Author: William R. Dorsey, III|
Doc. No.: 755
Date: March 1, 2001
March, 2001 Document No. 755
PRESIDENT'S WINTER/SPRING 2001 NEWSLETTER
SPRING MEETING - NEW YORK
The spring meeting of the Association will take place in New York during the
week of April 30 - May 4, culminating with the usual general meeting of the Association
on Friday morning May 4. 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 at the Marriott Marquis Hotel on Friday evening. This dinner is
open, as usual, to members and guests. You should have received the announcement for
Spring MLA Week prior to receiving 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 Brett Kelly, Chair of the Dinner
Committee, and the others arranging seating for the dinner. For those who seek
assistance with respect to hotel accommodations, Resorts Meetings will provide this
assistance once again. Please take particular note of the various dates by which the hotel
reservations must be made. You should feel free to contact the hotels directly, or Resorts
Meetings, with reference to accommodations for hotels designated in the notice. As
always, you should book early.
The meeting notice also contains a complete listing of all committee meetings of
the Association that are scheduled for MLA week. The schedule for these meetings, and
their location, can also be found on the MLA web site at www.mlaus.org.
There will also be a program provided on Friday afternoon by the Young Lawyers
Committee and The Forum of Maritime Law Teachers for which CLE credits will be
available. The program is entitled "Coast Guard as Maritime Enforcer", and the speakers
will be Capt. Malcolm Williams (USCG-Ret.), former Chief, Maritime and International
Law Division, USCG, and LCDR Bruce Dalcher, U.S. Coast Guard Academy. 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.
We are already in the process of preparing a new MLA Directory which we hope
to have in your hands by the end of the summer. It took us longer than we expected to get
the current Directory published, but that was essentially because there was a two year gap
between that Directory and the previous one. This year the process should be a lot
smoother. As I promised you, we will continue to publish the Directory on a yearly basis,
at least for the foreseeable future.
If there have been changes in your address, telephone number, etc., please make
sure that you notify our administrator in Buffalo, Robin Becker. You can use the card in
your Directory for that purpose. The cutoff date for changes will be about two weeks
after the close of the May meeting. In particular, if you have not advised us of your e-mail address, I request you do so.
2. Web Site
The Document Library portion of our web site is now up and running. You will
find the Proceedings for both the May 2000 and the November 2000 meetings located
there. Each can be downloaded in its entirety in PDF form. For convenience sake
various portions of the proceedings are listed separately, such as the reports of special
committees, reports of officers, oral reports of standing committees, etc. In addition,
various committee reports and committee newsletters can be found under committee
headings. Forms for non-lawyer, proctor and associate membership applications and
request forms for amicus briefs are now available on the Document Library. A separate
section of the Document Library will contain various resolutions passed by the
Association and the President's Newsletter.
Much credit for all of this goes to Glen Oxton, the Chair of the Electronic
Communication and Commerce Committee. It is essentially through his efforts that we
have come as far as we have with our web site. However, we are still in the embryonic
stage, particularly with respect to the Document Library, and I expect that it will be
developed further in the future. For instance, we plan to post the most current draft of our
proposed COGSA bill in the near future.
As previously reported, we have also established a Links section on our web site.
At this point it is still relatively primitive, but Professor John Paul Jones has taken on the
task of adding appropriate links to this section and is hard at work expanding it so that it
should provide a valuable resource tool for members.
3. Amicus Requests
Since my Summer/Fall 2000 Newsletter we have acted on two additional requests
for participation by the Association as amicus curiae. The first request was in connection
with the case of Steven Henry Arthur Adams, et al. v. Unione Mediterranea di Sicurta, et
al. This involved a decision by the United States Court of Appeals for the Fifth Circuit
which permitted a salvor of property and its purchaser to offset a conversion judgment
obtained against them by the owner of the property in the amount of the value of their
salvage claim. Although the salvage claim had lapsed with the passage of the two year
prescriptive period, the court permitted the claim to be asserted by affirmative defense as
a set off. The plaintiffs, whose conversion judgment was reduced by the salvage claim,
filed a Petition for Certiorari to the Supreme Court and sought the Association's support
in connection with the Petition. This request was declined, it being felt by me and the
two Vice Presidents that the case was fact specific, and that the issues involved in the
context of the case did not satisfy the very stringent criteria set forth in By-Law 702.3.
The second request also involved a case in the United States Court of Appeals for
the Fifth Circuit, Racal Survey, USA, Inc., et al. v. M/V COUNT FLEET, et al., 2001
AMC 456. In this case the Fifth Circuit held that an owner of seismic survey equipment
under lease to the charterer of four vessels and later transferred by the charterer to four
other vessels, had no maritime lien on the latter four vessels. On the grounds that (1)
plaintiff did not rely on the credit of the vessels, and (2) the necessaries were supplied to
the charterer and not to its vessels, citing Piedmont and George's Creek Coal Company v.
Seaboard Fisheries Co., 41 S. Ct. 1 (1920), the Fifth circuit reversed a District Court grant
of summary judgment granting the maritime lien. Again, I and the two Vice Presidents
felt that this case was basically fact specific, that the decision did not involve any
significant change in maritime law, and that, in any event, the issues involved in the case
did not satisfy the criteria set forth in By-Law 702.3.
