Limitation of Liability: A Critical Analysis of United States Law in an International Setting

This article will examine some of the basic characteristics and variations of limitation of a shipowner's liability contained in international conventions, national laws and the law of the United States. Also, because any semblance of uniformity depends on conflicts of law rules and the effects of multination litigation on limitation, the article will touch on those subjects. The underlying premise is that limitation, in a variety of forms, is a universal concept that, despite criticism, is part of the maritime law and will be for the foreseeable future.  

Foreign Sovereign Immunity and the Arrest of State-Owned Ships: The Need for an Admiralty Foreign Sovereign Immunity Act

Members of the community of nations have traditionally accorded a variety of immunities to foreign sovereigns, their representatives and instrumentalities, and their property. The roots of these immunities are buried deep in history. After centuries of evolution and institutionalization by public international law and the internal laws of the members of the community of nations, one may speak of a generic idea of sovereign immunity that has various manifestations. The foundation of foreign sovereign immunity remains a disputed matter. According to one view, the members of the international community are bound by customary public international law to accord immunity to foreign sovereigns because of their equality and independence; a refusal to do so is a breach of an international obligation. According to another view, foreign sovereign immunity is founded on comity. In the absence of an international treaty, members of the international community are in no way bound to accord immunity to a foreign sovereign; if they do so, it is by virtue of internal rules of law. All agree, however, that the purpose of foreign sovereign immunity is to avoid friction in international relations.

Whether under compulsion from public international law, internal law, or both, ships of foreign sovereigns traditionally have been accorded certain immunities. Ships are property, though of a special kind, and have enjoyed the immunity from arrest and execution that is accorded to the property of a foreign sovereign. Further, ships have been personified for a number of purposes in the United States and in other countries and have been accorded an immunity that resembles the immunity accorded to the person of a foreign sovereign.

This paper will comment on the laws of the United States that govern the immunity of foreign state-owned ships from arrest for the enforcement of maritime claims in American courts. A ship is entitled to a species of immunity that is distinct from the immunity accorded to the person or the property of a foreign sovereign. The origin and development of this immunity will be traced in Anglo-American judicial decisions and other sources of law, and the provisions of the Foreign Sovereign Immunities Act of the United States will be discussed to the extent that they are pertinent to the enforcement of maritime claims. For purposes of comparison, and for the elucidation of a number of problems, brief reference will be made to international conventions and the internal laws of other countries.

Comparative Aspects of Commonwealth and U.S. Law Since the Collision Convention

Unlike parties to a bill of lading or charter party dispute whose contracts enable them to regulate and assess their rights and duties as well as the consequences of a breach, the parties to a collision action are likely to be strangers who neither had an opportunity to set their own standard of conduct nor to select a forum or body of law by negotiation. An owner whose vessel has been involved in a collision therefore may find that his rights and liabilities will vary dramatically depending on the forum in which an action is brought. An international effort toward uniformity in collision cases can be seen in international conventions, in particular the International Convention for the Unification of Certain Rules of Law with Respect to Collision Between Vessels (Collision Convention), the International Convention on Certain Rules Concerning Civil Jurisdiction in Matters of Collision (Civil Jurisdiction Convention), and the International Convention Relating to the Arrest of Sea-Going Ships (Arrest Convention).Although this intention is laudable, substantial national differences remain, not only because the United States has refrained from joining in these conventions, but also because choice of law rules used by courts of signatory states may dictate that some law other than the relevant convention must be applied to the case before them.

The object of this paper is to offer a comparison of the procedural and substantive laws and choice of law rules relevant to collision actions in the principal English-speaking maritime nations. The questions addressed will be the ability to obtain jurisdiction, limitations on the right to arrest or obtain security, the effect of appearance in the action, national substantive doctrines, and choice of law rules both in general and with respect to particular issues.

The 1910 Brussels Convention, the United States Salvage Act of 1912, and Arbitration of Salvage Cases in the United States

The article by Sir Barry Sheen admirably sets the scene for a discussion of conventions on salvage by describing the historical background and the changing scene of salvage over the years. With equal clarity Donald O'May has set forth the history and principal features of Lloyd's Open Form, the revisions to that form effective in 1980, and the principal features of the Montreal Convention held under the auspices of the Comitè Maritime Internationale. The purpose of this article is to describe the genesis of the 1910 Brussels Convention on Salvage and the United States Salvage Act of 1912, and to harmonize the Convention with the decisions rendered under the Act. In addition, the relatively few salvage arbitrations held in the United States will be discussed.  

Water Pollution Laws: Can They be Cleaned Up?

