Maritime Proctor Blog

It has been far too long since I was able to post on this blog.  My apologies to the loyal readers.[1]  I promise to be more consistent in my posts in the future.

This is the first in a several post series on the recent and highly publicized disaster involving the five lives lost last week on the Titan, a submersible craft operated by OceanGate.  As our readers know, the owner/founder of OceanGate and four passengers died when the Titan suffered a “catastrophic implosion” after losing contact with its primary exploratory vessel while attempting to view the wreck of the Titanic.[2]

These blog posts will focus on several areas of maritime law related to this tragedy.  Our analysis will not be to point fingers or assign blame.  Instead, this is a legally interesting situation, inasmuch as there are several different aspects of this incident encompassing both maritime contract and tort issues.  This week, as an introduction, we will focus on two concepts: navigable water and the high seas.  

Navigable waters is a term in Admiralty and Maritime law often seen, but rarely defined, in case law.  The Code of Federal Regulations defines navigable waters as “those waters that are subject to the ebb and flow of the tide and/or are presently used, or may have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.”[3]  The General Maritime Law of the United States (“GML”) normally adopts this definition.

Recently, in Sackett v. EPA, the Supreme Court of the United States determined navigable water is not all of the water or wetlands in the United States, but only those with “a continuous surface connection to bides that are ‘waters of the United States’ in their own right.”[4]  Thus, a private, man-made lake not connected to actual navigable water most likely would not be navigable water so as to give rise to Admiralty tort jurisdiction. Likewise, if a river is dammed on both ends to form a lake (like the Colorado River in Austin, Texas, which forms Lake Austin), it may not constitute navigable water under the GML to allow for the existence of maritime tort jurisdiction.

A common and related question, particularly in light of the language used in various treaties and statutes, is what are “the high seas?” To begin to understand this concept, one must know the difference between a regular mile, a nautical mile, and a marine league. 

A mile, as we all know, is 5,280 feet.  A nautical mile is approximately 1.15 actual miles.  There are three nautical miles in a marine league.  Each coastal state on the Atlantic and Pacific Oceans in the contiguous 48 states has state territorial waters of one marine league.  However, states on the Gulf of Mexico (and Puerto Rico) have 3 marine leagues of territorial water.  The United States claims all of this water as its territorial waters.

The UN Convention on the Law of the Sea (“UNCLOS”) from 1982[5] allows a country to claim 12 nautical miles as territorial waters from its shores.  However, it also allows for establishment of a contiguous zone of another 12 nautical miles from the endpoint of the territorial waters.  The United States has an Exclusive Economic Zone (“EEZ”) extending 200 nautical miles out from the territorial waters.[6]  Even though the United States Senate has never ratified UNCLOS, it does consider its provisions to constitute “customary international law.”[7]

Now that we understand these basic concepts, we can turn our attention to the potential torts arising from the Titan tragedy. 

Thus, our next post will focus on DOSHA – the Death on the High Seas Act – as well as the types of tort claims arising from loss of life due to situations similar to that of the Titan.

[1] Which I hear number in the dozens.

[2] Jenna Russell, Deep in the Atlantic, a ‘Catastrophic Implosion’ and Five Lives Lost, N.Y. Times, June 22, 2023 at A1.  Available on-line at: https://www.nytimes.com/2023/06/22/us/titanic-missing-submarine-implosion.html

[3] 33 C.F.R. §392.4

[4] Sackett v. EPA, ____ U.S. _____, 2023 U.S. LEXIS 2022 (May 25, 2023).

[5] See https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en

[6] https://www.noaa.gov/maritime-zones-and-boundaries    This is one of the best resources on this issue, in my opinion.

[7] Perforaciones Exploracion y Produccion v. Maritimas Mexicanas, S.A. de C.V., 356 Fed. Appx. 675, 677 n.1 (5^th Cir. 2009).

[8] https://www.usgs.gov/media/images/exclusive-economic-zone-eez

[9] https://transportgeography.org/wp-content/uploads/Map_Exclusive-Economic-Zones.pdf