TreatiseAnswer Book

Maritime Law Answer Book (2016 Edition)

 by Constantine G Papavizas, H. Allen Black
 
 Copyright: 2016

 Product Details >> 

Product Details

  • ISBN Number: 9781402426346
  • Page Count: 656
  • Number of Volumes: 1
  •  

Ninety percent of the world’s goods are carried in ships, with maritime commerce affecting nearly every product bought or sold in the United States. Maritime issues can thus arise in any type of practice, whenever a vessel owner, vessel banker or shipper of goods or commodities is involved. Written by partners at Winston & Strawn LLP with decades of maritime law experience, Maritime Law Answer Book is a valuable resource for any lawyer handling a matter in which a maritime issue arises.

Presented in a Q&A format, the book devotes chapters to the specific issues that impact vessel owners, vessel bankers, and shippers of goods and commodities. It examines the general issues that arise in maritime disputes, such as choice of law, limitation of liability, maritime arrest and attachment, and provides advice on handling matters in both litigation and alternative dispute resolution proceedings.

  Table of Contents
  Preface
Chapter 1: The Scope of Maritime Law
  • : Definition3
  • Q 1.1 : What is “maritime law”?3
    • Q 1.1.1 : How does “maritime law” relate to “admiralty law”?3
    • Q 1.1.2 : How is “maritime law” broader than “admiralty law”?3
  • : History of U.S. Maritime Law4
  • Q 1.2 : Where did U.S. maritime law come from?4
    • Q 1.2.1 : What are the main features of English maritime law?4
    • Q 1.2.2 : How did the English admiralty courts develop?5
    • Q 1.2.3 : What is the origin of U.S. admiralty courts?5
    • Q 1.2.4 : What is the extent of federal admiralty jurisdiction?5
  • : Maritime vs. Non-Maritime Law6
  • Q 1.3 : How is maritime law different from other law in the United States?6
  • : Maritime Law Status Today7
  • Q 1.4 : What is the status of maritime law in the United States?7
    • Q 1.4.1 : Can maritime law extend to non-maritime activities?7
    • Q 1.4.2 : What is the relationship between maritime law and state law in the United States?8
Chapter 2: Finding Maritime Law
  • : Sources of Maritime Law12
  • Q 2.1 : What are the sources of U.S. maritime law?12
  • Q 2.2 : What areas of the law are associated with each source?12
  • Q 2.3 : What is the basis of judge-made maritime law?13
  • Q 2.4 : What are the major maritime legistative acts?13
  • : Impact of International Conventions14
  • Q 2.5 : What is the impact of international conventions on maritime law?14
  • : U.S. Agencies Regulating Maritime Law16
  • Q 2.6 : What are the primary agencies that help shape maritime law?16
  • : International Law Sources17
  • Q 2.7 : Where can international conventions and related guidance be found?17
  • Q 2.8 : How uniform is international maritime law?18
  • Q 2.9 : How uniform is U.S. maritime law?18
Chapter 3: What Constitutes a Maritime Contract?
  • : Maritime Contracts Defined24
  • Q 3.1 : What difference does it make if a contract is a maritime contract?24
  • Q 3.2 : Is there a general rule for when a contract is a maritime contract?25
  • Q 3.3 : Which contracts are usually considered maritime contracts?25
  • Q 3.4 : Which contracts are usually not considered maritime contracts?25
    • Q 3.4.1 : Can a vessel charter be considered a financing agreement that is not a maritime contract?26
  • : “Mixed Contracts”26
  • Q 3.5 : What are “mixed contracts”?26
  • Q 3.6 : How are “mixed contracts” treated?26
  • : Formation27
  • Q 3.7 : What formalities are required for maritime contracts?27
  • Q 3.8 : When is a maritime contract formed?27
  • Q 3.9 : Does a written maritime contract need to be in a single document?28
  • : Implied Terms29
  • Q 3.10 : What are some other features of maritime contract law?29
  • : Enforcement29
  • Q 3.11 : How are maritime contracts enforced?29
  • : “Saving to Suitors” Clause30
  • Q 3.12 : What is the “Saving to Suitors” clause?30
Chapter 4: Vessel Ownership and Operations
  • : Vessel Ownership Defined34
  • Q 4.1 : How are vessels owned?34
  • : Ownership vs. Operation34
  • Q 4.2 : What is the difference between ownership and operation?34
  • Q 4.3 : Can someone other than the title holder(s) be considered the “owner” of the vessel?34
  • Q 4.4 : What is a “bareboat” charter party or charter?35
  • : Leasing Types35
  • Q 4.5 : What other forms of charters are used?35
  • Q 4.6 : Do vessel owners or operators subcontract some of their functions?36
  • Q 4.7 : How effective are vessel owner, operator and manager structures?36
Chapter 5: Vessel Registration
  • : Definition40
  • Q 5.1 : What is vessel registration?40
  • Q 5.2 : What national flag does a vessel fly?40
  • Q 5.3 : Which countries register vessels?40
  • : Kinds of Registries41
  • Q 5.4 : What is the difference between an “open registry” and a “national registry”?41
  • Q 5.5 : What is the origin of open registries?41
  • Q 5.6 : What are the leading registries in the world?41
  • : Choosing a Registry42
  • Q 5.7 : How does an owner choose a registry?42
  • : Consequences of Registry Choice42
  • Q 5.8 : What are the consequences of a vessel registry choice?42
  • Q 5.9 : Can vessels be requisitioned by the countries that register them?43
  • : Requirements for Registry43
  • Q 5.10 : What is generally required to register a vessel?43
  • Q 5.11 : What is required for new construction vessels?43
  • Q 5.12 : What is required for used vessels?44
  • Q 5.13 : What is required from the transferring registry?44
  • : U.S. Registry Requirements45
  • Q 5.14 : Which U.S. Government agency maintains the U.S. registry?45
  • Q 5.15 : Which vessels are eligible to be registered by the U.S. Coast Guard?45
  • Q 5.16 : Does a vessel registered with the U.S. Coast Guard have to be built in the United States?46
  • Q 5.17 : Which entities qualify as U.S. citizens eligible to register a vessel with the U.S. Coast Guard?46
  • Q 5.18 : Can a limited liability company register a vessel with the U.S. Coast Guard?46
  • Q 5.19 : Does a U.S.-registered vessel have to employ a U.S.-citizen crew?47
  • Q 5.20 : What does the U.S. Coast Guard require to register a vessel?47
  • : Electronic Filing48
  • Q 5.21 : Does the U.S. Coast Guard accept electronic filings?48
  • : Re-Flagging49
  • Q 5.22 : What U.S. Government approvals are needed to re-flag a U.S. vessel as foreign?49
Chapter 6: Building a Vessel
  • : In General52
  • Q 6.1 : Where are commercial vessels built?52
  • Q 6.2 : Are there shipyards in the United States?52
  • : Vessel Construction Contracts53
  • : In General53
  • Q 6.3 : Is a vessel construction contract a “maritime contract”?53
  • Q 6.4 : Are standard vessel construction contracts available?53
  • : Contract Elements53
  • Q 6.5 : What are the typical elements of a vessel construction contract?53
  • : Payments55
  • Q 6.6 : When does the buyer usually pay for the vessel?55
  • : Passing of Title55
  • Q 6.7 : When does title usually pass from the shipyard to the buyer?55
  • : Security Interest55
  • Q 6.8 : Can a buyer obtain security in a partially completed vessel?55
  • : Applicable Law56
  • Q 6.9 : What law applies to U.S. shipbuilding contracts?56
  • : Supervision56
  • Q 6.10 : Who supervises the shipyard during construction?56
  • : Risk of Loss56
  • Q 6.11 : Which party has the risk of loss if a vessel is destroyed while under construction?56
  • : Buyer Rights If Builder Defaults57
  • Q 6.12 : What are the buyer’s usual rights if the builder defaults?57
  • : Refunds57
  • Q 6.13 : What is a “refund guarantee”?57
  • : Forcing a Delivery58
  • Q 6.14 : Can a buyer force a shipyard to deliver a vessel?58
  • : Buyer’s Rights on Default58
  • Q 6.15 : What are the builder’s usual rights if the buyer defaults?58
  • : Recording a Mortgage59
  • Q 6.16 : At what point can a U.S. vessel mortgage be recorded on a vessel under construction?59
  • : Risk Insurance59
  • Q 6.17 : Can a vessel purchaser insure against risks to, or related to, the vessel while under construction?59
Chapter 7: Selling or Purchasing an Existing Vessel
  • : Arranging a Sale62
  • Q 7.1 : How is the sale and purchase of a vessel usually arranged?62
  • : Elements and Form of Agreement63
  • Q 7.2 : What are the basic elements of agreement for a vessel sale and purchase?63
  • Q 7.3 : Is there a standard form usually used in a vessel purchase and sale?63
  • : Offer and Acceptance63
  • Q 7.4 : Can a contract to sell a vessel be formed without the execution of a contract document?63
    • Q 7.4.1 : Is a vessel sale contract binding before a Memorandum of Agreement or MOA is signed by both parties?64
  • : Elements of a Vessel Sale64
  • : Usual Steps64
  • Q 7.5 : What are the usual steps in a vessel sale and purchase?64
  • : Sold “As Is”65
  • Q 7.6 : What condition must the vessel be in upon delivery from the seller to the purchaser?65
  • : Inspection of Vessel66
  • Q 7.7 : Does the purchaser usually inspect the vessel to be purchased?66
  • : Seller/Buyer Duties66
  • Q 7.8 : What are the primary duties of the purchaser and seller under a typical vessel sale contract?66
  • : Vessel Delivery67
  • Q 7.9 : What happens after the seller tenders the Notice of Readiness of Delivery?67
  • : Purchaser Rejection67
  • Q 7.10 : Can the purchaser reject a vessel delivered with a defect that arose after inspection and before delivery?67
  • : When Risk of Loss Moves to Buyer68
  • Q 7.11 : What happens if the vessel is damaged after the sale contract is signed, but before the closing?68
  • : Closing Documents69
  • Q 7.12 : What documents is the seller usually required to deliver to the purchaser at closing?69
