Adoption of Federal Admiralty Rules which allow in rem jurisdiction does not extend jurisdiction of High Court absent legislative of constitutional grant of such jurisdiction.11 A.S.C. § 801.Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

Unless conferred by Constitution of American Samoa, admiralty jurisdiction in rem must be conferred on Trial Division by territorial legislature.Rev. Const. Am. Samoa, art. II, § 1; 5 A.S.C. §§ 1, 402, 801, 803; 11 A.S.C. § 2001.Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

High Court could have in rem admiralty jurisdiction, if Fono, subject to veto by Secretary of Interior, as sub-sub-sub delegatee of Congressional power, chose to enact statutory authorization therefor.Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

Statute authorizing High Court to issue all writs not inconsistent with law does not extend its jurisdiction to in rem admiralty proceedings.5 A.S.C. § 403.Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

High Court may exercise in personam jurisdiction over admiralty cases pursuant to legislative grant, and may, if due process allows, attach or execute upon vessel, as in any other case.5 A.S.C. § 3; 11 A.S.C. §§ 6201–6220.Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

Single ship refloating transaction does not constitute doing business within meaning of statute requiring permit.Am. Samoa Gov’t v. Salvage Pacific, 1 A.S.R.2d 98 (Trial Div. 1983).

High Court of American Samoa has jurisdiction over in rem admiralty proceedings so long as American Samoa remains without the jurisdiction of a United States District Court; Court has corresponding discretion to transfer and receive causes to and from other courts of the United States the same as any federal court where to do so would join a timely complaint and a perfected service of process.Great American Ins. Co. v. Pacific Princess, 1 A.S.R.2d 64 (Trial Div. 1982).

Because the courts of American Samoa are not U.S. District Courts, they do not have the power implied by 46 U.S.C. § 185 to enjoin “all other claims and proceedings” against the owner of a ship.In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

Neither A.S.C.A. § 3.0208(a)(3) nor procedural rules can confer jurisdiction on the High Court to the full extent given a U.S. district court by 46 U.S.C. § 185.In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

When the Fono enacted A.S.C.A. §3.0208(a)(3) conferring admiralty jurisdiction on the High Court, it included within that jurisdiction the substantive principle of admiralty law limiting a ship owner’s liability to its interest in the vessel and its freight.In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

Neither the Fono nor the High Court can extend the jurisdiction of the High Court to encompass proceedings in other jurisdictions.In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

High Court of American Samoa is not a “district Court of the United States” within meaning of provision of the Ship Mortgage Act granting exclusive jurisdiction to preferred ship mortgages.46 U.S.C. § 951.Star-Kist Samoa, Inc. v. The Conquest, 3 A.S.R.2d 25.

The High Court of American Samoa has in rem admiralty jurisdiction.A.S.C.A. § 3.0208(a)(3).Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

The High Court of American Samoa is not a court “of the states” within the meaning of the federal statute denying admiralty jurisdiction to state courts.28 U.S.C. § 1333.Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

High Court, neither an article III district court nor a non-article III district court empowered under the “territorial exception,” has no jurisdiction to foreclose mortgage under federal ship mortgage act, enforcement of which is permissible only by “district courts of the United States.”46 U.S.C. §§ 911-84.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Local statute granting admiralty jurisdiction to High Court allows Court to apply substantive principles of the maritime common law, even though Congress has never directly and specifically conferred admiralty jurisdiction upon High Court.A.S.C.A. § 3.0208(a)(3).Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

While High Court has no jurisdiction to foreclose mortgage under federal ship mortgage act, it had subject matter jurisdiction over mortgaged vessel situated in the territory and could determine validity of purported mortgage, and therefore properly placed the vessel in custodia legis upon default by mortgagor, thereby nullifying subsequent attempt by mortgagor to create second preferred ship mortgage.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Admiralty jurisdiction only exists over torts occurring in navigable waters and having a sufficient “martime flavor,” which is determined by reference to the parties, the sorts of vessels or other objects involved, the nature and cause of the injury, and the implications for traditional concepts of admiralty law.United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

American Samoa’s “coastal zone management area” is defined as including the entire island of Tutuila, along with all the other islands and all coastal waters and submerged lands for a distance of three nautical miles seaward.A.S.A.C. § 26.0207.Solomona v. Governor of American Samoa, 17 A.S.R.2d 186.

The High Court of American Samoa has no authority, statutory or otherwise, to order a stay of admiralty proceedings in a federal district court.Fa’atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court’s general admiralty jurisdiction includes limiting a shipowner’s liability to the value of the ship, although lacking the statutory power of federal district courts to enforce this principle by injunction, pending the outcome of the limitation proceeding.Fa’atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court refused to approve parties’ stipulation to lift a stay of an action in federal district court when no such stay was issued because of the lack of statutory authority to do so.Fa’atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court cannot enjoin proceedings in other jurisdictions in a limitation-of-liability proceeding, because the federal statute restricts jurisdiction to federal district courts and because neither the territorial legislature nor the court’s rules can extend the court’s jurisdiction to encompass proceedings in other jurisdictions.46 U.S.C. §§ 145, 181 et seq.; T.C.R.C.P. Rule F(1).In re Complaint of Voyager, Inc., 23 A.S.R.2d 47.

The widely accepted rule of Restatement (Second) of Torts § 402A, which states that an action for recovery under a theory of strict products liability may be entertained by a court sitting in admiralty, is now accepted in American Samoa.Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Under the dead-ship doctrine, a vessel which has been permanently removed from navigation (and so is a “dead” ship) does not attract liens of a maritime nature, and any watercrafts deemed to be “dead” are outside a court’s admiralty jurisdiction.Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 24 A.S.R.2d 152.

