The Life and Times of Wilburn Boat: A Critical Guide (Part I)

Journal of Maritime Law and Commerce

Volumn 28, Issue 3, 1997, Pages 395-448

  Goldstein, Joel K ^a,b,c,d  

^a SAINT LOUIS UNIVERSITY   (United States)

^b PRINCETON UNIVERSITY   (United States)

^c UNIVERSITY OF OXFORD   (United Kingdom)

^d HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0031483818     PISSN: 00222410     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (299)

1. 348 U.S. 310 (1955).
2. See, e.g., G. Gilmore & C. Black, The Law of Admiralty 55-56 n.23 (2d ed. 1975); MacChesney, Marine Insurance and the Substantive Admiralty Law: A Comment on the Wilburn Boat Company Case, 57 Mich. L. Rev. 555 (1959); T. Schoenbaum, Admiralty and Maritime Law 561 (1st ed. 1987) (Wilburn "surprised and puzzled the admiralty bar"); D. Currie, Federal Courts: Cases and Materials 369 (1990) (referring to the decision as "startling"). One scholar recently observed that the decision "turned the law of marine insurance upside down." An Admiralty Law Anthology 128 (R. Jarvis ed. 1995).
3. See, e.g., G. Gilmore & C. Black, The Law of Admiralty 55-56 n.23 (2d ed. 1975); MacChesney, Marine Insurance and the Substantive Admiralty Law: A Comment on the Wilburn Boat Company Case, 57 Mich. L. Rev. 555 (1959); T. Schoenbaum, Admiralty and Maritime Law 561 (1st ed. 1987) (Wilburn "surprised and puzzled the admiralty bar"); D. Currie, Federal Courts: Cases and Materials 369 (1990) (referring to the decision as "startling"). One scholar recently observed that the decision "turned the law of marine insurance upside down." An Admiralty Law Anthology 128 (R. Jarvis ed. 1995).
4. See, e.g., G. Gilmore & C. Black, The Law of Admiralty 55-56 n.23 (2d ed. 1975); MacChesney, Marine Insurance and the Substantive Admiralty Law: A Comment on the Wilburn Boat Company Case, 57 Mich. L. Rev. 555 (1959); T. Schoenbaum, Admiralty and Maritime Law 561 (1st ed. 1987) (Wilburn "surprised and puzzled the admiralty bar"); D. Currie, Federal Courts: Cases and Materials 369 (1990) (referring to the decision as "startling"). One scholar recently observed that the decision "turned the law of marine insurance upside down." An Admiralty Law Anthology 128 (R. Jarvis ed. 1995).
5. See, e.g., G. Gilmore & C. Black, The Law of Admiralty 55-56 n.23 (2d ed. 1975); MacChesney, Marine Insurance and the Substantive Admiralty Law: A Comment on the Wilburn Boat Company Case, 57 Mich. L. Rev. 555 (1959); T. Schoenbaum, Admiralty and Maritime Law 561 (1st ed. 1987) (Wilburn "surprised and puzzled the admiralty bar"); D. Currie, Federal Courts: Cases and Materials 369 (1990) (referring to the decision as "startling"). One scholar recently observed that the decision "turned the law of marine insurance upside down." An Admiralty Law Anthology 128 (R. Jarvis ed. 1995).
6. See, e.g., G. Gilmore & C. Black, The Law of Admiralty 55-56 n.23 (2d ed. 1975); MacChesney, Marine Insurance and the Substantive Admiralty Law: A Comment on the Wilburn Boat Company Case, 57 Mich. L. Rev. 555 (1959); T. Schoenbaum, Admiralty and Maritime Law 561 (1st ed. 1987) (Wilburn "surprised and puzzled the admiralty bar"); D. Currie, Federal Courts: Cases and Materials 369 (1990) (referring to the decision as "startling"). One scholar recently observed that the decision "turned the law of marine insurance upside down." An Admiralty Law Anthology 128 (R. Jarvis ed. 1995).
7. For a sampling, see Gilmore & Black, supra note 2, at 68-71 (calling Wilburn "persistently problematic" and "nightmarish"); Currie, Federalism and the Admiralty: "The Devil's Own Mess", 1960 Sup. Ct. Rev. 158, 210 (referring to the "unsatisfactory" Wilburn decision); Note, The General Maritime Law vs. State Law in Maritime Cases: Which, When and Why?, 50 Nw. U.L. Rev. 677, 682 (1955). More recent critics include: Cattell, An American Marine Insurance Act: An Idea Whose Time Has Come, 20 Tul. Mar. L.J. 1 (1995) (noting that Wilburn deprived the law of "certainty"); Laughlin, Choice of Law in the Federal Admiralty Court, 10 J. Mar. L. & Com. 165, 180 (1979) (Wilburn represents a "confusing new element in choice of law"); Waddell, Current Issues and Developments in Marine Insurance, 6 U.S.F. Mar. L.J. 185 (1993) (referring to that "unfortunate decision" which "has been universally criticized"); Comment, Untying the Gordian Knot and Opening Pandora's Box, 19 Tul. Mar L.J. 411, 418-19 (1995) (describing Wilburn as "confusing"). An English authority wrote, "American law has been thrown into some disarray by the Wilburn Boat case and one can only sympathise with American legal advisers on the present state of the law." D. O'May, Marine Insurance: Law and Policy 81 (J. Hill ed. 1993). See also Beale, Pleasure Craft Insurance in 8 Benedict on Admiralty § 6.01, at 6-5 (7th rev. ed. 1996) (Wilburn "has prevented uniform or predictable results").
8. For a sampling, see Gilmore & Black, supra note 2, at 68-71 (calling Wilburn "persistently problematic" and "nightmarish"); Currie, Federalism and the Admiralty: "The Devil's Own Mess", 1960 Sup. Ct. Rev. 158, 210 (referring to the "unsatisfactory" Wilburn decision); Note, The General Maritime Law vs. State Law in Maritime Cases: Which, When and Why?, 50 Nw. U.L. Rev. 677, 682 (1955). More recent critics include: Cattell, An American Marine Insurance Act: An Idea Whose Time Has Come, 20 Tul. Mar. L.J. 1 (1995) (noting that Wilburn deprived the law of "certainty"); Laughlin, Choice of Law in the Federal Admiralty Court, 10 J. Mar. L. & Com. 165, 180 (1979) (Wilburn represents a "confusing new element in choice of law"); Waddell, Current Issues and Developments in Marine Insurance, 6 U.S.F. Mar. L.J. 185 (1993) (referring to that "unfortunate decision" which "has been universally criticized"); Comment, Untying the Gordian Knot and Opening Pandora's Box, 19 Tul. Mar L.J. 411, 418-19 (1995) (describing Wilburn as "confusing"). An English authority wrote, "American law has been thrown into some disarray by the Wilburn Boat case and one can only sympathise with American legal advisers on the present state of the law." D. O'May, Marine Insurance: Law and Policy 81 (J. Hill ed. 1993). See also Beale, Pleasure Craft Insurance in 8 Benedict on Admiralty § 6.01, at 6-5 (7th rev. ed. 1996) (Wilburn "has prevented uniform or predictable results").
9. For a sampling, see Gilmore & Black, supra note 2, at 68-71 (calling Wilburn "persistently problematic" and "nightmarish"); Currie, Federalism and the Admiralty: "The Devil's Own Mess", 1960 Sup. Ct. Rev. 158, 210 (referring to the "unsatisfactory" Wilburn decision); Note, The General Maritime Law vs. State Law in Maritime Cases: Which, When and Why?, 50 Nw. U.L. Rev. 677, 682 (1955). More recent critics include: Cattell, An American Marine Insurance Act: An Idea Whose Time Has Come, 20 Tul. Mar. L.J. 1 (1995) (noting that Wilburn deprived the law of "certainty"); Laughlin, Choice of Law in the Federal Admiralty Court, 10 J. Mar. L. & Com. 165, 180 (1979) (Wilburn represents a "confusing new element in choice of law"); Waddell, Current Issues and Developments in Marine Insurance, 6 U.S.F. Mar. L.J. 185 (1993) (referring to that "unfortunate decision" which "has been universally criticized"); Comment, Untying the Gordian Knot and Opening Pandora's Box, 19 Tul. Mar L.J. 411, 418-19 (1995) (describing Wilburn as "confusing"). An English authority wrote, "American law has been thrown into some disarray by the Wilburn Boat case and one can only sympathise with American legal advisers on the present state of the law." D. O'May, Marine Insurance: Law and Policy 81 (J. Hill ed. 1993). See also Beale, Pleasure Craft Insurance in 8 Benedict on Admiralty § 6.01, at 6-5 (7th rev. ed. 1996) (Wilburn "has prevented uniform or predictable results").