  • Q 7.13 : How are existing mortgages and liens usually handled in a vessel purchase and sale?69
  • Q 7.14 : What happens if the purchaser discovers that the purchased vessel has liens after the purchase?70
  • : Completing the Sale70
  • Q 7.15 : At what point in a transaction is a vessel considered “sold”?70
  • Q 7.16 : What are the duties of the parties if a sale is not consummated?71
  • Q 7.17 : Under what conditions can a sale contract be cancelled without penalty to either party?71
  • : Tax Considerations71
  • Q 7.18 : Are there tax considerations in a vessel sale?71
Chapter 8: Vessel Chartering or Leasing
  • : Charters: In General74
  • Q 8.1 : Is it possible to have a legally binding oral charter?74
  • Q 8.2 : Do charters vary by the cargo carried or the type of vessel?74
  • : Kinds of Charters75
  • : Bareboat Charter75
  • Q 8.3 : What distinguishes a bareboat charter from other charters?75
  • : Space and Other Charters75
  • Q 8.4 : What is a space charter?75
  • : Implications of a “Bareboat Charter”75
  • Q 8.5 : Why is it important whether a charter is considered a bareboat charter?75
  • Q 8.6 : Will the vessel owner be liable to third parties harmed through the operation of the vessel if the vessel is bareboat-chartered?76
  • Q 8.7 : In a bareboat charter arrangement, who is usually responsible for the condition of the vessel?77
  • Q 8.8 : Will the vessel owner be liable to third parties harmed through the operation of the vessel if the vessel is time- or voyage-chartered?77
  • Q 8.9 : Does a vessel owner have to be concerned about liability when a vessel is bareboat-chartered?78
  • : Vessel Owner’s Warranties78
  • Q 8.10 : Does a vessel owner generally warrant the vessel’s “seaworthiness”?78
  • : Responsibilities of Owner and Charterer79
  • Q 8.11 : Is a voyage charterer or time charterer liable for the vessel’s seaworthiness or negligence of the vessel’s crew?79
  • Q 8.12 : Who is responsible if a change in law during a charter period requires a modification to the vessel under charter?79
  • Q 8.13 : Who pays for the vessel fuel under various charters?80
  • Q 8.14 : Who is responsible for the vessel fuel under various charters?80
  • : Bill of Lading81
  • Q 8.15 : How do “bills of lading” relate to charters?81
  • : Terms Commonly Used in a Charter81
  • Q 8.16 : What are some of the basic charter terms unique to shipping?81
    • Q 8.16.1 : What is a “hell or high water” charter hire provision?81
    • Q 8.16.2 : What is “FIO” or “FIOS”?82
    • Q 8.16.3 : What are “demurrage,” “dispatch” and “lay days”?82
    • Q 8.16.4 : What is “dead freight”?83
    • Q 8.16.5 : What is “vetting”?83
    • Q 8.16.6 : What are “Cesser Clauses”?83
    • Q 8.16.7 : What is a “Both to Blame” collision clause?84
    • Q 8.16.8 : What is “general average”?84
    • Q 8.16.9 : What is a “New Jason clause”?85
Chapter 9: Crewing a Vessel
  • : Labor Law in a Maritime Context89
  • Q 9.1 : Are maritime labor laws comparable to landside labor laws?89
  • Q 9.2 : How did the protection of seamen by courts and the law come about?89
  • Q 9.3 : What protections are provided to U.S. seamen by statute?89
  • : Definition of Terms90
  • Q 9.4 : Who is a “seaman”?90
  • Q 9.5 : What are crew “shipping articles”?90
  • : Paying Seamen’s Wages90
  • Q 9.6 : Does federal law set out the timing of the payment of seamen’s wages on U.S.-flag vessels?90
  • Q 9.7 : Does federal law regarding payment of seamen apply to foreign vessels?91
  • Q 9.8 : When can a vessel owner refuse to pay seamen’s wages?91
  • Q 9.9 : Do federal seamen wage statutes apply to crew members on fishing vessels?91
  • Q 9.10 : Do federal seamen wage statutes apply to U.S.-flag vessels engaged in the U.S. coastwise trade?91
  • Q 9.11 : Do federal seamen wage statutes apply to U.S.-citizen seamen discharged in a foreign port?92
  • : Overtime92
  • Q 9.12 : Are seamen entitled to overtime by law?92
  • : Whistleblower Rights93
  • Q 9.13 : Are seamen protected if they report vessel safety violations?93
  • : No Right to Strike93
  • Q 9.14 : Can seamen strike?93
  • : The Jones Act93
  • : Origin and Definition93
  • Q 9.15 : What is the “Jones Act” with respect to seamen?93
  • Q 9.16 : What is the origin of the Jones Act for seamen?94
  • : Seamen’s Benefits94
  • Q 9.17 : What is “maintenance and cure”?94
  • Q 9.18 : Who qualifies for seamen’s benefits under maritime law?94
  • : Not Exclusive Remedy95
  • Q 9.19 : Is the Jones Act a seaman’s exclusive remedy for injury or death?95
  • : Damages95
  • Q 9.20 : What damages are recoverable under the Jones Act?95
  • : Required Training95
  • Q 9.21 : What training are seamen required to have?95
  • Q 9.22 : Which credentials are required for mariners?96
  • Q 9.23 : Which regulatory bodies establish the training standards?96
  • : Maritime Labour Convention96
  • Q 9.24 : What is the Maritime Labour Convention?96
  • Q 9.25 : What is the substance of the Maritime Labour Convention?97
  • Q 9.26 : What vessel certification does the Maritime Labour Convention require?97
  • Q 9.27 : Do vessels registered in countries that have not ratified the Convention have to comply with the Convention?97
  • Q 9.28 : Which countries have ratified the Maritime Labour Convention?98
  • Q 9.29 : Has the United States adopted the Maritime Labour Convention?98
Chapter 10: Insuring a Vessel
  • : Insurable Risks104
  • Q 10.1 : What risks does a vessel face that insurance might cover?104
  • : Applicable Law105
  • Q 10.2 : What law applies to marine insurance?105
  • Q 10.3 : How are marine insurance contracts interpreted?105
  • : Definitions105
  • Q 10.4 : What does it mean that marine insurance is usually “pay to be paid”?105
  • Q 10.5 : What is uberrimae fidei?106
  • : Marine Insurance Providers106
  • Q 10.6 : Which entities supply marine insurance?106
  • Q 10.7 : What is the International Group of P&I Clubs?107
  • : Kinds of Marine Insurance108
  • Q 10.8 : What are the main types of marine insurance?108
  • : Policy Clauses109
  • : Owner Warranties109
  • Q 10.9 : What warranties does a vessel owner usually give to the insurance provider?109
  • : Prompt Notice110
  • Q 10.10 : Does an insured need to give notice of a claim?110
  • : “Insurable Interest”110
  • Q 10.11 : Is it necessary that the insured have an “insurable interest”?110
  • : Losses Covered110
  • Q 10.12 : What losses does protection and indemnity insurance cover?110
  • Q 10.13 : What losses does hull and machinery insurance cover?110
  • : Actual vs. Constructive Total Loss111
  • Q 10.14 : What is a “constructive total loss”?111
  • : “Institute Clauses”111
  • Q 10.15 : What are “Institute Clauses” or “Institute Warranties”?111
  • : Collisions111
  • Q 10.16 : Do hull and machinery policies cover vessel collisions?111
  • : Wreck Removal112
  • Q 10.17 : Is the insurer liable to pay for wreck removal in the event of a serious accident?112
  • : Subrogation Rights112
  • Q 10.18 : Do marine insurance policies contain subrogation rights?112
  • : War Risks112
  • Q 10.19 : Do marine insurance policies cover risks arising from war or violence?112
  • Q 10.20 : How do vessel owners cope with war- or terrorism-related risks?113
  • Q 10.21 : Does the U.S. Government provide war risk insurance to vessel owners?113
  • : Pollution Risks113
  • Q 10.22 : Which marine insurance policies cover pollution-related risks?113
  • : Other Kinds of Insurance114
  • Q 10.23 : What other types of marine insurance are available?114
Chapter 11: Sources of Government Regulation of Vessels
  • : Which Countries Can Regulate Vessels?118
  • : Port vs. Flag State118
  • Q 11.1 : Which countries regulate vessels?118
  • Q 11.2 : What is the relationship between flag-state and port-state vessel regulation?118
  • : Limitations on U.S. Port-State Regulation118
  • Q 11.3 : What are the limits of U.S. port-state regulation with respect to foreign vessels?118
  • Q 11.4 : Can the U.S. Government regulate the foreign vessel cruise industry serving the U.S. market?119
  • : Applicable Regulation119
  • : International Standards119
  • Q 11.5 : What is the source of standards applicable to vessels?119
  • Q 11.6 : What is the “IMO”?120
  • Q 11.7 : What are the principal international maritime conventions?120
  • Q 11.8 : How are international conventions implemented in the United States?122
  • Q 11.9 : How are international maritime conventions enforced in practice?122
    • Q 11.9.1 : Is there an international convention dealing with polar conditions?122
  • : U.S. Regulators123
  • Q 11.10 : Which federal agencies are involved in vessel inspections?123
Chapter 12: Environmental Regulation
  • : Regulated Vessel Discharges129
  • Q 12.1 : Which vessel discharges and emissions are regulated?129
  • : Applicable U.S. Laws130
  • : In General130
  • Q 12.2 : What are the primary federal environmental laws governing vessels?130
  • : Oil Pollution Regulation—OPA 90130
  • Q 12.3 : What are the main sources of law governing oil pollution from vessels?130
  • Q 12.4 : What is the rule on the discharge of oil into U.S. waters?131
  • Q 12.5 : What is the U.S. legal standard of a “harmful quantity” of oil?131
  • Q 12.6 : What is the relationship between OPA 90 and the Clean Water Act?132
  • Q 12.7 : What are the major areas covered in OPA 90?132
  • Q 12.8 : What is the relationship between OPA 90 and state laws?133
  • Q 12.9 : Which other federal laws may potentially apply to oil spills?134
  • : Regulation of Other Water Pollutants134
  • Q 12.10 : What else may not be discharged into U.S. waters under the Clean Water Act?134
  • : General Liability Theory134
  • Q 12.11 : What is the general liability theory of OPA 90?134
