss has been recovered but this materializes exclusively when there is a high degree of proximity between the Injured Party (Plaintiff) and the Tortfeasor (Defendant)
Damage to Property
To claim damages arising out of injury to property, the Injured Party (Plaintiff) must be able to establish that Injured Party (Plaintiff) had either the legal ownership of or a possessory title to those goods at the time when the damage occurred.
In The Aliakmon (1986) case, the Bill of lading (B/L) endorsed to the consignee could take delivery as an agent for the shipper. The endorsee had no right of possession to the cargoes and therefore had no valid claim.
Remedies in Tort
Damages in Tort Vs Damages in the Contract
The purpose of Damages in Tort is to put the Injured Party (Plaintiff) back into the position as if the Tort had not occurred.
On the other hand, the purpose of Damages in the Contract is to put the Injured Party (Plaintiff) in the position as if the contract had been successfully conducted.
Damages in Tort do not encompass Expectation Loss therefore damages awarded in tort and the policy matters covering Pure Economic Loss will result in a Loss of Profit being practically impossible to recover.
Damages awarded for the Tort of Deceit are always damages that are a direct result of the deceit, whether those results are intended or unintended. Where the results are not intended, the Tortfeasor (Defendant) is liable for All Direct Loss, whether or not the loss was of a nature that ought reasonably to have been anticipated in the cases.
Damages in Negligence are only awarded based on All Direct Loss until 1961. In Overseas Tankship UK Ltd Vs Morts Dock & Engineering Co Ltd (The Wagon Mount) 1961 case, Privy Council decided to depart from the Direct Consequence Test and embraced the Test of Reasonable Foreseeability.
In Overseas Tankship UK Ltd Vs Morts Dock & Engineering Co Ltd (The Wagon Mount) 1961 case, the Tortfeasor (Defendant) negligently allowed bunkers to spill from the vessel. Bunkers outspread in a thin film across the sea of the harbor in which the vessel was moored. The bunkers caught blaze as a consequence of sparks from welding, which ignited wastes floating on the water in the oil. The Injured Party (Plaintiff) operated a wharf nearby.
It was unforeseeable that a fire would trigger in a such bunker when spread on the sea in this form, and consequently, the Tortfeasor (Defendant) was not liable for the damages caused to the Injured Party’s (Plaintiff’s) Property by the fire. Nevertheless, it was foreseeable that the Injured Party (Plaintiff) would be damaged in having to clean the bunkers off the wharf. Thus, the Tortfeasor (Defendant) was liable for this loss.
In some cases, it may be that the Tortfeasor (Defendant) is not the only party who has been negligent. Although the Tortfeasor (Defendant) may have caused, by Tortfeasor’s (Defendant’s) Negligent Act, the Injured Party’s (Plaintiff’s) injuries, it may well be that the Injured Party (Plaintiff) has contributed to his own injury by his own negligence. The Injured Party (Plaintiff) has incurred liability due to his own Contributory Negligence.
The situation regarding Contributory Negligence was initially governed by Common Law which ruled that where the Tortfeasor (Defendant) could demonstrate that the Injured Party (Plaintiff) had contributed to his own injury. The Tortfeasor (Defendant) would have a complete defense to the Injured Party’s (Plaintiff’s) claim against him. The position has now changed under English law which provides that where the Tortfeasor (Defendant) can show contributory negligence on the part of the Injured Party (Plaintiff), any damages awarded regarding that injury shall be decreased consequently.
Vicarious Liability indicates liability on behalf of another person. In some cases, one individual will be liable for the torts committed by another individual.
The traditional example of Vicarious Liability is indicated by the employer and employee relationship. An employer will be liable for the Torts of his employees if those Torts are committed within the confines of the employment. The Employer and Employee relationship are more often referred to as the Master and Servant relationship.
An individual is not Vicariously Liable for the Tort of his Independent Contractors. In some cases, it may be challenging to ascertain whether the individual doing the work is an independent contractor or an employee. Previously, the courts utilized a Test of Control, in other words, was the employer in control of the employee’s actions whilst at work?
Today, in sophisticated working conditions, this test is not applicable and thus, the courts examine the reality of the relationship rather than any pre-fixed classifications.
