Third-Party Liability Under Opa 90: Have The Courts Veered Off Course?

Judicial expansion of liability under oil-pollution liability statutes is an historical fact. It is particularly evident with respect to third-party liability for oil pollution response costs and damages. In the 1970s and 1980s numerous cases under the Federal Water Pollution Control Act defined and redefined third-party liability in ways unanticipated by the maritime industry. Often these decisions appeared to be based on little more than a desire to assign maximum liability and responsibility to parties viewed as culpable or having the deepest pockets. Judicial modification of the statutory scheme was often aided, or caused, by a lack of coherent legislative history on the subject. The situation has not been helped, and indeed has been exacerbated, by the passage of the Oil Pollution Act of 1990 (OPA 90). In fact, the decisions by the district and appellate courts in National Shipping Co. of Saudi Arabia (NSCSA) v. Moran Mid-Atlantic Corp., which evidence a basic misreading of the provisions of OPA 90, have resulted in an interpretation of the law that may potentially leave a shipowner with a large liability for oil-spill response costs and third-party claims that is unrecoverable from a culpable third party. This is possible even though the shipowner may be entirely blameless for the spill from its vessel.  

Marine Insurance

Starting from a historical background of marine insurance law, the Article discusses several areas where “uniformity is impaired or threatened” or the law “seem confused, obscure of fluid.” The areas selected for particular discussion are: choice of law, warranties and conditions, utmost good faith in disclosures, extra-contractual damages, and causation. The Article points out disuniformities and discusses their causes and the prospects for cure. Special emphasis is placed on the problems presented by the 1954 Supreme Court decision in Wilburn Boat Co. v. Fireman's Fund Insurance Co., which announced a departure in marine insurance cases from the traditional admiralty practice of applying admiralty law in admiralty cases. Suggestions are advanced for the mitigation of the “mischief” that case has spawned.

Collision Law During the Last Quarter-Century of the Millenium

While radar, ARPA, and other technological developments, together with better training of ship's officers in their use, have substantially reduced the frequency of collisions and strandings, they have by no means eliminated them. Navigation has been simplified to some extent by the adoption of two major codifications: (1) The International Regulations of Preventing Collisions at Sea (COLREGS), the first thorough revision since the International Rules were formulated at the Washington Conference of 1889, and (2) the Inland Navigation Rules, effective throughout the United States in place of the old Inland, Great Lakes, and Western Rivers Rules. The United States law in both-to-blame cases has been brought into closer harmony with that of the other maritime countries by adoption of the proportional fault rule in United States v. Reliable Transfer Co., perhaps the most significant decision in the area ever rendered by the United States Supreme Court.

Collision Law in the Next Millenium

The Article predicts--based on present trends--what maritime transport may be like in the year 2025. Larger vessels will speed across the oceans, but their increased electronic wizardry will not bring an end to the recurring nightmare of collisions in crowded seas. The IMO may achieve near dictatorial powers to regulate vessel navigation and control pollution of the air and sea. In many ways vessels operations may resemble those traditional for aircraft, while expectations of privacy no longer exist. Human error can still be counted on to produce careless decisions that cause damage to one great ship and the total loss of another, with accompanying personal injuries and cargo damage.  

Professionalism: Charting a Different Course for the New Millenium

Professionalism is a lofty ideal to which all lawyers should aspire. It includes the elements of ethics and integrity, competence combined with independence, meaningful continuing learning, civility, obligations to the justice system and pro bono service. In today's hectic practice of law, it is difficult to fulfill the dictates of professionalism that must therefore be strenuously reinforced in us all. The effort should start in law school and continue with the work of the organized bar and professional associations with the encouragement of the courts. Through a concerted effort by each of these institutions, the public's confidence in the legal profession and our own enjoyment of the practice will be restored. The Law in the 50s, it was a calling; in the 70s, it was a profession; in the 80s, it became a business; and if we do not watch out by 2000, it will be a racket. Celia Johnstone, President Canadian Bar Association August 1992  