  • : “Responsible Party”135
  • Q 12.12 : Who is a “responsible party” for an oil spill from a vessel?135
  • Q 12.13 : Does the vessel owner remain a responsible party when a vessel is demise-chartered to a third party?135
  • Q 12.14 : Is the lender/owner under a lease-finance arrangement a “responsible party”?135
  • Q 12.15 : Does a responsible party have to be negligent to be liable for an oil spill?136
  • : Liability Limitations136
  • Q 12.16 : Is there a limit to the costs and damages payable by the responsible party to the federal government?136
  • Q 12.17 : Are the OPA 90 limits on liability subject to exceptions?137
  • Q 12.18 : Is there a limit to the costs and damages payable by the responsible party to other persons?138
  • : Punitive Damages138
  • Q 12.19 : Can a responsible party be exposed to punitive damages for an oil spill?138
  • Q 12.20 : How does the Limitation on Liability Act work in an oil spill context?139
  • : Defenses to Liability139
  • Q 12.21 : Does a responsible party have any defenses in the event of a spill?139
  • Q 12.22 : Do vessel owners or operators have to be able to show an ability to pay potential OPA 90 costs and damages?140
  • : Criminal Sanctions140
  • Q 12.23 : Could criminal sanctions apply to oil spills?140
  • : Removal Actions140
  • Q 12.24 : Who is responsible for undertaking removal actions?140
  • Q 12.25 : Who is responsible for coordinating a spill response?141
  • : Oil Spill Liability Trust Fund141
  • Q 12.26 : What is the Oil Spill Liability Trust Fund?141
  • : Practical Concerns Regarding Oily Water Discharges141
  • Q 12.27 : How concerned should vessel owners and operators be about operational discharges of oil and oily water?141
  • Q 12.28 : What is the cause of continuing oily water discharge violations?142
  • Q 12.29 : What is the potential impact of an oily water discharge prosecution?142
  • : Ballast Water Discharges143
  • : Sources of Law143
  • Q 12.30 : What are the main sources of law governing ballast water discharges from vessels?143
  • : Why Regulated143
  • Q 12.31 : Why is ballast water regulated?143
  • : High Seas Ballast Water Exchange144
  • Q 12.32 : What are the basic requirements of the National Invasive Species Act of 1996?144
  • Q 12.33 : Is high seas ballast water exchange always mandatory under NISA?145
  • : Ballast Water Management Program Requirement145
  • Q 12.34 : What actions has the U.S. Coast Guard taken since making high seas ballast water exchange mandatory?145
  • Q 12.35 : What does the Coast Guard’s 2012 ballast water rule require?145
  • Q 12.36 : When will vessels be required to have Coast Guard–approved ballast water management systems?146
  • : EPA Requirements146
  • Q 12.37 : How is the Environmental Protection Agency regulating ballast water?146
  • Q 12.38 : What discharge limits does the Vessel General Permit contain?147
  • Q 12.39 : Does the Vessel General Permit apply to small commercial vessels?149
  • Q 12.40 : How well coordinated are Coast Guard and EPA ballast water enforcement regimes?149
  • : International Requirements149
  • Q 12.41 : What international requirements apply to ballast water discharges?149
  • : Air Emissions from Vessels150
  • Q 12.42 : What are the main sources of law governing air emissions from vessels?150
    • : Required Certificates and Records150
    • Q 12.42.1 : What certificates are vessels required to have to comply with Annex VI?150
    • Q 12.42.2 : Are vessel operators required to maintain Annex VI compliance records?151
    • : Inspections151
    • Q 12.42.3 : Are vessels subject to inspection for Annex VI compliance?151
    • Q 12.42.4 : What should a vessel owner do when there is no compliant fuel available?151
    • : ECAs152
    • Q 12.42.5 : What is an “ECA”?152
    • Q 12.42.6 : Where are the MARPOL Annex VI ECAs?152
Chapter 13: Vessel Security, Piracy and Stowaways
  • : In General156
  • Q 13.1 : Who is responsible for the security of the vessel?156
  • : Regulation: MTSA and ISPS156
  • : Adoption156
  • Q 13.2 : How did the events of 9/11 affect government regulation of vessels?156
  • Q 13.3 : When did MTSA and ISPS go into effect?157
  • : MTSA and ISPS Requirements157
  • Q 13.4 : What is the purpose of MTSA and ISPS?157
  • Q 13.5 : What are the general requirements of MTSA?157
  • Q 13.6 : How does ISPS relate to MTSA?157
  • : Vessel Security Plan158
  • Q 13.7 : Which vessels must have vessel security plans?158
  • Q 13.8 : What are the basic elements of a vessel security plan?158
  • : International Ship Security Clearance158
  • Q 13.9 : What is the consequence if a vessel arrives in port without a valid International Ship Security Certificate?158
  • : Crew Shore Leave159
  • Q 13.10 : How did MTSA affect the ability of vessel crews to go ashore?159
  • Q 13.11 : What notice of arrival requirements apply to vessels arriving in U.S. waters?159
  • : Piracy159
  • : Defined159
  • Q 13.12 : What is piracy?159
    • Q 13.12.1 : How prevalent is piracy around the world?160
    • : U.S. Regulation160
    • Q 13.12.2 : What does U.S. law provide with respect to piracy?160
    • Q 13.12.3 : What definition of “piracy as defined by the law of nations” have U.S. courts applied?161
    • Q 13.12.4 : Are there any proposals to change the U.S. definition of “piracy”?161
    • Q 13.12.5 : Which country has jurisdiction to prosecute an act of piracy on the high seas?161
    • : Right of a Vessel’s Crew to Defend Itself162
    • Q 13.12.6 : What rights does a vessel crew have to defend itself from piracy?162
    • Q 13.12.7 : What regulatory requirements apply to U.S.-flag vessels regarding defending against piracy?162
    • : Ransom Demands and Insurance162
    • Q 13.12.8 : Are vessel owners entitled to pay pirates ransom to recover captured vessels and crew?162
    • Q 13.12.9 : Can a vessel owner obtain insurance to cover ransom payments?163
    • : Piracy vs. Barratry163
    • Q 13.12.10 : How is “piracy” different from “barratry”?163
  • : Stowaways163
  • Q 13.13 : Who is responsible for vessel stowaways?163
Chapter 14: Vessel Classification
  • : Defined168
  • Q 14.1 : What is vessel classification?168
  • : Classification Societies169
  • Q 14.2 : How did vessel classification get started?169
  • Q 14.3 : How are vessel classification societies regulated?169
  • Q 14.4 : Which are the major vessel classification societies?169
  • Q 14.5 : How important are classification societies to the worldwide maritime industry?170
  • : Classification170
  • : Certificates170
  • Q 14.6 : How does the classification system work?170
  • Q 14.7 : What sort of certificates are issued by classification societies?171
  • : Notations171
  • Q 14.8 : What notations are used by classification societies to indicate compliance with society rules?171
  • : Government Regulation and Societies172
  • Q 14.9 : Is a classed vessel subject to government inspection?172
  • Q 14.10 : Are certain government inspections delegated to classification societies?172
  • Q 14.11 : Does vessel classification substitute for good vessel owner practices?172
  • : Class Liability for an Accident173
  • Q 14.12 : Are vessel classification societies liable if the vessel is in an accident?173
Chapter 15: Economic Trading Restrictions—The Cabotage Jones Act
  • : Definition of “Cabotage”176
  • Q 15.1 : What is “cabotage”?176
  • : The “Jones Act”176
  • Q 15.2 : What is the cabotage “Jones Act”?176
  • Q 15.3 : What does the Jones Act restrict?177
  • Q 15.4 : Which countries have maritime cabotage laws?177
  • Q 15.5 : What is the origin of the Jones Act’s restrictions?177
  • Q 15.6 : What is the purpose of the Jones Act?177
  • : Other U.S. Cabotage Laws178
  • Q 15.7 : Are there other U.S. cabotage laws like the Jones Act?178
  • Q 15.8 : Is there a “Jones Act” for fishing?178
  • : Penalties178
  • Q 15.9 : What are the penalties for violating the Jones Act and related laws?178
  • Q 15.10 : Can a Jones Act vessel lose its eligibility?178
  • : Regulating Agencies179
  • Q 15.11 : Which federal agencies have regulatory authority in connection with the Jones Act?179
  • : Qualifying Vessels179
  • Q 15.12 : Which vessels can qualify under the Jones Act?179
  • Q 15.13 : Are there any exceptions to the U.S.-build requirement in the Jones Act?180
  • Q 15.14 : When is a vessel disqualified by being “rebuilt” foreign?180
  • : U.S. Citizenship Requirements180
  • Q 15.15 : Who can qualify to own and operate a Jones Act vessel?180
  • Q 15.16 : Are there exceptions to the Jones Act U.S. citizenship requirements?180
  • Q 15.17 : Does the Jones Act prohibit foreign investment in U.S. maritime companies?181
  • Q 15.18 : Can a public company qualify as a Jones Act U.S. citizen?181
  • : Waiver181
  • Q 15.19 : Can the Jones Act be waived?181
  • Q 15.20 : Is there a waiver process for small passenger vessels?182
  • : Offshore Application of the Jones Act182
  • Q 15.21 : Does the Jones Act extend offshore?182
  • Q 15.22 : Does the Jones Act extend to offshore alternative energy projects?183
  • : Definitions183
  • : “Cruise to Nowhere”183
  • Q 15.23 : What is a “cruise to nowhere”?183
  • : “Marine Highway”184
  • Q 15.24 : What are “marine highways”?184
  • : “Fair Inference Rule”184
  • Q 15.25 : What is the “fair inference rule”?184
Chapter 16: U.S. Government Support for U.S. Vessels
  • : Background189
  • Q 16.1 : Why does the U.S. Government support privately owned vessels?189
  • : Government Support Programs—General189
  • Q 16.2 : What are the main U.S. Government support programs for foreign trading vessels?189
  • : Maritime Security Program189
  • Q 16.3 : What is the Maritime Security Program?189