The purpose of this article is twofold. First, the article will survey the existing laws of the United States as they pertain to oil pollution liability and compensation, and payment for cleanup costs. Second, the article will examine the efforts underway, domestically and internationally, that are intended to increase uniformity in the law pertaining to these aspects of oil pollution. This article is not intended to be an exhaustive analysis of the existing federal and state laws providing remedies for pollution damage, as these have previously been examined in detail by others.¹ Rather, it is intended to show that the existing legal framework is so unsatisfactory as to compel the consideration of other options and that other options offering benefits to all affected parties exist.  

Lloyd's Form and the Montreal Convention

For more than seventy years the 1910 Brussels Convention on Salvage has withstood the test of time. It had bestowed upon it that rare accolade for international conventions, ratification by the United States of America. It might well have gone on to complete its century, had not the steering failed on the Amoco Cadiz in March 1978, whose subsequent grounding and oil pollution made front-page news throughout the world and brought the subject of salvage into sharp focus. The pressure for change in the law of salvage, and the search for solutions to contemporary problems, has evidenced itself in two ways. First, Lloyd's Salvage Agreement has had important additions made to its traditional form. Because of its worldwide use in major salvage cases, Lloyd's Form may fairly be said to have a quasi-convention status. Second, the Comitè Maritime International (CMI), at Montreal in May 1981, produced a new Draft Convention on Salvage. It is with these two instruments of change, and the interaction between them, that this paper is concerned.

Uniformity in Maritime Law: The Domestic Impact of International Maritime Regulation

With as much detachment as he can muster, this writer believes that a new day is dawning for American Proctors. On that day they will cite international conventional and regulatory maritime law as frequently as the domestic substantive maritime law, and courts of admiralty will as frequently decide cases upon that basis. If this prediction sounds farfetched, then recall that statutory maritime law is a comparative novelty. Until some six-score years ago, the general maritime law—which still forms the real substance of our admiralty jurisprudence—was based upon customary international law rather than domestic statute or common law. The greatest of the admiralty judges, Lord Stowell, stated clearly in one decision of 1807 that a court of admiralty is historically a court of international law, which “belongs to other nations as well as to our own; and what foreigners have a right to demand from it, is the administration of the law of nations, simply, and exclusively of the introduction of principles borrowed from our own municipal jurisprudence, to which, it is well known, they have at all times expressed no inconsiderable repugnance.”' Indeed, the application of domestic statutory maritime law (other than port regulations) to foreign merchant shipping is virtually a phenomenon of the 20th century, and the present strong growth of maritime law toward global uniformity based upon international maritime regulation should be seen as a direct reaction to the chaotic diversity of national maritime legislation. It does not matter greatly whether others in the maritime field share this writer's vision of the future; what is important is to grasp the extent to which international maritime regulation is already with us, and to recognize the forces, interests, groups, and organizations forming this rapidly growing body of maritime law.

Conventions on Salvage

By the year 1978, there had been a substantial number of casualties involving large tankers carrying crude oil. Those casualties occurred in many different parts of the world. They raised many legal problems. But more immediately and, perhaps, more importantly, they raised suddenly and without warning many novel practical problems for professional salvors, who were called upon to use their ingenuity to solve those problems. Salvage masters spend their working lives encountering new problems because no two maritime disasters are identical. Salvage masters would not be successful without the knack or aptitude for adaptation. But it was not ingenuity alone that was required when very large tankers were in distress. Resources on a large scale were needed, and they were needed immediately. Tugs, fire-fighting equipment, chemicals for dispersing oil and equipment for containing it, all the paraphernalia of modern salvors, and, above all, financial resources were needed on a very large scale. Such problems affected, or were likely to affect, professional salvors in all parts of the world.  

An Historical Overview of the Development of Uniformity in International Maritime Law

In recent years there have been many efforts at obtaining uniformity of laws in various jurisdictions: the various restatements of law, international conventions, and, where all else fails, bilateral treaties on specific aspects of law such as recognition of judgments. It has long been this writer's theory that such attempts at uniformity became necessary because the rise of nationalism over the centuries destroyed the uniformity of maritime law, which had been established by commercial traders from time immemorial. This paper presents the historical thesis that uniform maritime law: 1. existed in ancient times;

2. developed and grew with the spread of maritime commerce;

3. declined with the growth of nationalism;

4. was revived in the nineteenth century at the instigation of lawyers and commercial men such as those who founded the Comité Maritime International and the national maritime law associations;

5. continues to grow under the aegis of the Intergovernmental Maritime Organization (IMO) and other United Nations affiliated organizations with the cooperation of experts in the private sector.