ADMIRALTY AND MARITIME LAW:
Admiralty and Maritime Law
This section is for lawyers and seamen. Here we discuss maritime law issues and review books on admiralty and maritime law and provide useful links to services often needed by lawyers or ship managers. Laymen may find quite a bit of interest here as well. However as we note repeatedly to our lay visitors to this section representing yourself in an admiralty or maritime tribunal is a terrible idea. Nowhere is it more true, he who represents himself has a fool for a client.
NOTICE: 9//30/2012 The International Safety Management Code (ISM) changes everything starting with concepts of limitation ( much more difficult to limit liability) and accountability. Fines, even imprisonment can now reach into the board room. Whether you practice corporate / insurance defense or personal injury admiralty law you need to catch up on this subject: Check out our continuing series of posts on the subject at : https://americanadmiraltybooks.blogspot.com/2019/07/our-senior-legal-correspondent-with.html or contact our resident expert:
If you have serious questions contact our resident ISM expert via E-mail or phone
William H. Toohey III AFNI
Toohey Marine LLC
Master Unlimited
ISO 9001:2015 Lead Auditor Class
(Bureau Veritas)
ISM Lead Auditor (ABS Certified)
IMCA CMID Vessel Inspector
Vessel Compliance/Training/Safety Officer
Cell: 504-432-1958
Email: skiffrunner@gmail.com
|
AMERICAN ADMIRALTY BOOKS PRIVACY POLICIES NOTICE
WARNING TO LOUISIANA RESIDENTS: THIS SPECIAL INTEREST PAGE CONTAINS MANY LINKS TO AMAZON.COM AS A CONVENIENCE TO LEGAL RESEARCHERS IN FINDING PUBLICATIONS DISCUSSED. THIS SITE (AAB) IS NEITHER A VENDOR NOR AN AFFILIATE OR PORTAL FOR AMAZON AND DERIVES NO REVENUES FROM PURCHASES MADE THROUGH THESE LINKS. AMAZON DOES NOT COLLECT LOUISIANA SALES TAXES. LOUISIANA RESIDENTS ARE PERSONALLY LIABLE FOR THE REMISSION OF SALES TAXES FOR INTERNET PURCHASES TO THE STATE TREASURY AND LOCAL TAX AUTHORITIES.
There are of course more admiralty and maritime legal titles than we will ever be able to review but you may scroll through over 600 titles and read the publisher's dust jacket write ups at our Check ADMIRALTY BOOKS AT AMAZON
out also:
HUMAN RIGHTS BOOK SHELF
If you are a lawyer in need of vessel tracking for service of process we suggest the following links:
Here are some sample vessel tracking sites that provide some free services:
http://www.marinetraffic.com/ais/default.aspx?centerx=30¢ery=25&zoom=2&level1=140
http://www.vesselfinder.com/
http://www.marinetraffic.com/ais/default.aspx?centerx=30¢ery=25&zoom=2&level1=140
http://www.vesselfinder.com/
The above links are AIS based systems. AIS can be spoofed, not all services update as frequently as others. The free services are particularly subject to out dated information or vulnerable to spoofing. When you absolutely must have the exact information on a ship's location, as when an admiralty lawyer is attempting to serve process there is no substitute for Lloyd's Intelligence Services, a service of Lloyds of London. Lloyds charges for its services but not only uses modern AIS tracking but maintains a world wide net work of commercial intelligence agents around the world who check custom houses for official entry pratique,and clearance data. Lloyds finds your ship in the world and for a reasonable fee tracks it until it is about to enter any port you name where you may effect service of process. http://www.lloydslistintelligence.com/llint/index.htm;jsessionid=CBFA578AB8B6CCE32326F71B4558C59A
IF YOU ARE A LAWYER IN NEED OF BIOGRAPHICAL INFORMATION ON A SENIOR COAST GUARD OFFICER:
 |
| OFFICIAL U.S. COAST GUARD PHOTO |
We noticed recently that a significant number of people entered our blog on keyword searches indicating that they were looking for specific information on senior members of the Navy, Coast Guard, or Maritime Administration. Here is a link to a site offering biographies of senior Coast Guard personnel. However this is not the only source of information on senior Coast Guard personnel. Officers above the rank of Commander (0-5) are required to have biographies and photos on file with the district public affairs office of the district in which they are serving. Merchant Marine and work boat industry operations managers and legal counsel often have matters to adjudicate with district officers at this level, especially involving exemptions, exceptions, or alternative compliance proposals relative to some Coast Guard enforced regulation. Possession of a biography and photo can be of great assistance in preparing for a first meeting with the adjudicating officer. The photo will help the industry advocate to identify the adjudicating officer from among others who may also be present at the first meeting. The biography will also allow the industry advocate to determine how long the adjudicating officer has served in the local geographic area, which will provide some idea of how familiar he may be with local conditions. An examination of educational credentials and previous assignments may give the industry advocate some insight as to how to frame his proposal in terms the adjudicating officer may actually understand, or even relate to. The Coast Guard provides these biographies to encourage effective communications. Each Coast Guard officer or petty officer in a position to make discretionary decisions over regulations has to balance two values; the protection of public safety, and the avoidance of unnecessary obstructions of commerce. We will be posting as much information as we can find on how to obtain relevant biographical material on maritime regulators in our legal and authoritative literature sections.