    • Q 16.3.1 : What is the history of the Maritime Security Program?190
    • Q 16.3.2 : How does the Maritime Security Program work?190
    • Q 16.3.3 : What payment does the U.S. Government provide under the Maritime Security Program?190
    • Q 16.3.4 : Which vessels are eligible for the Maritime Security Program?191
    • Q 16.3.5 : When are vessels selected for the Maritime Security Program?191
    • Q 16.3.6 : Who is eligible for the Maritime Security Program?191
    • Q 16.3.7 : Is the Maritime Security Program limited to U.S. citizens?192
    • Q 16.3.8 : Do Program vessels have to be built in the United States?192
    • Q 16.3.9 : Can a Maritime Security Program vessel operate in the U.S. domestic trade?192
    • Q 16.3.10 : Are Program vessels committed to the U.S. Government in times of national emergency?193
    • Q 16.3.11 : Is it possible to enter into a VISA Agreement and commit vessel capacity without having a Maritime Security Program vessel?193
    • Q 16.3.12 : Are Maritime Security Program Agreements transferable?193
    • Q 16.3.13 : What is the inspection standard applicable to foreign-built vessels entering the Maritime Security Program?193
  • : Cargo Preference194
  • Q 16.4 : What is cargo preference?194
    • Q 16.4.1 : What are the current cargo preference laws and requirements?195
    • Q 16.4.2 : What is the purpose of cargo preference?195
    • Q 16.4.3 : How important is cargo preference to the maintenance of a U.S.-flag fleet?195
    • Q 16.4.4 : How does cargo preference relate to the Maritime Security Program?196
    • Q 16.4.5 : Does a U.S.-flag foreign-built vessel qualify to carry U.S. Government reserved cargoes?196
    • Q 16.4.6 : Can a foreign-built vessel be modified outside the United States and qualify to carry U.S. Government reserved cargoes?196
    • Q 16.4.7 : Are U.S.-flag rates limited under cargo preference law?196
    • Q 16.4.8 : Does cargo preference apply to the import of goods used on federal highways?197
    • Q 16.4.9 : What is the “McCumber Amendment”?197
  • : Vessel Repair Duty197
  • Q 16.5 : What is the vessel repair duty applicable to U.S.-flag vessels?197
    • Q 16.5.1 : Does the repair duty apply to all countries?198
    • Q 16.5.2 : Does the repair duty apply to all foreign shipyard work?198
    • Q 16.5.3 : What if the U.S.-flag vessel never returns to the United States?198
    • Q 16.5.4 : How does a vessel owner apply for relief from the vessel duty?199
Chapter 17: Taxes
  • : The Tonnage Tax204
  • Q 17.1 : What special tax provisions apply to U.S.-flag vessel owners?204
    • Q 17.1.1 : How does the tonnage tax work?204
    • Q 17.1.2 : Does the tonnage tax apply to all vessel-related income?204
    • Q 17.1.3 : How does a vessel owner or operator elect to operate under the tonnage tax?205
    • Q 17.1.4 : Can a vessel owner or operator switch back and forth between the tonnage tax and federal income tax?206
    • Q 17.1.5 : Can a partnership or a limited liability company vessel owner take advantage of the tonnage tax?206
  • : Tax Provisions for Resident Owners of Foreign-Flag Vessels206
  • Q 17.2 : What special tax provisions apply to U.S. resident owners of foreign-flag vessels?206
    • Q 17.2.1 : What is “Subpart F”?206
    • Q 17.2.2 : What is the history of foreign-source income taxation for U.S. resident vessel owners?207
    • Q 17.2.3 : What is “foreign base company shipping income”?207
    • Q 17.2.4 : Might foreign shipping-related income still be encompassed by Subpart F?207
Chapter 18: Ownership Considerations
  • : Vessel Ownership Considerations for a Banker210
  • Q 18.1 : What should a banker consider before owning a vessel?210
  • : Potential Liabilities210
  • Q 18.2 : Is a banker open to all potential liabilities arising from a vessel if it is the vessel’s owner?210
  • Q 18.3 : What other liabilities might affect a banker as owner?210
  • : Shield for Non-Managers211
  • Q 18.4 : How does federal law shield a banker as vessel owner?211
  • : Other Considerations211
  • Q 18.5 : What else should a banker consider before owning a vessel?211
Chapter 19: Maritime Liens
  • : Definition214
  • Q 19.1 : What is a “maritime lien”?214
  • : Recordation214
  • Q 19.2 : Must maritime liens be perfected by recordation?214
    • Q 19.2.1 : Can a maritime lien be created by agreement?215
  • : Pre-Existing Liens215
  • Q 19.3 : When a vessel is sold, does that extinguish existing maritime liens on that vessel?215
  • : Termination of a Lien215
  • Q 19.4 : How is a maritime lien terminated or destroyed?215
  • : What a Lien Applies To216
  • Q 19.5 : Does a maritime lien apply to the vessel’s equipment and what the vessel might earn?216
  • : Applicable Law216
  • Q 19.6 : What law applies to the creation of maritime liens?216
    • Q 19.6.1 : What are the relevant factors courts use to determine the applicable law in admiralty?216
  • Q 19.7 : What law applies to maritime liens in the United States?217
    • Q 19.7.1 : Can the choice of law have significance with regard to maritime liens?217
    • : Maritime Lien Act217
    • Q 19.7.2 : Which claims give rise to maritime liens under the Maritime Lien Act?217
    • : “Necessaries”218
    • Q 19.7.3 : What is the meaning of “necessaries”?218
    • Q 19.7.4 : Can anyone order necessaries on behalf of a vessel and have such order give rise to a maritime lien?218
    • : Lien Prioritization219
    • Q 19.7.5 : How are maritime liens prioritized among potential vessel claims?219
    • Q 19.7.6 : How are maritime liens prioritized within each rank category?219
    • Q 19.7.7 : Can maritime liens be filed and recorded with the Coast Guard?220
  • : Lien Enforcement220
  • Q 19.8 : How are maritime liens enforced?220
  • Q 19.9 : Who may assert a maritime lien against a vessel?220
Chapter 20: Vessel Mortgages
  • : In General224
  • Q 20.1 : What is a ship mortgage?224
  • : Preferred Ship Mortgages225
  • : Defined225
  • Q 20.2 : What makes a ship mortgage a preferred ship mortgage?225
  • : Consequences of Preferred Ship Mortgage Status225
  • Q 20.3 : What is the consequence of a ship mortgage being a preferred ship mortgage?225
  • : Governing Law226
  • Q 20.4 : What law governs preferred ship mortgages in the United States?226
  • : Requirements for Status227
  • Q 20.5 : What requirements must be satisfied to create a valid preferred ship mortgage under U.S. law?227
  • : Recording Requirements227
  • Q 20.6 : What are the recording requirements for a U.S. preferred ship mortgage?227
  • Q 20.7 : How is a U.S. preferred ship mortgage actually recorded?228
  • Q 20.8 : Can the Coast Guard reject a mortgage filing as defective?228
  • Q 20.9 : What does it mean for a filing to be in “substantial compliance” with the recording requirements?228
  • : Citizenship Requirements228
  • Q 20.10 : Does the mortgagee have to be a U.S. citizen for a U.S.-flag vessel mortgage?228
  • : Special Requirements for Fishing Vessel Over 100 Feet229
  • Q 20.11 : What are the requirements for the mortgagee of a fishing vessel over 100 feet in length?229
  • Q 20.12 : Can a mortgage on a non-U.S. vessel be a preferred mortgage under U.S. law?230
  • : How Does It Work?230
  • Q 20.13 : How does a preferred ship mortgage work?230
  • Q 20.14 : Can a preferred ship mortgage cover more than one vessel?230
  • Q 20.15 : Were vessel mortgages recognized as creating maritime liens under common law?230
  • : Terms of Preferred Ship Mortgages231
  • Q 20.16 : What are the usual terms contained in a preferred ship mortgage?231
  • Q 20.17 : Is a preferred ship mortgage a “stand-alone” document?234
  • : Mortgage Enforcement234
  • Q 20.18 : How are preferred ship mortgages enforced in the United States?234
  • Q 20.19 : What actions does a court take to enforce a mortgage?235
  • : Priority Against Other Claims235
  • Q 20.20 : What is the priority of a preferred ship mortgage with regard to other claims against the vessel?235
  • Q 20.21 : What is included within the coverage of a preferred ship mortgage?236
  • : Assignment236
  • Q 20.22 : Can a preferred ship mortgage be assigned?236
  • : Enforcement by Non-Citizen236
  • Q 20.23 : How does a non-citizen mortgagee enforce a preferred ship mortgage on a U.S.-flag vessel in the coastwise trade?236
  • : Termination and Release237
  • Q 20.24 : How is a preferred ship mortgage terminated?237
  • Q 20.25 : Can a mortgagee release some but not all of the vessels under a preferred fleet mortgage?237
  • : Enforcing a Foreign Mortgage237
  • Q 20.26 : Are the procedures for foreign preferred ship mortgages the same?237
Chapter 21: What a Banker Needs to Know about Marine Insurance
  • : In General242
  • Q 21.1 : Does a mortgagee have an insurable interest in a vessel?242
  • : Covered by Owner’s/Operator’s Policy242
  • Q 21.2 : How is a lender’s interest protected under marine insurance in practice?242
  • Q 21.3 : What steps does a lender take to be protected under an owner/operator’s marine insurance policies?243
    • Q 21.3.1 : What terms are found in an Assignment of Insurances?243
    • Q 21.3.2 : What provisions are commonly found in a Broker’s Letter of Undertaking?244
    • Q 21.3.3 : How is an Assignment of Insurances negotiated?245
  • : Impact of Default by Policy Owner245
  • Q 21.4 : Is a banker’s interest in a vessel protected if the vessel owner or operator defaults under the insurance policy?245
  • Q 21.5 : Does an “additional assured” have rights under the insurance policy?246
  • Q 21.6 : How can a banker protect its interest in the vessel from the possibility of vessel owner or operator default?246
  • Q 21.7 : How does mortgagee’s interest and innocent owner’s interest insurance work?246
  • : Pollution Claims247