10. For a sampling, see Gilmore & Black, supra note 2, at 68-71 (calling Wilburn "persistently problematic" and "nightmarish"); Currie, Federalism and the Admiralty: "The Devil's Own Mess", 1960 Sup. Ct. Rev. 158, 210 (referring to the "unsatisfactory" Wilburn decision); Note, The General Maritime Law vs. State Law in Maritime Cases: Which, When and Why?, 50 Nw. U.L. Rev. 677, 682 (1955). More recent critics include: Cattell, An American Marine Insurance Act: An Idea Whose Time Has Come, 20 Tul. Mar. L.J. 1 (1995) (noting that Wilburn deprived the law of "certainty"); Laughlin, Choice of Law in the Federal Admiralty Court, 10 J. Mar. L. & Com. 165, 180 (1979) (Wilburn represents a "confusing new element in choice of law"); Waddell, Current Issues and Developments in Marine Insurance, 6 U.S.F. Mar. L.J. 185 (1993) (referring to that "unfortunate decision" which "has been universally criticized"); Comment, Untying the Gordian Knot and Opening Pandora's Box, 19 Tul. Mar L.J. 411, 418-19 (1995) (describing Wilburn as "confusing"). An English authority wrote, "American law has been thrown into some disarray by the Wilburn Boat case and one can only sympathise with American legal advisers on the present state of the law." D. O'May, Marine Insurance: Law and Policy 81 (J. Hill ed. 1993). See also Beale, Pleasure Craft Insurance in 8 Benedict on Admiralty § 6.01, at 6-5 (7th rev. ed. 1996) (Wilburn "has prevented uniform or predictable results").
11. For a sampling, see Gilmore & Black, supra note 2, at 68-71 (calling Wilburn "persistently problematic" and "nightmarish"); Currie, Federalism and the Admiralty: "The Devil's Own Mess", 1960 Sup. Ct. Rev. 158, 210 (referring to the "unsatisfactory" Wilburn decision); Note, The General Maritime Law vs. State Law in Maritime Cases: Which, When and Why?, 50 Nw. U.L. Rev. 677, 682 (1955). More recent critics include: Cattell, An American Marine Insurance Act: An Idea Whose Time Has Come, 20 Tul. Mar. L.J. 1 (1995) (noting that Wilburn deprived the law of "certainty"); Laughlin, Choice of Law in the Federal Admiralty Court, 10 J. Mar. L. & Com. 165, 180 (1979) (Wilburn represents a "confusing new element in choice of law"); Waddell, Current Issues and Developments in Marine Insurance, 6 U.S.F. Mar. L.J. 185 (1993) (referring to that "unfortunate decision" which "has been universally criticized"); Comment, Untying the Gordian Knot and Opening Pandora's Box, 19 Tul. Mar L.J. 411, 418-19 (1995) (describing Wilburn as "confusing"). An English authority wrote, "American law has been thrown into some disarray by the Wilburn Boat case and one can only sympathise with American legal advisers on the present state of the law." D. O'May, Marine Insurance: Law and Policy 81 (J. Hill ed. 1993). See also Beale, Pleasure Craft Insurance in 8 Benedict on Admiralty § 6.01, at 6-5 (7th rev. ed. 1996) (Wilburn "has prevented uniform or predictable results").
12. For a sampling, see Gilmore & Black, supra note 2, at 68-71 (calling Wilburn "persistently problematic" and "nightmarish"); Currie, Federalism and the Admiralty: "The Devil's Own Mess", 1960 Sup. Ct. Rev. 158, 210 (referring to the "unsatisfactory" Wilburn decision); Note, The General Maritime Law vs. State Law in Maritime Cases: Which, When and Why?, 50 Nw. U.L. Rev. 677, 682 (1955). More recent critics include: Cattell, An American Marine Insurance Act: An Idea Whose Time Has Come, 20 Tul. Mar. L.J. 1 (1995) (noting that Wilburn deprived the law of "certainty"); Laughlin, Choice of Law in the Federal Admiralty Court, 10 J. Mar. L. & Com. 165, 180 (1979) (Wilburn represents a "confusing new element in choice of law"); Waddell, Current Issues and Developments in Marine Insurance, 6 U.S.F. Mar. L.J. 185 (1993) (referring to that "unfortunate decision" which "has been universally criticized"); Comment, Untying the Gordian Knot and Opening Pandora's Box, 19 Tul. Mar L.J. 411, 418-19 (1995) (describing Wilburn as "confusing"). An English authority wrote, "American law has been thrown into some disarray by the Wilburn Boat case and one can only sympathise with American legal advisers on the present state of the law." D. O'May, Marine Insurance: Law and Policy 81 (J. Hill ed. 1993). See also Beale, Pleasure Craft Insurance in 8 Benedict on Admiralty § 6.01, at 6-5 (7th rev. ed. 1996) (Wilburn "has prevented uniform or predictable results").
13. For a sampling, see Gilmore & Black, supra note 2, at 68-71 (calling Wilburn "persistently problematic" and "nightmarish"); Currie, Federalism and the Admiralty: "The Devil's Own Mess", 1960 Sup. Ct. Rev. 158, 210 (referring to the "unsatisfactory" Wilburn decision); Note, The General Maritime Law vs. State Law in Maritime Cases: Which, When and Why?, 50 Nw. U.L. Rev. 677, 682 (1955). More recent critics include: Cattell, An American Marine Insurance Act: An Idea Whose Time Has Come, 20 Tul. Mar. L.J. 1 (1995) (noting that Wilburn deprived the law of "certainty"); Laughlin, Choice of Law in the Federal Admiralty Court, 10 J. Mar. L. & Com. 165, 180 (1979) (Wilburn represents a "confusing new element in choice of law"); Waddell, Current Issues and Developments in Marine Insurance, 6 U.S.F. Mar. L.J. 185 (1993) (referring to that "unfortunate decision" which "has been universally criticized"); Comment, Untying the Gordian Knot and Opening Pandora's Box, 19 Tul. Mar L.J. 411, 418-19 (1995) (describing Wilburn as "confusing"). An English authority wrote, "American law has been thrown into some disarray by the Wilburn Boat case and one can only sympathise with American legal advisers on the present state of the law." D. O'May, Marine Insurance: Law and Policy 81 (J. Hill ed. 1993). See also Beale, Pleasure Craft Insurance in 8 Benedict on Admiralty § 6.01, at 6-5 (7th rev. ed. 1996) (Wilburn "has prevented uniform or predictable results").
14. See, e.g., Albany Ins. Co. v. Wisniewski, 579 F. Supp. 1004, 1013 (D.R.I. 1984) (describing choice of law question as enigmatic and attributing "uncertainty" to Wilburn); J. Ray McDermott & Co. v. Fidelity Cas. Co. of New York, 466 F. Supp. 353, 365 (E.D. La. 1979) (Wilburn presents "troublesome questions").
15. Wilburn, 348 U.S. 310; Maryland Cas. Co. v. Cushing, 347 U.S. 409 (1954); Calmar S.S. Corp. v. Scott, 345 U.S. 427 (1953); Libby, McNeill & Libby v. United States, 340 U.S. 71 (1950); Standard Oil Co. v. United States, 340 U.S. 54 (1950). It should be noted that just recently the Court did decide a dispute that arose out of a marine insurance policy. See United States v. IBM, 116 S. Ct. 1793 (1996). However, the case was resolved on the basis of the Export Clause and no justice addressed any issue relating to marine insurance.
16. See, e.g., Madruga v. Superior Court, 346 U.S. 556 (1954) (applying California partition law).
17. See, e.g., Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973) (upholding Florida environmental statute).
18. See Gilmore & Black, supra note 2, at 49. See also D. Robertson, Admiralty and Federalism 264 (1970) ("[N]o contract seems much more deeply and thoroughly maritime than a policy of marine insurance.").
19. Gilmore & Black, supra note 2, at 49.
20. These issues remain central to maritime law and repeatedly surface in the work of the Court and commentators. See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S. Ct. 619 (1996); American Dredging Co. v. Miller, 510 U.S. 443 (1994); Haight, Babel Afloat: Some Reflections on Uniformity in Maritime Law, 28 J. Mar. L. & Com. 189 (1997); Bederman, Uniformity, Delegation and the Dormant Admiralty Clause, 28 J. Mar. L. & Com. 1 (1997); Robertson, Displacement of State Law by Federal Maritime Law, 26 J. Mar. L. & Com. 325 (1995) [hereinafter Displacement]; Brown, Admiralty Judges: Flotsam on the Sea of Maritime Law?, 24 J. Mar. L. & Com. 249 (1993).
