There are a number of issues and trends impacting the marine pollution liability underwriter. The lack of recent high-profile spills in the United States has only slowed the impact that these issues and trends will have on both insurers and their insureds. This Article will briefly examine a number of these issues.
Arrest, Attachment, and Related Maritime Law Procedures
This Article traces the Admiralty action in rem back to its civilian roots in medieval Europe and shows how the action in England gradually diverged from the Continental model, beginning in the sixteenth century. The action in rem and the arrest of ships in the contemporary law of the United Kingdom, the United States, and Canada are outlined and compared to the civilian saisie conservatoire and its counterpart, the U.S. maritime attachment. Two relatively new procedures employed in modern maritime law in the U.K. and British Commonwealth countries--the Mareva injunction and the Anton Piller order--are also discussed. The author concludes with some incisive comments on salient points in the Arrest of Ships Convention 1999 and the urgent need for greater international uniformity in this vitally important area of maritime law.
Uniformity of Maritime Law, History, and Perspective from the U.S. Point of View
This overview of uniformity in maritime law history and perspective from the U.S. point of view reflects the writings and thoughts of historians, constitutional scholars, and Supreme Court Justices, as seen in the early decisions of the Court on this topic as well as substantive commentaries from law professors and practicing attorneys. This overview is intended to explore substantive aspects of the law of uniformity in the United States as articulated in specific elements of the law that have been developed over the years, in an attempt to coordinate and harmonize the somewhat dissonant voices that have appeared in recent years relative to this elusive doctrine. The need for uniformity and harmony, as articulated by the founders of the Maritime Law Association as it celebrates its Centennial year, is discussed and analyzed from the perspective of various authorities as indicated above, including judges, historians, practicing attorneys and law professors, all with a view of attempting to achieve a uniformity concept and theme in the recent cases on Maritime Law, particularly by the Supreme Court and the potential inroads made upon the concept of uniformity in recent decisions. This Article should also assist those confronted with a need to determine historical precedents on the issue of uniformity, particularly in private international law matters and dealings with foreign attorneys and clients in areas that create potential problems for the users of the American legal system on the issue of uniformity and its approach of historical admiralty principles.
Maritime Personal Injury and Death
A short historical background reviews the jurisdiction of the maritime courts and/or compensation statutes that may be applicable. The classification of the maritime worker involving the worker's status as a possible seaman and the classification of the vessel is important to determine under which venue the claim should be processed. The Article covers the damages that may be recovered; compensation when it is available; and the general maritime law rights to maintenance, cure, and unearned wages, together with a discussion of changes in the law that may occur in the millennium.
The International Safety Management (ISM) Code: A New Level of Uniformity
Development of the International Management Code for the Safe Operation of Ships and for Pollution Prevention (known as the ISM Code) by the International Maritime Organization (IMO) reflects growing worldwide recognition of the need for uniform standards of safety on ships. The ISM Code contains the most far-reaching worldwide mandatory set of shipping regulations undertaken to date. For the first time, the responsibilities of shore-based management and shipboard personnel are integrated in a system designed to eliminate accidents caused by human error. The authors explain the provisions of the code and examine its history, development and implementation, as well as its far-reaching legal and practical implications for shipping interests. This Article should assist shipping interests and attorneys in understanding the ISM Code and ascertaining the risks associated with non-compliance with its provisions.
Carriage of Goods and Charter Parties
This Article describes the reasons that one of the drafters of the proposal by The Maritime Law Association of the United States to amend COGSA wanted to do so. It describes areas in which the interpretation of the present COGSA by the courts of the United States have differed from the interpretation by the courts of other nations. It also describes some of the proposed changes to COGSA. The Article should assist practitioners to understand the need for the proposal and the proposal itself. It will explain why the proposal should form the first step in a two-step process by the United States to join a convention that should unify the law governing the carriage of goods by sea with our trading partners.
Managing Lawyers' Risk at the Millenium
This Article approaches the Admiralty Institute's ethics component in a somewhat different fashion than the usual substantive discussion. The focus is on law-firm risk management. It is one thing to know what constitutes improper lawyer conduct, whether it be unethical conduct or malpractice. It is another thing to understand how to approach these concerns within the context of a law-firm to prevent them and to avoid the liabilities which may result from professional liability or disciplinary proceedings. Accordingly, this Article first identifies prevalent areas of risk, discusses techniques of minimizing potential liabilities which can flow from such risks, and, most importantly, explores ways of making lawyers take interest in avoiding unethical behavior and preventing other types of losses. The Article then turns to specific areas of concern such as administering a conflict-of-interest system and dealing with insuring against professional liability risks. In all, the Article acquaints the reader with the concept of having a law-firm risk manager and the benefits that flow from devoting energy to managing professional liability risks.
The Law of Salvage: A Time for Change? "No Cure-No Pay" No Good?
Traditionally, salvage law in the United States and other maritime jurisdictions has proceeded on the basis of “no cure-no pay.” The means that a salvor receives no reward whatever his exertions or expenditures unless he preserves property having value. Given the cost of maintaining salvage facilities at instant readiness and given the frequent threats of environmental pollution, the traditional system may be found lacking. To maintain a system of salvage, commercially interested representatives have devised a new system known as SCOPIC. This system guarantees remuneration to salvors, under Lloyd's Form, on a tariff basis in certain circumstances. This was an American initiative and should be wholly welcomed by all concerned. Its implications are explained in this Article.
Recreational Boating
This Article addresses the manner in which recreational boating cases have affected U.S. maritime law, particularly in the last two or three decades. The Article focuses on modification of case law concerning admiralty jurisdiction and preemption issues, the latter as it has affected the law of damages. The Article also covers the incorporation of the “reasonable care” standard in recreational cases, particularly those involving passenger claims, and briefly discusses expanded federal regulation of recreational boats and boating.
Federal and State Preemption Regarding Vessel Construction and Operation
The usurpation of one body of law by another is not new to admiralty and maritime law. This battle was waged in England in the sixteenth and seventeenth centuries between the common law and admiralty courts, and was not finally settled until well into the present millennium with enactment by Parliament of the Administration of Justice Act, 1970. In the latter half of the twentieth century, the United States experienced a similar phenomenon. Instead of a battle between the common-law and admiralty courts over areas of jurisdiction, however, the battle is between what has become to be known as the environmental law and the federal maritime law, both statutory and decisional. This Article attempts to outline the nature of this dispute between state environmental enactments and federal statues designed to regulate maritime commerce. The apparent disregard by the courts to attribute any special status to the statutory body of federal maritime law and its connection to the constitutional recognition of the admiralty and maritime law as body of federal substantive law is disturbing. In fact, some of the cases discussed herein do not even address the application of the maritime or admiralty law to these disputes. This Article looks at the key constitutional decisions in the area of oil pollution that have arisen out of attempts to displace the authority of the federal government in the regulation of certain aspects of maritime commerce. The Article also appeals for more balanced approach, one which recognizes the true international nature of the admiralty and maritime law, which remains just as true today as it was at the time of the adoption of the United States Constitution in 1789.