Subject: FALL MEETING - NEW YORK
Author: William R. Dorsey, III
Source: MLA
Doc. No.: Document No. 752
Date: September 1, 2000
September, 2000
Document No. 752
PRESIDENT'S SUMMER/FALL 2000 NEWSLETTER
FALL MEETING - NEW YORK
Dear Member:
The fall meeting of the Association will take place in New York during the week of
October 30-November 3, culminating with the usual general meeting of the Association on
Friday morning November 3. As in the past, the general meeting will take place in the Great
Hall at the Association of the Bar of the City of New York, 42 West 44th Street. There will
be a black tie dinner dance at the Marriott Marquis Hotel on Friday evening. This event is
reserved for members and their "significant others." Brett Kelly, the hard-working Chair of
the dinner dance activities, assures me that this year's dinner dance will be the best ever. The
announcements for this fall MLA week accompany this Newsletter. I encourage you to
indicate your intention to attend the dinner in accordance with the provisions of the dinner
notice as soon as possible. This would be a great help to those arranging seating for the
dinner dance. For those who seek assistance with respect to hotel accommodations, once
again this assistance will be provided by Resorts Meetings. Please take particular note of the
various dates by which the hotel reservations must be made. You should feel free to contact
the hotel directly or Resorts Meetings with reference to accommodations for hotels
designated in the notice. Book early as I am advised that the week of October 30 is also
Marathon Week in New York.
The notice also contains a complete listing of all committee meetings of the
Association that are scheduled for MLA week. In addition to the committee meetings there
are several other important events that are scheduled for that week. On Thursday November
2, the biennial Nicholas Healy lecture will be given at the New York University School of
Law commencing at 5:00 p.m. This year's speaker will be Professor Robert Force of Tulane
Law School. The title of his speech is "Deconstructing Jensen: Admiralty and Federalism
in the 21st Century." Professor Force is, of course, well known to almost all members of the
Association and is one of the leading maritime law academicians in the United States.
Given the assault that some writers have made on the nature and relationship of admiralty
and federalism, his speech will be both timely and important.
There will also be a number of events for which CLE credits will be available. On
Friday afternoon the Young Lawyers Committee and the Forum of Maritime Law Teachers
will sponsor a program entitled "Maritime Suits Against Sovereigns". The irrepressible
Philip A. Berns will speak on suits against the United States. Professor George Walker of
Wake Forest Law School will speak on suits against foreign sovereigns. As in the past, this
program will take place in the Great Hall at the Association of the Bar of the City of New
York commencing at 2:30 p.m.
On Tuesday, October 31, BIMCO will hold a seminar entitled "Tanker Time Charters
- Negotiating and Operating under Tanker Time Charter Parties." This program, one of the
sponsors of which is your Association, will be presented at the New York Helmsley Hotel
commencing at 9:15 a.m. A copy of the program and general information about the program
has been sent to you direct by BIMCO. I note that among the speakers are two Association
Proctor members. Michael Marks Cohen will be speaking on the "Strengths and Weaknesses
of SHELLTIME 4 and a Comparison to the new BPTIME 3." John Kimball will speak on
"Re-Delivery, including Overlap and Underlap." In addition, non-lawyer member Anthony
Siciliano will speak on "Off-hire and Deduction from Hire."
ADMINISTRATIVE DEVELOPMENTS
1. Directory
I am happy to say that a new MLA Directory should be in your hands prior to our
general meeting in November. If the long hours spent by our Membership Secretary,
Winston Rice, and our Membership Administrator in Buffalo, Robin Becker, are any
indication, this Directory should be the most up-to-date and most accurate in years. You will
notice some changes. The Purposes and Organization section has been amended to include
more of the history of the Association that was rediscovered during our centennial year. That
section has been renamed "History, Purposes, Organization and Activities." The Association
is indebted to past presidents John Sims and Nick Healy for their contributions to this portion
of the Directory. In addition, Winston Rice has worked both long and hard to streamline that
section and bring it up to date. This year's Directory will also contain e-mail and web
addresses where they have been provided by members.
You will have noticed that the last Directory was published two years ago, departing
from our recent practice of publishing it every year. The reason for this was, quite frankly,
financial. There were a number of additional expenditures last year occasioned by the
centennial and also by the start-up of the web site. Accordingly, the Board decided that we
would forego publishing the Directory last year. I know there has been speculation that we
may do away with the Directory in light of the fact that we now have a web site. Let me say
that may be the way of the future, but the Officers and Board have no plans at present to
dispense with a Directory, and I expect that we will go back to our usual practice of
publishing the Directory every year for the foreseeable future. Although the web site has
many advantages, I personally still find it simpler when looking up a member to grab the
Directory, and I know that others feel the same way. So, for the time being, you can rest
assured that the Directory is not a thing of the past.
2. Web Site
Speaking of the web site, the Board has given the go ahead for the establishment of
a Document Library on our web site. Initially we plan to place the Proceedings and,
possibly, the MLA Reports from the past few years in this library. Going forward it is
anticipated that we will continue to put the Proceedings and MLA Reports in this library, as
well as important committee reports and the like. It is our hope that the extensive past
documentation that is currently on microfiche can, to some extent, also be made available on
the web site. In this connection see the new project that is being taken up by the Young
Lawyers Committee discussed below.