No maritime lien need be present for admiralty jurisdiction to attach in an action for partition, to try title, for possession of cargo, or by part owners attempting to secure the return of their vessel.T.C.R.C.P. Supp. Rule D.Mobile Marine Limited v. Ninna Marianne, 27 A.S.R.2d 143.

The tort of conversion is a long-standing basis for admiralty jurisdiction.Mobile Marine Limited v. Ninna Marianne, 27 A.S.R.2d 143.

In addition to the power to exercise jurisdiction over the general maritime claims of unseaworthiness and maintenance and cure, the High Court of American Samoa can exercise jurisdiction over a plaintiff’s Jones Act claim.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Absent statutory authorization, the prevailing party in an admiralty case is generally not entitled to an award of attorney’s fees.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Absent statutory authorization, a prevailing party in an admiralty case is generally not entitled to an award of attorney fees.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Where Court had both common law general jurisdiction and admiralty jurisdiction, action in rem against defendant vessel to enforce personal judgment could proceed under Supplemental Rule B or C of the Trial Court Rules of Civil Procedure.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where Court had jurisdiction to proceed under Supplemental Rule B or C for Admiralty and Maritime Claims, Court’s discretion to proceed under Rule B did not defeat proper seizure of vessel and did not reflect judicial determination as to Rule C in rem claim or existence of maritime lien.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

The Fono, in explicitly overruling Swift v. Trial Div., 4 A.S.R. 983 (App. Div. 1975), amended the High Court’s jurisdictional reach to include in rem admiralty and maritime suits. Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

Congress, either deliberately or through benign neglect, has excluded American Samoa from participating equally and fully in the federal scheme of admiralty and maritime jurisdiction.Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

As a result of Congress’s exclusion of American Samoa from full participation in the federal scheme for admiralty and maritime jurisdiction, owners of vessels entering Pago Pago harbor have fewer substantive rights than in any other American harbor, and perhaps fewer rights than afforded by Commonwealths having free association compacts with the United States.Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

The Constitution of the United States explicitly grants the federal judiciary the power over all cases of admiralty and maritime jurisdiction.Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

The High Court cannot issue an injunction pursuant to 46 U.S.C. § 185 and halt proceedings in a federal district court of competent jurisdiction, even though it would promote judicial economy and overall convenience.Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

The High Court cannot transfer civil actions to other district courts under 28 U.S.C. § 1404(a), despite the statute’s explicit language that transfers are “for the convenience of parties and witnesses, [and] in the interest of justice.”Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

The procedures governing the arrest of a vessel are more relaxed than the procedural due process requirements normally required with other pre-judgment seizures of property, including effective notice, meaningful judicial review, and a right to a prompt hearing after the seizure.Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

§ 2In Personam and In Rem Actions

SEE CIVIL PROCEDURE § 1 – JURISDICTION

While in rem and in personam claims may be joined, res judicata applies from an in personam action against a shipowner to an in rem action against his ship (and vice versa); thus, one may not sue twice on the legal fiction that a ship and her owner are two different parties.Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 23 A.S.R.2d 156.

A Jones Act claim cannot be maintained in rem.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Attorney’s fees, in certain limited circumstances, may be awarded as an item of damages in an in rem action, but they are not properly included as custodia legis expenses.Sembawang Maritime Ltd. v. F/V Don Juan, 31 A.S.R.2d 193.

Although no affidavit accompanied complaint, as is required for a Rule B attachment, vessel was properly seized pursuant to a Rule C claim in rem and, therefore, was properly before Court for Rule B attachment purposes as well.Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where party filed objection to Court’s in rem jurisdiction, the Court would not view the objection as equivalent to an answer.To do so would violate Rule C(6) of the T.C.R.C.P. Supplemental Admiralty and Maritime Claims, its meaning and purpose.Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

In an in rem action, party’s motion to intervene is unnecessary where party has asserted ownership of the property at issue and the court has accepted the party’s ownership claim.Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

While some courts allow the vessel itself to bring a counterclaim in an in rem action, American Samoa courts follow the approach permitting a claimant acting on behalf of the ship to counterclaim.Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

§ 3Preferred Ship Mortgages & Maritime Liens

SEE SECURED TRANSACTIONS § 11 – MORTGAGES

Since there is no United States district court in Samoa this court may foreclose a preferred ship mortgage under 46 U.S.C. § 951.Security Pacific National Bank v. M/V Conquest, 2 A.S.R.2d 40 (Trial Div. 1985).

Unification of common law and admiralty procedure was a factor court should consider in determining whether to apply prior rule that maritime liens could only be foreclosed in admiralty and ship mortgages could only be foreclosed in courts of common law or equity.Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Although Ship Mortgage Act was inapplicable in High Court of American Samoa, its provisions could be applied by analogy by court in applying general law of admiralty.46 U.S.C. §§ 911 et seq.Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Under the general law of admiralty applicable in American Samoa, a ship mortgage, which complied with statutory requirements of a Preferred Ship Mortgage, created a maritime lien enforceable in admiralty, and its priority was the same as it would have been if foreclosed in federal district court.Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

To allow lienholder to obtain higher priority by foreclosing in jurisdiction that does not have a federal district court, where Congress apparently intended to create uniform set of priorities and parties contracted accordingly, would give rise to unjust enrichment.Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