  • Q 21.8 : Can a mortgagee protect its interest from pollution claims?247
  • : Vessel Under Construction247
  • Q 21.9 : How can a banker protect its interest in a vessel under construction?247
  • : Impact of Insolvency248
  • Q 21.10 : Does marine insurance continue to apply if the insured becomes insolvent?248
  • Q 21.11 : How does a lender get the benefit of marine insurance when buying a marine loan package from a previous lender?248
Chapter 22: Bankruptcy
  • : In General252
  • Q 22.1 : What makes maritime bankruptcies challenging?252
  • : Impact of a Bankruptcy Filing252
  • Q 22.2 : Does the filing of a bankruptcy petition in the United States affect ongoing admiralty proceedings against the debtor’s property?252
  • Q 22.3 : Does the filing of a bankruptcy petition terminate maritime liens?253
  • : Bankruptcy Court Jurisdiction253
  • : Over Debtor’s Property Outside of United States253
  • Q 22.4 : Does a U.S. bankruptcy court have jurisdiction over debtor’s property outside the United States?253
  • Q 22.5 : Are vessel mortgagees prevented from enforcing their mortgages by the bankruptcy automatic stay?254
  • Q 22.6 : How can a debtor protect against vendors arresting vessels in foreign jurisdictions?255
    • Q 22.6.1 : Can a lien holder subject to the bankruptcy court jurisdiction protect its interest when the vessel is arrested in a foreign court?255
    • Q 22.6.2 : What are the critical steps in balancing the bankruptcy case with the foreign vessel arrest case?256
  • : Over Maritime Liens257
  • Q 22.7 : Does a U.S. bankruptcy court have jurisdiction over maritime liens?257
  • Q 22.8 : Do maritime liens arise in the ordinary course after the filing of a bankruptcy petition?257
  • : Over Maritime Liens Outside of United States257
  • Q 22.9 : Does a U.S. bankruptcy court have jurisdiction over maritime liens outside the United States when the creditor has not filed a claim?257
  • : Impact on Payments for Necessities258
  • Q 22.10 : Are payments made by a debtor for vessel necessities prior to the filing of a bankruptcy petition voidable preferential transfers?258
  • : Charter Obligations Under Bankruptcy258
  • Q 22.11 : Must the bankrupt vessel owner continue to perform existing charters of vessels?258
  • : Status of Bareboat Charters259
  • Q 22.12 : How are vessels bareboat-chartered to the bankrupt debtor treated by bankruptcy courts?259
  • : Priority and Sale259
  • Q 22.13 : Does a bankruptcy court apply the order of priority of maritime liens otherwise applicable to such liens?259
  • Q 22.14 : Does a U.S. bankruptcy court have the authority to sell a vessel free and clear of all liens?259
  • Q 22.15 : What are the unique risks presented by a maritime-related bankruptcy?260
  • Q 22.16 : How can a vessel owner protect its vessels from arrest when faced with competing claims for payment in a maritime-related bankruptcy?260
  • Q 22.17 : How are maritime companies valued in a U.S. bankruptcy?261
Chapter 23: Federal Government Vessel Financing Programs
  • : U.S. Government Financing Programs266
  • Q 23.1 : What financing programs does the U.S. federal government maintain to support U.S.-flag shipping?266
  • : Title XI Government Guarantee Financing266
  • : In General266
  • Q 23.2 : What is Title XI government guarantee financing?266
    • Q 23.2.1 : How active has the Title XI program been?267
    • : Approval/Denial Timing267
    • Q 23.2.2 : How long does the Title XI application review process take?267
    • : Eligible Vessels and Technology267
    • Q 23.2.3 : Which vessels are eligible for Title XI guarantee financing?267
    • Q 23.2.4 : What types of shipyard technology investments are eligible for Title XI guarantee financing?267
    • : “Actual Cost” Defined268
    • Q 23.2.5 : How does the law define “actual cost” which can be financed?268
  • : Capital Construction Fund268
  • : In General268
  • Q 23.3 : What is the Capital Construction Fund program?268
    • : Federal Agencies269
    • Q 23.3.1 : Which federal agencies administer CCF?269
    • : Who Can Enter into CCF Agreements?269
    • Q 23.3.2 : How many companies are parties to CCF agreements?269
    • Q 23.3.3 : Which persons are eligible to enter into a CCF agreement?269
    • : Permitted Sources and Uses of Funds270
    • Q 23.3.4 : What are permitted sources of CCF deposits?270
    • Q 23.3.5 : What are permitted CCF uses of funds?270
    • Q 23.3.6 : Is there an exception for the use of CCF for certain short sea shipping activities?270
    • Q 23.3.7 : Can a CCF be utilized for offshore supply vessels and crew boats?270
    • Q 23.3.8 : Is there a penalty if a vessel built with CCF funds is used in the prohibited contiguous trade?270
    • Q 23.3.9 : How long can CCF fund balances be maintained without being used?271
    • Q 23.3.10 : Can CCF be utilized to refinance a vessel?271
    • Q 23.3.11 : Can CCF agreements and fund balances be transferred?271
    • Q 23.3.12 : What is the penalty for unqualified CCF withdrawals?271
  • : Capital Reserve Fund Program271
  • Q 23.4 : What is the Capital Reserve Fund program?271
    • Q 23.4.1 : What are CRF qualified purposes?272
    • Q 23.4.2 : What is the tax benefit of a CRF?272
    • Q 23.4.3 : How long can CRF funds be kept on deposit?272
Chapter 24: Players and Terms in International Cargo Shipping
  • : Players in International Shipping276
  • : Four Categories276
  • Q 24.1 : What players are involved in the world of international shipping?276
    • : Player Definitions276
    • Q 24.1.1 : What sort of persons are “vessel interests”?276
    • Q 24.1.2 : Is an ocean “carrier” the same as a “shipper”?276
    • Q 24.1.3 : What is an “ocean tramp”?277
    • Q 24.1.4 : What is an “ocean transportation intermediary” or “OTI”?277
    • : Brokers277
    • Q 24.1.5 : What role do brokers play?277
    • : Cargo Surveyors278
    • Q 24.1.6 : What functions do cargo surveyors perform?278
    • : Chart of Involved Parties278
    • Q 24.1.7 : Who are the other parties involved in maritime transportation?278
  • : Trade Terms284
  • : Source284
  • Q 24.2 : What is the source of common international trade terms?284
    • : Terms Specifically Applicable to Maritime Transport284
    • Q 24.2.1 : Which terms apply specifically to maritime transport?284
    • : Terms Applicable to All Modes of Transport285
    • Q 24.2.2 : Which terms apply to all modes of transport?285
Chapter 25: Government Economic Regulation of Liner Shipping
  • : Federal Laws Applicable to Liner Shipping288
  • Q 25.1 : What are the U.S. economic laws governing liner shipping?288
  • : Definitions288
  • Q 25.2 : What is a “liner”?288
  • Q 25.3 : What is an “ocean tramp” service?289
  • Q 25.4 : What is a “conference”?289
  • : Liner Antitrust Immunity289
  • Q 25.5 : What antitrust immunity has been accorded ocean liner companies?289
  • Q 25.6 : How has antitrust immunity changed over time?289
  • Q 25.7 : What antitrust immunity is currently available to ocean carriers?290
  • : Federal Maritime Commission (FMC)290
  • Q 25.8 : Which government agency regulates ocean common carriage?290
  • : FMC Filings290
  • Q 25.9 : What kinds of agreements must be filed with the FMC?290
    • Q 25.9.1 : Do tariffs have to be filed with the FMC?293
    • Q 25.9.2 : Do service contracts have to be filed with the FMC?293
    • Q 25.9.3 : Do marine terminal operator agreements have to be filed with the FMC?294
    • Q 25.9.4 : Do charter parties have to be filed with the FMC?294
    • Q 25.9.5 : What is the effect of filing a subject agreement with the FMC?294
    • Q 25.9.6 : What is the process for FMC review of common carrier agreements?294
  • : Pre-Filing Discussion295
  • Q 25.10 : May ocean common carriers discuss issues related to their service prior to providing notice to the FMC?295
  • Q 25.11 : Have tariffs become irrelevant with the prevalence of service agreements?295
  • : FMC Enforcement Authority295
  • Q 25.12 : What enforcement authority does the FMC have?295
  • : Other Regulated Entities296
  • Q 25.13 : What other ocean shipping matters are subject to federal economic regulation?296
  • Q 25.14 : How are ocean transportation intermediaries regulated?296
  • Q 25.15 : How are “controlled carriers” regulated?297
  • : “Just and Reasonable” Rates297
  • Q 25.16 : What is a “just and reasonable” level with regard to rates or charges?297
  • Q 25.17 : What happens if a controlled carrier maintains rates or charges below a just or reasonable level?297
Chapter 26: Bills of Lading
  • : Definition302
  • Q 26.1 : What is a “bill of lading”?302
  • : Carriers and Shippers302
  • Q 26.2 : Who are the parties to a bill of lading?302
  • Q 26.3 : Who issues the bill of lading?302
  • Q 26.4 : Can an ocean transportation intermediary such as a “Non-Vessel Operating Common Carrier” be considered a “carrier”?303
  • Q 26.5 : Can an ocean transportation intermediary such as a freight forwarder be considered a “carrier”?303
  • : Governing Law303
  • Q 26.6 : What law governs ocean bills of lading in U.S. trade?303
  • Q 26.7 : How do the Harter Act, COGSA and Pomerene Act apply to today?303
  • Q 26.8 : What are the “Hague,” “Hague-Visby” and “Hamburg” rules?304
  • Q 26.9 : What are the “Rotterdam Rules?”304
  • Q 26.10 : How do the Rotterdam Rules compare to COGSA?305
  • Q 26.11 : Does COGSA apply to inland transportation?305
  • : Negotiable vs. Non-Negotiable306
  • Q 26.12 : What is the difference between a “negotiable” bill of lading and “non-negotiable” bill of lading?306
  • Q 26.13 : How does the type of bill of lading affect who is the proper recipient of the goods?306
  • Q 26.14 : What is a “straight” bill of lading?306