You will recall that in my last newsletter I reported that the Association had
submitted an amicus brief in support of the grant of a Petition for Certiorari in the case of
Mobil Mining and Minerals v. David R. Nixson and Director, Office of Workers'
Compensation Programs. The question in that case was 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" sight under Section 3(a) of the Longshore & Harbor Workers' Compensation
Act. While we felt that there was a clear conflict between the Circuits on this issue, the
Supreme Court has declined to take certiorari.
All too often when we receive a request for amicus participation the required form
printed on page 14, Section III, of the Directory is not submitted, and the requirements of
By-Law Section 702.2 are not met. This merely delays the processing of the claim
because I then write back to the petitioner and advise of the steps that he or she must
follow, all of which are outlined in the Directory. This often uses up valuable time.
Accordingly, I would remind those who are considering making an amicus request to do
the following: (1) submit the required form and all the information and documentation
required by the form with your initial request, and (2) don't wait until the last minute.
The process for review of these requests is not performed overnight. In the first instance
it is reviewed by the President and the two Vice Presidents. If they feel there is merit, it
then has to be sent to the Board, and the Board must approve by a 2/3 majority vote. All
of this takes time. Those who do have valid requests will greatly facilitate the process by
anticipating their request and submitting it in a suitable, timely fashion.
4. Non-Lawyer Membership Application Forms
We have developed a form to be used in connection with all non-lawyer
applications for membership. The form is designed to ensure we receive the necessary
pertinent information concerning the candidate. It can be downloaded from the
Document Library at our web site or obtained from me upon request. Those planning to
nominate candidates for non-lawyer membership should submit the required paperwork at
least two weeks before MLA Week to ensure consideration during that week.
5. Site Selection
We have recently signed a contract with the Southhampton Princess in Bermuda to
hold our meeting there on October 28-November 1, 2003. We are currently negotiating
with the Scottsdale Princess in Scottsdale, Arizona, for a meeting on November 1-5,
2005. We plan to change our schedule somewhat for these meetings, holding sports day
on Wednesday, Committee meetings Thursday (and Friday afternoon), seminar on Friday
morning and the General Meeting and Dinner Saturday.
6. Journal of Maritime Law and Commerce
I would like to call to your attention a special, and slightly offbeat, issue of the
Journal of Maritime Law and Commerce, Volume 31, Nr. 4. It is entitled "Admiralty
Law in Popular Culture." It explores the contribution admiralty law has made to
literature, music, television, poetry and the movies. It is both entertaining and
1. The Carriage of Goods Committee
As a result of the change in Administration and the agenda that the new
Administration has set for Congress, it is unlikely that our COGSA bill will be given any
serious consideration prior to sometime in the fall, at the earliest. In addition, Senator
Kay Bailey Hutchinson, who has been such a supporter of our bill, is to be given a new
assignment. She will be Chair of the Aviation Subcommittee of the Senate Commerce,
Science, and Transportation Committee. The new Chair of the Surface Transportation
and Merchant Marine Subcommittee of the Senate, Commerce, Science and
Transportation Committee, to which our bill is assigned, will be Senator Gordon Smith, a
Republican from Oregon. Senator Smith's approach to our COGSA bill is not yet known.
It is apparent, however, that our COGSA bill has had effect elsewhere. I refer to
the report of the activities of the CMI International Subcommittee on Transport Law at
the Singapore Conference, set forth at pp. 11-12 of this newsletter. There is little doubt
that our COGSA bill has had a great deal of influence on the deliberations of that group.
The substantial support for elimination of the errors in navigation defense is a major
development in that Subcommittee, and I am sure that the work that we did on our new
COGSA in that connection has been an important factor. Chet Hooper, Vince DeOrchis,
George Chandler and Mike Sturley continue to do yeoman work on these issues.
2. Environmental Crimes Subcommittee.
In its notice of public meeting appearing in the Federal Register on October 18,
2000, the U.S. Coast Guard posed a series of questions in connection with the setting of
its agenda for oil pollution prevention, preparedness, and response in the 21st century and
invited comments on same. Fred Kuffler, the chairman of the Environmental Crimes
Subcommittee, and the other members of that committee, thought that this would provide
an excellent opportunity for the MLA to reiterate its concern with the ongoing conflict
between criminal and civil issues in oil spill cases. Accordingly, the subcommittee
prepared a statement to be submitted on behalf of the Association for my review and
editing. After approval by the Board the statement was submitted on December 22. In
that statement we reiterated the previously taken position of the Association submitted by
former president Howard McCormack in March of 1999. We stressed that it was evident
from existing legislation that Congress' highest priority with respect to oil pollution cases
was instant response and safety. We indicated that that this priority is being subverted by
the justifiable fear of criminal prosecution in connection with oil spills, even when such
spills are unintentional and/or non-negligent. We indicated, inter alia, that we continued
to support the elimination of the use of so-called crimes of strict liability, as the Refuse
Act and the Migratory Bird Act, in connection with oil spills, and supported the use of
qualified privileges and immunity in connection with statements made in the course of
response efforts, as well as investigations into the cause of marine casualties. We stated
that there should be a similar qualified privilege for internal audits, be they voluntary or
those required under ISM and ISO codes. We indicated that we felt that the systematic
implementation of qualified privileges would allow the Coast Guard to meet the primary
public interest concern of OPA '90 - response and prevention.
What will ensue as a result of this statement remains to be seen. Legislation was
introduced in the 106th Congress by Senator Breaux and various congressmen to eliminate
the use of the Refuse Act and Migratory Bird Act in connection with OPA '90 oil spill
cases. The Bills were not acted on and died at the end of the congressional session.