21. These issues remain central to maritime law and repeatedly surface in the work of the Court and commentators. See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S. Ct. 619 (1996); American Dredging Co. v. Miller, 510 U.S. 443 (1994); Haight, Babel Afloat: Some Reflections on Uniformity in Maritime Law, 28 J. Mar. L. & Com. 189 (1997); Bederman, Uniformity, Delegation and the Dormant Admiralty Clause, 28 J. Mar. L. & Com. 1 (1997); Robertson, Displacement of State Law by Federal Maritime Law, 26 J. Mar. L. & Com. 325 (1995) [hereinafter Displacement]; Brown, Admiralty Judges: Flotsam on the Sea of Maritime Law?, 24 J. Mar. L. & Com. 249 (1993).
22. These issues remain central to maritime law and repeatedly surface in the work of the Court and commentators. See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S. Ct. 619 (1996); American Dredging Co. v. Miller, 510 U.S. 443 (1994); Haight, Babel Afloat: Some Reflections on Uniformity in Maritime Law, 28 J. Mar. L. & Com. 189 (1997); Bederman, Uniformity, Delegation and the Dormant Admiralty Clause, 28 J. Mar. L. & Com. 1 (1997); Robertson, Displacement of State Law by Federal Maritime Law, 26 J. Mar. L. & Com. 325 (1995) [hereinafter Displacement]; Brown, Admiralty Judges: Flotsam on the Sea of Maritime Law?, 24 J. Mar. L. & Com. 249 (1993).
23. These issues remain central to maritime law and repeatedly surface in the work of the Court and commentators. See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S. Ct. 619 (1996); American Dredging Co. v. Miller, 510 U.S. 443 (1994); Haight, Babel Afloat: Some Reflections on Uniformity in Maritime Law, 28 J. Mar. L. & Com. 189 (1997); Bederman, Uniformity, Delegation and the Dormant Admiralty Clause, 28 J. Mar. L. & Com. 1 (1997); Robertson, Displacement of State Law by Federal Maritime Law, 26 J. Mar. L. & Com. 325 (1995) [hereinafter Displacement]; Brown, Admiralty Judges: Flotsam on the Sea of Maritime Law?, 24 J. Mar. L. & Com. 249 (1993).
24. See, e.g., American Dredging, 510 U.S. 443.
25. Wilburn receives prominent treatment in admiralty casebooks. It is a featured case in N. Healy & D. Sharpe, Admiralty: Cases and Materials 730-35 (2d ed. 1986)
26. and is discussed in a note in J. Lucas, Admiralty: Cases and Materials 384-85 (4th ed. 1996) after being a featured case in the second and third editions of Professor Lucas' casebook.
27. See also T. Schoenbaum & A. Yiannopoulos, Admiralty and Maritime Law: Cases and Materials 518-33 (1984), which provided excerpts from the Supreme Court decision and the subsequent Fifth Circuit opinion and included a lengthy note. The Maritime and Insurance Law sections of the Association of American Law Schools sponsored a special joint session on Wilburn at its annual meeting in January 1997, at which an abridged version of this article was presented.
28. A committee of The Maritime Law Association of the United States, under the chairmanship of Edward V. Cattell, Jr., has engaged in an intensive study of Wilburn during the last three years and generated two substantial reports. See infra note 18. In addition, practitioners have discussed Wilburn in a number of law review articles. See Cattell, supra note 3; Healy, The Hull Policy: Warranties, Representations, Disclosures & Conditions, 41 Tul. L. Rev. 245 (1967); Miller, Scrapping Wilburn Boat - The Need for Uniformity in Marine Insurance Law Outweighs Local Interests, MLA Doc. No. 719 (Sept. 30, 1995), at 10293; Staring, Admiralty and Maritime Law: Selected Topics, 26 Tort & Ins. L.J. 538 (1991); Waesche, Choice and Uniformity of Law Generally, 66 Tul. L. Rev. 293 (1991); Waddell, supra note 3; Yancey, State Regulation of Marine Insurance, 23 Ins. Counsel J. 143 (1956); Sacks & Goldstein, Implied Obligations in Marine Insurance, 35 St. Louis B.J. 40 (Spring 1988).
29. A committee of The Maritime Law Association of the United States, under the chairmanship of Edward V. Cattell, Jr., has engaged in an intensive study of Wilburn during the last three years and generated two substantial reports. See infra note 18. In addition, practitioners have discussed Wilburn in a number of law review articles. See Cattell, supra note 3; Healy, The Hull Policy: Warranties, Representations, Disclosures & Conditions, 41 Tul. L. Rev. 245 (1967); Miller, Scrapping Wilburn Boat - The Need for Uniformity in Marine Insurance Law Outweighs Local Interests, MLA Doc. No. 719 (Sept. 30, 1995), at 10293; Staring, Admiralty and Maritime Law: Selected Topics, 26 Tort & Ins. L.J. 538 (1991); Waesche, Choice and Uniformity of Law Generally, 66 Tul. L. Rev. 293 (1991); Waddell, supra note 3; Yancey, State Regulation of Marine Insurance, 23 Ins. Counsel J. 143 (1956); Sacks & Goldstein, Implied Obligations in Marine Insurance, 35 St. Louis B.J. 40 (Spring 1988).
30. A committee of The Maritime Law Association of the United States, under the chairmanship of Edward V. Cattell, Jr., has engaged in an intensive study of Wilburn during the last three years and generated two substantial reports. See infra note 18. In addition, practitioners have discussed Wilburn in a number of law review articles. See Cattell, supra note 3; Healy, The Hull Policy: Warranties, Representations, Disclosures & Conditions, 41 Tul. L. Rev. 245 (1967); Miller, Scrapping Wilburn Boat - The Need for Uniformity in Marine Insurance Law Outweighs Local Interests, MLA Doc. No. 719 (Sept. 30, 1995), at 10293; Staring, Admiralty and Maritime Law: Selected Topics, 26 Tort & Ins. L.J. 538 (1991); Waesche, Choice and Uniformity of Law Generally, 66 Tul. L. Rev. 293 (1991); Waddell, supra note 3; Yancey, State Regulation of Marine Insurance, 23 Ins. Counsel J. 143 (1956); Sacks & Goldstein, Implied Obligations in Marine Insurance, 35 St. Louis B.J. 40 (Spring 1988).
31. A committee of The Maritime Law Association of the United States, under the chairmanship of Edward V. Cattell, Jr., has engaged in an intensive study of Wilburn during the last three years and generated two substantial reports. See infra note 18. In addition, practitioners have discussed Wilburn in a number of law review articles. See Cattell, supra note 3; Healy, The Hull Policy: Warranties, Representations, Disclosures & Conditions, 41 Tul. L. Rev. 245 (1967); Miller, Scrapping Wilburn Boat - The Need for Uniformity in Marine Insurance Law Outweighs Local Interests, MLA Doc. No. 719 (Sept. 30, 1995), at 10293; Staring, Admiralty and Maritime Law: Selected Topics, 26 Tort & Ins. L.J. 538 (1991); Waesche, Choice and Uniformity of Law Generally, 66 Tul. L. Rev. 293 (1991); Waddell, supra note 3; Yancey, State Regulation of Marine Insurance, 23 Ins. Counsel J. 143 (1956); Sacks & Goldstein, Implied Obligations in Marine Insurance, 35 St. Louis B.J. 40 (Spring 1988).
32. A committee of The Maritime Law Association of the United States, under the chairmanship of Edward V. Cattell, Jr., has engaged in an intensive study of Wilburn during the last three years and generated two substantial reports. See infra note 18. In addition, practitioners have discussed Wilburn in a number of law review articles. See Cattell, supra note 3; Healy, The Hull Policy: Warranties, Representations, Disclosures & Conditions, 41 Tul. L. Rev. 245 (1967); Miller, Scrapping Wilburn Boat - The Need for Uniformity in Marine Insurance Law Outweighs Local Interests, MLA Doc. No. 719 (Sept. 30, 1995), at 10293; Staring, Admiralty and Maritime Law: Selected Topics, 26 Tort & Ins. L.J. 538 (1991); Waesche, Choice and Uniformity of Law Generally, 66 Tul. L. Rev. 293 (1991); Waddell, supra note 3; Yancey, State Regulation of Marine Insurance, 23 Ins. Counsel J. 143 (1956); Sacks & Goldstein, Implied Obligations in Marine Insurance, 35 St. Louis B.J. 40 (Spring 1988).
