Ethics at Sea: Ethics Issues for Maritime Lawyers and Insurers

In the practice of admiralty law, ethical issues arise with great frequency. This Article explores the ethical issues and the duties of lawyers that surround those ethical issues. The first part of the Article looks at the recurring conflicts of interest issues for admiralty attorneys. The second part examines the litigation process. In particular, the Article discusses the “tripartite relationship” between the insurer, the insured, and counsel. The delicate ethical line that counsel must walk when representing the interests of the insured (with costs borne by the insurer) is examined in detail. The second part of the Article also presents a wide range of scenarios that present ethical dilemmas facing insurance defense counsel. Finally, the Article responds to some of the questions raised by attorneys at the Planning Committee of the Tulane Admiralty Law Institute. Specifically, the question of whether attorneys may pay for or guarantee the payment of medical services is explored. The Article examines the applicable ethical rules and concludes that as long as counsel has an appropriate agreement with the client, agreements for the provision of medical services are proper.  


Collisions Involving Tugs and Tows

This Article examines the negligence principles that govern an action arising out of a collision involving a tug and its tow. First, it canvasses the navigational duties imposed on the tug. Specifically, tug unseaworthiness, towlines of improper length, and tugmaster ignorance may give rise to liability. The Article also briefly presents the duties imposed on towed vessels. Next, the Article explores negligence clauses in tug-tow contracts and concludes that contractual provisions that absolve tugboat owners of negligence liability are against public policy and therefore invalid. The Article explores the liability of the tug and tow when a third party is involved in the collision and concludes by examining practical steps to deal with human error disasters as a means of collision prevention.  


The Tug and Tow Relationship in the United States

Tugs and barges are the cheapest vessels of American commerce, traveling through the rivers and canals of the nation on a constant basis. This industry, which delivers goods throughout the American continent, is governed by a myriad of statutory and regulatory controls, contract principles, and legally imposed duties and standards of care. This Article explores all of these aspects of the tug and tow relationship. In particular, the Article briefly catalogues the relevant federal regulations which govern tugs and barges. Next, the various contractual agreements between tugs and barges are explored. The Article then turns to the duties and the standard of care imposed on tugs, including the warranty of seaworthiness (which is imposed on tugs and barges) and argues that there is no warranty of workmanlike service in a towage contract. The Article concludes with a discussion of apportionment of fault in cases involving tugs and tows.  


The Relationship Between the Tug and Tow in the United Kingdom

The English common law of tug and tow, particularly the duties of one to the other, were fully developed by the end of the nineteenth century. This Article explores the common-law duties of the tug and the tow and the contracts subsequently created to redistribute these duties. First, this Article sets out the relative common-law duties of the parties to a towage contract. Next, it examines the effect of two types towage contracts, the UK towage conditions and the Towcon and Towhire contracts. It concludes that the modern view is to contract on a “knock for knock” principle, which has each party bearing his own losses, being accountable for his own personnel and equipment, and insuring the resulting risks.  


Liability of Wharfingers, Fleeters, and Bailees

The rules governing the liability of wharfingers, fleeters, and bailees date back to the late nineteenth century. This Article details the various legal duties and standards of care imposed on wharfingers, fleeters, and bailees. Specifically, the Article discusses a wharfinger's duty to provide a safe berth, a fleeter's duty to adequately moor, and the presumptions, inferences, and burdens of proof which govern actions brought against wharfingers, fleeters, or bailees. The Article then turns to specific defenses to liability. If a bailee's control over the damaged property is not exclusive or if the accident occurred due to an act of God, liability may not be imposed. The Article next discusses the role of custom and practice (and specifically the warranty of workmanlike performance) in determining the contractual obligations of wharfingers and fleeters. Finally, the Article discusses the rules governing a wharfinger's liability for personal injury and death and places particular emphasis on the government regulations that set the standard of care for wharfingers.  


Exculpatory and Benefit of Insurance Clauses in Towage and Pilotage

Although tug operator's attempts to shift their liability to the towed vessel through exculpatory clauses have mostly failed, they have generally succeeded in transferring their liability to the tow's insurers through “benefit of insurance” clauses. This Article first examines the history of exculpatory clauses in towage contracts in the twentieth century, demonstrating that American courts have not enforced them. Next, the Article explores the “pilotage” clauses which the courts have enforced to shift liability to piloted vessels, despite the clause's close similarity to the exculpatory clauses rejected by the courts in the towage context. The Article concludes that all of the contractual maneuvering of tugs and tows to shift liability could best be avoided by treating exculpatory clauses in towage contracts no differently than other contractual clauses.  


Burdens of Proof Between Tugs and Tows

Historically, in negligence actions involving a tow against its tug, the burden of proof has rested with the tow. Recently, however, a trend has developed to shift the burden of proof onto the tug to explain the causes of the damage to the tow. This Article examines the history of burdens of proof in negligence actions by the tow against the tug. It explains an exception to the general rule which placed the burden of showing negligence on the tug. When the tow had been grounded, the burden of proof shifted to the tug to explain its actions. After demonstrating that some recent decisions can support shifting the burden in nongrounding cases, the Article suggests that this expansion should be limited to those cases in which the information needed to rebut the inference of the tug's negligence is with the tug.  



A Pilot is a Pilot: Compulsory Pilots--Vessel Owner's Responsibilities for Intervention and Personal Injury

Although in the United Kingdom the pilot has its own status, American law has failed to recognize the pilot as independent from the vessel's officers and crew. This Article examines two consequences of the American approach to the pilot. First, it explores the master's duty to intervene when the pilot is behaving incompetently. Second, it examines the remedies available to the pilot under the Jones Act, the LHWCA, and under the warranty of seaworthiness. The Article concludes that the pilot should be considered an independent contractor, separate from master and crew, and should have his duties and remedies parceled accordingly.  


Dangerous Water Without a Chart: Pollution Problems as they Relate to Tugs and Barges

Contrary to common perceptions, most oil spills are small and occur on inland waterways. These inland spills often involve tugs and barges. This Article explores the issues surrounding tug and barge spills in inland waterways. Examining the Oil Pollution Act of 1990 and the Comprehensive Environmental Response Compensation and Liability Act of 1980, the Article analyzes both the criminal and civil aspects to this litigation. In the criminal sphere, the Article examines the issues of whether government personnel can question the vessel workers involved in the spill and whether these vessel workers have the benefit of a Miranda warning. In the civil area, the Article explores the problem of determining the responsible parties to an inland waterway spill and the cleanup difficulties incident to an inland waterway spill.  


Introduction: Towage, Salvage, Pilotage, and Pollution

This Symposium marks the twenty-eighth year that the Admiralty Law Institute has sponsored a symposium in the Tulane Law Review. The first of these symposiums appeared in 1967 and dealt with the subject of the Hull Policy. To commemorate this occasion, this Symposium features a wide range of Articles and Essays on towage, salvage, pilotage, and pollution. In addition, and for the first time, the student-written contributions to this Symposium are all devoted to admiralty law.