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29 J. Mar. L. & Com. 41 (1998)
Restating the Law of Marine Insurance: A Workable Solution to the Wilburn Boat Problem

handle is hein.journals/jmlc29 and id is 51 raw text is: Journal of Maritime Law and Commerce, Vol. 29, No. 1, January, 1998 Restating the Law of Marine Insurance: A Workable Solution to the Wilburn Boat Problem MICHAEL F. STURLEY* I INTRODUCTION Hard cases, the maxim tells us, make bad law.' Recent scholarship suggests that Wilburn Boat2 was a hard case for several of the justices who decided it.3 Almost everyone agrees that it made bad law.4 Although virtually no one has a good word for Wilburn Boat,5 there is less agreement on the appropriate response. Popular suggestions have included calls for judicial reconsideration of the decision,6 a one-sentence federal statute simply overruling the case,7 and a comprehensive federal statute * Stanley D. and Sandra J. Rosenberg Centennial Professor of Law, University of Texas (Austin). Book Review Editor, Journal of Maritime Law and Commerce. B.A., J.D., Yale University; M.A. (Jurisprudence), Oxford University. The research for this article was supported by a grant from the Houston Marine Insurance Seminar, Inc. Some of the ideas here have previously been expressed in an unpublished report prepared at the request of the Director of the American Law Institute (ALl) (see infra note 122); in a presentation to the Joint Program of the Sections on Insurance Law and Maritime Law at the 1997 Annual Meeting of the Association of American Law Schools; and in statements before various committees, subcommittees, and working groups of The Maritime Law Association of the United States (MLA). Edward V. Cattell, Jr., George F. Chandler, III, Joel K. Goldstein, Geoffrey C. Hazard, Jr., Douglas Laycock, Ben L. Reynolds, David W. Robertson, Dennis J. Seider, David J. Sharpe, Graydon S. Staring, and George L. Waddell read an earlier draft of this article and provided valuable advice and criticism. I am also grateful for the research assistance of Eugene J. Silva II and Mary Flowerree Walters. Despite all of this support and assistance, the views expressed here are my own, and have not been approved by any of these individuals or organizations. 'Cf. Winterbottom v. Wright, 10 M. & W. 109, 116, 152 Eng. Rep. 402, 406 (1842) (Rolfe, B.). 2Wilbum Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 1955 AMC 467 (1955). 3See Goldstein, The Life and Times of Wilburn Boat: A Critical Guide, 28 J. Mar. L. & Com. 395, 410-17 (1997). 4See infra notes 13-29 and accompanying text. 51n litigation, of course, one side or the other will often support Wilburn Boat, depending on the substantive rule that would govern if Wilburn Boat applies. 6See infra notes 49-74 and accompanying text. 7See infra notes 75-82 and accompanying text.

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