Appeal – A proceeding whereby one party seeks to have a judicial decision reconsidered by a higher court. Both court and agency decisions can be appealed. The higher court has the power to reverse the original decision if the lower court or agency erred in making the original decision.
Arbitration – A type of alternative dispute resolution where parties resolve their conflict outside of court. Maritime arbitration in the United States is governed by the Federal Arbitration Act. Under this Act, any written provision in any maritime transaction or contract that provides for arbitration of disputes is valid and enforceable, unless there are grounds in law or equity for the revocation of any contract.
Arbitration Clause – A clause in a transaction or contract that requires parties to resolve any and all disputes in arbitration, rather than in court. An arbitration clause can be extremely broad or narrow in scope. Most often, the clause is broad and also specifies a place of arbitration, the procedure to be used in the arbitration, and the controlling law.
Assignment – The transfer of a legal right or interest from one person to another.
Assumption of the Risk – A legal doctrine that refers to a plaintiff’s actual awareness of a danger and his conscious and voluntary decision to embrace a known risk. In admiralty law, assumption of the risk is not a defense. If a plaintiff “assumes the risk” in admiralty law, the plaintiff’s fault will be apportioned and his recovery will be reduced under comparative fault principles.
Attorneys’ Fees – Attorneys’ fees are the fees incurred by your attorney in bringing a claim or case. Certain laws permit the prevailing party to recover his or her attorneys’ fees from the opposing party.B
Beneficiary – A person designated to benefit from an appointment, disposition or assignment, or a person who will receive a right or compensation as a result of a legal arrangement or instrument.
Bills of Lading – A legal document acknowledging the receipt of goods by a carrier or by the shipper’s agent, and the contract for the transportation of those goods. A bill of lading details the type of good, the quantity of goods to be carried and the destination to send the goods.
Blacklisting – The act of putting the name of a person or employee on a list of those who are to be boycotted or punished.
Borrowed Servant – A person whose services are, with the employee’s consent, lent to another employer who temporarily assumes control over the employee’s work. In terms of liability, the borrowing employer is legally responsible through vicarious liability for the borrowed employee’s acts.
Burden of Proof – A party’s duty to prove a disputed assertion or claim. To satisfy the burden of proof, a party must put forth evidence to prove his or her legal claims.
Maritime Law Glossary C
Casualty at Sea – A serious or fatal accident that occurs on navigable waters.
Causation – The producing of an effect. In personal injury lawsuits and under several maritime statutes, a plaintiff is legally required to prove that the defendant’s breach of a legal duty caused his or her injury.
Choice of Law – A legal question of which jurisdiction’s law should apply in a given case. A contract may contain a choice of law clause, in which the contracting parties agree to designate a jurisdiction where the law will govern in any disputes that may arise between the parties.
Collateral Source Rule – A rule that if an injured party receives compensation for the injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay. An insurance company is the most common type of collateral source.
Collision – The contact of two or more moving vessels.
Comparative Fault – A plaintiff’s own negligence or carelessness that proportionally reduces the damages recoverable from a defendant. If a plaintiff if partially at fault for the accident, the plaintiff’s recovery will be reduced in most cases. A plaintiff’s own fault, however, does not serve as a complete bar to recovery.
Complaint – The initial legal document and pleading that initiates a civil action and the plaintiff’s claim for relief.
Compulsory Pilotage Statute – A requirement, imposed by law in certain jurisdictions, that vessels approaching or leaving a harbor must have a licensed pilot to guide the vessel into or out of the harbor.
Concurrent Jurisdiction – Jurisdiction that can be exercised simultaneously by more than one court over the same subject matter and within the same territory. If two courts have concurrent jurisdiction, a litigant has the right to choose the court in which to file the action.
Conflict of Laws – A difference between the laws of different states or countries in a case in which a transaction or occurrence central to the case has a connection to two or more jurisdictions. A court will apply several factors to determine which set of laws should be applied to a given case when a conflict of laws arises.