http://www.uscg.mil/flag/
-----------------------------------------------------------------------------
GENERAL SEARCH LINK FOR ADMIRALTY AND MARITIME BOOKS BY TITLE AND AUTHOR IF KNOWN:
Click on the link below. You can use this link to browse over 2,800 titles in admiralty and maritime law. To view those reviewed by American Admiralty Books or to read a general description of admiralty and maritime law, or find useful links for maritime legal research scroll down.
Please Note: This site uses Amazon Book Cover icon links to take you to additional publisher's information beyond what we provide in our book reviews. These icons also provide a point of purchase if desired. However if you are using an advertising reduction application, the book cover icons may become invisible. There are no banner or pop up ads in this site. You will get maximum performance out of the site with advertising reduction applications off and viewed through Google chrome but we are working to make everything as visible as possible across all browsers and devices. This site still links our readers to Amazon as a courtesy, we are no longer an Amazon commissioned portal thanks to our democratic governor. If you live in a blue state you may be expected to pay sales tax for all internet purchases. Arrangements vary by state but the usual system has you declaring your purchases on your state income tax forms and remitting the total sales tax due with your state income tax return.
RESEARCH LINKS
THE ADMIRALTY AND MARITIME LAW GUIDE
The Admiralty and Maritime Law Guide includes over 1,500 annotated links to admiralty law resources on the Internet and a growing database of admiralty case digests, opinions and international maritime conventions. MORE RESEARCH LINKS BELOWhttp://www.admiraltylawguide.com/
How the section is Organized:
(1) In this section you will find first, a brief description of Admiralty and Maritime law immediately below this headline.
(2) Below this explanation you will find a variety of hyperlinks that should be of great assistance to lawyers, law clerks, and paralegals in finding the law.
(3) Below that, you will find reviews and descriptions of various law books on the subject.
If you are a legal professional feel free to scroll down through the site we hope it will be of great assistance to you. We are constantly working on this section to make it more useful to legal professionals both seamen's personal injury attorneys and insurance defense firm members. If you are a layman feel free to browse around this interesting and historic subject. But if you are a layman attempting to represent yourself in the complex area of admiralty and maritime law....step away from the computer...
Remember he who represents himself has a fool for a client and there is no area of law where this is more true than admiralty and maritime practice. We are very concerned with injured seamen as well as such insurance issues as cargo loss, customs seizures, and assessments, defense against false claims, and sales of vessels and marine terminals. But as former Merchant Marine Officers ourselves we want to take a moment to address commercial seamen who have experienced an on board injury. If you are a crewman or injured passenger and live in the South East Louisiana area we can recommend that you contact:
 |
| The Royal Courts of Justice, London. Photo by Vera Kratachvil |
You can visit their web site 24/7 and view videos and read articles about maritime law subjects that may pertain to your case. You can also contact a live site attendant for a sort of on line "chat". We can recommend them only because we actually know them through their membership and participation in the National Mariners Association (NMA). Unfortunately we had to notify the public via a post in this blog in 2014 that NMA has ceased operations and disbanded due to aging officers and directors and declining funding. However the former officers are actively engaged with the South East Louisiana legal services community in trying to improve services to injured mariners. We hope to be able to report progress in this section in the near future.