33. A committee of The Maritime Law Association of the United States, under the chairmanship of Edward V. Cattell, Jr., has engaged in an intensive study of Wilburn during the last three years and generated two substantial reports. See infra note 18. In addition, practitioners have discussed Wilburn in a number of law review articles. See Cattell, supra note 3; Healy, The Hull Policy: Warranties, Representations, Disclosures & Conditions, 41 Tul. L. Rev. 245 (1967); Miller, Scrapping Wilburn Boat - The Need for Uniformity in Marine Insurance Law Outweighs Local Interests, MLA Doc. No. 719 (Sept. 30, 1995), at 10293; Staring, Admiralty and Maritime Law: Selected Topics, 26 Tort & Ins. L.J. 538 (1991); Waesche, Choice and Uniformity of Law Generally, 66 Tul. L. Rev. 293 (1991); Waddell, supra note 3; Yancey, State Regulation of Marine Insurance, 23 Ins. Counsel J. 143 (1956); Sacks & Goldstein, Implied Obligations in Marine Insurance, 35 St. Louis B.J. 40 (Spring 1988).
34. Student notes at or about the time of Wilburn appear at 35 B.U. L. Rev. 435 (1955); 54 Mich. L. Rev. 277 (1955); 69 Harv. L. Rev. 169 (1955); 103 U. Pa. L. Rev. 813 (1955);
35. Student notes at or about the time of Wilburn appear at 35 B.U. L. Rev. 435 (1955); 54 Mich. L. Rev. 277 (1955); 69 Harv. L. Rev. 169 (1955); 103 U. Pa. L. Rev. 813 (1955);
36. Student notes at or about the time of Wilburn appear at 35 B.U. L. Rev. 435 (1955); 54 Mich. L. Rev. 277 (1955); 69 Harv. L. Rev. 169 (1955); 103 U. Pa. L. Rev. 813 (1955);
37. Student notes at or about the time of Wilburn appear at 35 B.U. L. Rev. 435 (1955); 54 Mich. L. Rev. 277 (1955); 69 Harv. L. Rev. 169 (1955); 103 U. Pa. L. Rev. 813 (1955);
38. 1 N.Y.L. Forum 360 (1955);
39. 29 S. Cal. L. Rev. 359 (1956);
40. 40 Minn. L. Rev. 168 (1956).
41. Later student notes discussing Wilburn appear at 5 Willamette L. Rev. 529 (1969);
42. 1 U.S.F. Mar. L.J. 149 (1989);
43. 19 Tul. Mar. L.J. 411 (1995);
44. 70 Wash. L. Rev. 519 (1995).
45. See particularly Gilmore & Black, supra note 2, at 47-49, 68-71; Robertson, supra note 8, at 264-69; T. Schoenbaum, supra note 2, at 561-63.
46. See MacChesney, supra note 2.
47. In preparing this article, I reviewed the papers of seven of the eight members of the Wilburn Court. In particular, I used those of Chief Justice Earl Warren and Justices Hugo Black, William O. Douglas, and Harold Burton at the Library of Congress, and reviewed copies of the case files of Justice Stanley Reed (made available by the University of Kentucky Libraries) and of Justice Thomas Clark (made available by the University of Texas Law Library). Justice Felix Frankfurter's file was reviewed on microfilm. Justice Minton left only a small collection of Supreme Court papers which are housed at the Harry S. Truman Library in Independence, Missouri. Information from the Library indicates that since he did not write an opinion in Wilburn he maintained no file.
48. See Marine Insurance Survey: A Comparison of United States Law to the Marine Insurance Act of 1906, 20 Tul. Mar. L.J. 5 (1995). See also Report of the Ad Hoc Committee on the Marine Insurance Act of 1906 . . . October 16, 1996 Meeting (unpublished manuscript on file with the author).
49. 365 U.S. 731 (1961).
50. Transcript of Record at 5, 12, Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955) (No. 7). The policy was initially issued in Illinois to Illinois assureds through an Illinois broker. Many of the facts recited herein are also found in Wilburn Boat Co. v. Fireman's Fund Ins. Co., 199 F. Supp. 784 (E.D. Tex. 1960), rev'd on other grounds, 300 F.2d 631 (5th Cir.), cert, denied, 370 U.S. 925 (1962).
51. Transcript of Record at 5, 25, 168.
52. Id. at 86-87, 165-66. The endorsement was issued on August 6, 1948, after the corporation was formed but before it took title.
53. Id. at 59-60, 83-84, 90.
54. Id. at 168-69.
55. Id. at 23.
56. Id. Remodelling was completed in September 1948. Id. at 60-61. The vessel made three or four trips under charter, id. at 62, but was not chartered in January or February 1949. Id. at 63.
57. Id. at 82.
58. Id. at 25, 48, 53-54. The corporation lacked a permit to do business in Texas. Id. at 24-25.
59. Id. at 23-24.
60. Id. at 52.
61. In response to the question, "Is vessel ever let, chartered, or [emphasis in original] used for carrying passengers for hire?," the Wilburns answered "[c]hartered." See Fireman's Fund Ins. Co. v. Wilburn Boat Co., 300 F.2d 631, 636, 640-41 n.3 (5th Cir. 1962).
62. Transcript of Record at 63, 70-71, 81.
63. Id. at 186-89.
64. Wilburn, 348 U.S. at 313 n.1.
65. Id.
66. See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 201 F.2d 833 (5th Cir. 1953).
67. Transcript of Record at 1-6.
68. Id. at 6.
69. Id. at 18.
70. Id. at 19-20. The letter was filed with the clerk. Id. at 20.
71. Id. at 18-20.
72. Id. at 20.
73. Id. at 18, 20.
74. Id. at 19.
75. Id. at 18-20.
76. Wilburn Boat Co. v. Fireman's Fund Ins. Co., 201 F.2d 833 (5th Cir. 1953).
77. Id. at 835-36.
78. Petition for Writ of Certiorari, at 2-4, Wilburn Boat co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955) (No. 7).
79. The Court had already granted review in Maryland Cas. Co. v. Cushing, 347 U.S. 409 (1954), cert. granted, 345 U.S. 902 (1953); it granted certiorari in Madruga v. Superior Court, 346 U.S. 556 (1954), cert. granted, 345 U.S. 963 (1953), on May 25, 1953, and in Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953), cert. granted, 345 U.S. 990 (1953), on June 15, 1953. See Administrative Docket Book (on file with the Library of Congress, Douglas Mss., Box 1145).
80. 46 U.S.C. app. §§ 181 et seq.
81. Plaintiffs distinguished Wilburn from Maryland Casualty on the ground that the latter involved a challenge to "a specific substantive right of admiralty law" whereas Wilburn involved "no substantive right of admiralty law." Petition for Writ of Certiorari, at 2 n.1.
82. Warren received a recess appointment on October 2, 1953.
83. Conference memoranda (on file with the Library of Congress, Black Mss., Box 317).
84. On his "conference list" for the week of October 5, 1953, at 2, Justice Black wrote next to Wilburn, "hold for Maryland Casualty case." Special Assignment Lists (on file with the Library of Congress, Black Mss., Box 317);
85. Justice Douglas' docket sheet for Wilburn in the October 1953 term indicates it was held pending Maryland Casualty. See Administrative Docket Book No. 47 (on file with the Library of Congress, Douglas Mss., Box 1145).
86. Chief Justice Warren's papers, including legal memoranda, suggest Wilburn was held not only for Maryland Casualty but also for Pope & Talbot. Conference memoranda (on file with the Library of Congress, Warren Mss., Box 156);
87. Docket No. 47 (on file with the Library of Congress, Warren Mss., Box 367). See also Supplemental Memorandum (on file with the University of Texas Law Library, Clark Mss., Box B154).
88. 346 U.S. 406 (1953).
89. Id. at 409-10.
90. 304 U.S. 64 (1938).
91. Pope & Talbot, 346 U.S. at 409, 410-11. Some had wondered whether Erie required application of state law in admiralty cases arising in diversity. For a further discussion, see Stevens, Erie R.R. v. Tompkins and the Uniform General Maritime Law, 64 Harv. L. Rev. 246 (1950).
92. 346 U.S. 556 (1954).
93. Id. at 561-62.
94. 347 U.S. 409 (1954).
95. Justices Jackson, Reed, and Burton.
96. The limitation statute allows a vessel owner under some circumstances to limit its liability to the value of the vessel and freight pending. Justice Frankfurter argued that the state direct action statute offended the federal act by raising the possibility that policy limits would be exhausted in the direct action, thereby depriving the assured of his coverage.