You will also notice that we have established a Links Section on our web site and
have begun to list various links to other organizations and web sites. If you have a
suggestion as to an appropriate link you can submit it through the procedure indicated on the
Links Section of our web site, or you can send your proposal by fax, e-mail or letter to either
me or Glen Oxton. My e-mail address is wdorsey@mail.semmes.com. Glen Oxton's is
goxton@healy.com. The web site address is www.mlaus.org.
Also please note the Events Calendar section of our web site. Here we try to list
events of importance to the Association and its members. Again, if you wish to suggest
events that should be on this calendar there is a method for doing that at the Events Calendar
section of the web site or you can contact either me or Glen Oxton.
The Association owes a great debt of gratitude (again) to Winston Rice for his efforts
in setting up the web site. He was the one who negotiated the contract with our service
provider and essentially took the project in hand and ran with it. It is thanks to his efforts
that we finally have a web site that is up and running. Looking forward I have designated
Glen Oxton as our "web master." Glen is the Chair of our Electronic Communication and
Commerce Committee. It is his committee that will be considering and suggesting further
uses and recommending policy for our web site. Those of you that have input with respect
to membership data on the web site should continue to contact Winston. Those that have
suggestions or information concerning other aspects of the web site should contact Glen.
3. Amicus Requests
Since the May meeting we have received three requests for participation by the
Association as amicus curiae. The first request was really a request involving two cases,
Columbus America Discovery Group v. Atlantic Mutual Insurance Co. and Yukon Recovery,
LLC v. Certain Abandoned Property. The request asked us to file amicus briefs in
connection with petitions for certiorari that were intended to be filed in both of those cases.
The issue in those cases was the definition of abandonment in salvage law. This request was
declined, it being felt by the President and two Vice Presidents that the issue involved and
the context of the cases in which they arose did not satisfy the very stringent criteria set forth
in by-law 702.3.
The second request came in connection with the case of Mobil Mining and Minerals
v. David R. Nixson and Director, Officers of Workers Compensation Programs. The
question in that case is whether, when any part of a manufacturing facility is used for loading
and unloading vessels, the entire facility, including non-maritime areas, is "customarily used"
for such purposes and thus is a "covered" site under Section 3(a) of the Longshore and
Harborworkers' Compensation Act. There is a clear case of a conflict between the Circuits
on this issue. The Fifth Circuit has adopted an expansive definition that provides that, in
such case, the whole facility is a covered site. Other circuits, especially the Fourth Circuit,
have adopted a narrower approach to the interpretation of Section 3(a). Given the confusion
in the lower courts and lack of uniformity, the Board voted in favor of filing an amicus brief
in support of Mobil Mining's petition for certiorari to the Supreme Court from a decision
entered by the United States Court of Appeals for the Fifth Circuit. The MLA will support
the petition only in so far as it seeks to persuade the Supreme Court to take certiorari in the
case in order to resolve the conflict among the circuits. The MLA will take no position on
the merits of the case. This brief is due October 6, and is being prepared by Pat Cooney, the
Chair of our Uniformity Committee.
The third request comes in the case of Stepansky v. Florida. In that case the state of
Florida, pursuant to a Florida statute on "special maritime criminal jurisdiction" seeks
criminal jurisdiction over an alleged crime committed on the high seas, beyond state waters,
on a foreign flag vessel, where neither the victim nor the alleged perpetrator is a citizen or
resident of the state. Specifically, Florida has charged Mr. Stepansky with burglary and
attempted sexual battery of a teenage girl that occurred on board a cruise ship when the ship
was approximately 100 nautical miles off the Florida Atlantic coastline. A Florida Supreme
Court has upheld the bringing of these charges, and Mr. Stepansky intends to seek certiorari
from the Supreme Court of the United States on the issue of whether federal courts exercise
exclusive jurisdiction over crimes or offenses committed on the high seas beyond state
waters. Although there was a division of opinion, the Board has voted not to enter this case
as amicus at this time.
4. Action on Committees
There has been some activity restructuring committees. I have reinstituted the
Continuing Legal Education Committee. Larry Bowles of New York has kindly consented
to be Chair of this committee and Denise Blocker of San Francisco, Vice Chair. The focus
of this committee is to coordinate, obtain and maintain accreditation as appropriate of all
MLA CLE activities. Most recently this committee has succeeded in gaining for the MLA
from the Association of the Bar of the State of New York accreditation as an authorized
provider of CLE.
At the request of the Committee on Alternate Dispute Resolution that committee has
been disbanded and its functions and membership merged with the Committee on Maritime
Arbitration, which has been renamed the Committee on Maritime Arbitration and Mediation.
This committee is chaired by Donald Kennedy of New York.
COMMITTEE PROJECTS
1. The Carriage of Goods Committee
The disappointing news is that our new COGSA bill has not been introduced in
Congress. The good news is that Senator Kay Bailey Hutchison has reaffirmed her support.