One who furnishes goods or services to a vessel in custodia legis does not acquire a maritime lien against the vessel for the value of such goods or services.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Rule precluding creation of a maritime lien against a vessel in custodia legis does not apply to a vessel purportedly in judicial custody but neither actually nor constructively taken into marshal’s possession.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Courts sitting in admiralty must show special care for rights of seamen.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Judicial seizure of a vessel legally terminates voyage and discharges crew, thus precluding lien for wages for services rendered after seizure.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Where vessel undertook a single fishing voyage after seizure and under limited conditions approved by the court, and where vessel was already under arrest when crew was hired, vessel remained in custodia legis during voyage and crew members had no maritime lien for wages earned during the voyage.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Although no lien can attach to a vessel already in judicial custody, costs of services or property furnished by court authority to preserve and maintain the vessel for the common benefit of interested parties are “expenses of justice,” payable before all preexisting liens.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Rule that liens do not accrue on behalf of those supplying goods and services to vessel in custodia legis may not apply to a vessel allowed to ply the harbors in furtherance of its trade without restriction.S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

Stipulated receivership order stating that vessel should be “deemed” in custodia legis, but purporting not to create any ranking or priority of liens other than that which would otherwise exist, would arguably preserve the rights of those who, in the absence of the order, would have obtained liens on the vessel during period of receivership.S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

It is not clear that court has the power to alter the rank or priority of liens by approving an ex parte stipulation to which the lienholders were not parties.S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

When a vessel is actually or constructively in the possession of the Court, liens do not ordinarily accrue in favor of crewmen or other suppliers of goods and services to the vessel.S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

For the purpose of foreclosing a ship’s preferred mortgage lien, the High Court is considered a “district court” and thus has jurisdiction to enforce such a lien.46 U.S.C. §§ 31301(2)(E), 31325-26.United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Upon judicial sale in a civil action in rem brought to enforce a preferred mortgage lien, the preferred mortgage lien has priority over all claims against the proceeds, except for (1) expenses and fees allowed by the court, (2) costs imposed by the court, and (3) preferred maritime liens, which include those for damages arising out of maritime tort.46 U.S.C. §§ 31325, 31301(5)(B).United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Claims for costs incurred in securing vessel while it was in custodia legis prior to judicial sale are recoverable from the proceeds of the sale and have priority over the claims of the litigants.46 U.S.C. § 31326.United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Wharfage charges can give rise to a maritime lien, though a lien does not arise against a vessel “withdrawn from navigation,” which includes an abandoned vessel.Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 23 A.S.R.2d 156.

Appropriate reasons to arrest a vessel include guaranteeing safe return of the vessel to the chosen forum and preventing defendants from retaining the proceeds earned by the sale of the cargo.T.C.R.C.P. Supp. Rule D. Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 1.

Security for a vessel may be effectuated by a bond provided by the party designated to possess the vessel after its release, to be held by the court.T.C.R.C.P. Supp. Rule E(5)(a).Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 1.

A maritime bond cannot exceed the total value of the vessel.T.C.R.C.P. Supp. Rule E(5)(a). Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 88.

When a vessel is seized and sold, the costs of holding the vessel in custodia legis are generally given priority over other claims.Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

Claims incurred while the vessel is in custodia legis must be proven and supported just as any other claim.Not only must the claims be equitable and reasonable, they must inure to the benefit of all claimants.Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

The forfeiture provision of A.S.C.A. § 28.1510 creates a defense for debtors in civil court, not third parties not in privity with the creditor.Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

A person furnishing goods or services to a vessel after its arrest (in custodia legis) does not acquire a maritime lien against the vessel for the value of those goods or services.Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

Administrative expenses are recoverable when the expenditures inure to the benefit of all claimants, where they contribute to or create an available fund.Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

Claims for costs incurred in securing a vessel while it is in custodia legis prior to judicial sale are recoverable from the proceeds of the sale and have priority over the litigants’ claims.The principal qualification is that the services or goods for which payment or reimbursement is sought must be necessary for the care and preservation of the vessel and be for the common benefit of all parties who have a claim to the vessel.Sembawang Maritime Ltd. v. F/V Don Juan, 31 A.S.R.2d 193.

Seamen’s liens for wages take priority over all preferred liens except for expenses of justice while the vessel is in custodia legis.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Party was not an “innocent lienholder” and should have known the applicable law even if industry practice was contrary to the law.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 4Maritime Contracts

SEE CONTRACTS

§ 4(1)—General Provisions

RESERVED

§ 4(2)—Leases

No writing is necessary to establish valid contract for lease of vessel.Steffany v. Scanlan, 3 A.S.R. 456.

Lessors recognize lease as valid by delivering ship to possession of lessees.Steffany v. Scanlan, 3 A.S.R. 456.

Lessees recognize lease as valid by accepting possession, and such delivery waives alleged condition precedent to execution of lease.Steffany v. Scanlan, 3 A.S.R. 456.

Agreement by lessee to indemnify owner of ship for loss of ship in consideration of owner’s withdrawing petition for injunction was supplementary agreement to original lease and not new lease.Steffany v. Scanlan, 3 A.S.R. 456.

Change in lease agreement which would require lessee to procure insurance for leased vessel is modification of original terms and, if without consideration, is invalid, and failure of lessee to procure insurance, even though marine insurance is available, is not breach of contract.Steffany v. Scanlan, 3 A.S.R. 456.

Repudiation of a contract must be unequivocal and absolute, and petition for injunction by lessor to prevent ship from going out to sea before insurance is procured is not such repudiation.Steffany v. Scanlan, 3 A.S.R. 456.

Lessor is under no obligation to accept surrender of lease from lessee, and where lessor refuses to take back leased ship, lessee is still obligated under lease.Steffany v. Scanlan, 3 A.S.R. 456.

Lessors suing for back rent are not entitled to recover for rent accruing after date petition was filed.Steffany v. Scanlan, 3 A.S.R. 456.

