Attorneys are often asked to represent more than one party in connection with litigation. This Article evaluates the ethical considerations essential to multiple-party representation and addresses practical considerations to avoid ethical violations.
Professionalism: The Next Level
During the 1990s, concern for lawyer civility was the frequent focus of those concerned with lawyer professionalism. The organized bar took the lead in responding to the civility “crisis” in the profession. A more serious threat to professionalism has recently arisen in response to perceived lawyer involvement in corporate scandals and abusive tax-avoidance schemes. The federal government has adopted statutes and rules that supplant the traditional notions of lawyer independence and self-regulation. To avoid further government encroachment, the legal profession, acting primarily through law firms, must act to reestablish professional independence, especially independence from dishonest clients who could involve lawyers in schemes causing financial harm to the public.
Unique Features of Maritime Collision Law
This Article provides an overview of certain unique legal aspects associated with maritime collision litigation. Although the technology associated with marine navigation has drastically improved over the last few centuries, maritime collisions continue to occur with alarming frequency. Such accidents are often the precursor to costly and complex litigation that ultimately will trigger the application of distinctive legal concepts, rules, and procedures. The following will provide a broad overview of these doctrines, which are unique in their applicability to maritime collision law.
An Update on the Troubled Waters of Towage Law
During the twentieth century, the United States Supreme Court issued two key opinions in domestic towage cases, Stevens v. The White City and Bisso v. Inland Waterways Corp. Each decision caused great uncertainty in the law of towage because each relies on false assumptions and faulty logic. In 2004, towage law was further muddied because of an apparent split of authority between the United States Courts of Appeals for the Fifth and Eighth Circuits over the proper meaning of Rule 14 of the Inland Navigational Rules. Despite these and other uncertainties in the law of towage, two recent decisions awarding limitation of liability to vessel owners demonstrate the ongoing viability of limitation defenses to major towing casualties. The purpose of this Article is to provide an update on the law of towage through (1) a brief background of the Stevens and Bisso decisions, (2) a discussion of the disagreement over the meaning of Rule 14, and (3) an examination of the two recent limitation decisions and the continuing vitality of that defense.
Terrorism and Port/Cargo Security: Developments and Implications for Marine Cargo Recoveries
This Article briefly reviews the history of terrorism from a maritime perspective and then outlines the legislation and various security initiatives enacted since the attacks of September 11, 2001, that are relevant to the carriage of goods by sea. After highlighting some of the more prevalent issues raised by the new security requirements, the potential impact on maritime cargo litigation is examined. The Article concludes that liability will depend on the precise circumstances of the loss (including, as a threshold issue, whether a terrorist act can be adequately established), whether the events were foreseeable, and, in the absence of one of the enumerated exceptions to liability found in COGSA (where it applies), whether adequate security was in place to protect the cargo from foreseeable events.
An All Hands Evolution: Port Security in the Wake of September 11th
On September 11, 2001, terrorists used the U.S. aviation system to launch three massive attacks that forever changed America and the lives of Americans. This Article states that, because our seaports are as vulnerable today as our airports were on September 11th, many fear the U.S. shipping industry may be the next terrorist target. Various international, national, state, and local agencies have enacted a myriad of initiatives to combat terrorism while keeping our nation's ports open, efficient, and secure.
This Article considers these issues in the international, domestic, and local contexts. In the international context, the Article looks primarily at the actions of the International Maritime Organization. For the domestic context, the Article considers the actions of the United States Departments of Treasury, Defense, and Transportation; the Maritime Administration; the Federal Maritime Commission; and the Environmental Protection Agency. Finally, for the local context, the Article looks to the activities of the Georgia Ports Authority and the Savannah Port Security Committee. The Article concludes that the mixture of international, federal, state, and local agencies that share jurisdiction over ports illustrates that port security is and will continue to be “an all hands evolution.”
Preemption, Remedies, and Criminal Liability: Environmental Issues and the Ramifications of Huron Portland Cement Co. v. City of Detroit
As concern for the safety and protection of the environment and natural resources has grown, the legislative efforts of the federal government have correspondingly expanded. This Article states that maritime transportation of oil and other hazardous substances now faces one of the most comprehensive schemes of federal regulation and that such legislation is often prompted by an occurrence that draws sharp focus on the maritime industry and the dangers inherent in the maritime transportation of oil and hazardous substances.
The Article notes that the regulations of the various states and localities are interwoven with this comprehensive federal system. These regulatory schemes have been put in place to protect the populations and resources under local jurisdiction as well as to ensure compensation for expenses incurred by local authorities as a result of pollution incidents. While one might argue that this multilayered system of federal, state, and local regulations offends the uniformity premise of maritime law or that the federal government's activities in this area would indicate a preemption in the field of environmental regulation, the Article explains that courts have consistently allowed states and localities to exercise police power in the area of pollution absent an actual conflict with federal legislation and regulation.
The Maritime Contract and Admiralty Jurisdiction: Recent Developments Help Clarify an Inherently Confused Landscape
This Article explores the responses of federal courts in approximately the last dozen years to requests by litigants for the exercise of admiralty jurisdiction over those contracts that in current times form part of maritime commerce. Part II discusses the admiralty jurisdiction of the federal courts generally and outlines types of contracts, which, through well-settled precedent, fall clearly within or outside admiralty jurisdiction. Part II also introduces some of the principles that guide the federal courts in determining whether a contract falls within admiralty jurisdiction. Part III of the Article analyzes various types of contracts that federal courts have encountered of late that have forced them to explore the boundaries of admiralty jurisdiction. Part III also explores the status of the preliminary contracts doctrine and the conflicts that potentially follow recent court rulings. Finally, Part IV surveys other notable cases involving mixed contracts in which the federal courts have confronted the question of whether a particular contract falls within admiralty jurisdiction.
Insuring the Risk of Terrorist Damage and Other Hostile Deliberate Damage to Property Involved in the Marine Adventure: An English Law Perspective
The World Trade Center attacks on September 11, 2001, brought into stark relief the massive property losses that might be caused by an act of terrorism. However, on the basis that it is people, rather than property, who are the principal target of terrorism, the risk of a terrorist attack on, and consequent physical damage to, a commercial vessel and her cargo whilst at sea is relatively low. Nevertheless, the risk of damage to marine property done deliberately and aggressively and outside situations of actual war does exist, and protection against the consequences of such damage has long been available in the English marine insurance market. This Article categorizes such risk as the risk of damage by “hostile deliberate acts.” It provides an overview of the historical developments of the English marine insurance market and describes the overall framework of the insurance cover that is available in respect of damage by hostile deliberate acts: It covers the standard clauses applicable to hull and cargo risks, and it considers the top up or alternative cover available from the P & I Clubs and War Risks Associations. It also considers each of the hostile deliberate act perils in detail, namely the “marine perils” of piracy, violent theft by persons from outside the vessel and barratry, and the “war perils” of seizure, riots, malicious acts, and acts of terrorists or persons acting from a political motive.
Insurance and Liability Issues Relating to an Oil Spill Caused by Terrorism
Following the attacks of September 11, 2001, the U.S. government responded quickly with new laws that patch together some international law concepts with solicitude for U.S. businesses. The President and Congress have embraced some concepts found in international conventions such as strict or no-fault liability, caps on liability, and a large role for private insurance. The new legislation also features payments to the victims of the September 11th attacks with funds from the U.S. government and guarantees by the U.S. government for payments to victims of terrorism. The focus of this Article is the effect of these new laws on oil spills caused by terrorist acts.