In a June 9 statement responding to questions from American Shipper Magazine she
expressed the hope that movement on the revised COGSA could take place this year. She
went on to say:
"My goal for this legislation is to craft a bill that provides a
single cargo liability system to cover intermodal transportation;
offers a reasonable increase in the per package liability limit;
modifies existing burden of proof rules for determining damages
that reflect comparative fault; eliminates the error in navigation
defense for goods carried under COGSA; and addresses the
question of dispute resolution."
See American Shipper, July 2000, page 20. Accordingly we are still hopeful that some
action will be taken to introduce the COGSA legislation before the end of the year.
However, given that this is an election year we must realize that anything can happen.
2. Practice and Procedure
The Committee on Practice and Procedure recently received a complaint concerning
a proposed amendment to local admiralty rule (E)(9) in the United States District Court for
the District of New Jersey that would raise the security deposit for seizure of vessels more
than 65 feet in length from $4,000 to $10,000. It was felt that this proposed increase in the
required security deposit may be unwarranted and may unnecessarily discourage the
prosecution of legitimate claims against vessels and their owners or charterers. Accordingly
the Board received and approved a request from Jim Bartlett and Andy Goldstein, the Chair
and Vice Chair, respectively, of the MLA Committee on Practice and Procedure, to urge the
court not to enact the proposed amendment. On behalf of the Association I wrote to the
Clerk of the Court, with copies of the letter to the Chief Judge, urging the court not to enact
the proposed amendment. Further, in light of this development, I have asked the Practice and
Procedure Committee to explore the situation in other jurisdictions to determine if there are
other instances of excessive demands for security. Any of you that have information that you
think bears on this issue should communicate with Jim Bartlett.
3. Committee on Salvage
At its meeting in May of this year the Salvage Committee constituted a Salvage
Convention Working Group under the chairmanship of Professor David Sharpe. This
working group is looking at the Salvage Convention of 1910, the Salvage Convention of
1989, and the U.S. Salvage Act to consider what, if any, recommendations should be made
for any action by the MLA in light of the ratification by the United States of the Salvage
Convention of 1989. The study is more akin to a consideration of potential conflicts of law
by a law review commission than an inquiry into problems triggered by a recent case. I have
seen a rough draft of the working group's report which contains, among other things, a first
rate exposition of the status of salvage law in this country as affected by the Salvage
Convention of 1910, the Salvage Convention of 1989 and the U.S. Salvage Act. I think we
can look forward to an interesting report on this subject from the Salvage Committee at our
meeting in November.
4. Environmental Crimes Subcommittee
Larry Kiern and Fred Kuffler of the Environmental Crimes Subcommittee report that
Senator Breaux of Louisiana and Congressmen Vitter of Louisiana, Coble of North Carolina
and Clement of Tennessee have introduced companion bills into Congress, the effect of
which would be to prevent the use of the Refuse Act and the Migratory Bird Act for criminal
prosecutions in connection with the discharge of oil. In essence the legislation would limit
criminal prosecutions relating to the discharge of oil to those crimes set forth in OPA 90.
The House Bill is HR 5100. The Senate Bill is S.2944. The bills reflect the position that the
MLA took in a statement to the House Committee on Coast Guard and Marine
Transportation last year. Hopefully these bills will pass muster with Congress.
5. Maritime Personnel Committee
Recently John Schaffer, the Chair of the Committee on Maritime Personnel was sent
a questionnaire propounded by the IMO/ILO Ad Hoc Expert Working Group on Liability
and Compensation Regarding Claims for Death, Personal Injury and Abandonment of
Seafarers. This questionnaire was forwarded by Lt. Cmdr. William Chaney of the Coast
Guard's Office of Maritime and International Law seeking our assistance in preparing a
response. Under John Schaffer's supervision answers were prepared by Paul Edelman, Doug
Stevenson of the Center for Seafarer's Rights, and Michael Marks Cohen, which were then
forwarded to Commander Chaney and eventually were incorporated by him into his response
to IMO/ILO. All of this was accomplished by Messrs. Schaffer, Edelman, Cohen and
Stevenson on a very short time frame. I am very much indebted to these four members for
responding so quickly and so expertly.
6. Young Lawyers Committee
Some years ago Past President Ken Volk completed the rather herculean task of
digesting and indexing MLA documents 1-664 dated from 1899 to 1986. The digest of these
Documents that Ken prepared is approximately 345 pages long. The index itself is 72 pages
long. There is no index of Documents after 1986. As a consequence I have charged the
Young Lawyers Committee, chaired by Doug Muller, with the task of indexing our
Proceedings, MLA Reports, and Association and Board Resolutions for the past fourteen
years. This is a formidable task, but if split up among a larger number of young lawyers, it
should be manageable. In any event, it is an extremely important task because without an
index it is often quite time consuming and difficult to find references to specific actions taken
by the Association or useful reports of committees. It is, of course, the aim that once this
index is completed it can be coordinated with Ken's and put into our Document Library on
our web site.