There were other admiralty and maritime lawyers advertising at the end of this page and frequently at the end of the daily station ID. Unfortunately we no longer carry non Amazon traditional advertising within the blog. These other lawyers represented firms from all over the nation including Louisiana and Texas where the large work boat industry produces so many injuries. There are a number of other law firms in the Houma and Lafayette area that were NMA members. We trusted the NMA member firms to always look out for the injured seaman's best interest because they all have worked to assist the NMA in the pursuit of marine safety through legislative efforts, support of Inspector General investigations, and specially targeted litigation without regard to payment or profit.
By using the Young Law Firm site you can get a "from the horse's mouth" explanation of contingency fee arrangements, and other information that can help you find and work with a lawyer, regardless of which firm you ultimately sign up with. If you are in fact a crewman considering litigation the highest use you can make of this section is to use it to help you find a lawyer to counsel you.
By using the Young Law Firm site you can get a "from the horse's mouth" explanation of contingency fee arrangements, and other information that can help you find and work with a lawyer, regardless of which firm you ultimately sign up with. If you are in fact a crewman considering litigation the highest use you can make of this section is to use it to help you find a lawyer to counsel you.
Injured seamen may usually have their cases evaluated without costs by maritime personal injury lawyers. If your case is considered as having a fair chance at favorable settlement or decision and the evaluating firm accepts your case, you pay nothing unless and until you receive a settlement or judgement award. At that point the lawyer's fees must be paid out of the settlement or judgement funds. The norm of the admiralty personal injury practice is about 33+% of the award plus expenses. If your case required extensive litigation and the use of expert witnesses these expenses can be high. Should you lose your case you pay nothing if you have a contingency arrangement with your lawyer. If after several tries you are unable to engage a lawyer on contingency, you might want to reconsider your cause of action, there are plenty of lawyers who will cheerfully take on a hopeless case on an retainer and hourly basis. That means you're on the hook win, lose or draw. You pay up front and if you lose you're out of the lawyer's fees.
When quick settlements are offered at a low return and your contingency lawyer recommends acceptance, you can often negotiate with your lawyer to take a lower percentage of the award. Expenses are more difficult to negotiate since these represent funds your lawyer has expended out of his own pocket on your behalf. Generally we always recommend following your lawyer's advice. But we are aware that some lawyers are more skilled than others and more rarely, some lawyers have questionable ethics. The possible event of a low ball settlement offer is one reason why you want to pick a lawyer you can trust.
American Admiralty Books recommends the former National Mariner Association affiliated lawyers not only because of their record of pro bono service to mariners, but also based on their reputation for skill and indications of sound financial management of their firms. An injured seaman doesn't want to be in the hands of a starving lawyer anxious over his monthly cash flow. That's the type of lawyer who may be tempted to advise you to take a fast low ball settlement. The NMA was not privy to participant law firm financial information. However we (American Admiralty Books) believe that the participation of these firms in the work of the NMA, the payment of dues, and the NMA's ability to observe their actual practice through referred cases leaves us with the distinct impression that NMA participant lawyers are not cash strapped and thus tempted to recommend anything that is not in the best interest of the client. When NMA participant firms suggest taking a low ball settlement we believe the advice will be based on sound legal judgement, not their cash flow of the moment. Editors's note: 9 /8/2012 The NMA ceased operations a few year sago, but their numbered reports can found in the Library of Congress, Their news letters ( where lawyers advertised ) are archived as well. As we learn more about the final distribution of t epublications of the NMA we will report our findings here.
Under such circumstances solid law firms are also more likely to be able to negotiate with you for a non standard contingency fee. We suggest the NMA roster of former participant lawyers simply because the NMA is a seaman run organization, run for seamen, focused on seamen's rights and safety and not a lawyer run organization. Every legal case has certain elements of a crap shoot involved. Every legal case is a sort of mine field. You need a mine field pilot, they are called "Admiralty lawyers". Choose carefully.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Introduction to the Concepts of Admiralty and Maritime law:
In the law of the sea and maritime causes generally, "admiralty" connotes a specific type of jurisdiction. In ancient England the law of the sea was taken seriously and was not to be administered by amateurs. The "court of admiralty" was staffed by judges who themselves had working experience at sea. Only courts of admiralty jurisdiction could hear cases involving disputes over cargo losses at sea, criminal acts at sea, the awarding of naval prizes, and similar matters.
