Paul T. Hofmann
The tragedy of the M/V DALI’s allision1 with the Francis Scott Key Bridge to the fatally
and non-fatally injured victims who were working on the bridge, including the five known fatally
injured construction workers, was vividly broadcast repeatedly in news reports seen worldwide.
How and why it happened, what could have prevented it, and whether the ship and its owners
will be liable for the damages caused by the event, and to what extent, are issues discussed by
other panelists. The focus of this presentation is to what extent do the injured victims, and the
families of the decedents, have claims assertable under the U.S. general maritime law.
The first question to be decided in this case is whether there is maritime jurisdiction over
such claims. There is.
A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1)
over a tort claim must satisfy conditions both of location and of connection with maritime
activity. A court applying the location test must determine whether the tort occurred 1) on
navigable water or 2) whether injury suffered on land was caused by a vessel on navigable water
pursuant to 46 U.S.C. § 30101, discussed below.
The connection test raises two issues. A court, first, must "assess the general features of
the type of incident involved" to determine whether the incident has "a potentially disruptive
impact on maritime commerce," Sisson v. Ruby, 497 U.S. 358, 363 and 364 n.2 (1990), citing
Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982) (collision between two pleasure
boats invoked admiralty jurisdiction as the event could potentially disrupt maritime commerce) .
Second, a court must determine whether "the general character" of the "activity giving rise to the
incident" shows a substantial relationship to traditional maritime activity" Sisson, supra. at 364
and n. 2, 365. See, Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268 (1972).
(Airplane crash into state navigable waters bears insufficient relation to a traditional maritime
activity, thus, no admiralty jurisdiction), Jerome A. Grubart, Inc. v. Great Lakes Dredge & Dock,
513 U.S. 527 (1995) (pile driving from a floating dredge in navigable waters is within admiralty
jurisdiction). These factors outlining when there is applicability of maritime law to an incident
occurring on or near navigable waters were developed over a 20 year period culminating in
Jerome B. Grubart v. Great Lakes Dredge & Dock, 513 U.S. 527 (1995).
Obviously, with respect to the M/V DALI, it was performing traditional maritime
services, carrying cargo on the navigable waters. Its blocking of the navigation channel, with a
bridge lying on its bow, clearly is disrupting maritime commerce. Admiralty jurisdiction would
seem to be a lock. But, there is one further factor that must be taken into account. That is, the
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1 An allision is when a vessel strikes a fixed, stationary object, such as a bridge. A
collision is when two vessels collide.
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workers involved were not on a ship or other vessel, but were on the bridge at the time of the
events. And bridge workers normally are not covered by maritime law. A bridge generally is
considered to be an extension of land. See Victory Carriers v. Law, 404 U.S. 202, 204 (1972).
Construction on land is not a traditional maritime activity. See Herb's Welding, Inc. v. Gray, 470
U.S. 414 (1985) (worker injured on a fixed oil production platform is considered to be working
on "land" in the state to which the platform is connected). Likewise, here the victims were
working on a “land-based structure” the bridge itself. If they had been struck by a vehicle and
knocked into the water, most-likely they would not have had a claim within the admiralty
jurisdiction. However, the test above allows for such claims in admiralty to proceed when the
injury ‘on land’ was caused by a vessel in navigation through application of The Admiralty
Extension Act.
THE ADMIRALTY EXTENSION ACT, 46 USC § 30101
The Admiralty Extension Act will apply here, because a vessel, the DALI, caused injury
and damages on ‘land’. The Admiralty Extension Act, 46 USC § 30101, provides admiralty
jurisdiction by stating:
(a) In General.—
The admiralty and maritime jurisdiction of the United States extends to and includes
cases of injury or damage, to person or property, caused by a vessel on navigable waters,
even though the injury or damage is done or consummated on land.