Consequential Damages – Losses that result indirectly from an injurious act and do not flow directly and immediately from the act.
Constructive Discharge – A de facto termination of employment that results from an employer making an employee’s working conditions so intolerable that the employee feels compelled to leave employment.
Contract – An agreement or writing between two or more parties creating obligations and rights that are enforceable by law.
Contribution – A tortfeasor’s right to collect from other joint tortfeasors when and to the extent that one tortfeasor has paid above and beyond his or her fair share to the injured party. The shares to be paid in contribution parallel each tortfeasor’s respective percentage of assigned fault.
Contributory Negligence – A doctrine that historically barred a plaintiff from recovery in tort. Under this doctrine, a plaintiff whose negligence contributed to the wrong that caused his or her harm was absolutely barred from recovery of any damages for the injury. Today, contributory negligence no longer operates as a complete bar to recovery. Instead, general rules of comparative negligence apply, and the plaintiff’s award is reduced by an apportionment of his or her fault.
Convention on the International Sale of Goods – An international treaty that provides for a uniform code of international sales law.
Counterclaim – A legal claim for relief asserted against an opposing party after an original claim has been made. Typically, a counterclaim is asserted by a defendant against a plaintiff, after the defendant receives a plaintiff’s complaint.
Cross-claim – A claim asserted between co-defendants or co-plaintiffs in a case. A cross-claim must relate to the subject matter of the original claim or counterclaim.
Maritime Law Glossary D – F
Damages – Any and all monetary compensation a plaintiff obtains in a judgment. The purpose is to fully compensate a victim for his or her losses. In maritime law, damages are awarded on the basis of both general maritime law and statute. Damages include lost earning capacity, medical and other related expenses incurred or to be incurred, and pain and suffering. Damages should reflect the nature and extent of a victim’s injury.
Death on the High Seas Act – A federal law enacted in 1920 permitting a wrongful-death action to be filed in U.S. district court for a death occurring on navigable waters. A wrongful death action is a civil action brought on behalf of a decedent’s survivors for their damages sustained from a tortious injury that caused the decedent’s death.
Defendant – A person sued in a civil action or proceeding.
Directed Verdict – A ruling issued by a trial judge where the judge takes the case from the jury because the evidence set forth only permits one reasonable verdict.
Discharge – Any means by which a legal duty is extinguished.
Double Wages Penalty Statute – A law that imposes the payment of double wages to a seaman by his employer in certain circumstances. If a seaman’s employer fails to pay a seaman his or her wages, this statute penalizes the non-paying employer by requiring the employer to pay the seaman “two days” wages for each day of delayed payment.
Duty of Employer – A maritime employer is legally required to provide safe working conditions for its employees and to ensure a vessel is seaworthy or fit for its intended purpose. A breach of this duty may give rise to legal rights for an injured employee.
Duty to Mitigate – A nonbreaching party’s or tort victim’s duty to make reasonable efforts to limit losses resulting from the other party’s breach or tort. If a party fails to mitigate, the party’s may be precluded from collecting damages that could have been avoided had the party mitigated his or her damages.E
Economic Loss – A monetary loss as a result of a tort or breach of contract and a type of damages recoverable in a lawsuit. Examples of economic loss include lost wages or lost profits.
Equitable Relief – A remedy, typically nonmonetary, such as an injunction or specific performance, obtained when monetary remedies cannot adequately redress an injury.
Estoppel – A bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.
Evidence – Documents, testimony or objects that tend to prove or disprove the existence of an alleged fact.
Exculpatory Clause – A clause in a contract that relieves a party from liability resulting from a negligent or wrongful act. Depending on the clause, courts may void the clause as a violation of public policy.
Exoneration – The removal of a burden, charge, responsibility or duty.F
Federal Law – A body of jurisprudence established by Congress, agencies and federal courts. Most of maritime law is federal law. Under the Supremacy Clause of the U.S. Constitution, federal law is the supreme law of the land and trumps state law when the two conflict.
