By Foluke Akinmoladun
Tort is a legal cause of action where a person suffered some compensable harm as a result of the negligence or wilful misconduct of another person. The word “tort” derives from a Latinate Middle English word meaning “injury”. In this light, maritime tort applies to cases where injury, loss or damage is caused to a person or their interests in a maritime setting. This gives maritime tort law a very broad range of coverage, particularly as no malice or premeditation is required to designate liability under the tenets of tort law.
A maritime incident must be substantially related to traditional maritime activity, in order to be considered as maritime tort. Usually, most cases involving ships have been held to relate to traditional maritime activity, because ship incident satisfies traditional maritime activity test. At least one alleged tortfeasor (wrongdoer) that is the ship itself may be engaged in an incident and such maritime activity may be held to have been the proximate cause of the incident.
Traditional maritime activity test for maritime jurisdiction was originally developed as a way for courts to weed out unusual cases that don’t fit into maritime jurisdiction. A tort incident becomes maritime tort if it falls within maritime jurisdiction and this is proved by a maritime location and a maritime connection. A tort incident’s maritime connection test further has two components, which is that the incident must have potential impact on maritime commerce and secondly the incident is substantially related to traditional maritime activity. When maritime incident involves ship on navigable waters, the maritime incident is likely to be a maritime tort. In order to be within maritime jurisdiction, the tort must have occurred on navigable waters or must have been caused by a ship on navigable waters.
According to maritime law, a claimant whose negligence contributed to an accident can still bring suit against others responsible for accident. This is different from contributory negligence which limits when a person can sue others for an accident in which the person was also negligent.
The law applies a simple comparative fault standard for establishing negligence. If the claimant’s own fault contributed to an accident, claimant can still sue others who were also at fault, but the claimant’s recovery is reduced by the percentage of fault attributable to the claimant. In maritime cases, if a person is negligent, it is determined by the “reasonable person” standard to see if that person acted reasonably under the circumstances. Maritime courts would look at expert testimony or other sources to determine what a reasonable person would have done.
In support of a general negligence claim, a claimant must establish that (1) the defendant owed the claimant a duty of care; (2) the defendant breached the duty; (3) the claimant suffered damages; and (4) the breach of the duty proximately caused the damages. Whether a defendant owes a duty to a claimant depends on various factors, and the primary indicator of duty is whether the harm suffered by the plaintiff was foreseeable.
In the United States’ case of Crear v. Omega Protein, Fifth Circuit Court of Appeals January 26, 2004, the district court granted summary judgment to defendant fishing vessel owner where a former employee who had suffered a head injury onboard murdered his grandmother 13 months later. A reasonable employer in defendant’s position would not have foreseen that its negligence in failing to properly affix a stern pole would cause an injured seaman to murder another person.
Foluke Akinmoladun is a lawyer, accountant, mediator and arbitrator. She is the Managing Solicitor of Trizon Law Chambers and can be reached at: [email protected]
