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.
Coverage of Environmental Problems
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.