Federal Rules of Civil Procedure – A set of rules governing civil actions brought in U.S. district courts.
Floating Drydocks – A type of pontoon used for docking, hauling and raising vessels.
Forum Non Conveniens – A legal doctrine that permits a court to divest itself of appropriate jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum that could also have jurisdiction over the matter.
Forum Non Conveniens – A legal doctrine that permits a court to divest itself of appropriate jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum that could also have jurisdiction over the matter.
Maritime Law Glossary G – J
General Maritime Law – A body of legal precedents and doctrines developed by U.S. Courts in maritime and admiralty litigation. General maritime law consists of federal common law.H
Himalaya Clause – A clause in a bill of lading extending the carrier’s defenses and limitations under the Carriage of Goods by Sea Act to third parties, generally employees, agents and independent contractors. U.S. Courts strictly construe this type of clause.I
In Personam Jurisdiction – A court’s power to bring a person into its adjudicative process.
In Rem – A court’s power to adjudicate the rights to a given piece of property. This power includes the power to seize and to hold the property.
Indemnification – The action of compensating for loss or damage sustained or reimbursing another for a loss suffered because of a third party’s or one’s own act or default.
Injunctive Relief – A type of relief available to a party whereby the court issues an order commanding or preventing an action. In order to obtain injunctive relief, a party must show that there is no plain, adequate and complete remedy at law and that an irreparable injury will result unless the relief is granted.
Inland Rules – A set of federal navigation rules that apply to all vessels upon inland waters of the United States. These rules provide for specific rules of conduct for vessels.
Insurance – A contract by which one party agrees to indemnify another party against risk of loss, damage or liability arising from the occurrence of some specified contingency.
Intentional Wrongs – A civil wrong that a person commits knowingly or purposefully. Under the general common law of torts, a person may be legally responsible under general maritime law for intentional wrongs, including assault and battery, false imprisonment and conversion.
International Law – The legal system comprised of treaties, agreements and conventions governing the relationships between nations. In the maritime context, international law may apply if an injury or loss occurs outside of the jurisdiction of the United States.
International Law of the Sea – An international agreement that defines the rights and responsibilities of nations when using international bodies of water. The agreement also sets forth rules for businesses and for protecting the environment.J
Jason Clause – A bill-of-lading clause requiring cargo owners to pay general average contributions to a carrier in instances where the carrier is at fault but is not statutorily responsible for the cargo loss or damage in an accident.
Joint and Several Liability – Under the legal theory of joint and several liability, one defendant can be held legally responsible to pay an entire award to a plaintiff, even if other defendants were involved. This theory permits a plaintiff to seek full recovery from one defendant. A general maritime law defendant may be held jointly and severally liable with any and all other defendants under general maritime law and the Jones Act. In general, if one tortfeasor pays a disproportionate share of damages in a plaintiff’s judgment, that tortfeasor can seek contribution from other tortfeasors to pay their fair share.
Jones Act – A federal statute that allows a seaman injured during the course of employment to recover damages for the injuries in a negligence action against the employer. The Jones Act also allows an injured seaman to receive maintenance and cure benefits from his or her employer.
Judicial Review – A court’s power to review the actions of other branches or levels of government.
Jurisdiction – A government’s general power to exercise authority over all persons and things within its territory.
Jury Trial – A legal proceeding where a group of people selected by law decide questions of fact and issue a final judgment in accordance with their determinations. Depending on the maritime statute involved in a case, a maritime claimant may have a right to a jury trial.
Maritime Law Glossary L – N
Last Clear Chance Rule – A rule that a plaintiff who was contributorily negligent may nevertheless recover from the defendant if the defendant had the last opportunity to prevent the harm but failed to use reasonable care to do so. This doctrine has been abandoned in most jurisdictions upon the adoption of comparative fault schemes of recovery.