97. Maryland Casualty, 347 U.S. at 422.
98. Id. at 427.
99. Id. at 430 (quoting Just v. Chambers, 312 U.S. 383 (1941)).
100. Id.
101. Id. at 436-37.
102. 347 U.S. 950 (1954). Administrative Docket Book No. 47 (on file with the Library of Congress, Douglas Mss., Box 1145); Docket No. 7 (on file with the University of Texas Law Library, Clark Mss., Box C70). Justice Jackson was absent.
103. Brief for Petitioners at 14, Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955) (No. 7).
104. Id. at 14-15.
105. Id.
106. Id. at 17-18.
107. Id. at 23-29.
108. Id. at 4, 10; see also Tex. Ins. Code Ann. § 4930 (1936).
109. Brief for Respondents at 27, Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955) (No. 7).
110. Id. at 10-13. The respondents claimed the contract was made, issued, and delivered in Illinois; the vessel was usually located in, and was destroyed in, Oklahoma; the vessel was owned by an Oklahoma corporation; the vessel was located in Mississippi when the insurance was purchased; and the vessel was navigated in Arkansas and Louisiana.
111. Id. at 29-30.
112. Id. at 30, 33-34.
113. Id. at 36-50.
114. 244 U.S. 205 (1917).
115. 317 U.S. 239 (1942).
116. 346 U.S. 406 (1953). See Brief for Respondents at 39-44.
117. Id. at 53.
118. Brief Amicus Curiae filed on behalf of the American Institute of Marine Underwriters, at 3, Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955) (No. 7).
119. Id. at 11-13.
120. Id. at 14.
121. Id. at 4.
122. Id. at 20.
123. Id. at 24-25.
124. Id. at 28-29.
125. 322 U.S. 533 (1943).
126. Brief Amicus Curiae, at 33.
127. Chief Justice Earl Warren and Justices William O. Douglas, Tom C. Clark, and Sherman Minton joined Justice Black's opinion. Justice Felix Frankfurter concurred in the result but did not join, and in fact strongly criticized, Justice Black's approach. Justice Stanley Reed, joined by Justice Harold H. Burton, dissented. Justice Robert H. Jackson died on October 9, 1954, five days before oral argument commenced. His successor, Justice John Marshall Harlan, assumed office on March 28, 1955, one month after the decision was rendered.
128. Wilburn, 348 U.S. at 313.
129. Id. at 313-14.
130. Id. at 314.
131. Id. at 316.
132. Id.
133. Id.
134. Id. at 317-19.
135. Id. at 319-21.
136. Id. at 325-26.
137. Id. at 326-27.
138. Id. at 327-29, 332-33. Justice Frankfurter took issue with this point. In returning a draft of Justice Reed's dissent in late February, he objected to Justice Reed's comment that states could exercise power "complementary to the general admiralty law." He wrote: "No - that is not true, at least not the entire truth. 'State power may be exercised where nation-wide uniformity is not required.'" Note from Justice Frankfurter to Justice Reed (on file with the University of Kentucky Libraries, Reed Mss., Box 157).
139. Letter from Justice Felix Frankfurter to Justices Stanley Reed and Harold Burton (Feb. 23, 1955) (on file with the University of Kentucky Libraries, Reed Mss., Box 157). Justice Frankfurter preceded the quoted portion with the thought that "Lincoln for government and Holmes for law have taught me that the absolutists are the enemies of reason, - that the fanatics in politics and the dogmatists in law, however sincere, are the mischief-makers." Id.
140. 348 U.S. at 324. Justice Frankfurter's draft, circulated with his letter on February 23, 1955, did not include that passage. His revised draft circulated two days later (after Justice Reed had recirculated his earlier dissent with minor changes that did not address Justice Frankfurter's point) did. See opinion drafts (on file with the University of Kentucky Libraries, Reed Mss., Box 157).
141. Wilburn, 348 U.S. at 323-24.
142. Id. at 322.
143. Id. at 323.
144. Id. at 323.
145. Justice Burton thought respondent's presentation "excellent" and petitioner's "good." See Justice Harold Burton's diary (Oct. 14-15, 1954) (on file with the Library of Congress, Burton Mss., Box 3) .
146. Conference notes (on file with the Library of Congress, Douglas Mss., Box 1155); conference notes (on file with the Library of Congress, Burton Mss., Box 269); conference notes (on file with the University of Texas Law Library, Clark Mss., Box 154); conference sheets (on file with the Library of Congress, Burton Mss., Box 274); conference sheets (on file with the Library of Congress, Burton Mss., Box 274) (showing vote); docket sheet (on file with the Library of Congress, Warren Mss., Box 367) (showing original vote); docket sheet (on file with the Library of Congress, Burton Mss., Box 268). The conference notes of Justices Burton, Clark, and Douglas all show a 5-3 vote as described in the text, as does Justice Burton's docket sheet. Justice Douglas' docket book shows the same alignment but has a question mark next to Justice Clark's name. Chief Justice Warren's docket sheet contains erased marks indicating that he and Justices Frankfurter and Clark initially voted to affirm the decision below.
147. Conference memos, Appellate 1-10 (on file with the Library of Congress, Warren Mss., Box 156).
148. Conference notes (on file with the Library of Congress, Burton Mss., Box 269); conference notes (on file with the Library of Congress, Douglas Mss., Box 1155). The conference notes are generally quite consistent, although at times Justice Douglas' notes are more terse and Justice Burton's less legible.
149. Letter from Justice Black to Justice Warren (on file with the Library of Congress, Warren Mss., Box 427). Justice Black's failure to include Justice Clark in his list of justices whose views were problematic suggests that Justice Clark adopted less sweeping grounds or expressed some ambivalence.
150. quot;Justice Burton's conference notes reflect that the McCarran Act "is enough for [Black] (as he said in Gushing case)." Presumably, the parenthetical refers to something Justice Black said involving the case and not just to Justice Burton's comment. See also conference notes (on file with the University of Texas Law Library, Clark Mss., Box B154).
151. See, e.g., MacChesney, supra note 2, at 556. See also supra text accompanying notes 52-54.
152. 347 U.S. at 430-31 (uniformity limited to essential features of exclusive admiralty jurisdiction; emphasis on states' role).
153. Justice Black so suggested in his dissent in Maryland Casualty. See id. at 431 (Louisiana direct action statute provides "relief not otherwise available for maritime wrongs").
154. Bench memo (on file with the Library of Congress, Warren Mss., Box 156); memorandum for Justice Clark (on file with the University of Texas Law Library, Clark Mss., Box A33). Indeed, Chief Justice Warren's bench memo viewed Pope & Talbot as dispositive of Wilburn. Pope & Talbot provided that a substantive right granted by admiralty law could not be displaced by state law.
155. Justice Burton's notes indicate that a 5-3 vote to affirm occurred on October 16, 1954, with Justices Clark, Burton, Frankfurter, and Reed, as well as Chief Justice Warren, favoring affirmance and Justices Minton, Douglas, and Black supporting reversal, and that the case went "over" on November 6 and November 13, the latter time at least at Justice dark's request. Conference sheets (on file with the Library of Congress, Burton Mss., Box 274).
156. Memorandum for The Chief Justice (on file with the Library of Congress, Warren Mss., Box 427; also on file with the University of Texas Law Library, Clark Mss., Box A33).
157. Id. at 2.
158. Id.
159. Id.
160. Id. at 5.
161. For an astute discussion, see Robertson, supra note 8, at 263-64.
162. As Justice Frankfurter put it: [A] long established rule, not remotely related to any constitutional question and readily amenable to legislative change, should be adhered to. Especially in the domain of commercial affairs, stare decisis has a strong social justification. In conducting their affairs, men naturally assume that courts will not unsettle a settled rule for the conduct of business, certainly not unless experience has made manifest the need for overturning the law. Bisso v. Inland Waterways Corp., 349 U.S. 85, 99 (1955) (Frankfurter, J., dissenting).
163. The Lottawanna, 88 U.S. (21 Wall.) 558, 570-71 (1875).
164. See, e.g., United States v. Reliable Transfer Co., 421 U.S. 397 (1975) (abrogating rule of equal division of damages in collision cases); Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970) (reversing the rule of the Harrisburg which proscribed common law wrongful death remedy in admiralty).
165. See, e.g., Exxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603 (1991) (rejecting per se rule excluding agency contracts from admiralty jurisdiction); Jackson v. The Steamboat Magnolia, 61 U.S. (20 How.) 296 (1857) (rejecting the rule of confining admiralty jurisdiction to tidal waters); Reliable Transfer, 421 U.S. at 397 (rejecting rule of divided damages); Moragne, 398 U.S. at 375 (rejecting common law prohibition against wrongful death action); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959) (rejecting common law status-based approach to negligence).
