This Article discusses the application of federal and state law to the construction, sale, repair, rebuilding, chartering, and financing of vessels, paying particular attention to the impact of the growing use of the Uniform Commercial Code as a source of federal law where a nonstatutory federal law solution is required. The impact of the recent United States Supreme Court decision in Stewart v. Dutra Construction Co. on transactions involving stationary vessels and marginal craft is discussed. In addition to a review of types of transactions, the manner in which federal and state law apply to various types of maritime property is also discussed, including the leasing and financing of vessel equipment; the relationship between mortgages, maritime liens, and security interests with respect to cargo and freight receivables, as well as the developing case law with respect to the attachment of ship mortgages and maritime liens to fishing rights.
The Uniqueness of Maritime Personal Injury and Death Law
Claims for personal injuries and deaths that occur on or near navigable waters generally fall within a court's admiralty jurisdiction and require the application of substantive maritime law, which is, of course, federal law. The issue of whether maritime jurisdiction exists, however, can raise intricate factual and legal issues. Certain claims, although governed by substantive federal law, do not necessarily have to be brought in a federal forum. This Article examines the statutory schemes and jurisprudence unique to the field of maritime personal injury and death.
The Shifting Nature of Salvage Law: A View From a Distance
The maritime law of salvage may seem to present a fixed body of doctrines that only require to be applied to fresh circumstances. However, there have been major changes in the doctrines of salvage law, including the shift made in the eighteenth century by which the English courts moved from giving rewards for the rescuing of goods wrecked at sea to giving rewards for the prevention of loss at sea.
Two points are now likely to force further development of the law. One point is the combination of the fact that (apart from the limited safety-net provided by SCOPIC) under existing law the amount of a salvage reward is capped by the value of the property preserved, together with a decline in the number of salvages from which salvors can earn rewards under existing law. The result is a pressure from salvors for salvage rewards fully reflecting the liabilities from which vessels and their insurers have been saved. The second point is a possible pressure from property insurers (hull and cargo) not to pay by way of the rewards for these few salvages, for the costs of the existence of professional salvors and the maintenance of vessels and equipment dedicated to salvage, which may now seem primarily to benefit liability insurers.
One possible development is that salvage operations might be performed under fixed-price contracts between the liability insurers of vessels and salvage contractors. We discuss in this Article the extent to which, under English law, a contract such as Lloyd's Open Form may replace the general maritime law of salvage.
Another possible development is that liability salvage might be recognised under maritime law as a separate route to a salvage reward, parallel to the route of property salvage. We defend the conceptual possibility of this development and deal with some difficulties that have been raised. We conclude that this change would be in accordance with the underlying principles of salvage law, in terms of rewards based on benefits conferred and in terms of encouragement, and would involve no greater departure from existing doctrine than was made by the judges of the eighteenth century.
In this Article we also review (from across the Atlantic) some issues in U.S. salvage law, including the application of salvage law to ancient wrecks, life salvage under U.S. law, and the position of Lloyd's Open Form under U.S. law.
The Limited Scope of the Cargo Liability Regime Covering Carriage of Goods by the Sea: the Multimodal Problem
Increasing numbers of cargo claims arising under multimodal bills of lading involve damage or loss occurring inland, while the goods are in the custody of inland carriers or their contractors. The current cargo liability regime covering sea transport, however, is antiquated and unable to cope with these types of claims. As a result, the parties participating in multimodal shipments have been subject to a vast array of laws governing their rights and liabilities, including the application of state law, leading to uncertainty and higher litigation costs. This Article examines the multimodal problem, beginning with a brief overview of the cargo liability regimes governing air, land, and sea transport and a discussion of the unique problems caused by the limited scope of the Hague Rules/COGSA regime. The recent United States Supreme Court decision in Norfolk Southern Railway v. James N. Kirby, Pty Ltd. and its impact on multimodal carriage is also examined in some detail. Finally, the Article provides a summary of recent national and international attempts to solve the multimodal problem. The author concludes that until a true multimodal convention is developed, covering all aspects of “door-to-door” multimodal carriage, the industry can expect ad hoc decisions of the courts to shape the rules for multimodal transport.