Hopefully they will be re-introduced this session.
I want to express my appreciation to Fred Kuffler and the other members of the
Subcommittee particularly Larry Kiern, Dennis Bryant, Mark Kasanin, Tom Wagner,
Jane Barrett, Pat Bonner, Tom Russo and Matt Marion for their assistance in preparing
the response to the Coast Guard.
3. Practice and Procedure
In my last newsletter I reported that on behalf of the Association I had written to
the clerk of the court and the chief judge of the United States District Court for the
District of New Jersey in connection with their local admiralty rule that would have raised
the security deposit for seizure of vessels more than 65 feet in length from $4,000 to
$10,000. I am happy to say that the letter has had some effect. That rule has been
suspended pending further consideration by the judges of the court. Indeed, Judge John
Bissell of the court called both me, Jim Bartlett, the chair of the Practice and Procedure
Committee, and Andy Goldstein, the vice-chair of the Practice and Procedure Committee,
to discuss our concerns.
At this time Andy Goldstein is working on a solution with the local rules
committee. If any of you have information concerning requirements for large security
deposits in your own jurisdictions, I would appreciate your communicating the
information to Jim Bartlett.
4. Cruise Lines Committee
At the most recent meeting of the IMO Legal Committee last October, there were
some significant developments pertaining to the proposed protocol to the Athens
Convention bearing on the liability to passengers of cruise ships which reflect a
considerable change in position within the Committee. Up until this recent meeting, the
majority of the Committee seemed fairly committed to the idea that there would be no
change in the basis of liability as set forth in the current Athens Convention, a regime
based on negligence, but with a reverse burden of proof in operational or shipping
incidents, i.e., those incidents where injury or damage is caused by a collision, stranding
etc. In several past sessions the Japanese Delegation had put forth a proposal for a two-tier system which would apply strict liability to a first tier of capped damages, and a
second tier which would be based on negligence with a reverse burden of proof. This
seemed to have little support until after inter-sessional meetings last summer, as a
consequence of which the Committee moved strongly toward the Japanese position in its
session last October. Importantly both the P&I Clubs and the International Chamber of
Shipping expressed support for this position, although the ICS favored, as did a few other
delegations, that in non-shipping incidents there be no reverse burden proof. This shift of
position was a major development and a surprise to many, including me.
There was another very important development, which was the inclusion of a
provision that would give state parties the right to impose unlimited liability on the carrier
(but not the insurer). This is a very significant development in my mind because we have
always been told that the reason the United States has never signed onto the Athens
Convention is because of its dissatisfaction with the limits of liability contained in the
Convention, which it felt were too low. Currently U.S. cruise ship passengers can not be
subject to contractual limitation provisions on cruises originating or ending in U.S. ports.
There is, of course, the Limitation of Liability Act, but judges do not like it and rarely
The fact that the Athens protocol may contain a provision for states to provide for
unlimited liability of the carrier, plus the fact that the International Group of P&I Clubs
and the ICS have indicated that they would cooperate in working toward implementation
of a two-tier regime, prompts me to wonder whether or not the MLA should urge the US
delegation to sign on to the new proposed protocol, at least if there is a provision that
would retain the negligence concept, with burden of proof on the passenger, with respect
to non-operational (grounding, collision, fire, etc.) type accidents. I believe the U.S.
government would be receptive to such a position, and it seems to me this might be an
opportunity for the United States to come on board with respect to an international
liability convention, something that hasn't happened very much in the recent past and
which has seriously affected the United States' reputation in international conventions
that focus on various liability regimes. Because of this, I've asked the Committee on
Cruise Ships to take a sounding to see what industry's views are on these developments,
and whether or not it would recommend the MLA urge the U.S. Delegation to the IMO
Legal Committee to support the protocol. To date, the reports I have from Ann Miller,
the chair of the Cruise Ship Committee, is that there does not seem to be any strong
feeling in opposition to this proposal. If the P&I Clubs and the International Chamber of
Shipping are in favor of it, it would seem that there should be no opposition from our
part. It is certainly true that the major beneficiaries of this would be cruise ship
passengers, most of whom are U.S. citizens. Under current law, they cannot be subject to
the Athens Convention if the cruise originates or ends in a U.S. port. They can, however,
by contract be subject to the Athens Convention if the cruise is between two foreign ports.
I expect to get a report from the Cruise Ship Committee at or before our meeting in
May. In the meantime, for those of you who may want to know more about this, I have
prepared a memorandum concerning the proposed protocol which discusses the pros and
cons of the proposal and which I would be happy to send to you if you drop me a line.
5. Maritime Personnel Committee
As previously reported to you, under the supervision of John Schaffer, the chair of
the Committee on Maritime Personnel, the MLA had responded to a questionnaire
proposed by the IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation
Regarding Claims for Death, Personal Injury and Abandonment of Seafarers. Since that
time, that organization has met in London and has issued a report. I have sent this report
on to John Schaffer in order to obtain comments from his committee concerning the
direction that the working group appears to be taking on the various issues. One point
that leaps out of the report is the suggestion that there should be a convention regarding
death and personal injury for seafarers that would apply strict liability as the basis of
liability and would provide for compulsory insurance with the right of a direct action
against underwriters by seamen or their relatives. While much of what this working
group is doing concerning abandonment of seafarers is hardly controversial and would be
universally viewed as necessary, it is certain that the direction it seems to be heading in
connection with personal injury and death of seafarers will be quite controversial.
