Legal Relationships: Terminal Owners, Operators, and Users

This Article will search for methods to minimize the differences in the liability standards between the terminal in its various roles and other participants in the transportation industry. If the entire multimodal system is to operate under one set of laws, the terminal's liability standard should not change with the particular role it is performing at any given moment; rather, it should be as close as possible to the standards of other participants in the contract of carriage. All parties to the multimodal system should be entitled to contract to carry cargo under one contract governed by one set of laws. The uniformity and predictability that would flow from such a system would encourage quicker settlements and more efficient insurance placement.  

Toxic and Environmental Torts within Admiralty

Parties involved with the manufacture and transportation of toxic substances expose themselves to the worst of all forms of civil sanction: uncertain and essentially unpredictable liability. The rapid growth of the chemical age has not been accompanied by a consistent system of rights and liabilities. This problem becomes worse when the facts implicate admiralty jurisdiction. Even with its historically flexible nature, the general maritime law has not fashioned contemporary answers to these questions. Maritime law has been tempered with the admiralty's disinclination either to supersede traditional state tort law and thereby offend principles of federalism or to preempt legislative solutions and thereby offend the doctrine of separation of powers. International efforts to develop comprehensive plans for toxic and environmental liability have not succeeded. Various federal statutes govern cleanup liability yet do not provide any remedy for individual victims. This paper surveys the principal forms of maritime law governing toxic and environmental liability focusing on the areas of contemporary concern. Although products liability actions are highlighted, other types of liability actions are discussed to demonstrate the impact of maritime law on toxic and environmental torts.

Products Liability in Admiralty: Principles of Canadian Law

In Canada, products liability in admiralty is governed by the same generally applicable principles that govern products liability in other areas of the law. However, when considering Canadian law on the topic, another factor to consider is the importance and influence of the English common law on the development and direction of the whole of Canadian law.  

Copyright and the First Amendment: Where Lies the Public Interest?

The United States Constitution grants to Congress the power ‘[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’ The rationale for conferring the limited monopoly of copyright is that the public benefits from the labors of authors and that the copyright monopoly serves to stimulate such creative efforts. The copyright law provides an economic incentive by granting the right to exclude others from certain uses of the copyrighted work. Defining the scope of this right involves a difficult balance between the interests of authors in the control and exploitation of their writings on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand. Focusing on society's interest in access to certain information, a recent line of cases has excused substantial takings of copyrighted material as permissible ‘fair uses.’ After outlining the scope of copyright protection and discussing the fair use doctrine, this comment will retrace the emergence of a ‘public interest’ criterion and consider its long-term consequences. Lastly, in an effort to accommodate first amendment interests without undermining the creative incentive provided by copyright protection, an alternative criterion will be proposed— that of the necessity of the borrowing of copyrighted material.  

A Chart of Bankruptcy Jurisdiction for Admiralty Lawyers

Jurisdictional gamesmanship is now one of the most important skills for admiralty counsel involved in bankruptcy related litigation. Admiralty lawyers are called upon increasingly to engage in such gamesmanship. In order to do so effectively, however, the rules of the game must be fully understood and appreciated. The significance of disputes unrelated to the merits of controversies has been greatly increased by the Bankruptcy Amendments and Federal Judgeship Act of 1984. Although delay, for its own sake, is unethical, these amendments require counsel to be aware of opportunities to select the forum most likely to produce a favorable result for the client's cause. Counsel who fail to avail themselves of these opportunities run the risk of having a disappointed client question their decisions.

Admiralty lawyers and their clients are thought to be uncomfortable in bankruptcy courts. Accordingly, this article will explore various statutory routes whereby admiralty lawyers can plan their escapes from the bankruptcy court, or, at least, from the bankruptcy judge.

The routes to be discussed include: The distinction among core, non-core, and unrelated proceedings; voluntary and mandatory abstention in bankruptcy proceedings; permissive and mandatory withdrawal of a district court's reference of a bankruptcy matter to a bankruptcy court; jury demand; removal and remand; and abstention in bankruptcy cases.