Finding of trial court that signature of one of owners of vessel on lease agreement was not necessary to valid lease was not in error.Scanlan v. Steffany, 3 A.S.R. 583.

Evidence supports conclusion that parties did not intend signature of one of owners to be condition precedent to execution of valid lease.Scanlan v. Steffany, 3 A.S.R. 583.

Change of possession of ship is equivalent of delivery, executing lease agreement.Scanlan v. Steffany, 3 A.S.R. 583.

Where lessor acquiesces in lessee’s possession of ship for period of months, he waives possible condition precedent in lease, which was not complied with.Scanlan v. Steffany, 3 A.S.R. 583.

Agreement by lessee to indemnify lessor for loss of ship in consideration for lessor’s withdrawal of repudiation does not constitute new lease since it does not contain all terms necessary to lease but is supplementary agreement.Scanlan v. Steffany, 3 A.S.R. 583.

Modification of lease to strike condition that insurance should be acquired for vessel by lessees only if available in American Samoa was invalid since there was no consideration for such modification.Scanlan v. Steffany, 3 A.S.R. 583.

Where lessor brings an injunction suit to regain possession of ship, and then withdraws suit in consideration for lessee’s promise of indemnification if ship should be lost, this is not repudiation of lease agreement where lessee does not treat it as such and continues to possess ship.Scanlan v. Steffany, 3 A.S.R. 583.

Attempted surrender of lease does not release lessee from obligations unless it is accepted by the lessor.Scanlan v. Steffany, 3 A.S.R. 583.

Circumstantial evidence concerning failure of lessee’s business may be weighed by court in considering validity of attempted surrender lease.Scanlan v. Steffany, 3 A.S.R. 583.

Law providing that lease of land in writing constitutes tenancy at will is not applicable to ships nor interest therein.Scanlan v. Steffany, 3 A.S.R. 583.

§ 4(3)—Employment Contracts

Outfitting of vessel for profit-making voyage that was undertaken after seizure of vessel and that would not recognizably enhance its value was not “expense of justice,” and crewmembers had no prior claim for wages earned during voyage.Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

The terms of a seaman’s contract were adjudicated as being those contained in his payroll form when the contract reflected the parties’ negotiations by telephone and when the claimed parol variation would be essentially gratuitous on the captain’s part.Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7.

When a seaman had worked to prepare a vessel for an upcoming voyage before leaving the vessel, he was entitled to compensation on a quantum meruit basis.Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7.

U.S. law requires that, in certain circumstances, seamen be given written fishing agreements, specifying the period of the agreement, the amount of their compensation, and any other agreed upon terms. TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

A seaman retained in violation of the law requiring a written fishing agreement is entitled to compensation for services rendered at the agreed upon rate, or the highest rate of wages at the port in which he was engaged, whichever is higher.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Even where a written fishing agreement does not exist, the Seaman Protection and Relief Act does not enable a seaman to accept 95% of his agreed upon wages and then, years later, seek to retroactively void his unwritten agreement and claim significantly higher statutory wages.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

The “highest rate of wages” language contained in § 11107 of the Seaman Protection and Relief Act entitles an aggrieved seaman to the highest rate of wages paid a comparable seaman, not any seaman.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

All deckhands are not per se comparable, however, a seaman only need make a prima facie showing of comparability in order to make out a § 11107 claim. TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Where other vessels in same fleet functioned essentially the same, where all vessels in fleet maintained contact with each other and functioned as a group, where crewmembers often serve on different vessels throughout fleet, and where authority of fish captain was consistent throughout fleet it was appropriate to compare wages of crewmembers throughout fleet for purposes of damages under the Seaman Protection and Relief Act. TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

A ship’s master, or anyone possessing the ship’s master’s responsibilities, may not recover penalty wages under 46 U.S.C. § 11107 because such individual is charged with the responsibility of securing written fishing agreements with the seamen.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Although case involved many fishermen who had been originally “engaged” to fish in Croatia, they were subsequently hired on a trip-to-trip basis, originating and concluding in the western Pacific, and had been promised wages consistent with those of the western Pacific tuna fishing industry.Their recovery was therefore not limited to the wages of the highest paid comparable seaman engaged in Croatia, but could be based on wages made by other seaman in same fleet. TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

When a seaman performs work for a vessel in reasonable anticipation of a prospective fishing trip, that seaman is entitled to be compensated for his services on a quantum meruit basis. TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

It is a common understanding in the fishing industry that a fishing trip is only completed when the catch has been off-loaded to the cannery and the vessel has been cleaned.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

The fundamental purpose of Seaman Protection and Relief Act is not to penalize, but rather to compensate seamen for their wages when a company fails to provide its crew with written fishing agreements.TCW Special Credits, Inc.v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

As a general principle of maritime law, a seaman who falls ill or is injured during a voyage is entitled to maintenance, cure, and wages for the remainder of the voyage.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Under 46 U.S.C. § 11107, when read in light of the larger statutory scheme, the Seamen Protection and Relief Act, and together with 46 U.S.C. § 10601, ships’ masters are not entitled to statutory wages.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Under 46 U.S.C. § 10601 and § 11107, a seaman’s statutory wage claim gives rise to a maritime lien having priority over a preferred ship mortgage lien.TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225 (Trial Div. 2000).

