This Article examines the subject of choice of law in admiralty cases, specifically whether federal or state law should be applied in cases that are within admiralty jurisdiction. It concludes that the decisions of the Supreme Court are inconsistent and present no guide to lower federal and state courts for resolving the choice-of-law issue. The Court has not formulated clear rules and has not developed a methodology that can be used by lower courts. This Article suggests that “uniformity” under the general maritime law and its corresponding displacement of state law is justified to promote “national interests.” Various “national interests” that underlie the Admiralty Clause of the Constitution are identified and discussed.
Recreational Boats: the Evolution of Jurisdiction and Choice-of-Law Issues From the Constitution Through the Calhoun Decisions
Jurisdiction and choice-of-law issues have been the subjects of many of the seminal cases of admiralty jurisprudence. Recently, perhaps because they “push the envelope” of these issues, decisions invoking recreational boats have been on the cusp of this jurisprudence--defining the limits of substantive admiralty law. This Article will address and analyze the development of admiralty jurisdiction and the application of substantive admiralty law generally--but also will be specifically directed to the developments effected by decisions involving recreational boats. Particular attention will be paid to the Supreme Court and Third Circuit decisions in Calhoun v. Yamaha Motor Corp., U.S.A.
Ethical Considerations: The Attorney-Client Relationship
After briefly considering the history of written rules in the United States dealing with ethics and the complex issue of “who is a client,” this Article examines those of the Model Rules of Professional Conduct of the American Bar Association that deal with the attorney-client relationship and emphasizes the importance of attorney-client communication. It also explores aspects of the attorney-client relationship that are included in other compilations of professional rules (but not in the ABA's Model Rules). Discussion of statements of “Client's Rights” and of “Commitments to Clients” illustrates what clients and attorneys expect of each other in their relationships. How attorneys can better foster the loyalty and trust necessary for an effective attorney-client relationship is discussed, as is how attorneys can better address the ethical considerations that enter into the attorney-client relationship.
Prosecution of Maritime Environmental Crimes Versus OPA-90's Priority for Response and Spill Prevention: A Collision Avoidance Proposal
This Article examines, first, the effect that increased use of criminal prosecutions in maritime environmental matters is having on civil litigation spawned by environmental incidents and the governmental investigations regarding the cause of such incidents. Mariners face a dilemma when confronted with the obligation to report and cooperate because, at the same time, prosecutors may use this very evidence against them. Secondly, the Article examines the legislative history of OPA-90 and other laws to establish that Congress has clearly given clean up of the environment and prevention of future maritime environmental casualties priority over criminal prosecutions. Further, the Article argues that current enforcement policies run counter to explicit congressional policy. The Article concludes with a review of current congressional efforts to deal with aspects of the conflict and puts forward a comprehensive proposal to reconcile the priority Congress has given response and prevention with the use of criminal sanctions as an appropriate enforcement tool.
Marine Casualty Investigations by the United States Coast Guard and the National Transportation Safety Board
The occurrence of a marine casualty may, depending on its type or location, bring about an investigation by any number of federal agencies, including the Department of Interior's Mineral Management Service, the Environmental Protection Agency, the United States Navy, the Department of Justice, the Federal Bureau of Investigation (FBI), the Department of Defense, the United States Army Corps of Engineers and the Department of Labor, as well as concerned state agencies. As a general rule, however, most lawyers representing clients involved in, or concerned with, marine casualties must deal primarily with United States Coast Guard and National Transportation Safety Board (NTSB) investigations. The purpose of this Article is to give attorneys faced with such investigations some guidance with respect to the procedures followed in such investigations and the discovery and admissibility in civil proceedings between private litigants of the reports generated as a result of those investigations.
An Update on Dispute Resolution in England and Wales: Evolution of Revolution?
This Article provides an overview of dispute resolution in England and Wales, including recent reforms to the litigation system and mediation and arbitration. The Article will take a close look at the so-called Woolf Reforms, which came into force on April 26, 1999, and which have had considerable impact on the litigation landscape of England and Wales. In addition, the Article reviews the impact of the 1996 Arbitration Act and the 1998 Human Rights Act. The Human Rights Act brought the European Convention on Human Rights to the forefront of the practice of law in England and has been tipped to cause as much upheaval as the Woolf Reforms did last year.
Domestic Law and International Conventions, the Imperfect Overlay: the FAA as a Case Study
This Article addresses several of the more important differences between the domestic portion of the Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Specifically, practical tips for the commercial practitioner are set forth in connection with subject matter jurisdiction, statute of limitations applicable to enforcement of arbitration awards, venue considerations, and standards for vacatur of awards. The Domestic Legislation and the Convention are compared and contrasted with respect to the manner in which they each address these issues.
'Twas the Night Before Regulations: Foreign-Flag Cruise Ships and the ADA
In June 2000, the United States Court of Appeals for the Eleventh Circuit ruled that Title III of the Americans with Disabilities Act (ADA) applies to foreign-flag cruise ships that carry U.S. passengers and embark at U.S. ports. Stevens v. Premier Cruises, Inc. held that application of the ADA to a foreign-flag cruise ship under such circumstances does not violate the usual presumption against extraterritorial application of U.S. laws, but the case failed to address the important question of whether courts can now compel shipowners to modify the physical features of existing vessels to enhance accessibility, and if so, to what extent.
This Article focuses on several critical and practical problems with civil lawsuits imposing construction or renovation standards on cruise ships prior to the enactment of relevant regulations by the federal agencies to which Congress delegated sole authority under the ADA. Although detailed regulations are being enacted, final accessibility standards for ships are not expected for approximately eighteen months and the notice-and-comment rulemaking procedures required by the Administrative Procedure Act have not yet been initiated. Thus, any interim exercise of jurisdiction by courts to enter injunctive relief in various venues, in order to compel shipowners to renovate vessels to as-yet-unspecified standards, would be premature. Such lawsuits violate constitutional due process and endanger the long-settled tradition of maritime uniformity. Attorneys prosecuting these suits prior to the enactment of controlling regulations should not be awarded attorney's fees, as generally provided for the “prevailing party” under the ADA, until the responsible agencies promulgate a comprehensive regulatory scheme for vessels and shipowners are given an opportunity to comply.
Recent Developments in Maritime Law: Changes in the Law Moving as Rapidly as the Modern Day Personal Watercraft that Propel Them
This Article examines the effect that the rise in popularity of personal watercraft has had on maritime law. It discusses the Calhoun decisions and reveals the disuniformity caused by those decisions. The Article notes that liveries that rent personal watercraft may face uncertain damage exposure in light of the outcome in Calhoun . However, liveries may reduce this exposure through their rental agreements and the Limitation of Liability Act. This Article concludes that the continuing rise in popularity of personal watercraft will continue to threaten the uniformity of maritime law. Education of the liveries by the maritime law community and the development of uniform contractual terms in the rental agreements are the best means of combating this disuniformity.
The Investigation of Marine Accidents: A U.K. Accident Investigator's View
In this Article, the United Kingdom's Chief Inspector of Marine Accidents describes the work of the British Marine Accident Investigation Branch and explains how it undertakes its work. The Article makes clear that the fundamental purpose of an investigation is to determine the causes of the accident, with the specific aim of improving safety at sea and the avoidance of accidents in the future. The Branch is not an enforcement agency nor does it prosecute anyone or apportion blame.