The grounds for setting this Vicarious Liability is that there may be one individual, in other words, the employer who is apparently in a better position to fulfill the expense of any damages awarded in respect of an Injured Party’s (Plaintiff’s) damages. Although this might seem unfair in respect of the employer, it should be remembered that the employer is in a better position to protect himself with insurance than either the employee or a prospective Injured Party (Plaintiff).
The doctrine of Vicarious Liability does not shift or transfer liability from the Tortfeasor (Defendant) to another individual to be liable but instead provides the Injured Party (Plaintiff) with a supplementary defendant.
Himalaya Clause is a straightforward benchmark of Vicarious Liability. In the Himalaya Case (Adler Vs Dickson) 1955, a woman was injured when disembarking from a vessel because the ladder collapsed. The injured woman could not sue the shipowner due to exclusion clauses in the passenger ticket, the injured woman sued the Bosun and the Captain. The Captain was held to be Vicariously Liable for the Bosun’s negligence which was possibly just as well as the Bosun was far less likely than the Captain to be in a position to pay any damages.
In cases, where the Employer directs an Employee to commit a Tort, then the Employer will have Primary Liability. The Employer was accountable for the execution of the Tort. In this case, the Employer and the Employee will both have Primary Liability.
Tort of Defamation
Defamation is the Publication of a Statement that tends to lower an individual in the estimation of right-thinking members of the community commonly or tends to make them avoid or disregard that individual. To be defamation, the statement must be False and the statement must be carrying a Defamatory Meaning.
In some cases, Statements of Opinion may be Defamatory. The nature of the tort is the publication or communication of the falsehood to at least one individual other than the individual defamed. Furthermore, every subsequent repetition of the statement is a new execution of the Tort.
The Law of Defamation applies to businesses as it applies to people. The form of publication specifies whether the tort executed is Libel or Slander.
Types of Tort of Defamation
Libel is defamation in some permanent form. Photographs, images, reports, and prints are libel, and broadcasting of a defamatory subject is libel whether sound or graphical images are transmitted.
Libel may be a crime as well as a tort. Libel is actionable without the claimant having to prove any real financial loss. Any actual loss is called Special Damage.
Libel simply has to be communicated to one other individual. Therefore, handwriting privately to another individual in otherwise libelous terms about the actual recipient would not constitute libel. However, simply dictating a letter to a secretary, the libel is deemed to have been published.
An exception is when privilege can be suitably claimed such as in the case of one employer delivering a negative reference about an employee to another employer. Nevertheless, if malice can be proved, there may be a case.
Slander is defamation by word of mouth. Unlike Libel, there has to be proof of Actual Damage. In misrepresentation cases, when giving an opinion that care must be taken not to go too far the other way. For instance, if the subject of the request for an opinion is an untrustworthy individual, and reached the Injured Party’s (Plaintiff’s) ears, it could well give rise to an action in slander as evidence of a business deal not conducted could be awarded as Special Damage.
Tort of Conversion
Conversion may be described as any dealings with goods which is unfavorable to the Injured Party’s (Plaintiff’s) right to them
1- Taking of goods may amount to conversion
2- Destruction of goods that were lawfully in the possession of the defendant as bailee may amount to conversion
3- Unauthorized sale of bailed goods by the Tortfeasor (Defendant) may amount to conversion.
In order to sue for wrongful interference by conversion, the claimant must have had either possession or the immediate right to possess at the time the wrong was committed.
The Tortfeasor (Defendant) must do something which is a total denial of the Injured Party’s (Plaintiff’s) title to the goods. Liability is strict and the Injured Party (Plaintiff) doesn’t need to prove that the Tortfeasor (Defendant) had a wrong intention.
A traditional example of conversion is where the Port Agent deliberately or negligently releases cargo to somebody who has no right to the cargo. The Bill of Lading Holder (B/L Holder) who has the title to the goods will have a clear case against the Port Agent under the Tort of Conversion. Port Agent is liable to the Bill of Lading Holder (B/L Holder) for the full value of the goods unless the Port Agent had been instructed by his Principal to make the delivery to the wrong party. Furthermore, the Port Agent can claim no protection from any Himalaya clause.
Strict Liability is usually described as No-Fault Liability. Strict Liability indicates that the Tortfeasor (Defendant) will be liable, irrespective of whether or not Tortfeasor (Defendant) was negligent or otherwise at fault.
Strict Liability cases include the escape of water, fire, noxious substances, and dangerous animals onto other individuals’ property. In such circumstances, the sole justification is when the Act of God can be proved.