Lien – A legal right or interest that a creditor has in another’s property. The right or interest typically exists until the debt or duty that secured the lien is satisfied.
Limitation of Liability – A federal or state law that limits the type of damages that may be recovered from a particular person or group or that limits the time in which an individual can file a legal claim against a particular person or group.
Limitation of Shipowner’s Liability Act – A federal statute enacted in 1851 that limits the liability of a shipowner’s liability to the value of the vessel after an accident when the accident is not attributable to negligence or unseaworthiness on the part of the shipowner.
Longshore and Harbor Workers Compensation Act – A federal law that provides workers’ compensation benefits to persons, other than seamen, who work in maritime occupations.
Longshoreman – A maritime worker who labors on the wharves in a port. Most commonly, a longshoreman is a dock worker who loads and unloads ships.
Lost Earning Capacity – Lost earning capacity is a type of damages recoverable by an injured plaintiff in maritime law. Lost earning capacity refers to the lost income from the plaintiff’s employment at the time of the injury. If a plaintiff is unemployed or underemployed following the injury, or unable to return to work, the plaintiff may also be able to recover the loss of future earnings beyond actual wage losses. In order to recover a loss of future earnings, an injured plaintiff must prove that his or her future earnings will be impaired as a result of the injury, which typically requires a showing of some physical disability that will prevent the plaintiff from securing employment in the future.M
Maintenance and Cure – Under the Jones Act, compensation provided to a seaman who becomes sick or injured while a member of a vessel’s crew. The obligation applies to illness or injury whether or not arising out of shipboard duties.
Major-Minor Fault Rule – The principle that if the fault of one vessel in a collision is undisputed and sufficient to account for the accident, then the other vessel is presumed not to have been at fault for the accident.
Maritime – Connected with the sea; of or relating to the sea navigation or commerce.
Maritime Administration – A division of the U.S. Department of Transportation responsible for subsidizing certain costs of operating ships for the United States.
Maritime Employment – Under the Longshore and Harbor Workers’ Compensation Act, a job that is related to the loading, unloading, construction or repair of a vessel.
Maritime Law – The body of law governing marine commerce, navigation and the carriage of persons and property on navigable waters.
Maritime Peril – A danger or risk arising from navigating or being at sea.
Mediation – A method of nonbinding dispute resolution involving a neutral third party who attempts to help the disputing parties reach a mutually agreeable solution.
Medical Expenses – Expenses incurred in obtaining medical treatment or healthcare. In civil litigation, medical expenses include any medical costs incurred or to be incurred by the plaintiff caused by the defendant’s alleged wrongful act.N
Negligence – An individual’s failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. Negligence also refers to any conduct that falls below a statutory duty of care established to protect others against unreasonable risks of harm. Under the Jones Act, a seaman may bring a civil action against his employer under a theory of negligence.
Maritime Law Glossary O – P
Offshore Worker – A laborer who workers away from or at some distance from the shore.
Outer Continental Shelf Lands Act – A federal statute that extends the Longshore and Harbor Worker’s Compensation Act’s coverage to employees working on the Outer Continental Shelf in the exploration and development of natural resources.P
Pain and Suffering – Noneconomic damages in torts which compensate an individual for physical discomfort or emotional distress.
Passenger Ship – In the maritime context, a merchant ship with the primary function of transporting people. Passenger ships include cruise ships and ferries.
Pecuniary Loss – A loss of money or of something having monetary value. In a personal injury lawsuit, a plaintiff can recover for pecuniary losses caused by a tortfeasor. Similarly, in the maritime context, in certain situations an injured worker may recover for pecuniary losses incurred as a result of an accident, injury or sickness.
Pennsylvania Rule – The principle that a tortfeasor who violates a statute in the process of causing an injury has the burden of showing that the violation did not cause the injury.