INTERNATIONAL ACTIVITIES
1. CMI Activities
At its May 5 General Assembly meeting in London the CMI elected MLA members
Lizabeth L. Burrell, Christopher O. Davis, and Warren Faris as new Titulary Members. In
addition Stuart Hetherington of Australia and Dr. Gregorios Timagenis of Greece were
elected to the Executive Council replacing Ron Salter of Australia and Panayotis
Sotiropoulos of Greece, whose terms expired.
Speaking to Titulary Members, you will notice that your CMI dues for this year were
somewhat lower than they were last year. This is because of the decline in the value of the
Euro as opposed to the dollar. The CMI anticipates that it will be raising its dues next year
approximately 3%, although that is subject to review.
David Angus of Canada reported that considerable progress had been made in
bringing the finances and accounting procedures of the CMI into line. In this connection
three member Associations, Egypt, India, and Sri Lanka were expelled for long-standing
non-payment of dues.
The major project currently being undertaken by the CMI is its work, in conjunction
with UNCITRAL, on issues of transport law. Stuart Beare of the United Kingdom is Chair
of the CMI International Study Group on Transport Law. The rapporteur of that Study
Group is Professor Michael Sturley. Our delegates on the Study Group are Chet Hooper,
Vince DeOrchis and George Chandler. There have been three meetings of this Study Group,
the most recent one occurring on July 7 and 8 in New York City. The purpose of this group
is to work toward the development of a new liability regime to reflect modern commercial
practice and to replace the Hague, Hague/Visby and Hamburg Rules. CMI is involved in this
joint exercise with UNCITRAL to develop a new convention or other instrument to cover
numerous areas of maritime transportation. Delegates to the CMI Colloquium being held in
Toledo, Spain, September 17-20, will receive reports of progress with respect to this project.
In addition, a fourth meeting of the International Subcommittee is scheduled for October 12
and 13 in London. All of this is in preparation for the 37th CMI Conference to be held in
Singapore on February 12-17, 2001, where issues of transport law will be one of the main
topics under consideration.
The MLA fully supports this work of the CMI and is actively engaged in the project.
Further, I, and those concerned, believe that enactment of the revised COGSA in the US will
be of great assistance in persuading our Congress to ratify a new CMI/UNCITRAL
Convention on Transport law.
In addition to issues of transport law the upcoming CMI Toledo Colloquium will also
deal with issues of marine insurance, general average, and the implementation and
interpretation of international conventions, all current CMI projects. As is the case with
transport law, this Colloquium will offer a foretaste of the Singapore conference as all of the
above issues are on the Singapore agenda. In addition delegates to the Singapore conference
will be invited to consider proposed amendments to, and vote on, a draft model law on
piracy.
In connection with future CMI elections, the MLA's Board of Directors has
unanimously agreed to recommend to the CMI Nominating Committee the election of Frank
Wiswall as Vice President of the CMI for a second four year term, and I have so advised
Nigel Frawley of Canada, Chair of the CMI Nominating Committee. Frank's first term as
Vice President expires in the year 2001.
2. UNCITRAL
On July 6 of this year the United Nations Commission on International Trade Law
(UNCITRAL) and the CMI held a transport law colloquium at United Nations Headquarters
in New York. At this colloquium specialists in international transport law discussed the
current open issues that may require modern and internationally harmonized solutions.
Although some of the speakers were lawyers, many were not. The general theme of the
meeting was that the time was ripe for a new convention, and that any such convention ought
to strive for the uniformity and harmonization of transport law, and deal with such matters
as multi-modal door to door transport, e-mail, and uniform bill of lading laws, as well as
transport liability.
Following the seminar your Association hosted a small reception for the speakers,
CMI President Patrick Griggs, UNCITRAL representatives and various other seminar
participants. The reception was held at the Sky Club in the Metropolitan Life Building. It
was an enjoyable conclusion to a very interesting day. My thanks go to First Vice President
Ray Hayden and Marshall Keating for making the arrangements for this reception, and to
Kathleen Quigley of Hill, Rivkins & Hayden for her indispensable assistance in connection
with the invitations and acceptances.
3. IMO Legal Committee
The next meeting of the IMO Legal Committee will be take place in London from
October 16-20. I will be attending as a private sector advisor to the U.S. Delegation. There
will be two main topics at this session. The first is the Committee's continuing work on a
draft protocol to the Athens Convention on Liability Relating to the Carriage of Passengers
and Their Luggage by Sea. There has been difficulty in reaching a consensus on this
protocol. Since the last meeting of the IMO Legal Committee a number of delegates from
other countries, and a few non-governmental observers, including the international group of
P & I clubs, have met in an attempt to come up with a compromise that would attract a
consensus to ensure progress in obtaining an agreed protocol. Essentially this compromise
proposal calls for a system of two tier liability. The first tier would impose strict liability for
any death or personal injury occurring in connection with an "operational incident" such as
shipwreck, collision, stranding, an explosion or fire or defect in the ship. The only exception
would be for injuries or death caused solely by Acts of God, war, etc., intentional acts of
third parties, or the state of health of the passenger. The ship would be liable up to a
designated per capita limit on the basis of this strict liability. Above this per capita limit in
cases of operational incidents, and in all other cases, i.e., slips and falls or passengers getting
hit on the head by coconut drinks, the carrier would be liable for negligence up to a higher
per capita limit. The negligence would be presumed, and, therefore, the carrier would have
the burden of proving that it was not negligent. Contributory negligence would result in a
pro rata diminution of any award. The amounts of the per capita limits would be left to a
diplomatic convention to decide. In addition there would be compulsory insurance with a
right of direct action against the insurer. Still open is the question of whether there would
be a per ship cap on compulsory insurance, and whether this would be lower than the per
capita limit multiplied by the number of passengers who are authorized to be carried. It
remains to be seen whether or not this "compromise" proposal will meet with the broad
consensus that will be necessary for there to be progress on the protocol to the Athens
Convention.