The purpose of the portion of statutory wages awarded under 46 U.S.C. § 11107 that is more than what the seaman would have received had his fishing agreement been valid is designed to punish ship owners who illegally engage seamen.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Historically, the purpose of the requirement of a written shipping articles agreement under 46 U.S.C. § 11107 was to protect seamen from exploitation and mistreatment, while its modern purpose is to avoid disputes about wages and other terms and conditions of employment.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Statutory wages awarded under 46 U.S.C. § 11107 are not punitive damages since the statute merely substitutes for an oral fishing agreement and calls for the rate of wages that are to be paid.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Statutory wages awarded under 46 U.S.C. § 11107 give rise to preferred maritime liens that are recoverable in rem and are granted the highest priority after in custodia legis costs.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

In contrast to 46 U.S.C. § 10313(g), 46 U.S.C. § 11107 has no language limiting recovery of penalty wages only as against the vessel’s master or owner and therefore permits recovery in rem against the sale proceeds of a fishing vessel.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Operation of 46 U.S.C. § 11107 is automatic, rendering oral agreements between a crew and the employer void and awarding statutory wages, regardless of whether the employer made partial payment of wages on the agreements’ terms.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

A wronged seaman is entitled to recover the higher of either the wages he orally agreed to, or the higher rate of wages that could be earned by a seaman at the port of hire who has the same rating (rank, job classification, duties and ability) as the complainant.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

A court examines the totality of the circumstances in determining whether a seaman has demonstrated that he or she is comparable to another seaman for purposes of 46 U.S.C. § 11107.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

The trial court’s finding that crew members, other than ordinary deckhands, were “interchangeable” with crew members of other ships and fleets without reference to their rank, job classification, duties and abilities was clearly erroneous in light of the crew’s burden of proving its case by a preponderance of the evidence and the lack of facts that would support such a finding.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 4(4)—Carriage of Goods by Sea

Under the Carriage of Goods by Sea Act, a carrier has an affirmative duty to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

The plaintiff bears the initial burden of establishing a prima facie case for breach, and does so by establishing that the goods were damaged while in the carrier’s custody or by establishing that the goods were delivered to the carrier in good condition but were found to be damaged upon receipt.Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

Under the Carriage of Goods by Sea Act, a carrier’s liability is limited to $500 per item, unless the shipper chooses to declare a higher value.Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

The carrier bears the initial burden of offering prima facie evidence of adequate notice of the limit of liability, which is satisfied by showing that the bill of lading advised the shipper of the liability limitation and of the options for increasing that amount, and including such language in the bill of lading puts the shipper on constructive notice of the liability limitation; actual notice is not required.Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

Although a shipper is unaware of the bill of lading and so does not have even constructive notice of his options for coverage, he is nevertheless bound by its terms where he has instructed a car dealership to deliver a car on his behalf. That authorization creates a legal agency relationship between the shipper and the dealership, and the latter, authorized to deliver goods of another to a common carrier for transportation, may be treated as having authority to stipulate for and accept the terms of the contract of carriage, and the owner will be presumed to have full knowledge of the contract and will accordingly be bound by its terms.Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

In the ordinary course of events it is not necessary for the shipper to sign a bill of lading, and he may be bound by its terms and conditions even though he has not signed it.Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

Where the plaintiff offers evidence giving some credence to his claim of damages, the claim is not frivolous, and an award of attorney’s fees to the defendant would not be appropriate.Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

§ 4(5)—Remedies & Damages

Punitive damages cannot be recovered against a vessel.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

The doctrine of quantum meruit awards a plaintiff an amount equal to the value of the benefit he has provided to protect against the unjust enrichment of the beneficiary.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Under quantum meruit, crew entitled to the value of the benefit they conferred upon their vessel and its owners where crew was instrumental in keeping the vessel in working order even though the imminent voyage never materialized because the vessel maintained a higher price upon judicial sale than would have been realized if the vessel were run-down.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Calculation of crew’s recovery in quantum meruit for maintaining a vessel before a voyage that never occurs is the actual value of the benefit conferred, not the hypothetical benefit that might have accrued had the ship taken the voyage.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

American Samoa law allows in rem recovery against a vessel of a quantum meruit award.TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 5Maritime Torts

SEE TORTS

§ 5(1)—General Principles

A structure may be a vessel or other appropriate maritime object for the purpose of some admiralty rules but not for others.In re M/V Tradition, 6 A.S.R.2d 99.

In admiralty, the defendant has the burden of proving the degree of fault of settling third-parties not present before the court; once the exact percentages of fault are established, liability and assessed damages are calculated on a pro rata basis.Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

The equitable alter ego doctrine is applicable in admiralty but will only disregard a corporate entity upon a proper factual showing.Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 145.

In the absence of any even minimally probative evidence tending to show that a defendant bore some quantifiable measure of responsibility, the court will decline to arbitrarily guess what that percentage may be.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

§ 5(2)—Negligence

Having been made applicable by statute to actions for personal injury or property damage and so being compatible with the legislature’s will, comparative negligence is properly incorporated into admiralty.Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Rejecting “expert user,” assumption of risk, and contributory negligence defenses as barring recovery, American Samoa adopts the comparative-negligence approach in admiralty.Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

In determining proximate cause for tort cases in admiralty, American Samoa adopts the approach of weighing all of plaintiff’s conduct, defendant’s liability, and all other factors causing the loss or injury.Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

In admiralty it is well settled that fishing vessel owners and commercial fishermen may recover for lost fishing profits under the general maritime law of negligence.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Where a plaintiff pleads both Jones Act negligence and unseaworthiness, a showing of negligence also establishes unseaworthiness.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

There are two elements which a plaintiff must prove in a Jones Act negligence claim:(1) that there was a negligent act by the defendant, and (2) that there is a but-for causal connection between the act and the injury.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

