Admiralty and Maritime Jurisdiction

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In Article III of the Constitution, the judicial power of the united states is made to extend "to all cases of admiralty and maritime jurisdiction." alexander hamilton says, in the federalist #80, that "the most bigotted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizance of maritime causes." There is no reason not to believe him. The First Congress, in the judiciary act of 1789, gave this jurisdiction to the united states district courts, which were to have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it."

This language was verbally changed in the judicial code of 1948, but the change has had no effect, and was pretty surely not meant to have any, so that one may organize the subject (as it has, indeed, organized itself) around the two questions suggested by the original formula: (1) What is the content of the "exclusive cognizance" given the District Court? and (2) What is "saved" to suitors in the saving clause?

There is an admiralty jurisdiction in "prize"—a jurisdiction to condemn and sell, as lawful prize of war, enemy vessels and cargo. This jurisdiction was employed to effect a few condemnations after world war ii, but it has on the whole been very little used in this century. There is an admiralty jurisdiction over crime, but the admiralty clause serves in these cases solely as a firm theoretical foundation for American jurisdiction over certain crimes committed outside the country but on navigable waters; these cases are rarely thought of as "admiralty" cases, because in-dictment and trial are "according to the course of the common law," with such statutory and rule-based changes as affect all federal criminal proceedings. Normally, then, "admiralty jurisdiction" refers to jurisdiction over certain private-law concerns affecting the shipping industry—contracts to carry goods, charters of ships, marine insurance, ship collisions, seamen's or passengers' personal injuries, salvage, and so on.

The courts early followed the English rule limiting the jurisdiction to tidal waters, but a rather tortuous development around the middle of the nineteenth century extended this base to include first, the Great Lakes, then the Mississippi River, and at last all interior waters navigable in interstate or foreign commerce.

There was an early effort, moreover, to limit the jurisdiction to causes very strictly "arising" on these waters. Suits in marine insurance, for example, were thought to be outside the jurisdiction, because the contracts were made on land, and were to be performed (by payment) on land. On the other hand, some quite late cases extended the admiralty jurisdiction to events having no maritime flavor (e.g., an injury to a bather by a surfboard), on the basis of this same "locality" test. This "test," productive of ludicrous results, has often been abjured by the courts, but has a way of popping up again and again, in context after context.

The "saving clause" has been given an interpretation not at all of obvious correctness. The "common-law remedy" saved to suitors was held to comprise all in personam causes of action. Thus, if a shipowner's ship is lost, and he claims indemnity from the insurance company, he is free to sue either in admiralty court or in a regular land-based court—and so on through the whole range of admiralty matters. What is not "saved to suitors," and is therefore really "exclusive" to the District Courts, is the suit in rem, wherein a vessel, or other maritime property, is treated as the defendant party, and sued directly under its own name. In practice, this means that the plaintiff (or "libellant," as he used to be called) enjoys a high-priority security interest in the vessel, an interest called a "maritime lien."

The intricacies of admiralty procedure have been simplified in recent years. But one dominating peculiarity remains. Like equity, admiralty (usually) does not use the jury. This fact is normally determinative of the plaintiff's choice, made under the "saving clause," between the admiralty forum and the land-bound court of law.

Charles L. Black, Jr.


Gilmore, Grant and Black, Charles L., Jr. 1975 Admiralty, 2nd ed. Mineola, N.Y.: Foundation Press.

Robertson, David W. 1970 Admiralty and Federalism. Mineola, N.Y.: Foundation Press.