6. Young Lawyers Committee
I am happy to report the Young Lawyers Committee has begun the task of
commencing the indexing of MLA documents produced after 1986. The efforts of the
committee in this respect are still in the embryo stage, but Doug Muller, chair of the
Committee, assures me that it is gathering momentum, and he intends to see the project
through to completion. If so, it will be a great benefit to the Association and is something
that could be made available to everyone on the Document Library of our website.
7. Ad Hoc Committee on Revision of Title 46
In early February I learned that a branch of the U.S. government, I wasn't exactly
sure which, was undertaking revision of many provisions of Title 46 and the codification
of various uncodified portions of Title 46. Those of you who have been around awhile
will recall that there was a similar project that took place in the early 1980's in which the
Maritime Law Association played a significant role. Then, as now, the purpose of the
codification and re-codification is not to change the substantive law, but to reorganize
and, in some instances, rephrase existing law to make it readily accessible and
comprehensible and to eliminate those sections which are outdated and no longer viable.
Our job then, and one that I perceive to be similar in connection with this project, is to see
that the work accomplishes just that, i.e., no substantive changes and a careful
preservation of legislative intent. As we all know, unintended substantive law changes
can occur in the course of re-codification.
I have appointed Dennis Bryant as chair and Hal Watson as vice chair of an ad hoc
committee on this Title 46 revision process. In addition I have sent copies of the
documents that I obtained to the chairs of the following committees: Legislation, Practice
and Procedure, Carriage of Goods, Limitation of Liability, Practice and Procedure, Coast
Guard and Navigation, Personnel, Marine Finance, Marine Insurance, Uniformity,
Salvage, Carrier Security, Carriage of Goods, Cruise Lines and Criminal Law. Dennis
will be organizing the ad hoc committee with representatives from each of these
committees and any other interested committees that need to be involved. He has already
been in contact with the Assistant General Counsel for Legislation in the office of the
Secretary of Transportation offering the MLA's assistance. He has been advised that the
Office of Management and Budget has blessed our involvement in the effort, and that we
will be consulted in connection with this project. The Coast Guard also knows and
supports our involvement in the project.
This will be a multi-year project, and certainly an extremely important one from
the standpoint of the MLA. As Dennis Bryant indicated to the various committee chairs,
"We as a group have far more experience in dealing with most parts of Title 46, than does
anyone in government." It should be reiterated that in connection with this project, we
are not being asked to change the law to what we would like it to be. The process that is
going on is the updating of the language and organization of Title 46, and our mission is
to prevent any inadvertent substantive changes and to make sure that any changes that do
occur accurately reflect current substantive law and legislative intent. I am sure we will
hear more about this project at the May meeting.
8. Ad Hoc Committee on Multi-Jurisdictional Practice
The American Bar Association has established a Commission to study various
issues of multi-jurisdictional practice, and the difficulties associated with the interstate
practice of law. Some background information on the work of this Commission can be
found in the March 6 issue of U.S. Law Week, commencing at page 2524. Various
organizations, including the MLA, have been asked to assist in the study of the issues
surrounding multi-jurisdictional practice and, where possible, propose solutions. This is a
project of great importance to maritime lawyers as we have all been faced with questions
in this area from time to time. I have established an ad hoc committee chaired by Jim
Bartlett (Chair of our Practice and Procedure Committee) and which will include
representatives from other concerned committees, such as Arbitration, Marine Finance,
Navigation and Coast Guard, Marine Insurance, Young Lawyers, Carriage of Goods,
Uniformity and ABA. The task of this committee is to recommend to the Association
what input we should give the ABA on this issue.
1. CMI Activities
A. Singapore Conference
The CMI held its 37th Conference in Singapore from February 11 through February
17, 2001. I led the American delegation which consisted of 28 delegates and alternate
delegates from the MLA. The U.S. delegation was one of the largest at the Conference.
Those attending on behalf of the MLA in addition to myself were Ray Hayden, Tom Rue,
Juan Anduiza, George Chandler, Michael Marks Cohen, Professor Martin Davies,
Christopher Davis, Vince DeOrchis, George Fowler, George Gabel, Ray Hayden, Chet
Hooper, John Kimball, Howard McCormack, Professor Samuel Menefee, Howard
Myerson, Joanne Nagano, John Olson, John Orzel, Paul Poliak, Michael Rosenberg, Gray
Staring, Professor Michael Sturley, Alan Van Praag, Kenneth Volk, Jim Whitehead and
The four main topics of the Conference were Issues of Transport Law, Issues of
Harmonisation of Marine Insurance Law, suggested changes by IUMI concerning general
average, and a model piracy law. The U.S. delegation had working groups on each of
these topics. The chairs of these working groups were as follows: Transport Law chair,
Chet Hooper, vice chairs, George Chandler and Vince DeOrchis; Marine Insurance chair,
Graydon Staring; General Average chairs: Howard Myerson, vice chair, Howard
McCormack; Piracy chair, George Gabel. The Conference culminated in a plenary
session at which various resolutions were adopted concerning each of the major topics as
(a) Transport law.
Some of the highlights of the report on deliberations of the CMI
Subcommittee on Transport Law are as follows:
- •A clear majority were of the view that the type of instrument that the
CMI should produce should be a convention, the core provisions of
which, including the provisions governing liability on the sea leg,
should be mandatory.