166. Gilmore & Black, supra note 2, at 55-56 n.23. See also A. von Mehren & D. Trautman, The Law of Multistate Problems: Cases and Materials on Conflict of Laws 1057 n.74 (1965) ("the court strained somewhat to find no established admiralty rule"); MacChesney, supra note 2.
167. Judge John R. Brown, one of this century's leading admiralty judges, subsequently made clear his disagreement with Wilburn's holding that no rule existed when, in referring to the literal compliance rule, he wrote: "[t]his was at least the pre-Wilburn rule for maritime insurance policies." F. B. Walker & Sons, Inc. v. Valentine, 431 F.2d 1235, 1239 n.8 (5th Cir. 1970).
168. See, e.g., Home Ins. Co. v. Ciconett, 179 F.2d 892, 894 (6th Cir. 1950); Aetna Ins. Co. v. Houston Oil & Transp. Co., 49 F.2d 121, 124 (5th Cir.), cert. denied, 284 U.S. 628 (1931).
169. See, e.g., Red Top Brewing Co. v. Mazzotti, 202 F.2d 481 (2d Cir.), cert. denied, 345 U.S. 958 (1953); Levine v. Aetna Ins. Co., 139 F.2d 217 (2d Cir. 1943); Robinson v. Home Ins. Co., 73 F.2d 3, 4 (5th Cir. 1934), cert. denied, 294 U.S. 712 (1935); Fidelity-Phenix Ins. Co. v. Chicago Title & Trust Co., 12 F.2d 573 (7th Cir. 1926); Shamrock Towing Co. v. American Ins. Co., 9 F.2d 57, 59-60 (2d Cir. 1925); Canton Ins. Office v. Independent Transp. Co., 217 F. 213 (9th Cir. 1914); United States Gypsum Co. v. Insurance Co. of N. Am., 19 F. Supp. 767, 768 (S.D.N.Y. 1937).
170. 41 U.S. (16 Pet.) 1 (1842).
171. See Waddell, supra note 3, at 188.
172. Hazard's Adm'r v. New England Marine Ins. Co., 33 U.S. (8 Pet.) 557 (1834); Waddell, supra note 3, at 188 (suggesting that Wilburn "seems to call for a prior U.S. Supreme Court decision applying federal admiralty law directly on the point" to constitute a sufficiently established federal rule). For reasons stated below, I believe this view wrong.
173. See, e.g., Bisso, 349 U.S. at 90; Pope & Talbot, 346 U.S. at 406, 409. In Pope & Talbot, the Court implied that federal rules, to displace state law, must be "interpretative decisions of [the Supreme] Court." Id. at 410.
174. Wilburn, 348 U.S. at 315.
175. See Staring, supra note 13, at 544 (suggesting settled national rule may exist as a practical matter when "several" circuits agree and none dissent).
176. See, e.g., McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994); East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986). See also Miles v. Apex Marine Corp., 498 U.S. 19 (1990) (expressing willingness to adopt minority position if consistent with maritime principles).
177. Others have thought a qualitative assessment would be useful in deciding whether or not an admiralty rule existed. See, e.g., Displacement, supra note 10, at 365 ("In appropriate circumstances a single well-reasoned federal-court decision might be enough to establish a maritime rule that state courts should regard as binding. . . . In other contexts, dozens of lower federal court decisions might not suffice to set forth a clear rule.").
178. 348 U.S. at 315. This point, which is, at most, implied in the Court's opinion, was explicit in earlier drafts. A printed draft stated that "through the years this common-law doctrine has been applied to many types of contracts including fire, life, marine and other insurance" and observed that "whatever the origin" of the literal compliance rule, it had been "generally applied" and was not "peculiar to Admiralty." Printed Draft Opinion of the Court, Jan. 1955, at 4-5 (on file with the Library of Congress, Black Mss., Box 324). Although this draft indicates it was circulated on January 27, 1955, I have my doubts because I have not found it among the papers of any other justice.
179. A variation of this argument appears in Justice Scalia's majority opinion in American Dredging, 510 U.S. at 450. There he argued that "the doctrine of forum non conveniens neither originated in admiralty nor has exclusive application there." Id. See infra Part VII.
180. 348 U.S. at 315.
181. See supra notes 144-45; cf. Whealton Packing Co. v. Aetna Ins. Co., 185 F. 108 (4th Cir. 1911) (criticizing but recognizing literal compliance rule in case not requiring its application).
182. 304 U.S. 64 (1938).
183. See, e.g., Jensen, 244 U.S. 205.
184. Despite some initial concerns that Erie might require applying state law in admiralty cases brought under the federal court's diversity jurisdiction, see Stevens, supra note 58, the court made clear that no such conclusion was warranted. See, e.g., Pope & Talbot, 346 U.S. 406.
185. See, e.g., Robinson 73 F.2d at 4; Fidelity-Phenix, 12 F.2d at 574; Shamrock Towing, 9 F.2d at 60; Canton Ins., 217 F. at 217; Snyder v. Home Ins. Co., 133 F. 848 (S.D.N.Y. 1904), aff'd, 148 F. 1021 (2d Cir. 1906).
186. See, e.g., E. Benedict, The American Admiralty: Its Jurisdiction and Practice 165 (4th ed. 1910). Benedict wrote: The contract of insurance against the perils of the sea is one that was suggested by, and sprang from the hazards peculiar to ships and vessels in the pursuits of maritime commerce. In like manner, the rights, duties, and liabilities which are its characteristics, have always been regulated by the maritime law. Indeed, the investigation of a case of marine insurance, is but an inquiry into the facts, transactions, and perils of navigation, and the application of the principles and rules of the maritime law. It has always and everywhere been considered a maritime contract, and nowhere out of England has it ever been excluded from the admiralty jurisdiction. Id.
187. Aetna Ins. Co. v. United Fruit Co., 304 U.S. 430, 439 (1938).
188. May v. Hamburg-Amerikanische Packetfahrt Aktiengesellschaft (The Isis), 290 U.S. 333, 352 (1933).
189. R. Hughes, Handbook on Admiralty Law 51 (1901). After stating the further rule that "[a]ny misrepresentation or concealment of a material fact, or any breach of warranty of any fact, will avoid the policy," Hughes observed that "[t]he law on the subject of representations in insurance policies may be said to be generally the same as in any other contract" but concluded that "[t]he courts, perhaps, have been a little stricter in reference to marine insurance policies than other contracts, on account of the peculiar nature of the business." Id. at 52. See also 2 T. Parsons, A Treatise on the Law of Marine Insurance and General Average 337-38 (1868) (warranties must be complied with strictly); J. Bruce & R. Broomfield, A Handbook on the Law of Shipping and Marine Insurance 138 (1898) (English law); O. Crump, The Law Relating to Marine Insurance and General Average in England and America 315 (1875) (American law requires substantial compliance); C. McArthur, The Contract of Marine Insurance 36 (2d ed. 1890) (English law requires literal compliance); F. Dixon, Handbook on Marine Insurance and Average 70 (2d ed. 1866) (literal compliance required).
190. R. Hughes, Handbook on Admiralty Law 51 (1901). After stating the further rule that "[a]ny misrepresentation or concealment of a material fact, or any breach of warranty of any fact, will avoid the policy," Hughes observed that "[t]he law on the subject of representations in insurance policies may be said to be generally the same as in any other contract" but concluded that "[t]he courts, perhaps, have been a little stricter in reference to marine insurance policies than other contracts, on account of the peculiar nature of the business." Id. at 52. See also 2 T. Parsons, A Treatise on the Law of Marine Insurance and General Average 337-38 (1868) (warranties must be complied with strictly); J. Bruce & R. Broomfield, A Handbook on the Law of Shipping and Marine Insurance 138 (1898) (English law); O. Crump, The Law Relating to Marine Insurance and General Average in England and America 315 (1875) (American law requires substantial compliance); C. McArthur, The Contract of Marine Insurance 36 (2d ed. 1890) (English law requires literal compliance); F. Dixon, Handbook on Marine Insurance and Average 70 (2d ed. 1866) (literal compliance required).