A new item that will come up at the next meeting of the Legal Committee will be
proposed amendments to the limits of oil pollution liability under the Civil Liability
Convention and the IOPC Fund Convention. This is spurred by the recent incident off the
coast of France involving the tanker ERIKA. It is estimated that the total cost of responding
to that incident, plus compensation for claims, may exceed the amount of compensation
available under the CLC and the Fund Conventions. Apparently, this is not the first time that
the compensation system set up under those two conventions has been threatened with
potential claims in excess of the available amount of compensation. Article 15 of the Civil
Liability Convention and Article 33 of the Fund Convention set out simplified amendment
procedures for amendment of the limits. This procedure does not require the convening of
a diplomatic conference, but provides that the amendments may be decided by contracting
states meeting at the Legal Committee of the IMO. This procedure has never been invoked
and has been available only since 1996. It will be interesting to see how this procedure
unfolds at the upcoming session of the Legal Committee. Of course, the US is not a party
to either the CLC or Fund Convention. OPA 90 rules the day in the U.S.
With respect to old business, the Legal Committee is still working on the development
of a convention on wreck removal. This has been pushed to the back burner in order to
complete the Bunker Pollution Convention and to push forward the protocol to the Athens
Convention. There are still a number of controversial items concerning a proposed wreck
removal convention, and it is not possible to predict when this project will be next brought
to the floor of the Legal Committee.
The Legal Committee has also formed a correspondence group to monitor the
implementation of the HNS Convention. The concern here is that implementation of this
Convention is not proceeding as quickly as it should. Accordingly, this group has been put
in place to facilitate the exchange of information and monitor progress, and will be reporting
to the Legal Committee on a regular basis.
4. UNESCO Draft Convention on Underwater Cultural Heritage
The most recent meeting of the group of governmental experts working on the
UNESCO Draft Convention on Underwater Cultural Heritage (UCH) took place during the
week of July 3-7 in Paris. Thanks to the efforts of MLA member Robert Blumberg of the
State Department, who is the head of the U.S. Delegation to this meeting of experts, John
Kimball, the Chair of the MLA Study Group on UCH, was named a member of the U.S.
Delegation and participated at the recent meeting. John reports that the U.S. Delegation,
although not a member of UNESCO and, therefore, not entitled to vote, has been working
(1) to limit the definition of UCH to wrecks and artifacts of archaeological and historic
significance; (2) to ensure that the jurisdictional provisions do not conflict with the United
Nations Convention on the Law of the Sea; and (3) to ensure that the Rules regarding
historical salvage provide, in some measure, for commercial services and a multi-use
concept.
Given the makeup of the UNESCO governmental experts, who are basically from the
cultural ministries of the governments involved, it is not certain how successful the U.S.
Delegation will be in this regard. As for timing, the next meeting of the group of experts will
probably take place sometime in April of next year. The stated goal is to complete a Draft
Convention for presentation at UNESCO's General Assembly meeting in October of 2001.
However, given the number of square brackets that are still contained in the Draft
Convention, and the disputes that still remain, it is not certain this time table will be met.
RESORT SITE QUESTIONNAIRE
You will recall that we recently sent out to each member a non-New York meeting
questionnaire. We received 192 replies to this questionnaire, not exactly an overwhelming
response. Nevertheless, I asked Second Vice President Tom Rue to undertake a survey of
the responses to see what might be gleaned from them. After studying the survey results
prepared by Tom, the Board concluded that it might be in the best interest of the members,
and the success of these meetings, to shorten their time frame. Specifically, what we are
presently planning to do for the resort meeting in 2003 is to truncate the meeting so that it
occurs on Thursday, Friday and Saturday. Committee meetings and CLE events would take
place on Thursday and Friday, with Saturday reserved for the general meeting and for the
dinner dance. There would be no sports activities during these times. We would schedule
all sports activities either before or after the Thursday to Saturday period set aside for the
business of the Association. A welcoming cocktail party would be held Wednesday evening
instead of Tuesday evening as in the past. The result of this is to shorten the time frame of
the meeting for those who are not interested in sports events. Those that are interested in
sports events would still be able to participate, but would do so before (or after) the regular
business sessions, committee meetings, and CLE events. In addition, we will be looking at
the possibility of obtaining CLE credits in conjunction with some committee meetings.