Bankruptcy judges, under 28 U.S.C.A. § 151, are now a ‘unit’ of the United States District Court, known as the bankruptcy court. The United States District Court has original and exclusive jurisdiction over bankruptcy cases and original, but not exclusive, jurisdiction over bankruptcy proceedings. A United States District Court is authorized to refer any and all bankruptcy cases, or parts thereof, to the bankruptcy courts. It appears that the great majority of district courts have made general referrals of all bankruptcy cases and proceedings to the bankruptcy courts.

Under the present court structure, many admiralty lawyers apparently wish to avoid the unit of the United States District Court known as the bankruptcy court. They would prefer that bankruptcy related admiralty litigation be conducted before a United States District Judge. The district court is, after all, the home of admiralty jurisdiction.

The 1984 Act revives the concept of summary jurisdiction that existed under the Bankruptcy Act of 1898. The new label for summary jurisdiction is core jurisdiction. A brief review of some historical milestones will facilitate an understanding of jurisdiction under the 1984 Act.

Jurisdictional Problems Between Admiralty and Bankruptcy Courts

Jurisdictional disputes between admiralty courts and bankruptcy courts have arisen frequently since bankruptcy courts were inaugurated during our republic's first century. Conflicts between admiralty courts and other courts existed prior to the development of bankruptcy courts, but the principles developed for resolving those conflicts are of little assistance in dealing with disputes involving conflicts between admiralty and bankruptcy courts.  

Bankruptcy--An Historical Overview

The present bankruptcy law of the United States has a scope undreamed of when the bankruptcy power was written into the United States Constitution. Changes in bankruptcy law have developed with geometrical acceleration in the last fifty years. Bankruptcy law has participated in the ‘law explosion,’ of which much was written a few years ago, and has had its own special ‘explosion’ as a result of economic changes and the overhaul of the bankruptcy laws in 1978. When I started my practice of law in a bankruptcy firm thirty years ago, I quickly found out that there were very few attorneys who did business with the bankruptcy referee. The practice of bankruptcy was confined solely to specialists. Only the patent lawyers were as exclusively specialized, and no general firm dealt with a bankruptcy problem other than by referring it to a bankruptcy firm or consulting with bankruptcy counsel. Specialized bankruptcy firms, however, have long been inadequate in number to represent all parties in major proceedings. Thus, general firms across the land are now developing their own expertise. The bankruptcy court is no longer the private club room of a fraternity, but now appears to be full of pedestrians. Firms specializing in bankruptcy retain their importance as counsel in large and complex matters.

There is a bankruptcy law ‘explosion’ indeed. This Institute, which has assembled hundreds of participants to consider a number of very serious papers concerning the impact of bankruptcy law on a single industry and the special doctrines by which that industry has historically dealt with debtors and creditors, is one sign of that explosion. The purpose of this paper is to compare the history of bankruptcy and its principles with the maritime law in order to provide a setting for other papers which follow.

Liens and Liquidation: Preferences, Strong Arm Clause, Fraudulent Transfers, Equitable Subordination, Priorities and Other Limitations on Liens Claims

Litigation arising out of vessel arrests and overlapping bankruptcy actions has presented a number of new and challenging questions in the field of maritime creditors' rights. These problems are of particular concern to admiralty practitioners who suddenly find themselves immersed in the unfamiliar intricacies of the Bankruptcy Code. This article addresses two broad areas in which the bankruptcy law most directly affects maritime creditors: (1) the power of the trustee to set aside transfers and (2) the treatment of maritime liens as secured claims in bankruptcy. Curiously, aside from commentary on the jurisdictional issues, little has been written on these subjects in either admiralty or bankruptcy texts. It is assumed for purposes of this discussion that the bankruptcy court has won whatever jurisdictional battle may have been fought with an admiralty court over the issue, that reorganization of the debtor is not an option, and that the bankruptcy court is exercising its powers over core proceedings to adjudicate maritime liens and liquidate maritime assets. Nevertheless, admiralty practitioners will be happy to discover that maritime liens are generally treated with great respect by the bankruptcy courts and are dealt with according to time-honored admiralty law principles.