- •There was considerable support for extending the period of
responsibility to cover inland carriage preceding and subsequent to
•With respect to liability there was overwhelming support for a fault
based regime, most delegates favoring a regime based on the Hague
or Hague-Visby rules, while there was some support for a regime on
the lines of the Hamburg rules.
- •With respect to exemptions, there was considerable support for
eliminating the exemption for errors in navigation and management
of the vessel. This is obviously a significant development and
reflects in my mind that the influence of our new proposed COGSA
- •With respect to burden of proof, the consensus appeared to be that
the burdens should remain as they are under the Hague and the
Hague-Visby rules, with the carrier bearing the burden of proving
that it is not liable once the cargo claimant has proved the loss.
In the plenary session, the Conference approved the resolution submitted by
the Subcommittee on Transport Law authorizing the Subcommittee to continue the basis
of its work and to draft an outline instrument on the basis of the conclusions of the
Conference. The resolution further requires that the Subcommittee is to consult with
member associations after completing its draft of an outline instrument, obtain comments
from them, and revise the outline instrument upon the collection of the replies from the
various members associations. It is anticipated that the Subcommittee will have a revised
outline instrument in the hands of the member associations sometime during the summer
or early fall.
(b) General Average
The discussions pertaining to general average centered around whether or
not the CMI should consider proposed revisions to the York-Antwerp rules put forward
by the International Union of Marine Insurers (IUMI). There were a number of these
proposed changes, the main one being that the scope of York Antwerp rules should be
modified to the principle of common safety as opposed to common benefit with the
consequent elimination of most of the port of refuge expenses presently accepted in
general average. Our position on this subject was that the CMI should not further consider
these proposed changes at this time. It has been the long-held view of the MLA that all of
these matters were discussed in detail at the Sydney conference in 1994 and in the four
years leading up to that Conference, and that there have been no significant developments
in the maritime trade in the period of time elapsing since the Sydney Conference to
require a review at this time.
This view did not prevail, and the plenary session adopted a resolution
proposed by the CMI International Working Group requesting that it continue its work
and consider what, if any, revisions of the York-Antwerp rules should be made in light of
the proposals made by, amongst others, IUMI. We dissented.
Subsequent to the conference, the CMI Executive Council concluded that a
joint working group should be formed, to include representatives of as many of the
involved interests as possible, which would meet in London over the next several months
to try to determine and refine the issues with the view of formation of a new CMI
International Subcommittee to carry the matter forward to the next CMI International
Conference which is anticipated to take place in 2004. Frank Wiswall is to be the
chairman of this joint working group. This joint working group will not deal with
substantive issues but only organizational matters, setting the agenda for the eventual
formation of an International Subcommittee and the consideration of other participants,
such as the ICS, Intertanko, Fiata, etc. It is not anticipated that an International
Subcommittee would be formed until sometime in 2002.
(c) Model Piracy Law
The Conference also considered the draft of a Model Piracy Law that had
been submitted by a Joint International Working Group consisting of representatives of
the CMI and other organizations such as BIMCO, ICS, Interpol, IUMI, and others. The
delegates were advised that while they could suggest minimal changes to this draft law,
because it was the product of a joint working group and not just the CMI, the question
would be called on the proposed model law as drafted, with an up or down vote. Despite
this there were a number of suggested changes proposed by various parties to the
conference, including the U.S. Specifically the U.S. Delegation was concerned, inter alia,
with the provision of the model code that the property of innocent ship or cargo owners
that was the subject of piracy or acts of maritime violence, and was later used in
connection with acts of piracy or maritime violence, was liable to forfeiture to the state,
subject to the discretion of the applicable court. It was the feeling of the U.S. Delegation
that parties found innocent of any wrongdoing should have such property restored to it as
expeditiously as possible unless the state could prove the complicity of the owner in the
piracy or acts of maritime violence. In addition, the U.S. Delegation proposed that even
if the owner were denied return of its property due to proof of its complicity, the property
should be returned to any mortgagee of such property unless the state could prove the
complicity of the mortgagee with the prohibited acts. Further, the U.S. Delegation
proposed that a provision be added indicating that parties who were found innocent of any
wrongdoing under the Model Piracy Law, but whose property had been seized, should not
be liable for any costs during any investigation or prosecution for maritime acts of
violence or piracy pending resolution of said party's claims to return of the property.
The resolution adopted by the plenary conference approved and endorsed
the concept of a Model National Law on piracy as a valuable instrument of justice in
combating piracy and maritime violence. The resolution approved and endorsed the
structure and provisions of the proposed Model National Law, subject to consideration by
the JIWG of the points raised by various delegations, including the U.S. Delegation, at the
discussions that took place during the Conference. The final draft of the Model National
Law is to be prepared by the JIWG and will then be transmitted to the CMI Executive
Council, as well as to the other constituent organization of the JIWG. The Executive
Council will review the final draft of the Model National Law and, at the earliest possible
opportunity, approve the final draft and transmit it to member associations with the
request that they apply their upmost efforts to bring the Model National Law to the
attention of their governments and urge adoption of same.
