This Article gives a sweeping overview of myriad procedures normally identified with, or endemic to, the practice of maritime law. Part II focuses on admiralty jurisdiction, sources of admiralty law, and interlocutory appeals. Part III discusses the special admiralty rules found in the Supplemental Rules for Certain Admiralty and Maritime Claims to the Federal Rules of Civil Procedure. Part IV covers various procedural and practical topics, from maritime arbitration to evidentiary rules and everything in between. Part V is devoted to an alarming trend, the government's increasing insistence that potential criminal defendants waive the attorney-client privilege and work product doctrine as a measure of their cooperation in government investigations. Part V discusses the genesis and development of this policy and provides a valuable background for those maritime practitioners whose work leaves them outside the criminal arena.
Appurtenances: What Are They and Are Fishing Permits Among Them?
Maritime liens are a fascinating part of maritime law, encompassing both substantive and procedural aspects quite different from common law liens and security interests. This Article will focus on one aspect of maritime lien law, the objects to which such liens attach, and will discuss recent developments affecting the fishing industry. This Article will also address the definition of maritime liens from a historical and current perspective, as well as the “appurtenances” to which maritime liens attach. It will analyze whether maritime liens attach to intangibles, such as the rights granted under statutory and regulatory rules applicable to the fishing permits and fishing histories that make commercial fishing vessels so valuable, and indeed, functional.
Admiralty Jurisdiction: The Power Over Cases
“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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