Impact of Dredging on Maritime Law
While the impact of dredging on our economy is widely known, the impact of dredging on the development of general maritime law through U.S. Supreme Court decisions is often overlooked.
By Grady S. Hurley, Jones Walker LLP
In 1875, the General Moultrie was the first suction dredge built in the United States and was used in the Charleston River — until it sank within a year. During the same era, the city of Houston and other port towns formed companies like the Buffalo Bayou Ship Channel Company to build special-purpose vessels to clear and connect waterways for commercial vessel traffic. Toward the end of the 19th century, the cutter suction dredge made its appearance and effectively dug and maintained water channels. The Foreign Dredge Act of 1906 prohibited foreign-built or chartered vessels from dredging in U.S. waters.
Since its early days, it can easily be argued that dredging is vital to the security and economy of the United States. Present-day dredging maintains the navigable depths of our inland ports and waterways, restores the ecology of wetlands and rebuilds beaches exposed along state boundaries.
The U.S. inland maritime transportation system reportedly accounts for one quarter of the U.S. economy. A lack of maintenance dredging and increasing ship depths have left most U.S. harbors at full depth and width only 35% of the time. Recently, the U.S. Congress invested $10 billion from the Harbor Maintenance Trust Fund to dredge harbors. The Corps of Engineers has also announced the dredging of the Mississippi River from its mouth to Baton Rouge, La., in order to provide a draft of 50 feet for 256 miles of deep-water commerce. Each additional foot of water depth draft equals about $1 million of cargo per ship, impacting our national economy by $127 million annually.
While the impact of dredging on our economy is widely known, the impact of dredging on the development of general maritime law through U.S. Supreme Court decisions is often overlooked. Our U.S. dredging industry has impacted both our laws and economy. Supreme Court dredging cases have addressed patent, labor and jurisdictional issues as well as shaped general maritime law since its inception. An overview of Supreme Court cases demonstrates the varied impact:
1883 – Atlantic Works v. Brady
A dispute arose out of the construction of a dredge and the validity of a patent for a component part. The Supreme Court held that the design of our patent laws was to reward those that made a “new and useful substantial discovery” that also made an advance in the useful arts.
1907 – Ellis v. Eastern Dredging
Members of a dredge crew were not subject to the eight-hour work limitations for laborers and mechanics as defined under a wage and hour statute. Presently, our Fair Labor Standards Act has an exception for seamen.
1920 – U.S. v. Atlantic Dredging
In a government contract dispute, appealed from the Court of Claims, the Supreme Court held that the private contractor could reasonably have relied upon government representations in its dredging agreement as it would a warranty.
1923 – Great Lakes Dredge & Dock Co. v. Kierejewski
The Supreme Court held that federal courts have maritime jurisdiction over an alleged wrongful death case under a “locality test” analysis and state law actions could not preempt maritime law.
1932 – Brooklyn v. Eastern Dist. Terminal
A government dredge collided with a tug. Mutual fault was found. The Supreme Court reviewed the question of loss of use/demurrage damages and a vessel owner’s duty to mitigate damages arising from a collision—the “substitute vessel” doctrine is still employed in considering loss of use claims.
1943 – O’Donnell v. Great Lakes Dredge & Dock Co.
A seaman was injured while repairing a dredge pipe on land. The Supreme Court extended the Jones Act remedy to him since the seaman was in the service of the vessel even though he was not injured on the vessel. The locality test did not determine the remedy, but rather the scope of employment.
1943 - Standard Dredging Corp. v. Murphy and Great Lakes Dredge & Dock Co. v. Huffman
These two decisions reviewed whether state statutes concerning the collection of taxes are constitutional and enforceable in maritime commerce situations and emphasized the tension between state and maritime jurisdictions and laws.
1956 – Senko v. Lacrosse Dredging Corp.
A handyman providing general maintenance to a dredge was injured by an explosion and sued under the Jones Act. The Court held that a jury had wide discretion in determining from the facts whether a “handyman” should be considered a “member of the crew” for Jones Act status purposes. The three-member dissent queried whether Senko was more or less permanently attached to a vessel in commerce. This debate still lingers.
1958 – Kernan v. Am. Dredging Co.
A fire occurred on a scow as the result of a statutory violation. In a rare case, the Supreme Court found “negligence per se” (where a rebuttable presumption of fault as a matter of law exists when there is a statutory violation related to the injury). Negligence per se still exists under general maritime law.
1994 – Am. Dredging v. Miller
As a rule, state law only applies where it does not change substantive maritime law. A personal injury suit was filed in state court under the Jones Act and Savings-to-Suitors Clause. The Supreme Court held that federal law does not preempt state law regarding the doctrine of forum non conveniens when the defendant sought to transfer it to another venue. This doctrine asks whether the chosen location where suit was filed is convenient to the defendant or whether the case can be transferred to a different locale. This doctrine is not substantive, but procedural, maritime law.
1995 – Grubart v. Great Lakes Dredge & Dock Co.
Employing a locality test analysis, the Supreme Court found admiralty jurisdiction where pile driving in the Chicago River caused a tunnel to collapse and flood the basements of several downtown Chicago buildings.
2005 – Stewart v. Dutra Constr. Co.
In a unanimous decision, the Supreme Court held that a bucket dredge and its tender were deemed to be a “vessel” for purposes of a personal injury claim. The Court gave a broad definition to “vessel” as defined in 1 U.S.C. 3 regarding “anything that floats.” This decision is now considered in light of Lozman, where the Court held a houseboat was not a vessel.
2009 – Atlantic Sounding, Inc. v. Townsend
An injured seaman is awarded maintenance and cure without regard to fault when an illness or injury manifests itself while in the service of a vessel. The Supreme Court allowed punitive damages for the willful or arbitrary failure of a Jones Act employer to pay maintenance and cure in a narrow 5-4 decision. Punitive damages are not allowed under the Jones Act but exist under general maritime law standing alone.
2019 – Dutra v. Batterton
Ten years after Townsend and in a 6-3 decision, punitive damages were denied to a Jones Act seaman alleging both negligence and that the dredge was unseaworthy under general maritime law. The Supreme Court held that when a Jones Act claim is joined with a general maritime law claim of unseaworthiness, punitive damages are not allowed. This is distinguished from a maintenance and cure claim asserted purely under general maritime law.
The unique nature of dredging, its equipment and its personnel have created legal issues that have reached the U.S. Supreme Court in almost every decade since its early inception. In particular, the Supreme Court has grappled with what a vessel is in navigation, what the scope of Jones Act coverage is where individuals have responsibilities both on land and onshore, how and when punitive damages can be assessed for individuals injured on vessels, how state statutes affect the operations on navigable waters, and how far maritime jurisdiction can extend when maritime operations cause injuries on land. Dredging is not only vital to the U.S. economy and its security, but also to the development of general maritime law principles.
About the Author:
Grady S. Hurley is leader of the maritime litigation and arbitration team and co-chair of the Energy, Environmental & Natural Resources Industry Team at Jones Walker LLP. Since 1979, he has focused on maritime, oilfield, and energy litigation.