Uniformity of Maritime Law--An International Perspective

Starting with an analysis of the importance of uniformity, this Article gives a brief history of the search for uniformity and examines the role of the various governmental and nongovernmental bodies, which have been involved over the years. Consideration is given to the range of instruments by which uniformity may best be achieved; the Article also explains the difference between public law and private law conventions. The current issues under consideration by the IMO Legal Committee and the CMI are discussed and the problems of implementation are examined. Rationalization of the many conventions into a single third-party liability convention is considered and rejected and the treaty obligations of those states which ratify a convention are explained.

The Law of Towage at the Millennium: What Changes are Needed?

The law of towage dates from the first half of the nineteenth century, when the development of steam power permitted the first self-propelled tug boats. But modern towage law is largely defined by three United States Supreme Court decisions handed down in the first half of the Twentieth Century: Sacramento Navigation Co. v. Salz (1927), which created the “flotilla rule” to determine when the value of a towed vessel should be included in a limitation of liability fund; Stevens v. The White City (1932), which held that the tug is not the bailee of the tow; and Bisso v. Inland Waterways Corp. (1955), which held that exculpatory clauses in towage contracts are void and unenforceable. A fourth Supreme Court case, Ryan v. Pan-Atlantic Corp. (1956), although not a towage case, has led some courts to engraft a warranty of workmanlike performance or service onto towage contracts. This Article examines and criticizes these four doctrines, and is intended to provoke a lively debate on how towage law in these areas could be improved in the next millennium.

Ethics at Sea: Ethics Issues for Maritime Lawyers and Insurers

In the practice of admiralty law, ethical issues arise with great frequency. This Article explores the ethical issues and the duties of lawyers that surround those ethical issues. The first part of the Article looks at the recurring conflicts of interest issues for admiralty attorneys. The second part examines the litigation process. In particular, the Article discusses the “tripartite relationship” between the insurer, the insured, and counsel. The delicate ethical line that counsel must walk when representing the interests of the insured (with costs borne by the insurer) is examined in detail. The second part of the Article also presents a wide range of scenarios that present ethical dilemmas facing insurance defense counsel. Finally, the Article responds to some of the questions raised by attorneys at the Planning Committee of the Tulane Admiralty Law Institute. Specifically, the question of whether attorneys may pay for or guarantee the payment of medical services is explored. The Article examines the applicable ethical rules and concludes that as long as counsel has an appropriate agreement with the client, agreements for the provision of medical services are proper.  

Collisions Involving Tugs and Tows

This Article examines the negligence principles that govern an action arising out of a collision involving a tug and its tow. First, it canvasses the navigational duties imposed on the tug. Specifically, tug unseaworthiness, towlines of improper length, and tugmaster ignorance may give rise to liability. The Article also briefly presents the duties imposed on towed vessels. Next, the Article explores negligence clauses in tug-tow contracts and concludes that contractual provisions that absolve tugboat owners of negligence liability are against public policy and therefore invalid. The Article explores the liability of the tug and tow when a third party is involved in the collision and concludes by examining practical steps to deal with human error disasters as a means of collision prevention.  

The Tug and Tow Relationship in the United States

Tugs and barges are the cheapest vessels of American commerce, traveling through the rivers and canals of the nation on a constant basis. This industry, which delivers goods throughout the American continent, is governed by a myriad of statutory and regulatory controls, contract principles, and legally imposed duties and standards of care. This Article explores all of these aspects of the tug and tow relationship. In particular, the Article briefly catalogues the relevant federal regulations which govern tugs and barges. Next, the various contractual agreements between tugs and barges are explored. The Article then turns to the duties and the standard of care imposed on tugs, including the warranty of seaworthiness (which is imposed on tugs and barges) and argues that there is no warranty of workmanlike service in a towage contract. The Article concludes with a discussion of apportionment of fault in cases involving tugs and tows.