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.  

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.