  • Q 26.15 : What is a “through” bill of lading?306
  • : Carrier Duties Under a Bill of Lading307
  • Q 26.16 : What is the general duty of the carrier under a bill of lading?307
  • : Required Information307
  • Q 26.17 : What information must a bill of lading contain?307
  • Q 26.18 : How are bills of lading generally interpreted?307
Chapter 27: Liabilities and Defenses of Carriers
  • : Carrier Liabilities310
  • Q 27.1 : Can a carrier impose exculpatory clauses on a shipper under current law?310
  • Q 27.2 : Can a carrier require a shipper to obtain cargo-related insurance for the benefit of the carrier?310
  • Q 27.3 : Is a carrier strictly liable for loss or damage to cargo under COGSA?311
  • Q 27.4 : Can an ocean carrier be liable for misdelivery of goods?311
  • Q 27.5 : Can the ocean carrier delegate its duty to load and stow the cargo on the vessel?311
  • : Carrier Defenses311
  • Q 27.6 : In general, what defenses does a carrier have under COGSA?311
    • Q 27.6.1 : Is the carrier liable for losses where the vessel is unseaworthy?312
    • Q 27.6.2 : Is the carrier liable for losses where the crew is inadequate or makes mistakes?312
    • Q 27.6.3 : How does a carrier assert a defense against a claim of vessel unseaworthiness?312
    • Q 27.6.4 : Is the carrier responsible for properly caring for the cargo on board the vessel?313
    • Q 27.6.5 : Does the carrier have a defense in the event of a vessel fire?313
    • Q 27.6.6 : What is the “perils of the sea” defense?313
    • Q 27.6.7 : Are carriers responsible when the goods themselves have inherent defects?314
    • Q 27.6.8 : Is there a “catch-all” defense available to carriers?314
    • Q 27.6.9 : Can a carrier contract away its COGSA defenses?314
    • Q 27.6.10 : Does a carrier potentially lose its defenses if the vessel engages in a deviation?314
  • : Multiple Causes of Accident315
  • Q 27.7 : How is fault assessed when there is more than one accident cause?315
  • : Measuring Damages315
  • : Cargo Damaged or Lost315
  • Q 27.8 : How are damages measured when cargo is damaged or lost?315
  • Q 27.9 : Is a shipper stuck with COGSA limits of liability?315
  • : Delayed Delivery316
  • Q 27.10 : Can a shipper recover damages for a delivery delay?316
  • : Making a Claim317
  • Q 27.11 : What does a shipper have to do to make a claim for damaged cargo?317
  • : COGSA Time Limits318
  • Q 27.12 : What is the time limit for recovery pursuant to COGSA?318
Chapter 28: Marine Cargo Insurance
  • : Definition322
  • Q 28.1 : What is marine cargo insurance?322
  • : Who Can Obtain?323
  • Q 28.2 : Who can procure marine cargo insurance?323
  • : Types of Insurance323
  • Q 28.3 : What types of cargo insurance policies are available?323
  • Q 28.4 : Do all-risks and named peril insurance policies work the same way?323
  • Q 28.5 : Which marine cargo insurance policy offers the broadest coverage?324
  • Q 28.6 : What marine cargo insurance policy offers the least coverage?324
  • : Standard Insurance Terms324
  • Q 28.7 : What are the Institute Clauses A, B and C?324
  • Q 28.8 : What is “with average”?325
  • Q 28.9 : How are war-related risks covered?325
  • : Coverage Differences325
  • Q 28.10 : What other circumstances are covered by Institute Clauses?325
  • Q 28.11 : When does marine cargo insurance begin to apply and when does it end?325
  • Q 28.12 : Does a cargo owner need to arrange insurance for every shipment?326
  • Q 28.13 : Are all cargo insurance policies the same for all cargoes?326
  • Q 28.14 : Are cargo owners limited to “Institute” clauses?326
  • : Procuring Marine Cargo Insurance327
  • Q 28.15 : How does a cargo owner procure cargo insurance?327
  • Q 28.16 : Are cargo policies “standard”?327
  • : Cargo Owner’s Obligation When Loss Discovered327
  • Q 28.17 : What is the cargo owner’s obligation with regard to a claim?327
Chapter 29: Bulk Cargo Shipping
  • : In General332
  • Q 29.1 : What sort of cargoes are transported in bulk?332
  • Q 29.2 : What agreement is usually utilized to ship bulk cargoes?332
  • : Voyage Charter Typical Terms332
  • Q 29.3 : What are the typical terms in a voyage charter?332
  • : Loading/Discharging Bulk Cargoes333
  • Q 29.4 : Who is responsible for arranging for the loading and discharging of bulk cargoes?333
  • : Timing of Delivery333
  • Q 29.5 : How is the timing of the delivery of bulk cargoes handled in charters?333
  • : Safe Place to Load/Unload333
  • Q 29.6 : Under a voyage charter, who is responsible for ensuring that the vessel will have a safe place to load and unload its cargo?333
  • : Late Vessels and Cargo Shortage334
  • Q 29.7 : Can the charterer cancel a charter if the vessel is late?334
  • Q 29.8 : What happens when the shipper fails to ship the agreed amount of cargo?334
  • Q 29.9 : Does COGSA apply to charters for the carriage of bulk cargo?334
Chapter 30: Maritime Torts
  • : Definitions336
  • : “Tort”336
  • Q 30.1 : What is a “tort”?336
  • Q 30.2 : When is a “tort” a “maritime tort” and within maritime jurisdiction?336
  • : “Navigable Waters”337
  • Q 30.3 : What are “navigable waters”?337
  • : “Maritime Connection”338
  • Q 30.4 : How is an incident described when evaluating its “maritime connection”?338
  • : “Impact on Maritime Commerce”338
  • Q 30.5 : What matters have an “impact on maritime commerce”?338
  • : “Traditional Maritime Activity”339
  • Q 30.6 : What matters are “traditional maritime activity”?339
  • Q 30.7 : What water-related torts are not “maritime torts”?339
  • Q 30.8 : Do maritime torts necessarily involve vessels?340
  • : Impact of Plaintiff‘s Negligence340
  • Q 30.9 : How does maritime law treat the negligence of a plaintiff?340
  • : Standard for Determining Negligence341
  • Q 30.10 : How is negligence determined in maritime law?341
Chapter 31: Maritime Case Forums
  • : Jurisdiction in General346
  • Q 31.1 : What courts have jurisdiction to hear maritime cases?346
  • : State Court Jurisdiction346
  • Q 31.2 : What maritime cases can be tried in state courts?346
  • : Exclusive Federal Jurisdiction347
  • Q 31.3 : What types of cases are really subject to exclusive admiralty jurisdiction in federal courts?347
  • : Policy for Jurisdiction348
  • Q 31.4 : Why are some maritime cases exclusively federal and others are not?348
  • : Impact of State vs. Federal Jurisdiction348
  • Q 31.5 : Does the forum of a maritime case make any difference?348
  • : Judge Only or Jury Trial350
  • Q 31.6 : Can a maritime case be tried to a jury?350
  • : Choice of Forum351
  • Q 31.7 : Who decides which court will handle the case?351
  • Q 31.8 : Can the likely defendant from a maritime accident ever pick the forum?351
  • Q 31.9 : How can a claimant in a limitation case avoid the federal maritime court and get a jury?352
  • : Removal to Federal Court352
  • Q 31.10 : If the plaintiff chooses state court, can the defendant remove it to federal court?352
  • : Related State Law Claims354
  • Q 31.11 : Does a federal court hearing an admiralty case have the jurisdiction to hear related state law claims?354
  • : Unlimited Venue in Federal Court355
  • Q 31.12 : Can a maritime claim be brought in any federal court with jurisdiction?355
  • : Maritime Cases in Foreign Courts356
  • Q 31.13 : Can maritime cases be brought in foreign courts?356
Chapter 32: Maritime Litigation
  • : Creating a Maritime Case362
  • : Rule 9(h) Election362
  • Q 32.1 : When is a federal case a maritime case?362
  • : Overturning a 9(h) Election363
  • Q 32.2 : Can a defendant overturn a Rule 9(h) election?363
  • : Effect of 9(h) Election363
  • Q 32.3 : What is the effect of a Rule 9(h) election?363
  • : Third Parties364
  • Q 32.4 : Can a third party be brought into a federal maritime case?364
  • : Supplemental Rules365
  • Q 32.5 : Are maritime cases subject to a special set of rules?365
  • : Pleadings in Maritime Cases366
  • Q 32.6 : Are maritime pleadings in federal court subject to special rules?366
  • : Statutes of Limitations367
  • Q 32.7 : How long does a plaintiff have to file a case in a maritime forum?367
  • : Claims Against the United States369
  • Q 32.8 : Can a person bring a maritime claim against the United States?369
  • Q 32.9 : What is the limitation period for maritime claims against the United States?370
  • : Other Considerations370
  • Q 32.10 : Is a party to a maritime case subject to general jurisdiction if the party appears to defend against a maritime attachment or maritime arrest?370
  • Q 32.11 : Can a party to a maritime case appeal an interlocutory decision of the court?371
  • Q 32.12 : What are some other characteristic features of maritime practice?371
Chapter 33: Choice of Law
  • : General Rule377
  • Q 33.1 : What law applies to a maritime contract?377
  • Q 33.2 : What cases are “inherently local”?377
  • Q 33.3 : What is the federal interest in a “uniform maritime law”?377
  • Q 33.4 : What happens if there is not any maritime law on the point at issue?378
  • : Marine Insurance Cases378
  • Q 33.5 : Are marine insurance contracts governed by federal maritime law?378
  • : Federal vs. State Law in Maritime Cases379
  • Q 33.6 : Does federal maritime law displace state law in other (non-contract) cases?379
  • Q 33.7 : Can state law claims be brought in a maritime tort case?379
  • Q 33.8 : Do federal maritime regulations preempt state law maritime regulations?380
  • Q 33.9 : Are the lines between federal law and state law always clear?380
  • : Which State Law Governs When Multiple States Are Involved?381
  • Q 33.10 : What state law governs in cases involving multiple states?381
  • : International Maritime Disputes381
  • Q 33.11 : What law governs in international maritime disputes?381