The symbol of the admiralty court was a silver mace in the shape of an oar (illustrated at the top of the page) which was carried into court held aloft by the officers of the court in solemn procession when in session. The mace also preceded condemned pirates to the gallows erected seaward of the high water mark. In the United States the federal district court system inherited the primary "admiralty" jurisdiction from the old colonial courts of admiralty set up by the British during our colonial period. However, not all cases dealing with maritime or marine matters are dealt with exclusively in the United States in the "admiralty forum" that is the Federal District Courts. Personal injury law suits of crewmen and passengers may be brought into state courts under a variety of circumstances. Many contract disputes involving maritime subjects are also sometimes joined in state courts.
So in the United States we speak of "admiralty and maritime law". Both "admiralty" and "maritime cases" involve marine elements, often involve actions that occur on or near the water, but only those subject to adjudication in the Federal District Courts are spoken of as "admiralty" cases. Lawyers who specialize in maritime cases work hard for the special designation of "Proctor of Admiralty", but all admiralty proctors handle maritime cases whether filed in admiralty (Federal District) or state courts."
Today there is no rule that requires a lawyer who tries maritime cases to have naval or merchant marine work experience though many maritime academy graduates are attracted to the field. Still it is difficult to effectively try a maritime cause of action without understanding basic marine nomenclature and terminology, and having some idea of the various marine technologies. Consequently this section of our offerings includes some suggested titles for background reading in marine terminology, nomenclature , and technology. Our various technical sections contain additional selections. Here you will find book suggestions on maritime and admiralty law and a growing number of hyper-linked special features to assist the legal professional with admiralty and maritime legal research.
Now as regards doing legal research via any of our hyper-linked special features; if you are a legal professional or paraprofessional you already know all of the cautions when using such tools as cite checking, date checking, etc. If you are not a legal professional or para professional you may enjoy simply reading in admiralty and maritime law and this is a good place for that. If you've ever seen movies like "MASTER AND COMMANDER" and wondered where the screen writers ever found the story line, read some of the books here that deal with the ancient prize courts. Students of history may benefit from some reading in admiralty law and not every book in this section is for legal professionals only. But if you are a non lawyer attempting to represent yourself in an admiralty or maritime matter....step away from the computer....log off ...you have a fool for a client and we don't want to be responsible for encouraging you in any way. If you want to use a computer to help your case, USE IT TO FIND A LAWYER.
THIS SECTION IS SPECIALLY DESIGNED TO DETECT THOSE ATTEMPTING TO LEGALLY REPRESENT THEMSELVES. LOG OFF AND MOVE AWAY FROM YOUR COMPUTER BEFORE OUR SITE EMITS A SPECIAL SIGNAL THAT WILL CAUSE A HORRID PURPLE STAIN TO TRANSFER FROM YOUR KEY BOARD TO YOUR FINGERS AND REMAIN FOR A WEEK. CLICK BELOW TO STOP THE PROCESS:
http://www.theyoungfirm.com/
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
INTRODUCING OUR NEW (TO US ANYWAY, HE HAS ACTUALLY BEEN AROUND THE BLOCK A FEW TIMES) LEGAL CORRESPONDENT, LOUIS BRANDEIS, FORMER ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT FROM 1916 to 1939. He has actually been dead for quite a while but recently Namazu made a trip up to DC while visiting with his cousin Jack in and around Annapolis. Both Namazu and Jack had assumed their human forms when they bumped into the ghost of Brandeis on the steps of the U.S. Supreme Court building. Apparently former demigods can see and communicate with the dead and according to Namazu, Brandeis immediately recognized not only Namazu as a demigod but could see right through his assumed human form and being an excellent student of Asian history knew exactly who he was and that his normal form was that of a Giant Catfish. Cousin Jack however was a mystery to the good Judge. However Justice Brandeis is such a scholar that even Namazu withstood the temptation to exclaim..."You don;t know Jack?!". Well as things go with the big catfish the friendly banter quickly turned to things maritime, in this case admiralty law. As it turned out not only has Justice Brandeis participated and written opinions in many an admiralty case, but he was actually interested in doing some writing for publication again. Of course being a ghost we can't use the hydrophones like we do with Namazu. But Namazu generously agreed to transcribing from Justice Brandeis' dictation. Tomorrow the Justice will hold forth on his first scholarly article in decades. Meanwhile we thought that we'd let the Great Namazu introduce our guest corespondent.
