In the wake of the terrorist attacks of September 11, 2001, Congress quickly realized that the porous nature of ports and waterways throughout the United States made them an attractive target for transportation security incidents. While there was a patchwork of regulations that endowed the United States Coast Guard with the authority to address port security, Congress adopted far-reaching legislative measures to bolster existing port security regulations and enhance maritime domain awareness. Both the Maritime Transportation Security Act of 2002 and the SAFE Port Act of 2006 seek to create a comprehensive and layered approach to preventing and responding to events that have the potential to disrupt the flow of waterborne commerce.
Smoother Seas Ahead: The Draft Guidelines as an International Solution to Modern-Day Piracy
Piracy is an increasing problem for commercial trade. As the oceans are used by all and controlled by no one, a regulatory vacuum exists with respect to laws guiding state responses to piratical acts. This Article promotes the Draft Guidelines as the most appropriate response to this international conundrum.
New Horizons: An Analysis of Public Markets Financing of Shipping Ventures and the Impending Waves of Shipping Securities Litigation
Over the past one hundred years, the scope and variety of financial instruments used in the maritime field have evolved profoundly, and markedly so, over the past decade. IPOs, high-yield debt offerings, and SPACs are among some of the financing products shipping companies are relying on today to grow and maintain their businesses. The following traces the historical development of these products and their current usage in the shipping world. This Article then looks at the securities law implications upon the shipping industry, its new investors, and maritime law in general.
Thoughts on Professionalism in the Twenty-First Century
A perceived decline of professionalism in the legal profession has been the subject of much discussion in the academic and legal communities. This Article explores three aspects of professionalism: the evolving definition of professionalism in light of the changing legal profession, the effects of those changes on lawyers and the legal profession, and suggestions for highlighting and heightening professionalism in the future.
Plus CA Change: The Protean World of the Maritime Specialist
Admiralty attorneys traditionally have been excepted from the general ban on lawyers holding themselves out as specialists. That special status imposes a heightened ethical obligation on proctors to ensure that they achieve and maintain the highest levels of competence. This Article addresses the appropriate scope and means of preserving and enhancing competence in a field that comprises an increasing array of intricate and disparate subject matter.
Ships as Property: Maritime Transactions in State and Federal Law
This Article discusses the application of federal and state law to the construction, sale, repair, rebuilding, chartering, and financing of vessels, paying particular attention to the impact of the growing use of the Uniform Commercial Code as a source of federal law where a nonstatutory federal law solution is required. The impact of the recent United States Supreme Court decision in Stewart v. Dutra Construction Co. on transactions involving stationary vessels and marginal craft is discussed. In addition to a review of types of transactions, the manner in which federal and state law apply to various types of maritime property is also discussed, including the leasing and financing of vessel equipment; the relationship between mortgages, maritime liens, and security interests with respect to cargo and freight receivables, as well as the developing case law with respect to the attachment of ship mortgages and maritime liens to fishing rights.
The Uniqueness of Maritime Personal Injury and Death Law
Claims for personal injuries and deaths that occur on or near navigable waters generally fall within a court's admiralty jurisdiction and require the application of substantive maritime law, which is, of course, federal law. The issue of whether maritime jurisdiction exists, however, can raise intricate factual and legal issues. Certain claims, although governed by substantive federal law, do not necessarily have to be brought in a federal forum. This Article examines the statutory schemes and jurisprudence unique to the field of maritime personal injury and death.
The Shifting Nature of Salvage Law: A View From a Distance
The maritime law of salvage may seem to present a fixed body of doctrines that only require to be applied to fresh circumstances. However, there have been major changes in the doctrines of salvage law, including the shift made in the eighteenth century by which the English courts moved from giving rewards for the rescuing of goods wrecked at sea to giving rewards for the prevention of loss at sea.
Two points are now likely to force further development of the law. One point is the combination of the fact that (apart from the limited safety-net provided by SCOPIC) under existing law the amount of a salvage reward is capped by the value of the property preserved, together with a decline in the number of salvages from which salvors can earn rewards under existing law. The result is a pressure from salvors for salvage rewards fully reflecting the liabilities from which vessels and their insurers have been saved. The second point is a possible pressure from property insurers (hull and cargo) not to pay by way of the rewards for these few salvages, for the costs of the existence of professional salvors and the maintenance of vessels and equipment dedicated to salvage, which may now seem primarily to benefit liability insurers.
One possible development is that salvage operations might be performed under fixed-price contracts between the liability insurers of vessels and salvage contractors. We discuss in this Article the extent to which, under English law, a contract such as Lloyd's Open Form may replace the general maritime law of salvage.
Another possible development is that liability salvage might be recognised under maritime law as a separate route to a salvage reward, parallel to the route of property salvage. We defend the conceptual possibility of this development and deal with some difficulties that have been raised. We conclude that this change would be in accordance with the underlying principles of salvage law, in terms of rewards based on benefits conferred and in terms of encouragement, and would involve no greater departure from existing doctrine than was made by the judges of the eighteenth century.
In this Article we also review (from across the Atlantic) some issues in U.S. salvage law, including the application of salvage law to ancient wrecks, life salvage under U.S. law, and the position of Lloyd's Open Form under U.S. law.
The Limited Scope of the Cargo Liability Regime Covering Carriage of Goods by the Sea: the Multimodal Problem
Increasing numbers of cargo claims arising under multimodal bills of lading involve damage or loss occurring inland, while the goods are in the custody of inland carriers or their contractors. The current cargo liability regime covering sea transport, however, is antiquated and unable to cope with these types of claims. As a result, the parties participating in multimodal shipments have been subject to a vast array of laws governing their rights and liabilities, including the application of state law, leading to uncertainty and higher litigation costs. This Article examines the multimodal problem, beginning with a brief overview of the cargo liability regimes governing air, land, and sea transport and a discussion of the unique problems caused by the limited scope of the Hague Rules/COGSA regime. The recent United States Supreme Court decision in Norfolk Southern Railway v. James N. Kirby, Pty Ltd. and its impact on multimodal carriage is also examined in some detail. Finally, the Article provides a summary of recent national and international attempts to solve the multimodal problem. The author concludes that until a true multimodal convention is developed, covering all aspects of “door-to-door” multimodal carriage, the industry can expect ad hoc decisions of the courts to shape the rules for multimodal transport.
The Uniqueness of Admiralty and Maritime Law: The Unique Nature of Maritime Liens
This Article provides an overview of the unique, interesting, and historic world of maritime liens. It covers the history of maritime liens; the fundamental differences between maritime liens and state law liens, maritime lien creation, scope, execution, ranking, collection, and extinguishment; as well as giving general guidance to shipowners, cargo interests, chandlers, suppliers, and others involved in maritime commerce regarding maritime lien issues that arise in their operations.