  • : Contractual Choice-of-Law Provisions382
  • Q 33.12 : Are contractual choice-of-law clauses valid and enforced?382
  • Q 33.13 : What are the risks of a contractual choice-of-law clause?383
Chapter 34: Collisions
  • : Definitions388
  • Q 34.1 : What is a “collision” under maritime law?388
  • Q 34.2 : What is an “allision”?388
  • : Fault388
  • Q 34.3 : How is fault for a collision determined?388
  • Q 34.4 : When is fault not “proximate fault”?389
  • : Presumptions of Fault390
  • : Navigation Rules390
  • Q 34.5 : What are the maritime navigation rules?390
  • Q 34.6 : How do the COLREGS/NAVRULES apply to collision cases?391
  • : Other Presumptions391
  • Q 34.7 : What other presumptions are used in collision cases?391
  • Q 34.8 : What are other bases of fault in a collision?392
  • : Defenses to Fault392
  • Q 34.9 : What are the defenses to fault in a collision?392
  • Q 34.10 : What is an error “in extremis”?393
  • : Liability394
  • Q 34.11 : How is liability for a collision determined?394
  • : Joint and Several Liability394
  • Q 34.12 : What happens when there are multiple parties at fault?394
Chapter 35: Salvage and General Average
  • : Salvage398
  • : Definition398
  • Q 35.1 : What is “salvage” under maritime law?398
  • : When Payable398
  • Q 35.2 : When is a salvage award payable?398
  • : Determination of Award399
  • Q 35.3 : How is the amount of a salvage award determined?399
  • Q 35.4 : Does a salvor get an award—or an increased award—for preventing pollution from a vessel?400
  • Q 35.5 : What happens if a salvor ignores the environmental harm from a damaged or sinking vessel?400
  • Q 35.6 : Does a salvor get an award for saving lives?401
  • : Salvage Circumstances401
  • Q 35.7 : What happens in a salvage situation?401
  • : Crew Member Award403
  • Q 35.8 : Can a crew member get a salvage award?403
  • : Industry Standard Salvage Form403
  • Q 35.9 : What is a “Lloyd’s Open Form”?403
  • : “Contract Salvage”404
  • Q 35.10 : What is “contract salvage”?404
  • : Who Pays405
  • Q 35.11 : Who pays the salvage award?405
  • : Time Limit for Claim405
  • Q 35.12 : What is the time limit for bringing a salvage claim?405
  • : General Average406
  • : Definition406
  • Q 35.13 : What is “general average”?406
    • : Determination of Share406
    • Q 35.13.1 : How are general average shares determined?406
    • Q 35.13.2 : How does general average work?407
    • : “New Jason Clause”407
    • Q 35.13.3 : What is a “New Jason Clause” and what does it have to do with general average?407
Chapter 36: Personal Injury
  • : Available Remedies412
  • Q 36.1 : What remedies are available to injured seamen?412
  • : Categories of Persons on Vessels413
  • Q 36.2 : How are persons on vessels classified for purposes of determining their remedies for injuries on vessels?413
  • : Seamen414
  • : Definition414
  • Q 36.3 : Who are “seamen” entitled to seamen’s remedies?414
  • : Who is a Seaman?415
  • Q 36.4 : Does a person have to navigate a vessel to be a seaman?415
  • Q 36.5 : Does a person have to be on a ship for a certain period of time before the person is a seaman?415
  • Q 36.6 : Does a person have to work on one particular vessel?416
  • Q 36.7 : Is a vessel pilot a “seaman” under the Jones Act?416
  • : Examples of Seamen and Non-Seamen416
  • Q 36.8 : Does work on a barge count as work on a vessel?416
  • : Maintenance and Cure417
  • : Definition417
  • Q 36.9 : What is maintenance and cure?417
  • Q 36.10 : For how long is a seaman entitled to maintenance and cure?418
  • : Covered Injuries418
  • Q 36.11 : Are all injuries to seamen covered by maintenance and cure?418
  • : Effect of Seaman’s Negligence419
  • Q 36.12 : Is maintenance and cure still payable if the seaman was injured due to the seaman’s own negligence?419
  • : Who Pays419
  • Q 36.13 : Who is responsible to pay maintenance and cure?419
  • Q 36.14 : What happens if an injury is caused through the fault of someone else?420
  • : Which Courts Have Jurisdiction?420
  • Q 36.15 : What courts have jurisdiction to try a maintenance and cure action?420
  • Q 36.16 : Does a claim for maintenance and cure bar a Jones Act claim?420
  • : Warranty of Seaworthiness420
  • : Definition420
  • Q 36.17 : What is the warranty of seaworthiness?420
  • : Elements of a Claim421
  • Q 36.18 : What does a seaman have to prove to establish a claim for unseaworthiness?421
  • : Who Can Be Sued?421
  • Q 36.19 : Who can be sued for an unseaworthiness claim?421
  • : Damages421
  • Q 36.20 : What damages are available for an unseaworthiness claim?421
  • : Court Jurisdiction422
  • Q 36.21 : What courts have jurisdiction to try an unseaworthiness action?422
  • Q 36.22 : Can a seaman sue for unseaworthiness and later sue for negligence under the Jones Act?422
  • : Jones Act Claim422
  • : Definition422
  • Q 36.23 : What is a Jones Act claim?422
    • : Elements of a Claim422
    • Q 36.23.1 : What does a seaman have to prove to establish a Jones Act claim?422
    • : Burden of Proof423
    • Q 36.23.2 : What is the burden of proof for a Jones Act claim?423
    • Q 36.23.3 : Can a seaman still recover under the Jones Act if the seaman was negligent?423
    • Q 36.23.4 : What injuries are compensable under the Jones Act?424
    • : Damages424
    • Q 36.23.5 : What damages are available under the Jones Act?424
    • Q 36.23.6 : Can a seaman claim a maritime lien under the Jones Act?425
    • : Court Jurisdiction425
    • Q 36.23.7 : What courts have jurisdiction to try a Jones Act action?425
    • : Foreign Seamen425
    • Q 36.23.8 : Can a foreign seaman bring a claim for seamen’s remedies?425
    • Q 36.23.9 : What law applies to a Jones Act case involving a foreign seaman?426
  • Q 36.24 : Does a Jones Act claim have to be tried separately?426
Chapter 37: Limitation of Liability
  • : Shipowner’s Limitation of Liability Act431
  • : In General431
  • Q 37.1 : Can a vessel owner limit its liability from risks involved in the ownership of vessels?431
  • : Limit on Liability431
  • Q 37.2 : What are the general limits on the vessel owner’s liability under the Limitation Act?431
    • Q 37.2.1 : What are the limits on the vessel owner’s liability for personal injury or death under the Limitation Act?431
  • Q 37.3 : Does the owner’s liability insurance still have to pay claims if the owner is able to limit its liability?432
  • : Standard for Limited Liability432
  • Q 37.4 : What are the circumstances under which a vessel owner can limit its liability?432
  • Q 37.5 : What does it mean for something to be “without the privity or knowledge of the owner”?433
  • : Specific Situations433
  • Q 37.6 : Can the owner limit its liability if the vessel is not seaworthy?433
    • Q 37.6.1 : Are the acts or knowledge of the master attributable to the owner to defeat limitation of liability?434
  • Q 37.7 : What other acts are attributable to an owner to defeat the right of limitation of liability?435
  • Q 37.8 : Can an owner reduce the risk of liability by reducing its involvement in vessel management?435
  • : Other Exclusions from the Act436
  • Q 37.9 : What types of losses are subject to limitation under the Limitation Act?436
  • Q 37.10 : Are only maritime claims subject to limitation under the Limitation Act?437
  • : Rule F Proceeding437
  • : Limitation Proceeding437
  • Q 37.11 : How are the vessel owner’s rights under the Limitation Act implemented?437
  • Q 37.12 : What if the vessel owner does not believe that its vessel is at fault in the accident at issue?437
  • : Who Is Covered?438
  • Q 37.13 : Who can take advantage of the Limitation Act?438
  • : Procedure438
  • : Initiating the Procedure438
  • Q 37.14 : How does a “Limitation Proceeding” work?438
  • Q 37.15 : When can the vessel owner file a “Petition for Limitation”?439
  • : Content of “Complaint for Limitation”439
  • Q 37.16 : What goes into the “Complaint for Limitation or Exoneration”?439
  • : “Limitation Fund”440
  • Q 37.17 : What is the “Limitation Fund”?440
  • Q 37.18 : How does a “Complaint for Limitation” expedite resolution of claims from a maritime accident?441
  • : The Answer441
  • Q 37.19 : How does a claimant participate in the Limitation Proceeding?441
  • : Effect of Judgment442
  • Q 37.20 : What is the effect of a judgment in a Limitation Proceeding?442
  • : Third-Party Participation442
  • Q 37.21 : Can other parties participate in a Limitation Proceeding?442
  • : Which Court?443
  • Q 37.22 : What courts have venue for Limitation Proceedings?443
  • : Right to Jury444
  • Q 37.23 : Is there a right to a jury in a Limitation Proceeding?444
  • : Trial Procedure445
  • Q 37.24 : How does a limitation trial typically proceed?445
  • : Impact of Verdict446
  • Q 37.25 : If the owner’s vessel is found responsible, but the owner is granted limitation, how is the Limitation Fund divided among the claimants?446
  • Q 37.26 : What circumstances may lead a court to exonerate the vessel and its owner?446
  • Q 37.27 : What circumstances may lead a court to deny exoneration but allow limitation to the vessel owner?447
  • : Policy Reasons Behind the Limitation Act447
  • Q 37.28 : What are the policy reasons behind the Limitation Act?447
  • : Multinational Interests448
  • Q 37.29 : What law applies to a Limitation Proceeding involving multinational interests?448
  • : International Liability Law449
  • Q 37.30 : What is the international law of limitation of liability?449
  • Q 37.31 : What are the limits of a vessel owner’s liability under the International Convention on Limitation of Liability for Maritime Claims?450
Chapter 38: Maritime Arrest
  • : Definition456
  • Q 38.1 : What is a “maritime arrest”?456
  • : “Order for Maritime Arrest”457
