Craig H. Allen, Admiralty's In Extremis Doctrine: What Can Be Learned from the Restatement (Third) of Torts Approach?, 43 J. Mar. L. & Com. 155 (2012), https://digitalcommons.law.uw.edu/faculty-articles/80
Admiralty's In Extremis Doctrine: What Can Be Learned from the Restatement (Third) of Torts Approach?
Journal of Maritime Law and Commerce
The in extremis doctrine has been part of maritime collision law in the U.S. for more than one hundred and sixty years. One would expect that a century and a half would provide ample time for mariners and admiralty practitioners and judges to master the doctrine. Alas, some of the professional nautical commentary and even an occasional collision case suggest that the doctrine is often misunderstood or misapplied. A fair number of admiralty writers fail to understand that the in extremis doctrine is not a single "in extremis rule," but rather several rules, all of which are related to the existence of a somewhat poorly defined "in extremis situation." Some practitioners and mariners also appear to believe the in extremis "rule" has been fully codified into the present Collision Regulations (either in Rule 2(b) or 17(b) or perhaps both) obviating recourse to the general maritime law cases. Alternatively, some believe that the addition of Rule 17(a)(ii) and its allowance for a permissive maneuver by the stand-on vessel before the situation has become in extremis, has rendered, or at least should render, the in extremis doctrine a relic of the former, less enlightened, collision regime.
This article examines each of these propositions. In doing so, the article draws on the framework for negligence cases established by the recently released Third Restatement of Torts. This article takes the opportunity provided by the recent release of Restatement (Third) of Torts: Physical and Emotional Harm to critically examine admiralty's in extremis doctrine. More specifically, it asks whether the admiralty doctrine would benefit from adopting the approach provided by the new Restatement.
Part II of the article provides a brief overview of marine collision law principles, and Part III provides a similar summary of relevant provisions in the Collision Regulations. Part IV then describes the current in extremis doctrine and identifies related or parallel provisions of the Restatement. Part V then suggests reforms to clarify the in extremis doctrine. Finally, Part VI briefly examines some reform proposals.