Puerto Rican cocktail

MENTION of the West Indies, where the Puerto Rico archipelago lies, normally evokes thoughts of diving, secluded beaches, and piña coladas. However, the advocacy of maritime law, a topic dear to our hearts and pockets, is vibrant in this region. Puerto Rico has had its fair share of events which have helped develop its maritime legal services - just ask the lawyers involved in Calhoun v Yamaha.

Puerto Rico's place in the shipping world began in 1492, when Spain was awarded the right to acquire territory and to trade on all land by an imaginary line drawn 100 leagues west of the Azores or Cape Verde Islands. In 1521, a royal order was given that all ships bound for the West Indies from Spain had to stop in Puerto Rico, making its ports a useful first-stop port-of-call. The West Indies and contraband are inextricably linked. The Portugese were among the first to develop this lucrative business as they only owned the land to the east of the imaginary line. Clandestine trading became a way of life to offset the burdens of Spanish exclusivity. French and Dutch corsairs and English privateers also began to roam the Antillian archipelago.

Another figure who made an expedition to the West Indies was Prince Rupert of the Rhine, son of Elector Friedrich V and first cousin of King Charles II. Rupert took charge of the English Royalist fleet at the end of 1648 when the Commonwealth government was in power in England and Charles II was exiled in France. Rupert's younger brother, Prince Maurice, is believed to have been lost off the west coast of Puerto Rico on September 13, 1652, when Rupert's squadron off Anguilla was hit by a strong northerly hurricane.

A twelve-year battle has been waged with the Puerto Rican government in recent years over the salvage rights to the artifacts retrieved from a wreck believed by the salvors to be Maurice's Defiance. And the case (López Sobá v Fitzgerald 1993) has set the tone for recognising the existence and development of Puerto Rican maritime law.

It has long been a well-settled rule in the US that federal maritime law applies irrespective of whether the proceeding are instituted in an admiralty or common law court. But the Calhoun v Yamaha saga, which originated in a marina in Puerto Rico, is changing this conventional wisdom, to the surprise of most US maritime lawyers.

In Puerto Rico, even before Calhoun v Yamaha, the analysis and application of maritime law was, and still is, quite different from the traditional US approach. Puerto Rico has right of ownership over its territorial waters and may legislate on maritime matters even in a manner inconsistent with federal statutes. If there is a local statute in force, there is no reason to resort to the federal maritime law. At the outset of a lawyer's inquiry into applicable law, one must bear in mind that a long line of cases defines the power granted by US congress, allowing Puerto Rico to legislate inconsistently with the federal maritime law and to apply inconsistent local legislation.

The most important case heard by the Puerto Rico Supreme Court recognising the existence of a separate body of Puerto Rican maritime law is López Sobá. This case held that the Puerto Rican courts are not bound by the admiralty and maritime law of the US and can, within certain limits, apply local legislation in matters arising within the territorial waters of Puerto Rico (three marine leagues). The López Sobá ruling is supported by the relevant provisions of the Puerto Rican Federal Relations Act as interpreted by the leading First Circuit case of Guerrido v Alcoa Steamship Company.

It is important to note that, while in López Sobá the Puerto Rico Supreme Court flatly denied the applicability of the admiralty principles of the law of salvage, it did recognise that Puerto Rican courts have concurrent jurisdiction to apply the general maritime law and admiralty statutes of the US, provided that no inconsistent legislation exists in Puerto Rico.

The Supreme Court reaffirmed its own line of cases interpreting Puerto Rico/US relations in accordance with the leading case of Guerrido. López Sobá is one of the latest in a line of cases which began in Guerrido, where the First Circuit laid down the basic principles governing the application of Puerto Rico law to maritime matters within Puerto Rican waters.

In order to understand such a conclusion, and to fully comprehend the extent of such unique power, one must look at the treaty and at certain federal statutes under which congress allowed Puerto Rico to organise its own government. Puerto Rico, while under Spanish sovereignty, became a territory of the US in 1898 pursuant to the Treaty of Paris. In 1900, Congress passed the First Organic Act of Puerto Rico, known as the Foraker Act, making the waters of the islands navigable waters of the US.

In 1917, congress enacted the Organic Act of 1917, known as the Jones Act (not the cabotage law), which granted the Puerto Rico Legislature "authority...to legislate with respect to all such matters as it may deem advisable" within Puerto Rican waters, and gave the government of Puerto Rico control over its "harbour areas and navigable streams and bodies of water and submerged land underlying the same in and around the Island of Puerto Rico and the adjacent islands and waters....."

Based upon its analysis of the Jones Act, the First Circuit in Guerrido reached the conclusion that the Puerto Rico Legislature could supplant general maritime law - and, to some extent, admiralty statutes - by enacting legislation inconsistent therewith. However, as an exception to that power, the legislature cannot supplant a rule of maritime law which US congress has, by statute, expressly made applicable to Puerto Rico. If and when congress deems it advisable to extend maritime law to Puerto Rico, it will do so in "clear and explicit terms".

Congress has continued the tendency to recognise the full extension of the legislature's power to legislate inconsistently with federal maritime law. In 1980, Jones Act 8 was amended to define the extension of Puerto Rico's territorial waters over which the Puerto Rico legislature has full and ample power to legislate, "seaward to a distance of three marine leagues". Therefore, any legal analysis of a maritime claim must inevitably determine whether the legislature has enacted a law feasible of application within a maritime context.

Another example is Book III of the Spanish Code of Commerce of 1886, entitled Maritime Commerce, which was the maritime legislation in force in Puerto Rico in 1898. The Commerce Code's Article 948 is a one-year statute which applies to various maritime claims, including expenses of judicial sale, custody, deposit, and preservation of vessels, cargoes, or goods, navigation and port charges, pilotage, rescue, assistance and salvage.

Due to the unique arrangement of political relations between Puerto Rico and the US that accords the local legislature the power to enact local legislation governing within territorial waters, maritime advocates are advised to pay careful heed to local law, and to rely heavily upon local maritime advocates for guidance.