With respect to the meeting scheduled for October 16-19 next year in Coronado, we
already have a contract with the hotel facility and so it may not be possible to truncate the
meeting as set out above. Nevertheless, we are going to explore that with the hotel to see if
it is possible.
With respect to our resort meetings, the Site Selection Committee under the
chairmanship of Ben Reynolds, along with Bob Parrish who is chairman of the Arrangements
Committee for 2003, are hard at work in looking at a number of sites that are prospects for
our 2003 fall meeting. I hope to have a report from them by the time of our meeting this
November.
AMC QUESTIONNAIRE
Enclosed with this Newsletter is a questionnaire prepared by AMC on the use of
American Maritime Cases. Since 1923 AMC has been serving the MLA members. As many
of you are aware, the advice, cooperation and support from all of us have been a key factor
in producing a research tool tailored to our needs. Indeed, in my view, that research tool is
not matched by any other in the maritime field.
The advent of electronic research has drastically changed all of our habits as lawyers.
Therefore, the editors of AMC need your input as they plan for the immediate future. I urge
you to carefully review the questionnaire, complete, and return it to AMC. AMC advises that
individual answers, rather than collective answers for the firm, are preferred. A return
envelope is enclosed for your convenience, or you can fax the completed questionnaire to
AMC at 410-889-3938.
PROPOSAL FOR JOINT SEMINAR IN NEW ZEALAND OR AUSTRALIA
I have received an inquiry from the president of the Maritime Law Association for
New Zealand and Australia (MLAANZ) suggesting the possibility of organizing a seminar
in one of their major centers, the subject matter being designed with American lawyers in
mind. The topics might extend to trade issues as well as issues strictly of maritime law. The
plan is for a short tour to be designed around the seminar, so that there would be
opportunities for American delegates to the seminar to visit some of the scenic attractions of
both Australia and New Zealand (including golf courses). The concept is an elastic one and,
as to timing, the suggestion was that 2002 would be an appropriate year since it is an "off
year" in the sense that the MLA does not have its resort meeting in that year.
I have advised Anthe Phillipides, the new president of MLAANZ, that I would advise
the membership of this suggestion. I am sorry to say that I doubt that the Association would
be able to subsidize such an event. In other words, the lawyer participants would have to do
so on their own. Nevertheless, MLAANZ has indicated that the prospects of interesting
approximately 25 American lawyers and their spouses would make the proposal viable, and
I am sure that anyone who did participate would have both an entertaining and an instructive
time. The purpose of calling this to your attention is to see whether there is any interest at
this time in such a seminar. If so, I would ask that you contact me.
COMMENTS ON TITANIC GUIDELINES
In 1986 Congress passed the RMS Titanic Memorial Act, urging the State Department
to enter into negotiations with Canada, France and England to establish a treaty honoring the
Titanic as a memorial. Nothing substantive was done under that legislation until 1996 when
the United States began negotiating an international agreement with those countries (the
"Agreement"). That Agreement is now imminent. However, these negotiations, and the
terms of the Agreement, only became known to the general public earlier this year. The
proposed Agreement provides that rules annexed thereto form an integral part of the
Agreement. These rules are, in many particulars, quite similar to the UNESCO Draft
Convention Annex Rules. They establish in situ preservation as the preferred policy for
preservation of the Titanic and its artifacts. They contemplate that activities at the wreck site
shall be submitted to a State Party for approval, and outline the extensive details such
applications for approval must contain. In other words the Agreement contemplates a
permitting process.
In June of this year NOAA published proposed guidelines relating to the Titanic
Memorial Act, and, presumably, any Agreement that may be concluded. The guidelines are
entitled "Proposed Guidelines for Research, Exploration and Salvage of R.M.S. Titanic"
(Guidelines). NOAA sought comments from the public within 30 days. These Guidelines
are identical to the proposed Agreement rules. While calling for in situ preservation as the
preferred management technique, they do contemplate some recovery or excavation, but only
"when justified by educational, scientific, or cultural interests" or to protect Titanic or its
artifacts from "significant threat." In addition, the proposed Guidelines dictate that any
recovered artifacts should be kept together as a project collection. NOAA's description of
the Guidelines indicates that this means that individual artifacts cannot be sold. NOAA
states that this would not preclude sale or transfer of an entire collection to a museum
provided the collection is kept together. NOAA goes on to note that current professional
curation practices would permit museums to exclude objects from the collection or
subsequently deaccess them. Such objects could then be sold by the museum.
On June 21, following Board approval, I submitted comments on the Guidelines on
behalf of the Association. We noted that the Titanic is a unique situation for many reasons.
We noted further that the Titanic Agreement and Guidelines may be a template for broader
U.S. legislation on the subject of "underwater cultural heritage." We reiterated the MLA
position previously taken with respect to the Draft UNESCO Convention on that subject. We
then went on to say:
[T]he MLA is strongly of the view that the recognition and
enforcement of salvage rights by United States' courts need not
be incompatible with the preservation of property which may be
properly designated as "underwater cultural heritage." We also
consider that salvage rights should remain a matter of
determination by United States' courts exercising admiralty
jurisdiction.