Per Diem Allowance – As part of a seaman’s maintenance and cure benefits under the Jones Act, an injured seaman is entitled to receive a reasonable daily “subsistence” allowance to workers. This allowance should cover the worker’s reasonable expenses of room and board until the seaman reaches a point of maximum medical improvement.
Peril of the Sea – When elements at sea are of such a force as to overcome the strength of a ship obeying the normal precautions of good marine practice. In certain instances, a peril of the sea may relieve a vessel from liability for any loss that ensues.
Personal Injury – In a negligence action, any harm caused to a person or an invasion of a personal right. In the workers’ compensation context, a personal injury includes any harm that arises within the scope of employment.
Plaintiff – The party who brings a civil action in a court of law.
Platform – A large structure, located offshore, used in drilling for oil or gas.
Pleading – A formal document filed with the court in which a party in a legal proceeding sets forth or responds to allegations, claims, denials and defenses.
Primary Duty Doctrine – A principle in maritime law that a seaman cannot recover damages if the injury arose from an unseaworthy condition created by the seaman’s breach of a duty.
Products Liability – A manufacturer’s or seller’s tort liability for any damages or injuries suffered by a buyer, user or bystander as a result of a defective product. An action in products liability can be based on a theory of strict liability, negligence or breach of warranty.
Proximate Cause – A cause that is legally sufficient to impose liability on the actor. In order for a cause to be a proximate cause, the act must have directly produced an event.
Public Vessels Act – A federal law enacted in 1925 to provide for claims against the United States for damages caused by one of its vessels.
Punitive Damages – A financial award designed to inflict punishment. Punitive damages are awarded in addition to actual damages when a defendant acts with recklessness, malice or deceit. In maritime law, punitive damages are available under certain statutes to punish an employer or vessel owner for conduct that is clearly in violation of the law.
Maritime Law Glossary R – S
Red Letter Clause – An exculpatory clause in a maritime contract. Shipyards often include red-letter clauses in their contracts with vessel owners purporting to relieve the shipyard of any liability for damage to the vessel while the vessel is in its care. There is a circuit court split on the validity of red-letter clauses.
Release – An agreement to liberate a party from an obligation, duty, or demand that could have been enforced by law.
Removal – The transfer of a civil action from state court to federal court.
Replevin – An action for the repossession of personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it.
Res Ipsa Loquitur – A legal doctrine that is Latin for “the thing speaks for itself.” Under this doctrine, negligence is presumed if the actor had exclusive control of what caused the injury, even in the absence of evidence of the actor’s negligence.
Respondeat Superior – A Latin legal term for “let the superior make answer.” The doctrine states an employer or principal is liable for the wrongful acts of its employee or agent committed within the scope of the employment or agency.
Retaliatory Discharge – A discharge from employment that is made in retaliation for an employee’s lawful conduct. A retaliatory discharge clearly violates public policy.
Rule 9(h) Election – Under the Federal Rules of Civil Procedure, if a party is filing an admiralty or maritime claim, the party’s pleading may elect to designate the claim as an admiralty or maritime claim.S
Safe Port Clause – A clause in a voyage or time charter party obligating the charterer to choose a port where the ship will be safe from damage. The ship’s master can refuse to enter the port without breaching the charter, but if the ship is damaged once the master reasonably enters the port, then the charterer is liable.
Salvage – The rescue of property in peril or danger. Salvage also refers to the compensation provided by law to a person who helps save a ship or its cargo with no duty to do so.
Seaman – Under the Jones Act, a person who is attached to a navigating vessel as an employee and contributes to the function of the vessel or the accomplishment of its mission. A seaman is entitled to coverage under the Jones Act and general maritime law.
Settlement – A legal agreement in which the defendant and plaintiff negotiate a particular outcome and agree to release all pending claims between the parties.
Sovereign Immunity – A government’s immunity from being sued in its own courts without its consent. In the United States, the federal and state governments enjoy sovereign immunity unless this immunity is waived by Congress or legislature.