  • : Obtaining457
  • Q 38.2 : How does a claimant get an “Order for Maritime Arrest”?457
  • Q 38.3 : Does the vessel owner have the right to argue against the signing of the Order of Arrest?457
  • : Implementing the Order to Arrest458
  • Q 38.4 : What happens after the judge signs the Order for Maritime Arrest?458
  • Q 38.5 : How is a vessel actually arrested?458
  • Q 38.6 : Who controls a vessel that is under arrest?459
  • : Controlling Procedural Rules460
  • Q 38.7 : What rules govern the procedure for a maritime arrest?460
  • : Activity Post-Arrest461
  • Q 38.8 : What happens after a vessel is arrested?461
  • Q 38.9 : Can a person be liable for arresting a vessel if the arrest is vacated?461
  • : Agreement to Release Vessel462
  • Q 38.10 : If the arrest is sustained, must the vessel remain in limbo until the case is decided?462
  • Q 38.11 : What is a “Letter of Undertaking”?462
  • : Maritime Arrest Trial463
  • Q 38.12 : How is a maritime arrest adjudicated?463
  • : Payment of Judgment463
  • Q 38.13 : How are claims paid if the judge decides in favor of one or more of the claimants?463
  • Q 38.14 : In what order are maritime lien claims paid?463
  • Q 38.15 : What happens if a party with a maritime lien claim against the vessel decides not to join in the lawsuit against the vessel in rem?464
  • : International Arrest465
  • Q 38.16 : Are the procedures in other countries the same?465
  • Q 38.17 : How does a buyer of a vessel from a foreign judicial sale know if the vessel will be free of prior liens?465
Chapter 39: Maritime Attachment
  • : Definition469
  • Q 39.1 : What is a “maritime attachment”?469
  • : Property That May Be Attached469
  • Q 39.2 : What types of property may be attached?469
  • Q 39.3 : What is “garnishment” and is it different from “attachment”?470
  • : Effect of Attachment470
  • Q 39.4 : What is the effect of a maritime attachment?470
  • : Purpose of Attachment471
  • Q 39.5 : What is the purpose of maritime attachment?471
  • Q 39.6 : Do the purposes of maritime attachment matter?471
  • : When Available472
  • Q 39.7 : When is maritime attachment available?472
  • Q 39.8 : Must the property to be attached be related to the claim?472
  • : “Writ of Maritime Attachment”472
  • : Procedure472
  • Q 39.9 : How does a claimant get a “Writ of Maritime Attachment”?472
  • : “Attorney’s Affidavit”473
  • Q 39.10 : What goes into the “Attorney’s Affidavit”?473
  • Q 39.11 : What must be submitted with the Verified Complaint and the Attorney’s Affidavit?474
  • : Request for Immediate Attachment476
  • Q 39.12 : What are exigent circumstances supporting a request for immediate issuance of “Process of Maritime Attachment”?476
  • : Property Issues476
  • : After-Acquired Property476
  • Q 39.13 : Does “Process of Maritime Garnishment” reach after-acquired property?476
  • : Bank Funds477
  • Q 39.14 : What happens if a bank turns over after-acquired property in response to a garnishment order?477
  • Q 39.15 : How do plaintiffs “catch” bank deposits by maritime garnishment?477
  • Q 39.16 : Does the defendant have the right to argue against the signing of the Order for Issuance of Process of Attachment (or Garnishment)?478
  • : Implementing a Signed Order478
  • Q 39.17 : What happens after the judge signs the “Order for Issuance of Process of Attachment”?478
  • Q 39.18 : Who can serve as a “Special Process Server”?479
  • Q 39.19 : What happens when a vessel is attached?479
  • Q 39.20 : Who controls a vessel that has been attached?479
  • Q 39.21 : How is intangible property actually garnished?480
  • : The Lawsuit—Post-Attachment480
  • Q 39.22 : What happens after property is attached?480
  • : Vacating an Attachment481
  • Q 39.23 : Can a plaintiff defeat maritime attachment by showing that it is not necessary or equitable?481
  • Q 39.24 : What are the few limited circumstances where an otherwise valid maritime attachment will be vacated?481
  • : Jurisdiction482
  • Q 39.25 : Can an otherwise valid maritime attachment be upheld if the court finds that it lacks maritime jurisdiction?482
  • Q 39.26 : Must an underlying case have a connection to the district where Process of Maritime Attachment is sought?482
  • : Choice of Forum483
  • Q 39.27 : Can a maritime attachment be vacated by showing a contractual choice of forum agreement?483
  • : Concurrent Litigation483
  • Q 39.28 : Can a maritime attachment be vacated if the parties are already in litigation or arbitration in some other jurisdiction or forum?483
  • : The Garnishee484
  • Q 39.29 : What are the responsibilities of a garnishee?484
  • Q 39.30 : What is “fair game” for interrogatories served on a garnishee?484
  • Q 39.31 : Who pays the costs incurred by the garnishee?485
  • : Governing Rules for a Maritime Attachment485
  • Q 39.32 : What rules govern the procedure for a maritime attachment or garnishment?485
  • : Liability for Improper Attachment485
  • Q 39.33 : Can a person be liable for attaching property if the attachment is vacated?485
  • : Agreement to Release Attached Property486
  • Q 39.34 : If an attachment is upheld, must the property remain in custody until the case is decided?486
  • Q 39.35 : What is a Letter of Undertaking?486
  • : Adjudicating the Case487
  • Q 39.36 : How is a maritime attachment case adjudicated?487
  • Q 39.37 : Can a maritime attachment case be joined with a maritime arrest case?487
  • Q 39.38 : Can a maritime attachment case be tried to a jury?488
Chapter 40: Cargo and Charter Dispute Resolution
  • : In General492
  • Q 40.1 : How do cargo disputes come about?492
  • : Initiating the Case493
  • Q 40.2 : What law governs the shipment of cargo?493
  • Q 40.3 : When must a shipper give notice of damage?493
  • Q 40.4 : How much time does a shipper have to file suit or start arbitration?493
  • Q 40.5 : How is a cargo case initiated?493
  • : Defendants and Burden of Proof494
  • Q 40.6 : Who are the proper defendants in a cargo claim case?494
  • Q 40.7 : Who bears the initial burden of proof in a cargo damage claim?494
  • : Defeating Liability495
  • Q 40.8 : Can the carrier defeat liability once the shipper has established its initial case?495
  • Q 40.9 : Does a plaintiff have a duty to mitigate its damages?496
  • : Procuring Evidence of Damage497
  • Q 40.10 : How does the shipper get evidence of damage?497
  • Q 40.11 : What is a joint survey?497
  • : Liability Limits498
  • Q 40.12 : What are the limitations of the carrier’s liability?498
  • Q 40.13 : What is a “customary freight unit”?498
  • Q 40.14 : Can the shipper avoid the carrier’s limitation of liability by suing the subcontractors for damage?499
  • : Other Sources of Liability500
  • Q 40.15 : Is the carrier responsible for damage caused by subcontractors?500
  • Q 40.16 : Is the carrier liable if the delivery takes too long?500
  • : Service Agreements500
  • Q 40.17 : What is the effect of a service agreement or contract of affreightment?500
  • : Arbitration501
  • Q 40.18 : How are charter disputes typically resolved?501
Chapter 41: Maritime Arbitration
  • : In General505
  • Q 41.1 : When can a claim be taken to arbitration?505
  • Q 41.2 : What law governs the enforcement of maritime arbitration agreements?505
  • : Arbitration Agreement Requirements505
  • Q 41.3 : Does an agreement to arbitrate have to be in writing?505
  • Q 41.4 : Is there a specific form of writing that is required for an agreement to arbitrate?505
  • Q 41.5 : Does an arbitration agreement have to be signed?506
  • : Impact of an Arbitration Agreement507
  • Q 41.6 : What is the scope of an agreement to arbitrate?507
  • Q 41.7 : What happens if one party refuses to arbitrate?507
  • Q 41.8 : Can a court order arbitration if the arbitration agreement is for foreign arbitration?507
  • Q 41.9 : What happens if one party starts a lawsuit despite an arbitration agreement?508
  • Q 41.10 : Is a party to an arbitration agreement prohibited from starting a maritime court case?508
  • : Legal Framework for Maritime Arbitration509
  • Q 41.11 : What substantive law governs a maritime arbitration?509
  • Q 41.12 : What rules govern a maritime arbitration?509
  • Q 41.13 : What are some of the more well-known maritime arbitration organizations?509
  • : Who Can Be an Arbitrator?510
  • Q 41.14 : Who can serve as an arbitrator?510
  • : Arbitration Procedure511
  • Q 41.15 : How is a maritime arbitration conducted?511
  • Q 41.16 : What Rules of Evidence apply to arbitrations?512
  • Q 41.17 : How is evidence admitted to an arbitration?513
  • Q 41.18 : How are witnesses examined in an arbitration?514
  • Q 41.19 : How does an arbitration panel announce who wins?514
  • : After the Decision515
  • Q 41.20 : Can an arbitration panel award the payment of attorneys’ fees?515
  • Q 41.21 : What happens if the losing party does not pay the award?515
  • Q 41.22 : What is the time limit for confirming an arbitration award?515
  • Q 41.23 : Can an arbitration award be enforced without confirming the award?516
  • : Vacating or Appealing an Award516
  • Q 41.24 : Can a losing party appeal an arbitration award?516
  • Q 41.25 : What are the grounds for vacating an arbitration award?516
  • Q 41.26 : Can an arbitration award be overturned if the arbitrators make a mistake of law?517
  • Q 41.27 : Can the parties agree to allow a reviewing court to review the legal decisions of the arbitration?517
  • Q 41.28 : Can an arbitration award be overturned if the arbitrators make a mistake of fact?518
  • : When to Choose Arbitration518
  • Q 41.29 : Is arbitration a good choice for the resolution of maritime disputes?518
  Index

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