Terrorism has brought the marine and nonmarine markets into a new conjunction. The marine industry depends on both the nonmarine market, highly regulated by the states and standardized, and the lightly regulated marine market. Both depend heavily on the international reinsurance market, which shares with the marine market its rules of usage and freedom of underwriters to write only what they choose, with regard to the great range of their risks. The financial impact of the attacks of September 11, 2001, fell most heavily on reinsurers, leading them to exclude terrorism from future coverage, and direct insurers in turn to exclude it for lack of reinsurance. In addition to the main issue of coverage itself, a number of troublesome issues in both direct and reinsurance contracts were activated. Coverage was admitted in most cases because it was not excluded, the common nonmarine war-risk exclusions being acknowledged not to apply (although some marine war-risk clauses might have applied). Concerns about future coverage or exclusion bring all the wordings under scrutiny. Those in use varied widely as to what terrorism is, depending on the interests to be served in the trade concerned, and new forms have been adopted or proposed in both markets. The effect on commerce of inadequate terrorism insurance led to the Terrorism Insurance Act of 2002, creating a federal excess-of-loss reinsurance scheme under which direct insurers, both marine and nonmarine, are required to offer coverage for such incidents of terrorism as may be so declared by the Secretary of the Treasury under a definition limited to U.S. interests, which is described in some detail in this Article. The broader field, however, is left for private reinsurance to reoccupy, in tandem with the limited federal coverage. Jurisdiction and arbitration are dealt with and the authority of state regulators generally preserved. Meanwhile, desirable reforms in marine policy terms are going forward in the market and being further explored in the Comité Maritime International. Thus, while there is much adjustment going on in the marine market to conform to the new demands of the terrorism risk, it appears that ordinary development continues toward what the author hopes will be greater harmony.
The Burden that 9/11 Imposed on Seafarers
Post-September 11, 2001, maritime security measures have placed growing restrictions on merchant mariners' shore leave while increasing their security responsibilities onboard and ashore. Despite their additional duties, seafarers face a greater likelihood of confinement to their vessels, not based on known security risks, but simply because they do not possess crewmember D-1 visas. At the same time, backlogs at American consulates and the high visa fee make D-1 visas very difficult for foreign mariners to obtain.
Maritime security depends upon merchant vessel crews being on the front line in the war against terrorism. Merchant mariners should be properly identified and recognized. Requirements for shore leave should be reasonably calculated to prevent illegal entry without unreasonably burdening mariners and their employers. Strict security measures do not need to diminish the already limited freedoms and opportunities for shore leave that seafarers possess.
Internationally recognized seafarers' identification cards offer the best possible compromise between legitimate port security requirements and the need for crews to attend to their physical, emotional, and spiritual needs on shore leave--provided that the United States accepts seafarers' identification cards as the basis for waiving crew visas for shore leave.
Ethical Considerations: Independent Professional Judgment, Candid Advice, and Reference to Nonlegal Considerations
The Article argues that Rule 2.1 is the hub that links most of the essential requirements placed by the Model Rules of Professional Conduct on lawyers representing clients. The Article begins with a look at current issues facing practicing attorneys and then considers those issues within the framework of Rule 2.1. The rule reflects historic and valued principles of the legal profession, among them independence, detachment, competence, and fidelity to each client. The Article states that these principles, for more than a century, have provided the response to questions about why lawyers behave as they do and concludes that lawyers should not be embarrassed to assert them again in responding to current criticisms.
Legal Compliance in Maritime Operations: Charting Your Course Through Stormy Waters -- 2003 and Beyond
Experience shows that many marine and landside operators have sparse, if any, understanding of the multitude of ever-changing laws and regulations to which they are subject in daily operations, as well as little appreciation of the significant costs, penalties, and other sanctions that can result from “illegal” conduct in their daily business. Whether out of blissful ignorance or just plain negligence and inattention, they fail to take those actions in the way of preventative maintenance such as is afforded to their personnel and expensive vessels and equipment, but that are vitally necessary to keep their business boat from running aground on the legal shoals which abound in today's commercial seas. The purpose of this Article is to present the chart for safe navigation through today's legal minefields and help assure continuing safe operations, whether conducting business on the water or landside.
Choice of Law in Admiralty Cases: "National Interests" and the Admiralty Clause
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.