I'll be the first to admit that I know very little about maritime law. Sure, I'm in the Ninth Circuit, and yeah, I live near the ocean. But surfboards and kayaks are about as seafaring as I typically get.
What are the rules for recovery in maritime actions when two ships collide? I may read all the published Ninth Circuit opinions, but truthfully, I don't really know.
Which is all just a way of saying that I'm no maritime expert. In the slightest.
Still, I guess I can have a sense of what the right rules should be. Let's take two hypotheticals, for example.
(A) Two ships nearly collide, allegedly due to the negligence of the first. The first ship comes really, really close to the second, but they don't hit. But the near-collision freaks out one of the passengers on the second, who suffers severe emotional distress. Can the passenger sue under maritime law?
(B) Slight variant. Same factual setting as the first. But add that after the first ship narrowly avoids the second, it hits a third ship. The passenger on the first ship didn't see or hear that crash, but did participate in the search for survivors. Can the passenger sue now?
Doctrinally, we're asking what the scope of recovery should be for negligent infliction of emotional distress under maritime law. We're creating federal common law. What should the rule be?
This is what state courts do all the time, but we're slightly less used to it in the federal system. The "right" answer may also require us to parse through Supreme Court and circuit precedent in likely analogous area; i.e., FELA cases. Which I definitely haven't, and you probably haven't either. So without reading those cases, I'm not sure that I am confident of the "correct" way to decide this case.
That admission aside -- and in full recognition of my manifest ignorance of maritime law -- I will say that if we were writing on a blank slate, I think that Judge Hall has a point here. She argues that the plaintiff in Scenario 2, which (as you may have guessed) is not a hypothetical, should not be allowed to recover. Whereas Judge Noonan writes an opinion joined by Judge Thomas that holds that these facts indeed state a cognizable cause of action under federal maritime law, and for that reason reverses the district court.
So, again, I'd have to read the cases. But without doing so, I would say that I might lean in Judge Hall's corner on this one. Even if FELA cases -- which are deliberately broadly remedial -- may do something else.
I'm just a bit worried about potentially expansive maritime liability if NIED allows recovery for near-misses. Does it keep me up at night? Hardly. But it does seem like a more limited theory of recovery might be more on the mark.
At least for someone, like me, who knows utterly nothing. But who occasionally looks out at the ocean.
For whatever that's worth.