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.”
Preemption, Remedies, and Criminal Liability: Environmental Issues and the Ramifications of Huron Portland Cement Co. v. City of Detroit
As concern for the safety and protection of the environment and natural resources has grown, the legislative efforts of the federal government have correspondingly expanded. This Article states that maritime transportation of oil and other hazardous substances now faces one of the most comprehensive schemes of federal regulation and that such legislation is often prompted by an occurrence that draws sharp focus on the maritime industry and the dangers inherent in the maritime transportation of oil and hazardous substances.
The Article notes that the regulations of the various states and localities are interwoven with this comprehensive federal system. These regulatory schemes have been put in place to protect the populations and resources under local jurisdiction as well as to ensure compensation for expenses incurred by local authorities as a result of pollution incidents. While one might argue that this multilayered system of federal, state, and local regulations offends the uniformity premise of maritime law or that the federal government's activities in this area would indicate a preemption in the field of environmental regulation, the Article explains that courts have consistently allowed states and localities to exercise police power in the area of pollution absent an actual conflict with federal legislation and regulation.
The Maritime Contract and Admiralty Jurisdiction: Recent Developments Help Clarify an Inherently Confused Landscape
This Article explores the responses of federal courts in approximately the last dozen years to requests by litigants for the exercise of admiralty jurisdiction over those contracts that in current times form part of maritime commerce. Part II discusses the admiralty jurisdiction of the federal courts generally and outlines types of contracts, which, through well-settled precedent, fall clearly within or outside admiralty jurisdiction. Part II also introduces some of the principles that guide the federal courts in determining whether a contract falls within admiralty jurisdiction. Part III of the Article analyzes various types of contracts that federal courts have encountered of late that have forced them to explore the boundaries of admiralty jurisdiction. Part III also explores the status of the preliminary contracts doctrine and the conflicts that potentially follow recent court rulings. Finally, Part IV surveys other notable cases involving mixed contracts in which the federal courts have confronted the question of whether a particular contract falls within admiralty jurisdiction.
Insuring the Risk of Terrorist Damage and Other Hostile Deliberate Damage to Property Involved in the Marine Adventure: An English Law Perspective
The World Trade Center attacks on September 11, 2001, brought into stark relief the massive property losses that might be caused by an act of terrorism. However, on the basis that it is people, rather than property, who are the principal target of terrorism, the risk of a terrorist attack on, and consequent physical damage to, a commercial vessel and her cargo whilst at sea is relatively low. Nevertheless, the risk of damage to marine property done deliberately and aggressively and outside situations of actual war does exist, and protection against the consequences of such damage has long been available in the English marine insurance market. This Article categorizes such risk as the risk of damage by “hostile deliberate acts.” It provides an overview of the historical developments of the English marine insurance market and describes the overall framework of the insurance cover that is available in respect of damage by hostile deliberate acts: It covers the standard clauses applicable to hull and cargo risks, and it considers the top up or alternative cover available from the P & I Clubs and War Risks Associations. It also considers each of the hostile deliberate act perils in detail, namely the “marine perils” of piracy, violent theft by persons from outside the vessel and barratry, and the “war perils” of seizure, riots, malicious acts, and acts of terrorists or persons acting from a political motive.
Insurance and Liability Issues Relating to an Oil Spill Caused by Terrorism
Following the attacks of September 11, 2001, the U.S. government responded quickly with new laws that patch together some international law concepts with solicitude for U.S. businesses. The President and Congress have embraced some concepts found in international conventions such as strict or no-fault liability, caps on liability, and a large role for private insurance. The new legislation also features payments to the victims of the September 11th attacks with funds from the U.S. government and guarantees by the U.S. government for payments to victims of terrorism. The focus of this Article is the effect of these new laws on oil spills caused by terrorist acts.
