“Admiralty jurisdiction” describes one of the three types of subject matter that federal courts may hear and decide. The phrase is unique, but it does not tell judges, counsel, and commentators (1) whether the phrase can mean one thing in the context of the Constitution and another thing in the context of the Judicial Code, (2) whether a particular matter is within or without the scope of the subject matter, (3) whether a matter can be moved into the scope by judicial decision or only by act of Congress, and (4) whether Congress can change the scope that the courts have defined. The key to answering these questions lies in the Constitution's words: not “jurisdiction,” but the judicial “power” over “cases.”
The Uniqueness of Admiralty and Maritime Law
Admiralty and maritime law was established as a unique body of law by the United States Constitution when the Drafters recognized the need for uniformity and vested the federal court system with jurisdiction over the entire subject matter of admiralty and maritime matters. This grant was only one aspect of the uniqueness of admiralty law. This Article explores the differences in admiralty and shoreside law. From jurisdiction to personal injury, from seaworthiness to salvage, a case in admiralty is often very different from a case in which the shoreside law applies. In a sense, water changes everything. These differences arise from the practical and commercial peculiarities of waterborne activities and trade.
"Employment" From Calm Waters to War Zones: The Unique Nature of Time Charters and a Time Charterer's Right to Exploit the Full Earning Power of the Vessel
The unique feature of time charters is that they are not contracts for carriage but contracts for services, under which ownership and possession are separated from use of the ship. Owners carry the risk of maritime accidents and remain responsible for the safety and navigation of the ship “as when trading for their own account.” But the ship trades instead for the account of time charterers.
The author concludes that the latest English law cases to test this conflicted bargain in two vital areas load the dice in favour of the charterers and their rights to exploit the earning power of the ship.
Ethical Considerations in Representing Multiple Parties in Litigation
Attorneys are often asked to represent more than one party in connection with litigation. This Article evaluates the ethical considerations essential to multiple-party representation and addresses practical considerations to avoid ethical violations.
Professionalism: The Next Level
During the 1990s, concern for lawyer civility was the frequent focus of those concerned with lawyer professionalism. The organized bar took the lead in responding to the civility “crisis” in the profession. A more serious threat to professionalism has recently arisen in response to perceived lawyer involvement in corporate scandals and abusive tax-avoidance schemes. The federal government has adopted statutes and rules that supplant the traditional notions of lawyer independence and self-regulation. To avoid further government encroachment, the legal profession, acting primarily through law firms, must act to reestablish professional independence, especially independence from dishonest clients who could involve lawyers in schemes causing financial harm to the public.
Unique Features of Maritime Collision Law
This Article provides an overview of certain unique legal aspects associated with maritime collision litigation. Although the technology associated with marine navigation has drastically improved over the last few centuries, maritime collisions continue to occur with alarming frequency. Such accidents are often the precursor to costly and complex litigation that ultimately will trigger the application of distinctive legal concepts, rules, and procedures. The following will provide a broad overview of these doctrines, which are unique in their applicability to maritime collision law.
An Update on the Troubled Waters of Towage Law
During the twentieth century, the United States Supreme Court issued two key opinions in domestic towage cases, Stevens v. The White City and Bisso v. Inland Waterways Corp. Each decision caused great uncertainty in the law of towage because each relies on false assumptions and faulty logic. In 2004, towage law was further muddied because of an apparent split of authority between the United States Courts of Appeals for the Fifth and Eighth Circuits over the proper meaning of Rule 14 of the Inland Navigational Rules. Despite these and other uncertainties in the law of towage, two recent decisions awarding limitation of liability to vessel owners demonstrate the ongoing viability of limitation defenses to major towing casualties. The purpose of this Article is to provide an update on the law of towage through (1) a brief background of the Stevens and Bisso decisions, (2) a discussion of the disagreement over the meaning of Rule 14, and (3) an examination of the two recent limitation decisions and the continuing vitality of that defense.
All or Nothing?
The aim of this Essay is very simple: it is to demonstrate how quickly and how far the common law of England has departed from its traditional attitude, evident throughout the law of obligations, that while it may be very desirable for the parties to settle their dispute by themselves, the courts would not ordain a compromise, would not “split the difference,” but would give judgment in toto for one party or the other. The aim is to document the change, not to speculate on possible justifications or explanations.
Nevertheless, it may be suggested, as to justification for the change, that the traditional attitude, sensible enough in claims for property, which either belongs to the claimant or does not, may be thought less appropriate where the claim is for money, so easily divisible whether the claim is for the sum promised or paid in advance or for damages for harm caused. After all, the merits are not always all on one side or the other, though one must be aware of the tension between fairness and predictability of outcome. As to explanation, it may be that as long as the quantum of recovery fell within the province of a civil jury composed of laymen, who can usually see a matter in the round, the judges could rely on it to reach a fair result; now that the civil jury is virtually extinct in England, the judges perhaps feel themselves bound or entitled to take over its role in that respect. These questions are left to the reader, for in this Essay they are barely adumbrated by the writer.
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Terrorism and Port/Cargo Security: Developments and Implications for Marine Cargo Recoveries
This Article briefly reviews the history of terrorism from a maritime perspective and then outlines the legislation and various security initiatives enacted since the attacks of September 11, 2001, that are relevant to the carriage of goods by sea. After highlighting some of the more prevalent issues raised by the new security requirements, the potential impact on maritime cargo litigation is examined. The Article concludes that liability will depend on the precise circumstances of the loss (including, as a threshold issue, whether a terrorist act can be adequately established), whether the events were foreseeable, and, in the absence of one of the enumerated exceptions to liability found in COGSA (where it applies), whether adequate security was in place to protect the cargo from foreseeable events.
An All Hands Evolution: Port Security in the Wake of September 11th
On September 11, 2001, terrorists used the U.S. aviation system to launch three massive attacks that forever changed America and the lives of Americans. This Article states that, because our seaports are as vulnerable today as our airports were on September 11th, many fear the U.S. shipping industry may be the next terrorist target. Various international, national, state, and local agencies have enacted a myriad of initiatives to combat terrorism while keeping our nation's ports open, efficient, and secure.
This Article considers these issues in the international, domestic, and local contexts. In the international context, the Article looks primarily at the actions of the International Maritime Organization. For the domestic context, the Article considers the actions of the United States Departments of Treasury, Defense, and Transportation; the Maritime Administration; the Federal Maritime Commission; and the Environmental Protection Agency. Finally, for the local context, the Article looks to the activities of the Georgia Ports Authority and the Savannah Port Security Committee. The Article concludes that the mixture of international, federal, state, and local agencies that share jurisdiction over ports illustrates that port security is and will continue to be “an all hands evolution.”