Page 21: of Marine News Magazine (April 2022)

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Column

Insurance of returning uniformity and clarity to the federal maritime law, however, it would also constitute a complete re- versal of Wilburn Boat. It would also put the U.S. maritime law even fur- ther out of step with both state law and, now, English law.

Alternatively, the Court could ? nd that, after all, the broad rule of “strict enforcement” of warranties has never been an entrenched federal maritime rule, such that state law should always control on this issue. But the Court would have to engage in some pretty fancy revisionism to plausibly reach this conclusion.

A third possible option might be for the Court to ? nd that the federal mar- itime law has evolved and that, while strict enforcement of warranties was once an entrenched federal maritime rule, both the courts and legislators— in the U.S. and in England—have come to recognize the weaknesses of this strict rule, such that it should no longer be treated as an established maritime rule. This might be a plau- sible “out” for the Court and, in some respects, may be the most accurate ex- planation for the recurring reluctance of the courts (including the Supreme

Court itself) to strictly apply mari- time warranties in some cases. Still, it leaves the problem that insurance law varies from state to state, such that uniformity would remain elusive.

Whatever the solution may be, the

Supreme Court ? rst must decide to take a case – which might yet take a while. In the meantime, insurers and insureds are left to guess what rules of construction will apply to their poli- cies, which is never a good thing for maritime commerce.

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