So the DALI, a vessel on the navigable waters, caused injury ‘on land’ to the bridge and
the persons thereon. Once there is maritime jurisdiction, with it comes the application of general
maritime law, supplemented by state law if there is no conflict between state and federal
maritime law. See, e.g., Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084 (2d
Cir.1993), a wrongful death case arising out of a collision between two vessels in navigable
waters, where plaintiffs sued in diversity and raised only state law claims. The court noted that
the plaintiffs' tort claim "comes within the admiralty jurisdiction of the federal courts," and
added: "With this jurisdiction comes the application of substantive maritime law, and absent a
relevant federal statute, we apply the general maritime law as developed by the courts. That law
includes elements adopted from the law of products liability." Id. at 1087
BUT ARE THERE GENERAL MARITIME LAW CAUSES OF ACTION FOR
NEGLIGENCE CAUSING INJURY OR DEATH?
Since admiralty jurisdiction is established, the next question is does the general admiralty
law (a federal common law developed by the Supreme Court and other courts) provide for causes
of action for negligently caused injury and death. The answer to that question is yes, and as to
personal injury claims, the maritime law established that right in cases over 150 years ago. The
trickier issue, however, had been whether the general maritime law encompassed a cause of
action for negligently caused wrongful death. That question was only affirmatively established in
the past 25 years, as is explained below.
Regarding a general maritime law cause of action for wrongful death, before the Supreme
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Court’s decision in 1970, in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), if there
was a wrongful death in territorial waters, a wrongful death action could only be brought under
state law, because in 1886, the Supreme Court had held in The Harrisburg, 119 U.S. 199 (1886)
that there was no maritime wrongful death remedy.
Since many state rules prohibited wrongful death claims, most maritime death actions
were prohibited. The Supreme Court heeded the call of the families of those killed in maritime
accidents, and in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970) the Court
overturned The Harrisburg noting that it had been decided on anachronistic and dubious
authority. Thus, the Court held that going forward there was a general maritime law cause of
action for wrongful death for violations of maritime duties. It suggested, but did not expressly
hold, however, that this holding would apply to a negligence action. But since Moragne
involved a claim of a fatally injured longshoreman whose estate claimed his death was caused by
vessel unseaworthiness only, and not negligence, it was unclear whether the decision would
apply to negligence actions as well.2 The Supreme Court’s express holding was only that there
was a general maritime law cause of action for wrongful death occurring in territorial waters for
violation of the warranty of seaworthiness.
In the wake of that decision, the appellate courts were confused as to the extent of the
holding. Was Moragne limited only to unseaworthiness claims, or did it apply to negligence
causes of action? Several courts held that a negligence cause of action was recognized in
Moragne, see e.g., Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084 (2d Cir. 1993),
but others did not, see e.g. Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir. 1979)(en
banc). To resolve the conflict among the Circuits, the Supreme Court took up the issue in Norfolk
Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811 (2001).
In Garris, plaintiff’s decedent was fatally injured while Garris was performing
sandblasting work aboard a ship in a shipyard. He was in the employ of Tidewater Temps, Inc., a
subcontractor for Mid-Atlantic Coatings, Inc., which, in turn, was a subcontractor for the
defendant, Norfolk Shipbuilding & Drydock Corporation. Because the vessel on which the
injury occurred was in the navigable waters of the United States when Garris was hurt, he sued
under federal admiralty jurisdiction, rooted in the U.S. Const., Art. III, § 2, cl. 1 and as
Congressionally approved at 28 U.S.C. § 1333, and prayed for damages under general maritime
law.
The District Court dismissed the estate’s complaint for failure to state a federal claim, for
the categorical reason that “no cause of action exists, under general maritime law, for death of a
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2 As discussed below, the seaworthiness remedy is unique to a ‘seaman’. So how could a
longshoreman claim an action for unseaworthiness? The answer is that the Supreme Court had
determined that longshoremen, whose work primarily is loading and unloading vessels, did
“seaman’s” work, and thus were entitled to sue for the seaman’s remedy for compensation for
injury due to the vessel’s unseaworthiness. See Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85
(1946). Congress did away with that remedy for longshoremen, however, in the 1972
Amendments to the Longshore and Harbor Workers Compensation Act, 33 USC § 901 et seq.