TheJones Act is to be liberally construed in favor of plaintiffs.The “slight negligence” necessary to support an action under FELA or the Jones Act is defined as a failure to exercise great care, and that burden of proof is much less than the burden required to sustain recovery in ordinary negligence actions.Evidence of even slight negligence is sufficient to find liability under the Jones Act.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The plaintiff’s burden to prove the but-for causation element of a Jones Act negligence claim is minimal.If the employer’s negligent act or omission played any part, however slight, in bringing about the injury, the employer is liable.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A plaintiff, injured from disentangling a net from a vessel’s propeller, establishes but-for causation, in that but-for the negligent entanglement of the net in the vessel’s propeller, and the plaintiff’s cutting of the net away, the plaintiff would not have received his injuries.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The assumption of risk defense is not a defense to either an unseaworthiness claim or a Jones Act claim.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The doctrine that a defendant takes the plaintiff as he finds him applies to Jones Act claims.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A claim of unseaworthiness lies against a vessel’s owner.A Jones Act negligence claim, on the other hand, lies against a seaman’s employer.A seaman’s employer is vicariously liable for the negligence of the vessel’s captain and any other employee.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A Jones Act claim cannot be maintained in rem.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Pre-judgment interest is not allowed on either Jones Act or unseaworthiness claims.However, post-judgment interest under the Jones Act is allowed from the date of a court’s final decree.Interest may also be awarded in general maritime cases at the court’s discretion.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

When a moving vessel strikes an anchored vessel, a presumption of negligence on the part of the moving vessel arises.This presumption is even stronger where the moving vessel lurches onto the shore and strikes a dry-docked vessel.Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

Persons engaged in the business of navigation are bound to see that the vessel is seaworthy, well manned, and equipped for the business in which it is engaged, and whenever a collision ensues from the defective condition or unfitness of the colliding vessel for the voyage, the vessel and the owner are liable.Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

Where a company is aware that fraying is going to occur in a vessel’s throttle cables, resulting in navigational difficulties and possible collisions, the failure to take steps to prevent such an occurrence may be grossly negligent, reckless or willful.However, in order to so find, the court requires evidence of the standard of care in the industry, the number of accidents that occur in the same type of situation, the cost of replacement of faulty parts, etc.Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

The duty of care that employers owe to seamen under the Jones Act is identical to the duty of care that employers owe to employees under the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. Sections 51 et seq.The duty of care employers owe under the FELA is not merely a duty to exercise reasonable care, as in the typical negligence suit, but is rather a duty to exercise “great care”.Clifton v. Voyager, 31 A.S.R.2d 12.

Determinations of negligence in admiralty cases are findings of fact which will be given application unless clearly erroneous.In general, fact finding does not require mathematical certainty.Factfinders, whether jurors or judges are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.Clifton v. Voyager, 31 A.S.R.2d 12.

Since the question of but-for causation under the Jones Act is a question of fact, a factfinder’s conclusions with respect to causation must stand unless clearly erroneous.Clifton v. Voyager, 31 A.S.R.2d 12.

The foreseeability question restricts the imposition of liability to cases in which the injuries to the plaintiff are the natural and reasonably predictable consequences of a negligent action, or in the case of an unseaworthiness claim, of a ship’s unseaworthiness.It is clearly foreseeable that a crewmember must repair a vessel when it is damaged to the point of being dead in the water.Volunteering to assist in such repairs is a normal response to the stimulus of a dangerous situation.Clifton v. Voyager, 31 A.S.R.2d 12.

The Jones Act provides a cause of action to seamen for personal injuries sustained in the course of their employment.Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

In order for an individual to be considered a “seaman” under the Jones Act, (1) the individual’s duties must contribute to the function of the vessel or the accomplishment of its mission; and (2) the individual must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in nature and duration. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

All circumstances of an individual’s employment must be weighed to determine whether he/she has a sufficient relationship to the navigation of vessels and the perils attendant thereon.Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Where vessel had remained in dry dock and tied up at port for at least three years, individuals who had repaired vessel in attempt to ready it for navigation were considered “land-based” employees, not seamen, and were not entitled to relief under the Jones Act.Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Where port engineer had no authority to hire crewmembers, his statement that Plaintiffs were “crewmembers’ carried no weight in determining seaman status. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Where workers possessed expectations of becoming seamen in the future, such expectation was insufficient to raise workers to seamen status in present. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Requirement that employee’s work be done at sea is first basic principle of being a seaman.Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

The Jones Act provides a remedy for seaman injured in the course of their employment as a result of their employer’s negligence.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The Jones Act made the Federal Employers’ Liability Act applicable to maritime law, thereby authorizing a right to recovery for seamen injured due to the negligence of their employer, its agents or employees.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones Act standard of negligence, a shipowner has an obligation to his seamen that is substantially greater than the obligation of an ordinary employer to employees.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones Act, a shipowner has an absolute, nondelegable duty to exercise reasonable care in furnishing his seamen a reasonably safe place to work, a seaworthy ship and safe equipment.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones act, a shipowner-employer need not guarantee the safety of the vessel, but must take reasonable precautions to ensure it is safe.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

In order to prove negligence under the Jones Act, a plaintiff must prove actual or constructive knowledge, while the evidentiary showing necessary to establish unseaworthiness is predicated without regard to fault or the use of due care.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones Act, there is an absolute, nondelegable duty of the shipowner to maintain a reasonably safe vessel, extending to equipment and appliances used on the vessel.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A shipowner’s financial difficulties may provide an explanation, but do not establish a defense for a breach of the shipowner’s duty to maintain the ship and its equipment in reasonably safe and seaworthy condition.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A shipowner does not have a duty to supply the best, newest, or perfect tools, gear, or appliances, so long as the gear supplied was reasonably safe and suitable.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A shipowner is not required to provide an accident-proof ship nor the latest and best safety devices, but only to provide a safe place in which to work and safe and seaworthy appliances with which to do the work.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