191. R. Hughes, Handbook on Admiralty Law 51 (1901). After stating the further rule that "[a]ny misrepresentation or concealment of a material fact, or any breach of warranty of any fact, will avoid the policy," Hughes observed that "[t]he law on the subject of representations in insurance policies may be said to be generally the same as in any other contract" but concluded that "[t]he courts, perhaps, have been a little stricter in reference to marine insurance policies than other contracts, on account of the peculiar nature of the business." Id. at 52. See also 2 T. Parsons, A Treatise on the Law of Marine Insurance and General Average 337-38 (1868) (warranties must be complied with strictly); J. Bruce & R. Broomfield, A Handbook on the Law of Shipping and Marine Insurance 138 (1898) (English law); O. Crump, The Law Relating to Marine Insurance and General Average in England and America 315 (1875) (American law requires substantial compliance); C. McArthur, The Contract of Marine Insurance 36 (2d ed. 1890) (English law requires literal compliance); F. Dixon, Handbook on Marine Insurance and Average 70 (2d ed. 1866) (literal compliance required).
192. R. Hughes, Handbook on Admiralty Law 51 (1901). After stating the further rule that "[a]ny misrepresentation or concealment of a material fact, or any breach of warranty of any fact, will avoid the policy," Hughes observed that "[t]he law on the subject of representations in insurance policies may be said to be generally the same as in any other contract" but concluded that "[t]he courts, perhaps, have been a little stricter in reference to marine insurance policies than other contracts, on account of the peculiar nature of the business." Id. at 52. See also 2 T. Parsons, A Treatise on the Law of Marine Insurance and General Average 337-38 (1868) (warranties must be complied with strictly); J. Bruce & R. Broomfield, A Handbook on the Law of Shipping and Marine Insurance 138 (1898) (English law); O. Crump, The Law Relating to Marine Insurance and General Average in England and America 315 (1875) (American law requires substantial compliance); C. McArthur, The Contract of Marine Insurance 36 (2d ed. 1890) (English law requires literal compliance); F. Dixon, Handbook on Marine Insurance and Average 70 (2d ed. 1866) (literal compliance required).
193. R. Hughes, Handbook on Admiralty Law 51 (1901). After stating the further rule that "[a]ny misrepresentation or concealment of a material fact, or any breach of warranty of any fact, will avoid the policy," Hughes observed that "[t]he law on the subject of representations in insurance policies may be said to be generally the same as in any other contract" but concluded that "[t]he courts, perhaps, have been a little stricter in reference to marine insurance policies than other contracts, on account of the peculiar nature of the business." Id. at 52. See also 2 T. Parsons, A Treatise on the Law of Marine Insurance and General Average 337-38 (1868) (warranties must be complied with strictly); J. Bruce & R. Broomfield, A Handbook on the Law of Shipping and Marine Insurance 138 (1898) (English law); O. Crump, The Law Relating to Marine Insurance and General Average in England and America 315 (1875) (American law requires substantial compliance); C. McArthur, The Contract of Marine Insurance 36 (2d ed. 1890) (English law requires literal compliance); F. Dixon, Handbook on Marine Insurance and Average 70 (2d ed. 1866) (literal compliance required).
194. R. Hughes, Handbook on Admiralty Law 51 (1901). After stating the further rule that "[a]ny misrepresentation or concealment of a material fact, or any breach of warranty of any fact, will avoid the policy," Hughes observed that "[t]he law on the subject of representations in insurance policies may be said to be generally the same as in any other contract" but concluded that "[t]he courts, perhaps, have been a little stricter in reference to marine insurance policies than other contracts, on account of the peculiar nature of the business." Id. at 52. See also 2 T. Parsons, A Treatise on the Law of Marine Insurance and General Average 337-38 (1868) (warranties must be complied with strictly); J. Bruce & R. Broomfield, A Handbook on the Law of Shipping and Marine Insurance 138 (1898) (English law); O. Crump, The Law Relating to Marine Insurance and General Average in England and America 315 (1875) (American law requires substantial compliance); C. McArthur, The Contract of Marine Insurance 36 (2d ed. 1890) (English law requires literal compliance); F. Dixon, Handbook on Marine Insurance and Average 70 (2d ed. 1866) (literal compliance required).
195. Section 33 continues: "If it be not so complied with, then, subject to any express provision of the policy, the insurer is discharged from liability as from the date of the breach of warranty, but without prejudice to any liability incurred by him before that date."
196. Queen Ins. Co. of Am. v. Globe & Rutgers Fire Ins. Co., 263 U.S. 487, 493 (1924).
197. Calmar Steamship, 345 U.S. at 442-43; see also United Fruit, 304 U.S. at 438 ("established doctrines of English maritime law are to be accorded respect here.").
198. 348 U.S. at 325.
199. Indeed, in Kossick v. United Fruit Co., 365 U.S. 731 (1961), the Court demonstrated greater readiness to find an existing admiralty rule based in part on English practice. It cited one Supreme Court case and two appellate cases to support its finding of a rule allowing oral contracts in admiralty. Most significant, however, was its quotation of a critique of the Supreme Court decision relied upon. "The ground of decision should have been the simple one that such engagements, orally made, were as old as the history of marine customs, had passed into the maritime law of the United States, and would be recognized and enforced by the courts of the nation. . . ." Id. at 735. By invoking this quote, Kossick suggests that "an established rule of ancient respectability" may be found in maritime customs inherited from England, not just from counting precedents. Id. at 734.
200. Western Assur. Co. v. Redding, 68 F. 708, 711 (5th Cir. 1895).
201. 349 U.S. 85 (1955).
202. Bisso was argued on February 28, 1955, and decided on May 16, 1955, nearly three months after Wilburn Boat.
203. Indeed, Justices Frankfurter, Reed, and Burton argued in dissent that no such rule existed and Justice Black recognized that "strong arguments" supported their position.
204. 348 U.S. at 314.
205. In fact, the Court signified by its first question - "Is there a judicially established federal admiralty rule governing these warranties?" - that the judiciary had constitutional power to create and apply a general maritime law of marine insurance because the inquiry would have been irrelevant absent that capacity. Its second question, "should we fashion one?" confirmed that it had the constitutional power to do so.
206. 348 U.S. at 314.
207. See, e.g., Fitzgerald v. United States Lines Co., 374 U.S. 16, 20-21 & n.12 (1963) (citing Wilburn for the proposition that the Court "has long recognized its power and responsibility" to fashion general maritime law); M/V Tungus v. Skovgaard, 358 U.S. 588, 611 (1959) ("The federal courts have a most extensive responsibility of fashioning rules of substantive law in maritime cases" citing Wilburn); Romero v. International Terminal Operating Co., 358 U.S. 354, 393 (1959) (Brennan, J., dissenting) (again noting that the "federal courts have an extensive responsibility of fashioning rules of substantive law in maritime cases.").
208. See L. Tribe, American Constitutional Law § 6-5, at 408-13 (2d ed. 1988) (discussing the dormant commerce clause).
209. See, e.g., Kermarec, 358 U.S. 625; Reliable Transfer, 421 U.S. 397; East River, 476 U.S. 858.
210. 348 U.S. at 316.
211. See, e.g., Kalleck v. Deering, 37 N.E. 450 (Mass. 1894); Lucas, supra note 12, at 820.
212. 247 U.S. 372 (1918).
213. 346 U.S. 556.
214. Id. at 562.
215. Id. at 563.
216. Id.
217. 319 U.S. 306 (1943).
218. Id. at 310.
219. See, e.g., Hess v. United States, 361 U.S. 314, 320 (1960); M/V Tungus v. Skovgaard, 358 U.S. 588, 594 (1959). Similarly, Justice Black felt compelled in his dissent in Maryland Casualty, 347 U.S. at 429-30, to justify the use of state law.
220. See Note, International Divergences in Marine Insurance Law: The Quest for Certainty, 64 Harv. L. Rev. 446, 449 (1951).
221. 69 Harv. L. Rev. at 171 n.287.
222. See, e.g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960); Kermarec, 358 U.S. 625; Pope & Talbot, 346 U.S. 406 (maritime torts); Kossick, 365 U.S. 731 (contract).
223. As a bench memo for Chief Justice Warren urged: This does not mean that states cannot tax or regulate the business of marine insurance companies. On the contrary, that is conceded. A sharp distinction must be drawn between (1) taxing and regulating marine insurance companies and (2) changing the substantive rights and liabilities of parties to a marine insurance contract. The states can undoubtedly do the former; they cannot, however, do the latter. Bench memo (on file with the Library of Congress, Warren Mss., Box 156). See also Yancey, supra note 13, at 144.
224. 348 U.S. at 314.
225. Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946).
226. 348 U.S. at 321 n.29. ("It is faintly contended that the Federal Constitution forbids States to regulate marine insurance, even where Congress acquiesces or expressly consents. This contention is so lacking in merit that it need not be discussed."). See also Askew, 411 U.S. 325.