Standard of Care – In an action for negligence, the standard of care refers to the degree of care that a reasonable person should exercise in a given situation. The standard of care assists in establishing a legal duty on the part of the defendant.
Standing to Sue – A party’s right to bring a civil claim in court. In federal court, to have standing a party must show that the challenged conduct has caused the plaintiff actual injury, and that the interest the party seeks to protect is within the zone of interests meant to be regulated by the statutory or constitutional provision in question.
State Law – A body of law in a particular state within the United States. Most state law is comprised of a state constitution, statutes, regulations and common law.
Statute – A law drafted and passed by a legislative body.
Statute of Limitations – A law that prohibits claims filed after a certain period of time. A statute of limitations creates a period of time after an injury or accident in which a victim may file a claim. After the statute of limitations runs, the claim is barred.
Strict Liability – Liability that is not tied to fault. Under strict liability, a party is held liable if a violation of statute occurs, regardless of negligence or intent to harm. Under the Jones Act, if a vessel is unseaworthy, a vessel owner or employer is held strictly liable for any damage or injury that ensues regardless of fault.
Subrogation – The substitution of one party for another whose debt the party pays. The substituted party is entitled to all rights, remedies or securities that would otherwise be available to the original party.
Superseding Cause – An intervening act or force that the law considers sufficient to override the cause for which the original tortfeasor was responsible. After a superseding cause, the original tortfeasor cannot be held liable.
Survival Statute – A law that permits certain actions to continue in favor of a surviving relative or personal representative after the death of the party who could have originally brought the action.
Maritime Law Glossary T – Z
Tort – A civil wrong for which a remedy can be obtained. Under personal injury law, a tort can be committed with intent or negligence. A tort occurs when an actor breaches a legal duty imposed by law to persons.
Tortfeasor – One who commits a tort or civil wrong.
Towage – The act or service of towing ships and vessels, typically by a tug. A towage also refers to the charge for such a service.U
Uniform Commercial Code (UCC) – A model uniform law that controls commercial transactions, including the sale of goods, secured transactions and negotiable instruments. Provisions of the UCC have been adopted in some form in every state.
Unseaworthiness – Under general maritime law, a vessel is unseaworthy if the vessel is not reasonably fit for its intended purpose. A vessel’s owner or operator has an absolute duty to provide a seaworthy vessel, and this duty cannot be delegated to others. A breach of this duty gives rise to a vessel owner or operator’s liability for “unseaworthiness,” which is also liability that is imposed without proof of fault or negligence on the part of the vessel owner or operator. A claim for unseaworthiness can be brought by seamen, owners of goods carried by a vessel, and “Sieracki seamen,” which are maritime workers who fall outside of the scope of the Longshore and Harbor Workers’ Compensation Act.V
Venue – The proper place for a lawsuit to be filed and to proceed. Venue refers to the location of a court. Proper venue is a court located in a place that has some connection either with the events giving rise to the lawsuit, the plaintiff or the defendant.
Vessel – A ship, brig, sloop or other watercraft used or capable of being used to navigate on water. Under the Jones Act, a vessel is a specific legal qualification. To qualify as a vessel under the Jones Act, the structure’s purpose must be to some degree to transport passengers, cargo or equipment across navigable waters from place to place.W
Wages – Remuneration or payment for labor or services, typically measured by a given period worked or by output of production.
Waiver – The voluntary relinquishment or abandonment of a legal claim or right.
Wreck Act – A federal law that places certain obligations on the part of a vessel owner when a vessel sinks. Under the Wreck Act, a vessel owner must mark the wreck and remove the wreck if it obstructs navigation. If the owner fails to remove the wreck, the Wreck Act gives the United States the right to remove the wreck and to obtain reimbursement from the vessel owner.
Wrongful Death Action – A civil action brought on behalf of a decedent’s survivors for their damages sustained from a tortious injury that caused the decedent’s death.