(d) Harmonisation of Marine Insurance Law
The discussions on the problems of harmonisation of marine insurance law
resulted in a resolution approved by the Conference that endorsed the current study by the
CMI International Working Group on the National Laws of Marine Insurance to be an
exercise worth continuing from both an academic and a practical perspective, and
directed the IWG to continue its study and seek to identify and evaluate areas of
difference in various national laws on marine insurance where measures of harmonisation
may be feasible and desirable or where, at the least, the dissemination by the CMI of
products of the IWG's research would promote better knowledge and understanding of
such differences. The IWG is to report on its endeavors periodically to the CMI
Executive Council and, thereafter, to the 38th International Conference of the CMI.
(e) UNESCO Convention on Underwater Cultural Heritage
At the plenary session of the Conference John Kimball, the rapporteur of
the IWG on the UNESCO Draft Convention on the Protection of Underwater Cultural
Heritage, delivered a report detailing the problems with said Draft Convention. A
resolution was submitted and approved requesting the Chairman of this IWG to continue
to monitor the progress of the UNESCO Draft Convention and to seek ways to ensure that
the Convention, in its final form, does not conflict with existing international salvage law.
The Chairman was requested to explore the possibility of promoting a draft protocol to
the Salvage Convention along the lines of one protocol proposed by the late Geoffrey
Brice. The resolution also requested that the Executive Council appoint an International
Subcommittee to advance its work as appropriate. See further comments on the
UNESCO Draft Convention at page 18 of this Newsletter.
(f) Implementation and Interpretation of Conventions
The Conference adopted a resolution approving a draft report on the
implementation of the 1976 LLMC Convention as it appears on pages 435-664 of CMI
Yearbook 2000 (Singapore I) and recommended that the IWG continue its work on
possible measures that may be taken by the CMI to promote uniform implementation and
interpretation of international conventions. This included the establishment on the CMI
website of a database of decisions by courts of the states of member associations, and
other state parties to LLMC, on the interpretation of that convention and other
international conventions and, inter alia, the development of standard clauses dealing with
implementation and interpretation of international conventions for inclusion in future
The Conference, and the subsequent Assembly, approved the new
constitution of the CMI. The adoption of this new Constitution was necessary to provide
the CMI with the requisite juridical personality to be lawfully domiciled and to operate
lawfully a headquarters in Belgium and to function in accordance with Belgium law. As
a part of this process the CMI Assembly adopted a procedure for suspension and
expulsion of members, both national and titulary. Interestingly, under these provisions
members may be expelled for "conduct likely to bring the Comite or its work into
disrepute." I am happy to report that the conduct of the members of the U.S. Delegation
in Singapore was more than exemplary, but I leave it to you to infer whether the new CMI
procedures for expulsion of members had anything to do with that.
(h) Offshore Mobile Craft
Although not officially scheduled, there was an informal meeting of
members of the CMI International Subcommittee on Offshore Mobile Craft, attended by
the few of those members of the committee who were in Singapore. For a number of
years, our Association has urged the CMI to discontinue the work of this ISC on the
grounds that there is no need for a convention on offshore mobile craft. Industry doesn't
want it and few, if any, national governments, including the U.S. government, seem to
favor it or feel it is necessary. Accordingly, I attended the meeting and urged the
chairman, and the other members of the ISC who were in attendance, to advise the
Executive Council and the Assembly that their committee should be disbanded. This
viewpoint was not shared by those present. Essentially there was a feeling that there
might some day be a need for such a convention, and the CMI should be prepared for that
eventuality. Additionally, it was pointed out that the matter was still on the work
program, albeit at a low priority, of the IMO Legal Committee, and that Committee may
call upon the CMI in the future. Interestingly with respect to this last point, when the
question arose as to whether or not the matter should be retained on the IMO Legal
Committee's work program some time ago, it was the CMI which argued for its
In any event, the upshot of all this has been that the ISC on Offshore Mobile Crafts
has recommended to the Executive Council that the ISC be closed down, but that a
Working Group be retained in existence and continue to work on a draft convention
which had been submitted by the Canadian Maritime Law Association, with the
understanding that this was currently a low priority item but that, if called upon in the
future, the CMI would be in a position to respond promptly.
At the CMI Assembly Meeting following the conference on February 16th, the
following were elected to the indicated positions:
President: Patrick Griggs for a second term
Vice President: Frank Wiswall for a second term
Vice President: Karl-Johan Gombrii (Norway) for a first term
Executive Counselor: Thomas Reme (Germany) for a second term
Executive Counsel: Johanne Gauthier (Canada) for a first term
Executive Council: Professor Feng Li Qi (China) for a first term
In addition, Professor Hisashi Tanikawa was elected an Honorary Vice President
and Alex Von Zeigler was elected to another four year term as Secretary General. At the
Assembly, President Griggs announced that, although he had been elected for a second
four year term, he intended to serve two years of the term and resign from the position at
the end of that time.
C. Titulary Members
There were a number of titulary members added at the CMI Assembly on February
16th, including three new members from the MLA. Those three are Professor Michael
Sturley, Vince DeOrchis, and Larry Bowles.
D. Future Conferences
A number of member associations submitted offers to host the next CMI
conference, its 38th, which is expected to take place in either 2004 or 2005. Offers to host
have come from Hong Kong, Canada (Vancouver), Spain (Seville), and Greece. In
addition, our Association had offered to host the 38th Conference in New Orleans in
March, 2004. Frank Wiswall reports that the Executive Council has made a tentative
decision to hold a colloquium in Vancouver in September 2002, and to hold the 38th
International Conference in Greece in 2004, subject to location and date.