227. See, e.g., Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) (Congress cannot delegate power to states to apply workers compensation laws to maritime workers). Although Knickerbocker has been criticized, directly or implicitly, see, e.g., Askew, 411 U.S. 325, and Wilburn, 348 U.S. at 321 n.29, and some doubt it would be followed, R. Fallon et al., Hart and Wechsler's The Federal Courts and the Federal System 799 n.5 (4th ed. 1996), it has not been overruled. For some recent arguments in support of Knickerbocker, see S. Friedell, 1 Benedict on Admiralty § 111, at 7-27 to 7-28 (7th rev. ed. 1996) (Congress may not delegate to state legislature power Constitution bestows on Congress). See also id. § 112, at 7-30, and Bederman, supra note 10 (arguing in support of preserving Knickerbocker's principle of limiting Congressional delegation of admiralty power to the states).
228. U.S. Const. art. I, § 8, cl. 17 ("The Congress shall have Power . . . [t]o exercise exclusive Legislation in all Cases whatsoever, over such District . . . as may . . . become the Seat of the Government of the United States. . . .").
229. S. Rep. No. 228, 67th Cong. 1st Sess., at 1-2 (1921); H. Rep. 582, 67th Cong., 2d Sess., at 1-2 (1922).
230. S. Rep. No. 228, 67th Cong. 1st Sess., at 1-2 (1921); H. Rep. 582, 67th Cong., 2d Sess., at 1-2 (1922).
231. 62 Cong. Rec. 2521-22 (1922).
232. S. Rep. No. 228, 67th Cong., 1st Sess., at 4; H. Rep. No. 582, 67th Cong., 2d Sess., at 4 (1922).
233. S. Rep. No. 228, 67th Cong., 1st Sess., at 4; H. Rep. No. 582, 67th Cong., 2d Sess., at 4 (1922).
234. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944).
235. 348 U.S. at 319.
236. 15 U.S.C. § 1011 et seq.
237. The Act provides in pertinent part: The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business. 15 U.S.C. § 1012(a).
238. The Act's declaration of policy states: Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States. 15 U.S.C. § 1011.
239. 322 U.S. 533 (1944).
240. Note, From Judicial Grant to Legislative Power: The Admiralty Clause in the Nineteenth Century, 67 Harv. L. Rev. 1214 (1954).
241. Chief Justice Warren's bench memo makes similar arguments. Bench memo (on file with the Library of Congress, Warren Mss., Box 156).
242. Moragne, 398 U.S. at 396 (quoting approvingly the argument of the United States).
243. See Brown, supra note 10, at 284 ("Only an express prohibition by Congress can serve to deny admiralty judges the power to declare admiralty law which was delegated to them by the Constitution.").
244. Wilburn, 348 U.S. at 319.
245. Id. at 319-20.
246. Id. at 320.
247. MacChesney, supra note 2, at 565-66.
248. See H. Hart & A. Sacks, The Legal Process 516 (W. Eskridge, Jr. & P. Frickey eds. 1994) (criticizing the Court in a different context for deciding that the legislature, rather than the judiciary, should address the problem).
249. 348 U.S. at 320.
250. See supra text at notes 142-45 and 160-70.
251. See, e.g., Wilburn, 348 U.S. at 320 (majority criticizing literal performance rule as "harsh"); id. at 326 (Justices Reed and Burton suggesting review of literal compliance rule).
252. See, e.g., Kermarec, 358 U.S. 625; Moragne, 398 U.S. 375; Reliable Transfer, 421 U.S. 397; East River, 476 U.S. 858.
253. Wilburn, 348 U.S. at 314 (emphasis supplied).
254. Id. at 316 (emphasis provided).
255. Id. at 314.
256. Id. at 311 ("This case raises questions concerning the power of States to regulate the terms and conditions of marine insurance contracts").
257. Id. at 321 ("We, like Congress, leave the regulation of marine insurance where it has been - with the States.").
258. Id. at 314.
259. Id. at 324 (Frankfurter, J., concurring). See also Letter from Justice Frankfurter to Justices Reed and Burton (Feb. 23, 1955) (on file with the University of Kentucky Libraries, Reed Mss., Box 157).
260. Cf. Currie, supra note 3, at 168 (criticizing gap theory for favoring federal rules previously adjudicated).
261. See supra text at notes 140-41.
262. It is possible the Court thought the principle evident without being articulated. This seems unlikely because the Court would have strengthened the credibility of its arguments against fashioning a new rule if it had explained the inconsistency.
263. See, e.g., Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995); Exxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603 (1991); Sisson v. Ruby, 497 U.S. 358 (1990); Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972) (subject matter jurisdiction); Chandris, Inc. v. Latsis, 115 S. Ct. 2172 (1995); McDermott Int'l, Inc. v. Wilander, 498 U.S. 337 (1991); Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991) (seaman status); Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S. Ct. 619 (1996); Miles v. Apex Marine Corp., 498 U.S. 19 (1990); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978); Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573 (1974); Moragne, 398 U.S. 375 (wrongful death recovery).
264. Conference notes (on file with the University of Texas Law Library, Clark Mss., Box B154). It is important to remember that these notes do not record Justice Black verbatim but what Justice Clark heard, understood, and wrote.
265. Wilburn, 348 U.S. at 314.
266. von Mehren & Trautman, supra note 142, at 1057.
267. Id. at 1057-58.
268. 348 U.S. at 319-20.
269. Id. at 320.
270. Gilmore & Black, supra note 2, at 464-68.
271. Id. See, e.g., Moragne, 398 U.S. 375; Kermarec, 358 U.S. 625; Pope & Talbot, 346 U.S. 406; Levinson v. Deupree, 345 U.S. 648 (1953).
272. See, e.g., Goett v. Union Carbide Corp., 361 U.S. 340 (1960); Hess, 361 U.S. 314; Tungus, 358 U.S. 588; Maryland Casualty, 347 U.S. 409.
273. Gilmore & Black, supra note 2, at 464-68.
274. For a discussion of this theory, see Laughlin, supra note 3, at 181-82; Currie, supra note 3, at 219-20. See also Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 318 (5th Cir. 1987), rev'd on other grounds, 486 U.S. 140 (1988).
275. See, e.g., Comment, The Proper Role of Special Solicitude in the General Maritime Law, 70 Tul. L. Rev. 227 (1995).
276. See, e.g., Robertson, supra note 8, at 200 ("the structuring of a doctrine that consistently favors one side of the case seems somehow inimical to 'neutral principles.'").
277. Bisso, 349 U.S. at 91-92.
278. See generally R. Keeton, Insurance Law: Basic Text 341-61 (1971).
279. Conference notes (on file with the Library of Congress, Burton Mss., Box 269).
280. Id.
281. Conference notes (on file with the Library of Congress, Douglas Mss., Box 1155).
282. Letter from Justice Black to Justice Douglas (May 19, 1953) (on file with the Library of Congress, Black Mss., Box 320).
283. Wilburn, 348 U.S. at 311-13 & nn.1-4 & 6.
284. In Wilburn, the Court had at least five choices. These were: (a) apply the literal compliance rule as federal law; (b) recognize the literal compliance rule as federal law but view the case as maritime but local and apply state law; (c) reject the idea that literal compliance was or should be the federal rule and allow Texas law to supplement in this case only; (d) call for application of state law generally; and, (e) fashion a new federal rule more assured-friendly than literal compliance.
285. Wilburn, 348 U.S. at 320 ("most states" have abandoned the literal compliance rule).
286. Letter from Justice Black to Justice Douglas (May 19, 1953) (on file with the Library of Congress, Black Mss., Box 320).
287. Wilburn, 348 U.S. at 321.
288. Fireman's Fund Ins. Co. v. Wilburn Boat Co., 259 F.2d 662 (5th Cir. 1958). The Wilburn parties filed a petition for a writ of certiorari which the Supreme Court denied on March 2, 1959. See 359 U.S. 925 (1959). A petition for rehearing was denied on April 20, 1959. See 359 U.S. 976 (1959). The District Court's opinion is unreported; I have relied on the Fifth Circuit's opinion for information about it.
289. Wilburn Boat Co. v. Fireman's Fund Ins. Co., 199 F. Supp. 784, 786 (E.D. Tex. 1960).
290. Id. at 791.
291. Id. at 792.
292. Id. at 793.
293. Fireman's Fund Ins. Co. v. Wilburn Boat Co., 300 F.2d 631 (5th Cir. 1962).
294. Id. at 633.
295. Id. at 639-41.
296. Id. at 641.
297. Id. at 646. The court referred to this as a "firmly established principle of marine insurance." Id. at 647.
298. Id. at n.12.
299. 370 U.S. 925 (1962). Rehearing was denied on October 8, 1962. See 371 U.S. 854 (1962).