At the suggestion of a State Department official, we posed a number of questions to NOAA
concerning the proposed Agreement and Guidelines which were designed to help us to a
proper understanding of the Guidelines. We have received no answer to these questions.
This may not be surprising in light of the fact that RMS Titanic Inc., the party granted
exclusive salvage rights of the Titanic, has filed suit in the Eastern District of Virginia
seeking, inter alia, an injunction against the United States from proceeding with the
Agreement. The government has moved to dismiss. A hearing is scheduled for September
8.
I am indebted to John Kimball and Professor David Bederman, chair and vice-chair
respectively of the MLA Study Group on the UNESCO Draft Convention on Underwater
Cultural Heritage, for their exemplary work in the preparation of our Comments on the
Titanic Guidelines.
ACTIVITIES OF THE PRESIDENT ON BEHALF OF THE ASSOCIATION
1. May 8-12 - London Maritime Week
Immediately after our general meeting in May, I was in London in connection with
the celebration of Maritime London Week. The basic theme of this week was that everything
to do with the maritime industry, legal, financial, insurance, chartering, etc., could best be
handled in London as opposed to anyplace else in the world. While one might quarrel with
the accuracy of that concept, there could be nothing but admiration for the quality of the
programs and entertainments during the week, as well as gratitude for the hospitality
extended to me as a representative of our Association.
On Monday, May 8, I attended the Maritime London Seminar which took place at
Mansion House, the residence of the Lord Mayor of London. The seminar was introduced
by the Lord Mayor and the keynote speech was given by Richard Sayer, Chair of the British
Invisibles Steering Committee. Richard was anything but invisible as he reported on the
breadth and extent of maritime services available in the London market. This was followed
by a panel discussion chaired by William O'Neill, Secretary General of IMO. Among the
panelists were David Davies, Chairman, Salvage Association; Hugh McCoy, Chairman,
Baltic Exchange; The Lord Sterling of Plaistow, Chairman, P&O Steam Navigation; and
Max Taylor, Chairman, Lloyd's of London.
On Tuesday and Wednesday of London Maritime Week, I participated in the program
sponsored by Tulane University Law School and the British Maritime Law Association
entitled "Maritime Law in an International Setting." I acted as both chair and panelist on a
panel discussing marine casualty investigations, including the problems that arise when
criminal charges are a possibility. On Tuesday evening, I attended a reception at the
Guildhall hosted by the Baltic Exchange to mark the centenary of its incorporation. On
Wednesday evening I attended another reception at the Guildhall, this one hosted by The
Corporation of London to mark the CMI assembly meeting. To those that have never seen
the Guildhall, I can only say it is a magnificent and historic building. While the center for
civic government for over 800 years, it has also been the location for trials of traitors (Lady
Jane Gray was tried and sentenced to death here in 1553) and numerous other historical
events.
On Thursday I attended the annual meeting of the Association of Average Adjusters.
Instead of the usual address by the Chairman, we were treated to both an entertaining and
informative case study and "mini-play," the purpose of which was to demonstrate how the
different skills and professions involved in marine insurance claims arising from a collision
can work together. That evening I was the guest of Miles Duncan, the Chair of the
Association of Average Adjusters, at their always impressive annual dinner at the Savoy
Hotel.
On Friday, I represented the Association at the CMI Assembly meeting following
which I was the guest of the Libra Luncheon Club and its Chairman Michael Cairns. The
Libra Luncheon Club members are prominent brokers from the London market. Finally, the
week was capped by a magnificent dinner hosted by Patrick and Marian Griggs at their home
in Essex, just outside London. All in all it was an eventful and memorable week.
2. July 6, 2000.
On July 6 the MLA hosted the reception for UNCITRAL as described above.
3. July 23, 2000
On July 23, I attended the Annual General Meeting of the Canadian Maritime Law
Association in Halifax and gave a short presentation on current activities in our Association.
While in Halifax, the American contingent, consisting of past presidents Jim Moseley and
Howard McCormack, First Vice President Ray Hayden and me, along with our significant
others, were royally entertained at various receptions and dinners. In addition the tall ships
were present in Halifax as part of Op Sail 2000. It was a splendid weekend, and we extend
a sincere note of thanks to our Canadian hosts, particularly Jim Gould, the new CMLA
President, and Barry Oland, the immediate past president. I must comment that while the
Canadian Maritime Law Association is much smaller than ours, the high quality of their
participation and work product is most evident. Even though operating on a budget very
much smaller than ours, they are a most effective and impressive association.
4. August 3-4, 2000
Over the weekend of August 3-4 our summer Board meeting was held in Chicago.