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non-seaman in state territorial waters resulting from negligence.” Garris v. Norfolk Shipbuilding
& Drydock Corporation, 1998 WL 1108934 *1 (E.D. Va. 1998). The United States Court of
Appeals for the Fourth Circuit reversed and remanded for further proceedings, explaining that
although the Supreme Court had not yet recognized a maritime cause of action for wrongful
death resulting from negligence, the principles contained in Moragne v. States Marine Lines,
Inc., 398 U.S. 375 (1970), made such an action appropriate. Garris v. Norfolk Shipbuilding &
Drydock Corporation, 210 F.3d 209 (4th Cir. 2000). The Supreme Court granted certiorari.
In affirming, the Supreme Court in Norfolk Shipbuilding & Drydock Corporation v.
Garris, 532 U.S. 811 (2001) noted that previous decisions of the court had found that causes of
action existed under the general maritime law for various personal injury torts. For instance, it
noted that the general maritime law imposes duties to avoid negligence, that is, recognizing a
negligence cause of action in general, Leathers v. Blessing, 105 U.S. 626, 630 (1881)3 and that
nonfatal injuries caused by the breach of that duty are compensable, Robins Dry Dock & Repair
Co. v. Dahl, 266 U.S. 449, 457 (1925). But remaining was the question in Garris was “whether
death caused by negligence should, or must under direction of a federal statute, be treated
differently” that is, whether a wrongful death action for negligence brought by the estate of a
non-seaman may be maintained in a maritime case.4 Hence, in Garris, the very issue presented
by the decedents’ potential claims in the Baltimore bridge collapse case was before the court,
because the fatally injured workers’ claims would be against the DALI for its negligence in
destroying the bridge upon which they were working, leading to their deaths.
In Garris, the court noted that in Moragne it had stated, “[w]e ... hold that an action does
lie under general maritime law for death caused by violation of maritime duties. ” 532 U.S. at
814, citing Moragne, 398 U.S. at 409. It recognized, however, that the Moragne decision was
simply directed to whether such wrongful death cause of action applied to a claim brought for
unseaworthiness, not negligence, so technically, the court did not rule that such a cause of action
existed for a claim of negligence. Garris closed the technical loophole, finding “[t]he maritime
cause of action that Moragne established for unseaworthiness is equally available for
negligence.” Norfolk Shipbuilding & Drydock Corp. v Garris, 532 U.S. 811, 820 [2001].
3 The court included in this part of its explanation that the general maritime law also
permits a claim for unseaworthiness, Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-550
(1960), that injuries suffered due to unseaworthiness are compensable, Mahnich v. Southern S.S.
Co., 321 U.S. 96, 102-103 (1944) and when an action is brought for wrongful death caused by
unseaworthiness the breach of the duty of seaworthiness is also compensable, Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 409 (1970). But since unseaworthiness is a cause of action
unique to seamen, workers who are employed on ships and boats and contribute to the function
or navigation of the vessel, that holding is irrelevant here, except perhaps for a crew member of
the DALI.
4 A seaman’s estate has a statutory cause of action for wrongful death, see 46 USC 30105
et seq., incorporating the Federal Employers Liability Act, 45 USC § 1 et seq., applicable to
railroad workers’ entitlement to sue their employer in negligence, and their estates to sue for
wrongful death.
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CONCLUSION
The injured workers, and the families of the decedents, may bring claims under the
general maritime law for the negligence, if any, of the M/V DALI. Whether they have a claim
against the State of Maryland for the condition of the bridge under state law, or against other
actors, is beyond the scope of this discussion. To this writer’s mind, based on what appears to
have been rickety, unprotected foundations which failed, as seen in the videos of the bridge’s
collapse, the claimants should consider exploring the state’s role in its maintenance, or lack
thereof, of the structure.
| Raritan, New Jersey May 7, 2024 |
HOFMANN & SCHWEITZER |
By: _____________________________
Paul T. Hofmann (NJ Bar No. 02032-1981)
1130 Route 202 South, Ste. 7A
Raritan, New Jersey 08869
212-465-8840 Fax: 212-465-8849
paulhofmann@hofmannlawfirm.com