If the safety equipment that would have prevented the injury or death were impossible to install, then of course a shipowner cannot be held to have breached its duty of reasonable care.However, the failure to provide reasonable and procurable safety equipment, if such failure proximately causes the injury, is grounds for a finding of negligence.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The standard of causation under the Jones Act is whether an employer’s negligence caused, in whole or in part, the seaman’s injury.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Liability under the Jones Act is found where the employer’s negligence played any part, even the slightest, in producing injury or death. This “slight” standard of causation is often called “featherweight.”TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The right of a seaman to recover under the Jones Act, and his right to maintenance and cure under admiralty law, are independent and cumulative.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Where negligence is found against an employer by a plaintiff seaman under the Jones Act, it supplements but does not supplant further remedies for maintenance and cure.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The liability of a shipowner for maintenance and cure of a sick or injured seaman exists irrespective of fault or negligence on the part of the shipowner or his agents.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(3)—Unseaworthiness

Under general maritime law, an owner or operator of a vessel has an absolute duty to ensure that the vessel is seaworthy.This is a no-fault duty, and no showing of negligence or knowledge is required.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A seaworthy vessel is one that is reasonably fit and suitable for its intended use.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

To prevail on a claim for unseaworthiness, a plaintiff must show both unseaworthiness and proximate causation.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The condition of seaworthiness is a relative one.A ship can be unseaworthy as to only one seaman.A condition of unseaworthiness can arise once the ship has set out to sea or from a transitory condition.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The factfinder determines the question of seaworthiness.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Where a plaintiff pleads both Jones Act negligence and unseaworthiness, a showing of negligence also establishes unseaworthiness.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The assumption of risk defense is not a defense to either an unseaworthiness claim or a Jones Act claim.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

In unseaworthiness cases, the plaintiff must not only establish cause in fact, but also proximate cause, i.e., that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness. The question of proximate cause examines whether a cause is so attenuated in time or space, or whether an act or actor has intervened in the causal chain, so as to relieve the defendant of liability.Clifton v. Voyager, 31 A.S.R.2d 12.

Under general maritime law, a shipowner is absolutely liable for injuries caused to a seaman if such were received as a result of the unseaworthiness of the ship or failure to supply and keep in order the appliances of the ship.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The shipowner’s liability for personal injuries under the doctrine of unseaworthiness is strict, absolute, and without fault.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A shipowner has the duty, owed to every seaman employed on board, to maintain a ship’s equipment in proper operating condition.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The failure of a piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

To prevail on a claim of unseaworthiness. a plaintiff must show both unseaworthiness and proximate causation.The unseaworthy condition must have played a substantial part in bringing about or actually causing the injury, and the injury must be either a direct result or a reasonably probable consequence of the unseaworthy condition.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(4)—Maintenance & Cure

The duty of the shipowner to provide for the ill or injured seaman can be traced as far back as the Sea Codes of the Middle Ages.This right, to recover maintenance and cure without regard to fault, is among the most pervasive incidents of the responsibility anciently imposed upon a shipowner.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Under general maritime law, a shipowner has an obligation to care for a seaman injured during the course of maritime employment.The obligation includes payment for any injury or illness, which manifests itself during employment, regardless of the source of the injury or whether it preexisted the journey. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

To be eligible to claim maintenance and cure against a shipowner, a seaman must be “in the service of his ship” at the time of the injury.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Under maintenance and cure a seaman is entitled to receive food and lodging of a kind and quality received aboard ship, as well as necessary medical services to the point of maximum cure.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The point of maximum cure is reached on the date that a seaman’s physician determines that further treatment is unlikely to result in the betterment of the seaman’s condition.This can include a determination that the incapacity is permanent.Doubts are to be resolved in the seaman’s favor.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The court has discretion whether to award interest on unpaid maintenance and cure.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

In a normal case of unpaid maintenance and cure, pre-judgment interest is payable from the date the payment was initially due the plaintiff.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Attorney’s fees are allowed for a bad-faith refusal to pay maintenance and cure.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Maintenance and cure obligations arise when a seaman becomes disabled through no fault of his own while in service of the ship.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The only requirement for eligibility under the theory of “maninenance and cure” is that the seaman be “in the service of his ship” at the time of the injury.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Some evidentiary proof must be offered regarding the seaman’s actual expenditures or actual liability incurred for maintenance and cure.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under “maintenance and cure”, a vessel’s owner is obliged to pay the medical expenses of the seaman until he reaches maximum recovery or until the disease or illness he suffers from is recognized as incurable.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A seaman’s recovery for medical expenses under “maintenance and cure” is limited to the amount actually expended or liability actually incurred.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Maximum cure is achieved when it is probable that further treatment will result in no betterment of the seaman’s condition.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A shipowner’s failure to meet his maintenance and cure obligation may result in liability for consequential and incidental damages, including attorney’s fees, where the employer is “willful and persistent” in his refusal to pay maintenance and cure.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A “maintenance and cure” claim may merit an award of punitive damages and attorney’s fees, where the shipowner: (1) is lax in investigating a claim; (2) terminates benefits in response to the seaman’s retention of counsel or refusal of a settlement offer; and (3) fails to reinstate benefits after diagnosis of an ailment previously not determined medically.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(5)—Limits on Liability

The “flotilla rule” governing limitation of liability for accidents involving more than a single vessel states that in “pure tort” cases, in which the parties have no legal relationship to one another, the owner’s liability cannot exceed the value of the “offending vessel,” while in “consensual” cases, in which the injured party has a contractual relationship to the vessel owner, liability is limited to all commonly owned vessels engaged in the single contractual enterprise.In re M/V Tradition, 6 A.S.R.2d 99.