Strict Liability most frequently occurs is in connection with Industrial Injuries. In numerous nations, there is a broad spectrum of legislation, such as the Health and Safety At Work Act 1974, that may well impose a far stricter duty than negligence. For example, in the United Kingdom, the most prominent legislation is .
Tort is legal cause of action when a person has suffered some compensable harm as a result of the negligence or willful misconduct of another person. Classic example of maritime tort would be Ship Collision.
In ship collision case, negligent act of one ship owner or operator results in damage or injury to others.
Tort incident becomes maritime tort falls within maritime jurisdiction if tort has:
- maritime location
- maritime connection
Tort incident’s maritime connection test has two components:
- incident must have potential impact on maritime commerce
- incident is substantially related to traditional maritime activity
When maritime incident involves ship on navigable waters, maritime incident is likely to be a maritime tort. In order to be within maritime jurisdiction, tort must have occurred on navigable waters or tort must have been caused by a ship on navigable waters.
In United States, navigable waters are for the use of interstate or foreign commerce. No matter how large or how deep, if that water is wholly within a single state, then that water is not navigable for purposes of determining maritime jurisdiction. Some small and shallow waters, lakes or reservoirs are considered navigable waters, due to use of interstate or foreign commerce. Navigable waters considerations are:
- Whether waterway is actually used for maritime commerce doesn’t Even if that water is too small for large ships, that is not a factor. If boat can navigate on that water, that water connects to another state or ocean, that water is considered as navigable waterway
- Whether waterway was navigable at one time also doesn’t If the waters were formerly open to ocean or river, but that waterway was closed off due to a shoaling or building of a dam, then waters would cease to be navigable water
- Whether waterway can be navigated only at certain tides doesn’t matter, as long as interstate commerce can be carried out on waterway, it will be navigable
- When the damage of an incident on navigable water is only realized at the port or shore. Incident is still deemed to have maritime location. Such cases are considered as admiralty extension For example:
- ship hits a dock or bridge
- seafarer dies from poisons ingested at sea
- ship weakens a subway tunnel and causes flooding in buildings miles away
When checking whether an incident has maritime connection, court should describe incident at an intermediate level of possible generality. Intermediate level of possible generality means that an incident should be viewed in broad sense.
Practically, when an incident is viewed in broad sense, almost every ship incident on navigable waters have potential impact on maritime commerce. According to previous court cases, only a few cases involving ships have been found to lack an impact on maritime commerce. Incidents that does not impact on maritime commerce:
- Leakage of carbon monoxide into shore moored houseboat cabin, because carbon monoxide harm was contained solely to houseboat itself
- Cases involving swimmers, scuba divers and surfers in coastal waters where ships have not been involved
- Cases involving boat passengers or cruise ship passengers in fistfight on the dock
Traditional Maritime Activity
Maritime incident must be substantially related to traditional maritime activity, in order to be considered as maritime tort. Traditional maritime activity test for maritime jurisdiction was originally developed as a way for courts to weed out unusual cases that don’t fit into maritime jurisdiction. For example, an airplane had run into a flock of seagulls on takeoff and crashed in Lake Erie. United States Supreme Court held that maritime jurisdiction does not depend on location alone, but also requires that alleged wrong bear significant relationship to traditional maritime activity.
Usually, most cases involving ships have been held to relate to traditional maritime activity, because ship incident satisfies traditional maritime activity test. At least one alleged tortfeasor (wrongdoer) that is the ship itself was engaged in incident substantially related to traditional maritime activity. That maritime activity is claimed to have been proximate cause of the incident.
Generally, any tort case involving negligence on or by ship on navigable waters is likely to be within the maritime tort jurisdiction. Any case not involving negligence related to a ship, is likely to not be a maritime tort, even if it occurs on navigable waters. According to maritime law, plaintiff whose negligence contributed to an accident can still bring suit against others responsible for accident. That is different from contributory negligence which limit when a person can sue others for an accident in which the person was also negligent.
Maritime Law applies a simple comparative fault standard. If plaintiff’s own fault contributed to an accident, plaintiff can still sue others who were also at fault, but plaintiff’s recovery is reduced by percentage of fault attributable to the plaintiff. In maritime cases, if person is negligent, it is determined by reasonable person standard. Checked that person acted reasonably under the circumstances. Maritime courts would look at expert testimony or other sources to determine what a reasonable person would have done.