Arrangements for the Chicago meeting were handled by Warren Marwedel and a number of
other Chicago maritime attorneys including Michael Snyder, Dennis Minichello, Robert
Reeb, Kimbley Kearney, Barbara Rostow and Ted Robinson. In addition, we were the guests
of the Chicago bar at a reception before dinner on the 96th floor of the John Hancock building
on Friday evening. Despite airline delays and the inconvenience they caused, our trip to
Chicago and the Board Meeting were a great success. It was particularly heartwarming to
see and be with Ted Robinson. At 81 years of age he is still going strong and very much the
dean of the Chicago maritime bar.
We want to extend our heartfelt appreciation to Warren Marwedel and all of the
Chicago lawyers who worked so hard to make our weekend such a success.
SCHEDULE OF FUTURE MLA AND RELATED EVENTS
As noted above, a calendar of future events is maintained on our web site. I set forth
below some of those events that may be of interest to the members of the Association.
1. CMI Colloquium: To be held in Toledo, Spain, from September 17-20, 2000.
2. Houston Marine Insurance Seminar: To be held in Houston on September 25-26, 2000. I will be one of the speakers at this seminar. My topic is "Historic
Salvors, Marine Archaeologists, and the UNESCO Draft Convention on
Underwater Cultural Heritage." If any member of the Association has an
interest in attending this program, please contact Marion McDaniel at Liddell
Sapp, phone (713) 226-1295, fax (713) 223-3717.
3. Association of Average Adjusters of the United States Seminar: To be held in
New York on October 4; Annual Meeting and Dinner on October 5, 2000.
4. Marine and Insurance Claims Association: Annual Dinner to be held in New
York on October 6.
5. Pacific Admiralty Seminar: To be held in San Francisco from October 5-6,
2000. Information for registration should be directed to Barbara Fanning of
BASF, 465 California Street, Suite 1100, San Francisco, CA 94104-1826,
phone (415) 782-8911, fax (415) 477-2388.
6. American Institute of Marine Underwriters Offshore Energy Seminar: To be
held on October 12 in New York at Ricker Auditorium, 180 Maiden Lane,
from 9:00 a.m. to noon.
7. IMO Legal Committee: To be held in London from October 16-20. I will be
attending as a private sector advisor to the United State delegation.
8. Annual Fall Meeting of The Maritime Law Association of the United States:
To be held in New York from October 30-November 3, 2000.
9. BIMCO Seminar on Negotiating under Tanker Time Charter Parties: To be
held in New York on October 31 at the New York Helmsley Hotel.
10. Biennial Nicholas J. Healy Lecture: To be held on Thursday, November 2,
2000, at New York University School of Law at 5:00 p.m. The Healey
lecturer will be Professor Robert Force of Tulane University School of Law.
11. 37th International Conference of the CMI: To be held in Singapore from
February 12-16, 2001. For further information on this activity, please
coordinate with the Chairman of the CMI Committee, Michael Marks Cohen.
12. Quarterly Meeting of MLA Officers and Board: To be held in New Orleans on
March 26-27, 2001.
13. Biennial Program of the Tulane Admiralty Law Institute: To be held in New
Orleans from March 28-30, 2001. All members of the Association will be
receiving information directly from the Tulane Admiralty Law Institute on that
program.
14. Annual Spring Meeting of the Maritime Law Association of the United States:
To be held in New York from April 29-May 3, 2001
15. Annual General Meeting of the Canadian Maritime Law Association: To be
held in Montreal, June 6-8, 2001. This meeting will celebrate the 50th
anniversary of the Canadian Maritime Law Association.
NOTES OF INTEREST REGARDING MEMBERS
Jean Knudsen, Chair of our Committee on Marine Insurance has been nominated to
take over the Chair of the Association of Average Adjusters of the United States. From my
personal viewpoint, I do not think that the U.S. Average Adjusters could have made a better
choice. Our congratulations go to Tom DiStefano, who will be leaving office, and our very
best wishes to Jean for what we know will be a distinguished year.
I am also pleased to advise you that Brad Stillman, who many of you know as one of
the lawyers for RMS Titanic, Inc., and who has been active on our study group on
Underwater Cultural Heritage, will be leaving private practice because he has been appointed
a Magistrate Judge to the United States District Court for the Eastern District of Virginia.
Our congratulations and best wishes go to Brad with the hope that he will continue to keep
in contact with his Association.
I regret to report on the passing of past president James J. Higgins. At its Chicago
meeting the Board unanimously passed a memorial resolution regarding Jim that will appear
in the minutes of that meeting. Jim was a wonderful lawyer who was dedicated to our
Association and its work. He was an inspiration to us all and will be long remembered for
his wit and charm. We will miss him.
CONCLUSION
At this writing, I have been your President for only four months. As you can see from
the length of this letter, that four months have been filled with much activity and many
events. What has struck me during this busy time is something that I really knew all along,
that the spirit of cooperation and helpfulness that exists among the members of the
Association is without parallel. I continue to be amazed and impressed at how often busy
lawyers are willing to set aside time to help me and the Association, and I am very grateful
for it. We have a lot on our table, and will continue to have in the months to come. I look
forward to working with you in the conduct of the affairs of this Association of which we are
all so fond.
Sincerely,
William R. Dorsey, III
President
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