This Article examines the conflict of interest issues that frequently arise in the insurance defense practice. Upon examination it becomes clear that these issues are neither as complex nor as difficult to resolve as they appear. The source of much of the confusion in liability insurance litigation is the “dual-client” doctrine, namely, the increasingly well-entrenched rule that the insurance defense counsel is deemed to have two clients in any given case: the insurer and the insured.
Marine insurance contracts have traditionally been interpreted according to well-established contract principles. The construction of policies is said to be governed by the same principles that apply to the construction of any other contracts. Phrases such as the “intention of the parties must be discovered from the document itself,” or words to that effect, still dominate the literature on marine insurance contracts. It is the document itself, not what the parties might have intended to write, that is important. Even in considering the most common exception to this rule, usage, evidence is only admitted to demonstrate the mutual intent of the parties to the contract. This Paper examines the changing judicial attitudes toward the interpretation of insurance contracts. In particular, consideration is given to the doctrine known in the United States as “the reasonable expectations of the assured.” This doctrine has been adopted in Canada in a limited fashion to assist judges in reaching conclusions favorable to an assured. It has not yet been applied to the construction of marine insurance contracts. This paper considers such application.
It is impossible to come away from a study of the doctrine of reasonable expectations without being struck by its incongruity with traditional principles of contract interpretation. This doctrine's approach to construction is based entirely on the “expectations” of one of the parties to the contract. Stripped down to its bare bones, the doctrine represents an individual judge's view of what is fair in the circumstances of a particular case. This paper also explores the extent to which the judiciary, in its desire both to create and to apply rules to guide future conduct, has given birth to a rule that, when applied to its full extent, is the antithesis of the traditional principles of contract construction. One is forced to ask whether judicial models of contract interpretation have changed so radically that the traditional rules are at risk of being discarded. The effect of the dissolution of traditional rule-based analysis in favor of the “reasonableness” approach is another focus of this Paper. As part of its focus, this Paper also explores whether a rule-based analysis may be subject to re-evaluation by the increasing number of women in the legal profession and the judiciary.
Finally, the implications that these developments may have on the future construction of marine insurance contracts are considered. An attempt is made to provide the reader with some idea of the manner in which these developments may affect the outcome of litigation involving marine insurance policies.
The title of this paper, “Varieties, Combinations, and Coverages,” embraces virtually every significant development in marine insurance that has marked its evolution into the sophisticated industry that it is today. To aid those who must transit these sometimes difficult waters, this Article has been prepared with three primary objectives in mind. The first is to serve as a primer, informing the reader of the basic types of marine insurance coverages and explaning the more salient features of each. One coverage that is a relatively new source of indemnity to the maritime industry is the comprehensive general liability (CGL) policy. The second objective of this Article is to illuminate the significance of the CGL policy to the marine insurance business as defined by its experience in our courts.
A sophisticated insured's insurance portfolio will include a broad array of coverages designed to accommodate most foreseeable business risks. Modern coverages disputes frequently spill beyond the confines of a single policy and involve difficult considerations posed by multilayered excess and umbrella coverages and other diverse considerations. This Article seeks, as its third goal, to examine these multilayered disputes. The purpose is to provide basic guidance for those whose professional interests bring them into contact with these daunting issues.
The purpose of this Article is to outline those key federal, state, and international regulations that expressly mention or materially affect marine terminal operators in the United States. There are four major areas in which these regulations fall. Part II of this Article will discuss the federal regulation of marine terminal agreements and tariffs. Part III will outline a marine terminal operator's liability for cargo damage under federal, state, and international law. Part IV will address the environmental regulation of marine terminal operators on the federal, state, and international levels, and Part V will discuss those state and federal regulations relating to the protection and security of waterfront facilities. The topic of federal, state, and international regulation of marine terminal operators is a very broad one. By focusing upon the foregoing four major areas of express regulation of marine terminal operators, this Article necessarily excludes the following from its scope: (1) federal, state, or international regulations that apply to United States marine terminal operators indirectly; (2) federal, state, or international regulations that apply to every business, including marine terminal operators, merely by virtue of being in business; and (3) minor or immaterial federal, state, or international regulations that pertain to United States terminal operators.
When a maritime worker is injured or killed, his legal rights and the obligations of those who may have caused the injury or death are determined by an analytical process that first defines the worker's particular employment function, and then determines which body of law governs the rights and obligations between the worker and the employer. This determination dictates both the rights of the worker against third parties and the employer's rights and obligations vis-a-vis third parties. Essentially, the maritime worker is placed into one of three categories: (1) a vessel crew member (loosely called a seaman), whose rights against his employer are determined by various statutes applicable solely to seamen, including most prominently the Jones Act, and by general maritime law which specifies certain duties owed to the seaman by his employer and third parties; (2) longshoremen, shipyard and repair workers, other harbor workers, and certain offshore workers covered by the Longshoremen's and Harbor Workers' Compensation Act (LHWCA); or (3) workers who, by virtue of the nature and location of their duties, have rights against their employer under state workers' compensation laws. Once a worker is put into one of the three categories, a determination of his rights against his employer and third parties is fairly straightforward since most of the major legal questions in that regard have been resolved. But the threshold question of determining the proper category in which the worker belongs is fraught with legal problems with which the courts and Congress have struggled, frequently at cross purposes, for much of this century. This Article will focus on the threshold categorization problem, with particular emphasis on that problem as it applies to terminal workers.
The purpose of this Article is to provide an overview of the historical development of multimodalism, including an examination of the regulatory and legal structure under which it has evolved and of its impact on terminal operations and traditional patterns of carge routing. It is hoped that this Article will furnish a useful introduction to the analysis of other writers in this symposium who will consider specific current legal and operational problems.
Though the result of multimodalism is transportation efficiency, regulatory and legal confusion are its by-products. For example, who, if anyone, decides what constitutes a fair charge for this intermodal transportation? To whom does the shipper turn if the cargo is damaged? What are the limits on the carriers' liabilities? When must parties file claims and suits? These and related questions are the subject of this Article. First, we shall discuss the statutes and regulations currently governing multimodal transportation in the United States. Next, we shall address the confusion that results from these overlapping regimes. Finally, we shall suggest ways of dealing with the problems resulting from this confusion.
This Article focuses on one aspect of these issues: the frustrating problems posed by conflicting laws and regulations for certain shoreside participants in the multimodal transportation process. With the trend toward multimodal transportation showing no signs of abatement, it is likely that the problems discussed will arise with increasing frequency. Therefore, these problems must be addressed and rectified.
Besides memorializing an agreement to perform certain tasks, an important function of vessel contracts and marine terminal contracts is to apportion the risks attendant to performance between the contracting parties. This Article addresses the issue of how and to what extent risks may be allocated in vessel and marine terminal contracts. An understanding of the ways in which the applicable statutes and case law permit or forbid the parties to allocate the risks, for example, of loss or damage to cargo, of unseaworthiness of the vessel, or of injury to a crewmember, is essential to the effective drafting and negotiation of these contracts.