Insurances and Reinsurance of Marine Interests in the New Age of Terrorism
Terrorism has brought the marine and nonmarine markets into a new conjunction. The marine industry depends on both the nonmarine market, highly regulated by the states and standardized, and the lightly regulated marine market. Both depend heavily on the international reinsurance market, which shares with the marine market its rules of usage and freedom of underwriters to write only what they choose, with regard to the great range of their risks. The financial impact of the attacks of September 11, 2001, fell most heavily on reinsurers, leading them to exclude terrorism from future coverage, and direct insurers in turn to exclude it for lack of reinsurance. In addition to the main issue of coverage itself, a number of troublesome issues in both direct and reinsurance contracts were activated. Coverage was admitted in most cases because it was not excluded, the common nonmarine war-risk exclusions being acknowledged not to apply (although some marine war-risk clauses might have applied). Concerns about future coverage or exclusion bring all the wordings under scrutiny. Those in use varied widely as to what terrorism is, depending on the interests to be served in the trade concerned, and new forms have been adopted or proposed in both markets. The effect on commerce of inadequate terrorism insurance led to the Terrorism Insurance Act of 2002, creating a federal excess-of-loss reinsurance scheme under which direct insurers, both marine and nonmarine, are required to offer coverage for such incidents of terrorism as may be so declared by the Secretary of the Treasury under a definition limited to U.S. interests, which is described in some detail in this Article. The broader field, however, is left for private reinsurance to reoccupy, in tandem with the limited federal coverage. Jurisdiction and arbitration are dealt with and the authority of state regulators generally preserved. Meanwhile, desirable reforms in marine policy terms are going forward in the market and being further explored in the Comité Maritime International. Thus, while there is much adjustment going on in the marine market to conform to the new demands of the terrorism risk, it appears that ordinary development continues toward what the author hopes will be greater harmony.
The Burden that 9/11 Imposed on Seafarers
Post-September 11, 2001, maritime security measures have placed growing restrictions on merchant mariners' shore leave while increasing their security responsibilities onboard and ashore. Despite their additional duties, seafarers face a greater likelihood of confinement to their vessels, not based on known security risks, but simply because they do not possess crewmember D-1 visas. At the same time, backlogs at American consulates and the high visa fee make D-1 visas very difficult for foreign mariners to obtain.
Maritime security depends upon merchant vessel crews being on the front line in the war against terrorism. Merchant mariners should be properly identified and recognized. Requirements for shore leave should be reasonably calculated to prevent illegal entry without unreasonably burdening mariners and their employers. Strict security measures do not need to diminish the already limited freedoms and opportunities for shore leave that seafarers possess.
Internationally recognized seafarers' identification cards offer the best possible compromise between legitimate port security requirements and the need for crews to attend to their physical, emotional, and spiritual needs on shore leave--provided that the United States accepts seafarers' identification cards as the basis for waiving crew visas for shore leave.
Ethical Considerations: Independent Professional Judgment, Candid Advice, and Reference to Nonlegal Considerations
The Article argues that Rule 2.1 is the hub that links most of the essential requirements placed by the Model Rules of Professional Conduct on lawyers representing clients. The Article begins with a look at current issues facing practicing attorneys and then considers those issues within the framework of Rule 2.1. The rule reflects historic and valued principles of the legal profession, among them independence, detachment, competence, and fidelity to each client. The Article states that these principles, for more than a century, have provided the response to questions about why lawyers behave as they do and concludes that lawyers should not be embarrassed to assert them again in responding to current criticisms.
Legal Compliance in Maritime Operations: Charting Your Course Through Stormy Waters -- 2003 and Beyond
Experience shows that many marine and landside operators have sparse, if any, understanding of the multitude of ever-changing laws and regulations to which they are subject in daily operations, as well as little appreciation of the significant costs, penalties, and other sanctions that can result from “illegal” conduct in their daily business. Whether out of blissful ignorance or just plain negligence and inattention, they fail to take those actions in the way of preventative maintenance such as is afforded to their personnel and expensive vessels and equipment, but that are vitally necessary to keep their business boat from running aground on the legal shoals which abound in today's commercial seas. The purpose of this Article is to present the chart for safe navigation through today's legal minefields and help assure continuing safe operations, whether conducting business on the water or landside.