The Uniqueness of Admiralty and Maritime Law: The Unique Nature of Maritime Liens
This Article provides an overview of the unique, interesting, and historic world of maritime liens. It covers the history of maritime liens; the fundamental differences between maritime liens and state law liens, maritime lien creation, scope, execution, ranking, collection, and extinguishment; as well as giving general guidance to shipowners, cargo interests, chandlers, suppliers, and others involved in maritime commerce regarding maritime lien issues that arise in their operations.
Maritime Procedure: An Overview and Caution Regarding Privilege Waiver
This Article gives a sweeping overview of myriad procedures normally identified with, or endemic to, the practice of maritime law. Part II focuses on admiralty jurisdiction, sources of admiralty law, and interlocutory appeals. Part III discusses the special admiralty rules found in the Supplemental Rules for Certain Admiralty and Maritime Claims to the Federal Rules of Civil Procedure. Part IV covers various procedural and practical topics, from maritime arbitration to evidentiary rules and everything in between. Part V is devoted to an alarming trend, the government's increasing insistence that potential criminal defendants waive the attorney-client privilege and work product doctrine as a measure of their cooperation in government investigations. Part V discusses the genesis and development of this policy and provides a valuable background for those maritime practitioners whose work leaves them outside the criminal arena.
Appurtenances: What Are They and Are Fishing Permits Among Them?
Maritime liens are a fascinating part of maritime law, encompassing both substantive and procedural aspects quite different from common law liens and security interests. This Article will focus on one aspect of maritime lien law, the objects to which such liens attach, and will discuss recent developments affecting the fishing industry. This Article will also address the definition of maritime liens from a historical and current perspective, as well as the “appurtenances” to which maritime liens attach. It will analyze whether maritime liens attach to intangibles, such as the rights granted under statutory and regulatory rules applicable to the fishing permits and fishing histories that make commercial fishing vessels so valuable, and indeed, functional.
Admiralty Jurisdiction: The Power Over Cases
“Admiralty jurisdiction” describes one of the three types of subject matter that federal courts may hear and decide. The phrase is unique, but it does not tell judges, counsel, and commentators (1) whether the phrase can mean one thing in the context of the Constitution and another thing in the context of the Judicial Code, (2) whether a particular matter is within or without the scope of the subject matter, (3) whether a matter can be moved into the scope by judicial decision or only by act of Congress, and (4) whether Congress can change the scope that the courts have defined. The key to answering these questions lies in the Constitution's words: not “jurisdiction,” but the judicial “power” over “cases.”
The Uniqueness of Admiralty and Maritime Law
Admiralty and maritime law was established as a unique body of law by the United States Constitution when the Drafters recognized the need for uniformity and vested the federal court system with jurisdiction over the entire subject matter of admiralty and maritime matters. This grant was only one aspect of the uniqueness of admiralty law. This Article explores the differences in admiralty and shoreside law. From jurisdiction to personal injury, from seaworthiness to salvage, a case in admiralty is often very different from a case in which the shoreside law applies. In a sense, water changes everything. These differences arise from the practical and commercial peculiarities of waterborne activities and trade.
"Employment" From Calm Waters to War Zones: The Unique Nature of Time Charters and a Time Charterer's Right to Exploit the Full Earning Power of the Vessel
The unique feature of time charters is that they are not contracts for carriage but contracts for services, under which ownership and possession are separated from use of the ship. Owners carry the risk of maritime accidents and remain responsible for the safety and navigation of the ship “as when trading for their own account.” But the ship trades instead for the account of time charterers.
The author concludes that the latest English law cases to test this conflicted bargain in two vital areas load the dice in favour of the charterers and their rights to exploit the earning power of the ship.