The “consensual” rule of limitation of maritime liability applies where the injured party is an employee of the vessel owner.In re M/V Tradition, 6 A.S.R.2d 99.

A skiff aboard a fishing boat is not itself a “vessel” for limitation of liability purposes, and an owner seeking to limit his liability for injuries occurring on a skiff lashed to its mother ship would have to tender the aggregate value of both the ship and the skiff.In re M/V Tradition, 6 A.S.R.2d 99.

To prove that an injury was proximately caused by the unseaworthy condition, the unseaworthy condition must have played a substantial part in bringing about or actually causing the injury, and the injury must be either a direct result or a reasonably probable consequence of the unseaworthy condition.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

§ 5(6)—Damages

Lost future wages, also called impaired earning capacity, are determined by considering what the plaintiff’s income would probably have been, how long it would have lasted, and all the contingencies to which it was liable.To ascertain the amount of lost future wages to be awarded, the court must take four steps: (1) determine whether the worker’s earning capacity has been diminished; (2) determine the duration of the loss; (3) determine the value of the worker’s loss over this period; and (4) consider reducing the award to present value.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A defendant has the burden of production and proof on the issue of reducing a plaintiff’s award for lost future wages, or impaired earning.Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Damages in vessel collision cases are estimated in the same manner as in other suits of like nature for injuries to personal property.The award should include all losses proximately resulting from the collision, the general rule being that the owner of the vessel is to be placed in the same position he would have occupied had the disaster not occurred.Although the injured party may be entitled to full indemnity, the respondents are not, as a rule, liable for such damages as might have been reasonably avoided by the exercise of ordinary skill and diligence, after the collision on the part of those in charge of the injured ship.Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

Where repairs are practicable, the measure of damages is the cost of restoring the injured vessel to the condition in which it was at the time of the collision.Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

The court is not required to assess damages with mathematical precision, though it must strive to be as accurate as possible.Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

The court must sometimes make damage determinations in areas that require more than layman’s skill.In doing so, the court may make judgments on the veracity of experts’ statements, such as whether the expert inflated figures.Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

A threshold issue in determining damages is whether the injuries sustained by the seaman prevent the seaman from returning to a career in the fishing industry.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A primary issue involved in computing the expected pay rate for lost earnings regards a seaman’s contention that, had he been able to remain in the fishing industry, he would have been elevated to the more profitable position on a vessel.This level of lost earnings will not be recoverable where that claim is entirely improbable.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

In rendering the true value of an award of damages, there exists a clear judicial policy based on fairness and practical logic, of taking present value and inflation into account.This may be done by judicial notice, considered adjudication, or later submission of evidence by the parties.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones Act and the law of unseaworthiness, contributory negligence, however gross, does not bar recovery but only mitigates damages.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(7)—Compensation & Recovery

Under the collateral source rule, which applies to torts in admiralty and virtually all other tort cases, an injured party’s compensation from a source independent of the tortfeasor is not deducted from damages otherwise collectable from the tortfeasor.Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

A shipowner has a right of indemnity against a third party tortfeasor for maintenance and cure paid to an injured seaman to the extent occasioned by the third party tortfeasor’s fault.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Admiralty law recognizes that even where a party to a lawsuit settles, it may still bring an indemnity action against a joint tort feasor.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Even when defendant rejects plaintiff’s tender of defense of the personal injury and wrongful death claims, the failure to tender, alone, would not preclude an indemnity claim by plaintiff, if that claim still presented a valid theory of relief.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The fact the crew themselves contributed to the injury does not preclude an indemnity claim, if they were liable as well.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The general rule is against recovery of attorney’s fees as such, by a party which incurs them in enforcing a claim against another.It is equally well settled, however, that the reasonable expenses incurred by an indemnitee in defending a claim against him may be recovered of his indemnitor–and that these expenses include attorney’s fees.This exception applies equally to courts sitting in admiralty.However, theprevailing party in an admiralty case is generally not entitled to an award of attorney’s fees, absent statutory authorization.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

In cases where contribution has been allowed for damages, both in admiralty and non-admiralty, courts have generally denied a right to contribution for attorney’s fees and expenses incurred in defense of the action brought by the injured party.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The general rule is to award prejudgment interest, although this award always lies soundly within the court’s discretion. However, it is also true that when certain “peculiar” circumstances exist, the discretion to deny prejudgment interest is sustained.These peculiar circumstances have fallen into three categories:(1) “plaintiff’s delay in bringing suit,” (2) “the existence of a genuine dispute regarding ultimate liability or the complexity of the factual and legal issues to be resolved,” and (3) “judgment in an amount substantially less than that claimed.Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The court has wide discretion in allowance of various cost awards in admiralty.Interocean Ships, Inc. v. Samoa Gases, 27 A.S.R.2d 5.

A trial court’s allocation of percentages of fault is a finding of fact and will not be disturbed unless clearly erroneous.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the primary duty rule, a seaman-employee may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Where an employee consciously assumes a duty toward a wrongdoer as a term of employment, failure of this duty results in a bar to any recovery under the Jones Act.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Application of the primary duty rule is limited by three principles:First the “primary duty” rule will not bar a claim of injury arising from the breach of a duty that the plaintiff did not consciously assume as a term of his employment.Second, the rule does not, apply where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated.Third, the rule applies only to a knowing violation of a duty consciously assumed as a term of employment.TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

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