2. IMO Legal Committee
My comments regarding the MLA Cruise Committee, set forth at pages 7-9 above,
outline one of the important developments that took place at the IMO Legal Committee in
October. The other important development was the finalization of a Draft Convention on
bunker liability in connection with the convening of a Diplomatic Convention on same.
That Diplomatic Convention will take place in London at IMO headquarters on the week
of March 19, 2001. Basically, the Draft Bunkers Convention has the following
- •Establishes liability and compensation for bunker oil spills from non-tank
- •Provides for the joint and several liability of the "shipowners";
- •Requires the registered owner to maintain compulsory insurance;
- •Establishes the form of insurance certificate;
- •Provides for the right of direct action against the insurer.
The primary issue for discussion at the Diplomatic Conference is the compulsory
insurance threshold. Some believe it should apply to vessels of about 300 to 500 gross
tons, but others think that 2000, 5000 or 10,000 gross tons is more appropriate. The U.S.
position, based on its recovery experience, is that the compulsory insurance provision
should apply to ships of about 300 gross tons and larger.
Some states think that provisions deleted from this Convention in October 1999,
which provided protection for third party responders, should be included in the
Convention. The U.S. does not oppose protection for some acts of third party responders.
However, it points out that the Bunker Convention was not intended to articulate third-party liability and, therefore, third-party responder immunity should not be included in
the Convention. The U.S. supports a resolution pertaining to responder immunity, and it
urges states to adopt responder immunity provisions in national legislation.
The direct action provision of the proposed Convention is drawing the opposition
of the International Group of P&I Clubs, which concludes that the administrative burden
of implementing the direct action provisions is without commensurate benefit. The U.S.
position will be that the Convention should provide for the right of direct action because
it is consistent with the CLC, HNS and OPA '90. This Convention should be complete
by the time of our May meeting.
Because a Diplomatic Convention is being held in March, there will be no meeting
of the IMO Legal Committee this spring. The next meeting of the IMO Legal Committee
will take place during the week of October 8, 2001, at which time it is anticipated that the
Draft Protocol to the Athens Convention will be completed and made ready for a
3. UNESCO Draft Convention on Underwater Cultural Heritage
The next meeting of the joint group of experts considering the UNESCO Draft
Convention on Underwater Cultural Heritage will be over the two week period
commencing on March 27, 2001. A real effort is going to be made by the group to
complete the work at this meeting. A quick look at the negotiating text of the Draft
Convention recently received from the Chairman of the Group does not allay our
concerns on the approach of the Draft Convention to the Law of Salvage and the property
rights of owners, insurers, salvors and others.
ACTIVITIES OF THE PRESIDENT ON BEHALF OF THE ASSOCIATION
1. September 17-20, 2000. Toledo Colloquium.
In early September I attended the CMI Colloquium held in Toledo, Spain, and
hosted by the Spanish Maritime Law Association. This was a run-up to the CMI
Conference in Singapore and featured seminars on the four major topics to be covered at
Singapore. It was an interesting conference which provided helpful and useful insights
into what was to be discussed at Singapore, all conducted in the charming setting that
2. September 25-26, 2000 - Houston Marine Insurance Seminar.
I was one of the speakers at this seminar. My topic was "Historic Salvors, Marine
Archaeologists and the UNESCO Draft Convention on Underwater Cultural Heritage." A
copy can be found at the Houston Marine Insurance Seminar website, a link to which is
on the MLA website. For those of you who are technologically challenged and are in
need of some light summer reading (or a substitute for a sleeping pill), I would be happy
to send you a copy upon request.
3. October 1-2, 2000 - Arrangements Committee Meeting, Hotel Del Coronado
On October 1-2 I was at the Hotel Del Coronado, San Diego, California, with the
Arrangements Committee which was planning for our meeting to be held there on
October 15-19, 2001. The "Hotel Del" has never looked better and will provide a
spectacular backdrop for our meeting. Chair Tony Whitman and the rest of the
Committee have plans that will make this the best of our "away" meetings. The events
will include a spectacular theme dinner one night at Sea World, which we will have to
ourselves for the evening. Program information and registration data should be available
by the time of our May meeting.
4. October 4-5, 2000 - Association of Average Adjusters Meeting and Dinner.
On October 4, I attended a dinner cruise as the guest of Tom DiStefano, the
chairman of the Association of Average Adjusters of the United States. It was a
perfectly delightful event that provided unparalleled views of the skyline of New York at
night. The next day was the annual meeting of the Association at which Jean Knudsen
was ensconced as the new chair of the Association. This was followed by a dinner dance
that evening where, once again, I was the guest of the Association. All in all, a very
pleasant and enjoyable meeting with good friends of the Association.
5. October 6, 2000 -Marine Insurance Claim Association Dinner and Trimar
On October 6, 2000, I was the guest of Peter Scrobe, Chair of the Marine
Insurance Claims Association, at that organization's annual dinner. Once again it was an
opportunity to visit with old and good friends of the Association. Also on October 6 I
was the guest at a luncheon hosted by Trimar Defense Services, Inc.
6. October 16-20, 2000 - IMO Legal Committee
During the week of October 16th I was in London as a private sector advisor on
behalf of the MLA to the U.S. Delegation to the IMO Legal Committee. See pages 7-9
and 17-18 above for a report on that Committee's activities.
