Admirality judges: flotsam on the sea of maritime law?

• Author: Brown, John R.

1. INTRODUCTION

   The United States Constitution and Congress have expressly granted admiralty and maritime jurisdiction to the federal courts. Exercising this authority, admiralty judges have enunciated principles of maritime law that provide both certainty to commercial shipping and protection to those who risk life or property at sea. Moreover, the image of the great maritime judges and their opinions have been a beacon to judges in other areas of the law.

   After two centuries of leadership, the tide has begun to turn on admiralty judges. The Supreme Court--whose members are admiralty judges when they hear admiralty appeals--has recently abandoned its Constitutional duty of enunciating maritime law in favor of conforming admiralty law to Congressional enactments and filling in gaps in maritime law only when authorized by Congress. Apparently admiralty judges should now assume the role of followers rather than leaders. Have admiralty judges become flotsam on the sea of maritime law?

2. WHAT IS ADMIRALTY AND MARITIME LAW?

   1. The Power and Authority of Admiralty Judges

      The importance of the admiralty judge in the United States precedes the adoption of the United States Constitution. Admiralty courts sat in the colonies that bordered the sea long before the Declaration of Independence. (1) After the colonies declared their independence, admiralty courts were established in all of the states to adjudicate admiralty claims. (2) Even when the colonies were governed by the Articles of Confederation, however, the states recognized the necessity of uniform admiralty law. Thus, the Articles conferred on the Continental Congress the authority to establish courts for appeal of maritime matters. (3)

      The weakness of the central government under the Articles of Confederation was felt in the judicial and maritime areas as strongly as in any other realm. Justice Pitney noted that "one of the chief weaknesses of the Confederation was in the absence of a judicial establishment possessed of general authority." (4) It was not enough for the Continental Congress to establish a maritime court of appeals to hear appeals from state courts. "The weak point of the system was the absence of power in the central government to enforce the judgment of the appellate tribunal if it had to reverse the decree of the state court." (5)

      When the Constitutional Convention was held in 1787, the Founding Fathers had to address the necessity of a system of federal courts and whether such federal courts should be granted jurisdiction over admiralty cases. Although there was substantial debate over the extent of power and jurisdiction of federal judges, the grant of admiralty jurisdiction to the federal courts was added "without controversy." (6) Alexander Hamilton stated the following:

      [The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizance of maritime causes.] These so generally depend on the laws of nations and so commonly affect the rights of foreigners that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction. (7) The result of the Constitutional Convention was a strong affirmation of the need of federal authority over admiralty: "The judicial Power shall extend ... to all Cases of admiralty and maritime jurisdiction ..." (8) The significance of this power given to the federal judiciary to hear admiralty and maritime cases is demonstrated by the fact that this is the only grant of jurisdiction in the Constitution that identifies an area of substantive law. Federal authority over admiralty and maritime law is addressed only in the Judicial Article. Oddly, the Constitution does not contain a similar grant of specific authority to Congress over admiralty and maritime law.

      The grant of judicial power (9) to the federal courts in Article III of the Constitution also imposes the duty on admiralty judges to exercise that power. (10) This duty requires that the admiralty judges declare the governing principles of maritime law. "Jurisdiction is the power to adjudicate a case upon the merits, and dispose of it as justice may require." (11)

      When admiralty judges declare the governing principles of admiralty and maritime law they are doing more than carrying out their Constitutional duty. The admiralty law that they declare carries the authority of the very Constitution itself. The Constitutional underpinning of the admiralty law as enunciated by the admiralty judges was initially expressed by justice Bradley as follows:

      That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdiction." (12) Justice McReynolds explained that "the Constitution itself adopted the rules concerning rights and liabilities applicable therein." (13) Therefore, as admiralty judges decide maritime cases, they determine rights and liabilities adopted by the Constitution.

      True, the Constitution adopted a system of general maritime law; however, the Constitution did not specify the details of that law. Despite the important influence of the English admiralty judges on the development of maritime law, American judges developed admiralty law from principles, codes and decisions from all of the maritime nations. (14) Justice Marshall described the source of the governing law: "These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise." (15)

      American admiralty judges also declared their independence from the English courts on the matter of jurisdiction. The political climate in England had restricted the jurisdiction of its admiralty courts while expanding the authority of the common-law courts. Initially, some admiralty judges in the United States took the position that the grant of "admiralty and maritime jurisdiction" in the Constitution "must be taken to refer to the admiralty and maritime jurisdiction of England (from whose code and practice we derive our systems of jurisprudence)." (16) The turning point was Justice Story's powerful opinion in DeLovio v. Boit. (17) Although Justice Story recognized the "importance and novelty of the questions" (18) involved in the case, he could not have anticipated the impact of his opinion.

      The underlying admiralty jurisdiction issue in DeLovio v. Boit was the jurisdiction of the federal courts over a dispute on a marine insurance contract. The English courts, with their limited admiralty jurisdiction, would not have had jurisdiction over the case. Justice Story reasoned not only that the language of the clause of the Constitution conferred "admiralty" jurisdiction but also that the word "maritime" had been "superadded" (19) to the grant. In light of the intentional use of the words "admiralty and maritime" in the Constitution, Justice Story rejected a narrow construction of the jurisdictional grant that would engraft "the restrictions of English statutes, or decisions at common law founded on those statutes, which were sometimes dictated by jealousy, and sometimes by misapprehension, which are often contradictory, and rarely supported by any consistent principle." (20) To the contrary, Justice Story believed the language of the Constitution would "warrant the most liberal interpretation" and that it would "not be unfit to hold" that the phrase "admiralty and maritime" referred to the following:

      [T]hat maritime jurisdiction, which commercial convenience, public policy, and national rights, have contributed to establish, with slight local differences, over all Europe; that jurisdiction, which under the name of consular courts, first established itself upon the shores of the Mediterranean, and, from the general equity and simplicity of its proceedings, soon commended itself to all the maritime states; that jurisdiction, in short, which collecting the wisdom of the civil law, and combining it with the customs and usages of the sea, produced the venerable Consolato del Mare, and still continues in its decisions to regulate the commerce, the intercourse, and the warfare of mankind. (21) Justice Story concluded that it "seems little short of an absurdity" to extend the restrictions in English statutes to the broader language of the Constitution. (22) Therefore, "without the slightest hesitation," (23) Justice Story extended the federal jurisdiction to include "all maritime contracts, torts and injuries." (24)

      The influence of Justice Story's analysis of the grant of admiralty and maritime jurisdiction is found not only in the words of support from admiralty judges for his opinion, (25) but in the expansive reading subsequently given the clause by the Supreme Court. Despite the controversy caused by Justice Story's broad interpretation of the grant, (26) the Supreme Court broadly held that the federal admiralty jurisdiction was not "restricted to the subjects cognizable in the English Courts of Admiralty at the date of the Revolution." (27) Instead of providing a limited authority over maritime matters, the jurisdiction of the admiralty judges was extended to encompass "every ground of reason when applied to the peculiar circumstances of this country, with its extended territories, its inland seas, and its navigable rivers...." (28)

      The wisdom of investing admiralty judges with broad authority to declare the admiralty law of the United States is reflected throughout the jurisprudence of the great admiralty judges. Initially, when the United States was confined to a group of coastal states that...