This column summariza three important maritime cases being considered by the US, Supreme Court.

Dead ship? Not so much.

For the last several decades, when a Great Lakes freighter went into lay-up, the status of the crew working during the winter changed. Once the winter lines had been placed, the engines decommissioned the shore power attached and the vessel was unable to sail without a reinspection it was considered a “dead ship” i.e., no longer “in navigation”.

The crew who stayed on for the winter work no longer enjoyed seaman status. Thus, if crewmembers got hurt on the job on a ship in lay-up, they could not sue under the Jones ACt. Their remedy was with the provisions of the Longshore and Harbor-workers Compensation Act, which is similar to Workers Compensation with scheduled payments for injuries, as opposed to wide-open jury verdicts

In Stewart vs, Dutra, 543 ILS. 481 (2005), the Supreme Court considered the issue of a dead ship and re-wrote the law, holding that the issue is whether a vessel is “used or capable of being used” for maritime transportation. In rejecting the idea that a vessel laid up in a shipyard is not in navigation during temporary lay-up, they stated: “A ship long lodged in a drydock or shipyard can again be put to sea… The question remains in all cases whether the watercraft’s use as a means of transportation on water” is a practical possibility or merely a theoretical one.

Thus, at least for the ship’s crew that remains on the vessel during lay-up, they retain their seaman status and can sue under the provisions of the Jones Act to recover for any injuries sustained in the course of employment, as well as seeking remedies such as maintenance and cure. Whether this rule will apply to crew members, for example, working on other vessels within the fleet remains open to further development. The permutations seem endless, but the bottom line is that exposure to claims under the Jones Act just got a little broader.

Asbestos and fear of cancer.

In 2003. the U.S. Supreme Court held in Norfolk vs. Ayers, 538 US 135 (2003) that, in certain limited circumstances, a railroad worker could sue for pain-and-suffering damages for the “fear of cancer’ arising from exposure to asbestos. The Jones Act incorporates the railroad law(called FELA) by reference, so any decision on that front applies to the claims of seamen. ln CSX vs. Thurston Hensley, 557 US., the Supreme Court took a step back from Ayers after a jury  returned a $5 million verdict on a fear of cancer. The Court has granted leave to consider an appeal of whether the judge was required to instruct the jury that the “alleged fear is genuine and serious.”

The Court went to some lengths to comment on the trial court’s failure to so instruct the jury, saying that the stated reasons for failing to do so “do not withstand scrutiny” and that a “serious misunderstanding of the nature and function of the jury” had occurred. Noting the large volume of pending asbestos cases, the court stated that “a jury, without proper instructions, could award emotional-distress damages based on slight evidence of plaintiff’s fear of developing cancer.” The Court will be fully briefed on this issue and decide it in the next term, but this order granting leave is good guidance on the likely outcome of the appeal.

The tonnage clause.

The United Stats Constitution is a document written by, among others, shipowners and merchants involved in the maritime trade. Not surprisingly, there are some provisions tucked away in it that certainly worked to the benefit of the Founding Fathers. Deeply buried in Article l is a seldom cited clause that prohibits a State ‘without the Consent of Congress, [to] lay any Duty on Tonnage.”

Art, l, Sec 10, cl. 3. In Polar Tankers vs. Valdez. 557 U.S., the court considered the issue of whether a city or state can tax a ship as personal property, which in effect imposed a fee for entering the Port of Valdez, violating the Tonnage Clause. In what can only be described as a convoluted decision, the Supreme Court held that prohibition remains good law and that the City of Valdez’s tax violated the clause.

Reaching back into the 19th Century and relying upon opinions from before the Civil War, the Court held that the intent of the framers was to prohibit the states from engagng in taxation that would be injurious to each other, by creating tariffs and duties upon vessels and their cargos coming into a state‘s ports. They affirmed that the Tonnage Clause prohibits, “not only pro rata tax…but any duty on the ship, whether a fixed sum upon its tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty.” Noting that the tax on the oil tankers calling on Valdez was corelated to cargo capacity and was not for services provided to the vessel, “it is unconstitutional”.