Comment by Daniel H. Charest
In those bygone days he had handled many thousands of pounds of his employers' money and of his own; he had attended faithfully, as by law a shipmaster is expected to do, to the conflicting interests of owners, charterers, and underwriters. He had never lost a ship or consented to a shady transaction; and he had lasted well, outlasting in the end the conditions that had gone to the making of his name.
The modern practices of transporting cargo over water do not resemble those of the simpler maritime world that precipitated the current legal regime. Where once the carrier and the shipper, mutually exclusive parties who together comprised the sum of the shipping world, were the only two players, the current production is an ensemble cast of role-players and specialists, each playing his part in pursuit of the ultimate goal: the efficient transportation of goods by sea. Since the enactment of the Carriage of Goods by Sea Act (COGSA) in 1936, the players in maritime commerce and the technology they employ have evolved into an industry quite distinct from the pre-World War II maritime industry. As the shipping world has splintered into specialized parties, creating new relationships and obligations, the courts have struggled to keep pace and apply aging law to the modern industry. A recent survey, reported by the United Nations Conference on Trade and Development (UNCTAD), shows that the “great majority” of interested maritime industry and governmental figures find the current legal framework for the carriage of goods unsatisfactory and not in keeping with the modern practices of the maritime industry.
The goal of this Comment is to increase awareness of the many new roles and players in the maritime industry, specifically the vessel manager. The hope is that with a better understanding of the industry and its recent developments, the courts can bring the law into harmony with these changes and properly consider the responsibilities shouldered by the parties who are actually involved in the performance of a contract for the carriage of goods by sea.
Part II of this Comment examines common ownership structures in the maritime industry and the unique and integral role vessel managers play within shipping companies. Part III focuses on the current case law development with respect to vessel management companies, analyzing such developments under the modern realities of maritime commerce. Part IV presents a comparative study of present and proposed cargo liability schemes intended to spur courts to strive for a more sensible and uniform approach to their treatment of vessel managers under COGSA. This Comment employs two case studies from the actual industry to flesh out different approaches to the question in the hopes of reaching a method that is uniform, comprehensive, and commercially viable.
About the Author
Daniel H. Charest. J.D. candidate 2004, Tulane University School of Law; B.S. 1994, United States Merchant Marine Academy. The author served as a merchant marine officer for seven years before entering law school.
Citation
78 Tul. L. Rev. 885 (2004)