7. November 15, 2000 - Society of Marine Arbitrators
On November 15th, I was the guest speaker at the luncheon of the Society of
Marine Arbitrators, Inc. The topic of my address was the Draft Amendments to the
Federal Arbitration Act prepared by Don Kennedy and the MLA Committee on
Arbitration. At that luncheon we were asked by the Society of Maritime Arbitrators to
provide CLE certification in connection with their upcoming Congress of Maritime
Arbitrators scheduled for the week of October 22nd, 2001, the week following our meeting
in Coronado. I was delighted to accede to this request, and Larry Bowles, the chairman
of our CLE committee, is in communication with the Society of Maritime Arbitrators to
arrange for this certification.
8. November 16, 2000 - American Institute of Marine Underwriters Annual
On the evening of November 16th I was the guest of the American Institute of
Marine Underwriters, and their president Walter Kramer, at their annual banquet
celebrating the 102nd year of their existence. I think our Association has a close rapport
with AIMU, and I will do all that I can to continue that relationship.
9. January 10, 2001 - Officers Meeting - Washington, DC
On January 10th we had an officers' meeting in Washington, D.C. At the
conclusion of the meeting, as has been the custom in the past, we hosted a luncheon for a
number of our colleagues in government service, including the United States Coast Guard
Chief Counsel, the Deputy Judge Advocate General of the United States Navy, the Chief
of the Maritime International Law Division of the United States Coast Guard, the Chief
Legal Officer of the National Pollution Fund Center, and attorneys from the State
Department and NOAA. These luncheons, which have become an annual affair, are an
excellent way for us to maintain our contacts with our friends in the Coast Guard, Navy,
State Department and other government agencies
10. February 11-17, 2001 - CMI Singapore Conference
See pages 11-17 above.
SCHEDULE OF FUTURE MLA AND RELATED EVENTS
1. IMO Diplomatic Conference on Bunker Pollution: To be held in London
March 19-23, 2001.
2 Quarterly Meeting of MLA Officers and Board: To be held in New Orleans
on March 26-27, 2001.
3. Biennial Program of the Tulane Admiralty Law Institute: To be held in New
Orleans from March 28-30, 2001. The details of this program are contained
on our website in the Events Calendar section.
4. Fourth Meeting of Governmental Experts On the UNESCO Draft
Convention On Underwater Cultural Heritage: To be held at Paris, March
26-April 6, 2001.
5. Annual John B. Brown Moot Court Competition: To be held in Newport,
Rhode Island, on April 6-7, 2001.
6. Annual Spring Meeting of the Maritime Law Association of the United
States: To be held in New York from April 30-May 4, 2001
7. Annual General Meeting and Dinner of the Association of Average
Adjusters: To be held in London on May10, 2001.
8. Annual General Meeting of the Canadian Maritime Law Association: To be
held in Montreal, June 15-16, 2001. This meeting will celebrate the 50th
anniversary of the Canadian Maritime Law Association.
9. SEALI Annual Seminar: To be held in Orlando, Florida on June 29-30,
10. Houston Marine Insurance Seminar: To be held in Houston on September
11. IMO Legal Committee Meeting: To be held in London on October 8-12,
12. MLA Fall Meeting: To be held at the Hotel Del Coronado, California, on
October 15-19, 2001.
NOTES OF INTEREST REGARDING MEMBERS
I am sad to say that I must report that since our last newsletter we lost an old and
dear friend and former Board Member, Jimmy Kemp of New Orleans, whose untimely
death occurred early this year. A testament to the affection and regard with which Jimmy
was held was that, at his funeral in New Orleans, every lawyer who had ever worked for
him over the years at Phelps Dunbar was present, coming from as far away as California.
He will be sorely missed.
I continue to be grateful for the incredible support I receive from the members of
this Association, the committee chairs, the officers, and members of the Board. I would
be remiss if I did not express my special appreciation for all those who attended the recent
CMI Conference (as listed on page 11 above) as well as those who did not attend but
helped prepare for it, including Jean Knudsen, Bret LeBreton, Larry Bowles, Jonathan
Spencer and Richard Stone, who rendered invaluable advice in connection with our
preparation for the General Average Issues. Another special word of thanks is due to the
chairs and vice chairs of the working groups, Gray Staring, George Gabel, Chet Hooper,
Vince DeOrchis, George Chandler, Howard Myerson and Howard McCormack. Mike
Sturley, John Kimball and Sam Menefee, as rapporteurs for the Committees on Transport
Law, Underwater Cultural Heritage and Piracy, respectively, were important and effective
players in the Conference deliberations. So, also, was Frank Wiswall, who led the
discussions on piracy and the new CMI Constitution. Despite his numerous CMI duties,
Frank was unstinting with his time in providing me and our delegation with the benefit of
his years of experience in CMI matters and conferences. His advice to me, a relative
rookie in these Conferences, was always on the money. Finally, the organizational skills
and usual energetic enthusiasm of the Chair of our CMI Committee, Michael Marks
Cohen, was invaluable. As a result of his efforts and thoughtful ideas on most of the
topics discussed at the Conference, we were, I believe, as prepared as any delegation
could be for the work of the Conference. I know I leaned heavily on Michael for his
advice and counsel. In short, all of these members made my job at Singapore an easy
I apologize for the length of this newsletter, but the activities in which the
Association is involved continue to be numerous. Long may it be so.
William R. Dorsey, III