Is Wilburn Boat still good law?

"Our authority to make decisional law for the interpretation of maritime contracts stems from the Constitution's grant of admiralty jurisdiction to federal courts." James T. Kirby, Pty. Ltd. v. Norfolk Southern Ry. Co., 125 S.Ct. 385 (2004).

Think seriously about challenging Wilburn Boat. The Supreme Court is telling us that maritime contracts are governed by federal law. What is marine insurance, if not a maritime contract?

Two other comparatively recent opinions of the Supreme Court, Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 210 (1996)(Ginsburg, J.) and American Dredging Co. v. Miller, 510 U.S. 443, 451 (1994)(Scalia, J.), have held up Kossick v. United Fruit Co., 365 U.S. 731 (1961), as an example of the Court's willingness to preempt state law to preserve the uniformity of the maritime law. In Kossick, the Court held that a state may not require a maritime contract to be in writing where the general maritime law regards oral contracts as valid.

In an interesting digression, Justice Scalia acknowledged in American Dredging that the Court's decisions on permissible state regulation of maritime law had been inconsistent. As an example, he compared Kossick (of which he apparently approves) with Wilburn Boat Co. v. Firemen's Fund Ins. Co., 348 U.S. 310 (1955)(holding that state law can determine effect of breach of warranty in marine insurance policy).

Five justices joined Justice Scalia's opinion in American Dredging. Does that mean there were six votes to overrule Wilburn Boat in 1994? And perhaps even more now?

Graydon Staring thinks Wilburn Boat has been "nullified" by the circuit courts, and has urged counsel to so argue to district courts. Graydon S. Staring, "Wilburn Boat is a Dead Letter: R.I.P", Journal of Maritime Law & Commerce, Vol. 42, p. 465 (Oct. 2011). Heed his advice.