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Insurance captain and one crew. A hurricane struck at a time when the derived from English law, which historically required lit- yacht was unmanned, and the yacht sank at the dock dur- eral performance of maritime warranties. Uniformity with ing the storm after being holed by an exposed dock piling. English law, where possible, has always been an aim of the

The insurer sued for declaratory judgment that it was not American courts in maritime cases. This is why it is par- liable under the policy because the insured had breached the ticularly notable that England enacted the United King- captain and crew warranties. The district court found that dom Insurance Act of 2015, which abandons recission as there was an established maritime law strictly enforcing such the automatic remedy for breach of warranty. Instead, an warranties and granted judgment in favor of the insured. insured who breaches a warranty and fails to cure can still recover if it “shows that the noncompliance with the term

The Eleventh Circuit reversed. In its ruling, the court could not have increased the risk of the loss which actually observed: occurred in the circumstances in which it occurred.” Id. at

One problem with Wilburn Boat, as commentators § 11(3). As the Eleventh Circuit observed: have pointed out, is that it rests on a ? awed prem- If there are still “special reasons for keeping in ise. At the time the case was decided, all the major harmony with the marine insurance laws of Eng- admiralty appellate courts in the United States had land, the great ? eld of this business,” Queen Ins. long accepted the literal performance rule. This rule Co. of America v. Globe & Rutgers Fire Ins. Co., derived from English common law and applied to 263 U.S. 487, 493, 44 S.Ct. 175, 68 L.Ed. 402 all express warranties in marine contracts. [Internal (1924), it will be interesting to see what effect the quotation marks and citations omitted.] Act has on American maritime law (and on how

Wilburn Boat is viewed).

The court further noted another problem with Wilburn

Boat: it “undermines uniformity in admiralty law.”

Possible solutions?

The Eleventh Circuit, in attempting to craft a solution One way this problem could be solved once and for all to this problem, made clear what they would do if they would be by federal statute; Congress clearly could enact could: “If we were writing on a blank slate, we would con- some form of federal marine insurance law to codify the sider holding that there should be a uniform maritime rule manner in which marine insurance contracts should be in- regarding the effect of a breach of an express warranty in a terpreted. No one should hold their breath waiting for this marine insurance policy—and from there determine what to happen, however; the chances of Congress addressing that uniform rule should be.” But of course, there is not a this issue in legislation anytime in the foreseeable future blank slate, and so ultimately the Eleventh Circuit resolved are virtually nil.

the “dilemma” by identifying only narrow categories of Another way would be for the Supreme Court to revisit warranties, pertaining to trading limits and seaworthiness Wilburn Boat. The Eleventh Circuit in Travelers practically of the vessel, which have been explicitly recognized as part begged the Supreme Court to take up their case: “Maybe, of the entrenched federal maritime law. With respect to the just maybe, this case will prove tempting enough for the captain and crew warranties at issue, on the other hand, Supreme Court to wade in and let us know what it thinks the court found that no such entrenched maritime rule of Wilburn Boat today. As they say, ‘hope springs eternal existed; consequently, state law, with its anti-technicality ....’” This outcome is perhaps somewhat more likely, if not provision, should govern. It seems inescapable that this in Travelers then in some other case down the road. But ruling, much like Wilburn Boat, was written more to ac- what would we want the Supreme Court to actually do?

complish a particular outcome than to enunciate any kind One possible option would be for the Court to de? ni- of clear guidance for future courts. tively hold that the strict enforcement of maritime warran- ties is, after all, an entrenched federal maritime rule such

Issues of uniformity that federal maritime law should always preempt state law

The maritime law rule of strict construction is originally on this issue. While that would have the laudable effect 20 | MN April 2022