The Aftermath of Norfolk Southern Railway v. James N. Kirby, Pty Ltd.: Jurisdiction and Choice of Law Issues

Contemporary transport contracts are often mixed contracts, as in the case of a through bill of lading or a combined transport document, in that they encompass transport both by sea and by land. From a maritime perspective, jurisdiction over mixed contracts is not a model of clarity. Before Norfolk Southern Railway v. James N. Kirby, Pty Ltd., the rule was rather simply stated but not so easily applied. A mixed contract did not fall within admiralty jurisdiction, except in two instances: (1) where the dominant subject matter of the contract was maritime in nature and the land-based element was relatively minor or incidental to the transaction or (2) where the maritime segment and land-based segment were severable. Under the latter approach, a court could exercise jurisdiction over the maritime dispute, but it could not exercise jurisdiction over a dispute involving the land-based segment.
First, this Article summarizes the United States Supreme Court's decision in Kirby. Second, the Article examines the question of whether the Court's decision expanding the scope of admiralty jurisdiction in “mixed contracts” cases has broadened the scope of  admiralty contract jurisdiction generally and specifically addresses “preliminary contracts.” Third, the Article examines the Court's approach to choice of law in regard to the applicability of federal versus state law. Finally, the Article will examine the impact of the decision in multimodal cases. Inasmuch as the last topic has been addressed elsewhere, this discussion will be brief so as not to be overly duplicative.