This Article addresses several of the more important differences between the domestic portion of the Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Specifically, practical tips for the commercial practitioner are set forth in connection with subject matter jurisdiction, statute of limitations applicable to enforcement of arbitration awards, venue considerations, and standards for vacatur of awards. The Domestic Legislation and the Convention are compared and contrasted with respect to the manner in which they each address these issues.
'Twas the Night Before Regulations: Foreign-Flag Cruise Ships and the ADA
In June 2000, the United States Court of Appeals for the Eleventh Circuit ruled that Title III of the Americans with Disabilities Act (ADA) applies to foreign-flag cruise ships that carry U.S. passengers and embark at U.S. ports. Stevens v. Premier Cruises, Inc. held that application of the ADA to a foreign-flag cruise ship under such circumstances does not violate the usual presumption against extraterritorial application of U.S. laws, but the case failed to address the important question of whether courts can now compel shipowners to modify the physical features of existing vessels to enhance accessibility, and if so, to what extent.
This Article focuses on several critical and practical problems with civil lawsuits imposing construction or renovation standards on cruise ships prior to the enactment of relevant regulations by the federal agencies to which Congress delegated sole authority under the ADA. Although detailed regulations are being enacted, final accessibility standards for ships are not expected for approximately eighteen months and the notice-and-comment rulemaking procedures required by the Administrative Procedure Act have not yet been initiated. Thus, any interim exercise of jurisdiction by courts to enter injunctive relief in various venues, in order to compel shipowners to renovate vessels to as-yet-unspecified standards, would be premature. Such lawsuits violate constitutional due process and endanger the long-settled tradition of maritime uniformity. Attorneys prosecuting these suits prior to the enactment of controlling regulations should not be awarded attorney's fees, as generally provided for the “prevailing party” under the ADA, until the responsible agencies promulgate a comprehensive regulatory scheme for vessels and shipowners are given an opportunity to comply.
Recent Developments in Maritime Law: Changes in the Law Moving as Rapidly as the Modern Day Personal Watercraft that Propel Them
This Article examines the effect that the rise in popularity of personal watercraft has had on maritime law. It discusses the Calhoun decisions and reveals the disuniformity caused by those decisions. The Article notes that liveries that rent personal watercraft may face uncertain damage exposure in light of the outcome in Calhoun . However, liveries may reduce this exposure through their rental agreements and the Limitation of Liability Act. This Article concludes that the continuing rise in popularity of personal watercraft will continue to threaten the uniformity of maritime law. Education of the liveries by the maritime law community and the development of uniform contractual terms in the rental agreements are the best means of combating this disuniformity.
The Investigation of Marine Accidents: A U.K. Accident Investigator's View
In this Article, the United Kingdom's Chief Inspector of Marine Accidents describes the work of the British Marine Accident Investigation Branch and explains how it undertakes its work. The Article makes clear that the fundamental purpose of an investigation is to determine the causes of the accident, with the specific aim of improving safety at sea and the avoidance of accidents in the future. The Branch is not an enforcement agency nor does it prosecute anyone or apportion blame.
Professionalism: One (and Only One) Women's Perspective
As the profession becomes more diverse, so do views of what constitutes a professional. Are codes of professionalism, which for the most part were written before the significant influx of women and minorities into the profession, reflective of the values of the third of the profession now comprised of these diverse members? This Article presents an overview of the many changes in the profession over the last decade and a perspective on how and why those changes may call for another look at the codes of professionalism that are now in place.
Judicial Decision-Making Analysis of Federal Issues in Modern United States Supreme Court Maritime Cases
This Article revisits several of the fundamental legal precepts employed by judges in the decision-making process and, in particular, provides a structured inquiry into the application of these precepts in modern United States Supreme Court maritime federalism cases. It is the conclusion of this Article that, despite the continuing outcry for uniformity in the Court's maritime decisions, it appears that, for the most part, these decisions are based on established legal precepts and, therefore, reflect the application of reasoned judgment.
What Law is "Saved for Suitors" When a Maritime Tort Case is Filed in State Court?
In some circumstances, state rather than federal law may apply in maritime tort cases, whether filed in state or federal court. Deciding when and to what extent state law may apply is a very difficult task, mainly because of inconsistent United States Supreme Court jurisprudence. This Article suggests a “bright line” test for deciding this choice-of-law issue in maritime tort cases. Additionally, if the case is to be governed by federal law, the Article also suggests a method to decide what law should be applied in the absence of binding precedent or a settled general maritime rule.
The Role of Federal Courts in Admiralty: the Challenges Facing the Admiralty Judges of the Lower District Courts
In 1993, the inaugural Nicholas J. Healy Lecture on Admiralty Law, given by the late Judge John R. Brown at New York University's School of Law, was published under the title Admiralty Judges: Flotsam on the Sea of Admiralty Law? Judge Brown lamented the decline in the role of admiralty judges to little more than “conforming admiralty law to Congressional enactments and filling in gaps in maritime law only when authorized by Congress.” This Article is a respectful rebuttal to Judge Brown's position. The first Part of this Article reviews the traditional role of admiralty judges. The second Part reviews the role of Congress in the development of admiralty law in the United States and the constitutional limitations on legislation affecting this area of the law. The third Part analyzes the Supreme Court's decisions in Mobil Oil Corp. v. Higginbotham and Miles v. Apex Marine Corp., decisions identified by Judge Brown as marking the beginnings of the “demise” of the role of admiralty judges. The analysis indicates that, in contrast, the rationale of those decisions reflects the role the Constitution sets forth for admiralty judges as the Supreme Court has defined it for many years. The final Part of the Article surveys the many complex issues facing admiralty judges in the federal courts today. This Article concludes that although the role of admiralty judges has changed, as have the issues to be addressed, the demise of the role of the admiralty judge is greatly exaggerated.
Overview of American Justice
This Article, which relates to American justice from the maritime law perspective, provides a vantage point into the background of the maritime practitioner and the state and federal court structure. Illustrative of the system are case studies regarding choice of law and forum selection as embodied in the Sky Reefer decision and comments on the American civil jury system. This Article discusses practical modern improvements to the justice system by reviewing alternative dispute resolution, the new amendments to the Federal Discovery Rules, and the recent Lewis & Clark case. The Article is designed to give a preliminary insight to a reader, whether American or from abroad.
The Hull Policy Today: Thoughts from the Claims World
The subject of this Article is the current status of hull clauses. One essential question is whether present hull clauses should be amended with relatively minor revisions or whether they should be replaced with new hull clauses written solely by the U.S. market or jointly with the participation of underwriters from overseas markets. Market conditions finally appear to be changing; soft premium rates have begun to “harden,” and now may be a propitious time to develop new policy wording. If insurance rates continue to climb on a worldwide basis, how will this affect policy terms and conditions? The answers to these important issues will be determined as we proceed into the new millennium.
It is important for marine insurance professionals to be well versed in maritime law in order to better understand how courts may interpret marine insurance policies. Courts provide clarity and guidance when issues of policy coverage arise. When faced with nonroutine claims, marine insurance professionals must be able to evaluate the strengths and weaknesses of various positions, which may involve interpreting key phrases such as “privity” or “seaworthiness.” They depend upon such elements as “clarity” and “certainty” in these claim decisions because they provide an established frame of reference. The facts of each individual case, together with an evaluation of the language of key policy provisions as defined by the courts, must all come together in the resolution of these claims. If the key terms are unclear and subject to varying interpretations, potential confusion among parties may cause the fair and efficient settling of claims to become complicated and, at times, impossible to resolve without resort to litigation.