Johnas Presbyter, Editor
NAMAZU, FORMER JAPANESE GIANT CATFISH DEMIGOD AND NOW MARITIME ANALYST WITH AAB.
Greetings bipeds! I am very pleased to introduce our readers to my new friend, a real gentleman and scholar, former Associate Justice of the U.S. Supreme Court Louis Brandeis. Louis was born November 13, 1856 and departed physical life on October 5, 1941. In between entry and departure from the planet he served the law of the United States. He literally coined the term "right to privacy" in one of his early law journal articles. He was known as something of a "Robin Hood lawyer" taking up many social justice causes pro bono before he was nominated to the Supreme Court bench over heavy opposition. Concerning that heavy opposition Justice William O. Douglas said "Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible. . . [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court." His nomination over came the opposition and Louis was seated on the Supreme Court which is of course making a long story short`. In our conversation on the court house steps Louis spoke eloquently about his concern for the American seaman. He has graciously agreed to provide us with an occasional post providing tips to the lawyers of injured American Seamen. Johnas and Og were thrilled to have him aboard since we've been needing a legal analyst and as a ghost he seems to have few monetary demands and most of his images are in the public domain. We should have his first post up tomorrow.
Namazu
----------------------------------------------------------------------------------------------------------
Greetings bipeds! I am very pleased to introduce our readers to my new friend, a real gentleman and scholar, former Associate Justice of the U.S. Supreme Court Louis Brandeis. Louis was born November 13, 1856 and departed physical life on October 5, 1941. In between entry and departure from the planet he served the law of the United States. He literally coined the term "right to privacy" in one of his early law journal articles. He was known as something of a "Robin Hood lawyer" taking up many social justice causes pro bono before he was nominated to the Supreme Court bench over heavy opposition. Concerning that heavy opposition Justice William O. Douglas said "Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible. . . [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court." His nomination over came the opposition and Louis was seated on the Supreme Court which is of course making a long story short`. In our conversation on the court house steps Louis spoke eloquently about his concern for the American seaman. He has graciously agreed to provide us with an occasional post providing tips to the lawyers of injured American Seamen. Johnas and Og were thrilled to have him aboard since we've been needing a legal analyst and as a ghost he seems to have few monetary demands and most of his images are in the public domain. We should have his first post up tomorrow.
Namazu
----------------------------------------------------------------------------------------------------------
AAB'S LEGAL CORRESPONDENT, THE GHOST OF LOUIS BRANDEIS, FORMER ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT FROM 1916 to 1939
Introducing the International Safety Management Code (ISM)
Next three posts , scroll down don't miss the student handout.
If you work in marine transport management , admiralty law the ISM changes everything . It changes the potential liabilities of managers and executives, the standard of care for corporate safety, the ability to limit liability.
EDITORS' S NOTE: For those of you who are unfamiliar with our legal correspondent and may wonder how a dead guy came to write for us we link you to his original introduction into these pages:
https://americanadmiraltybooks.blogspot.com/p/admiralty-law.html (Scroll down until you see the image of Justice Brandeis.)
For Info from a live person and expert contact:
Capt. William H. Toohey
Master Mariner (unlimited)
ISM Lead Auditor (ABS)
IMCA CMID Vessel Inspector
E-mail: skiffrunner@gmail.com.
As a long deceased jurists I'm beyond semi retirement. I don't do the professional reading that I once did but my interest in the law and the evolution of the American legal system continues. Any interest that so involved the mind as the law did for me, stays with you in the after life. This is why I was so pleased when the Great Catfish offered me an opportunity to once again write on legal matters for publication. But I must admit I'm a bit tardy in reporting on a development in Admiralty that has actually been decades coming and has now reached fruition. I became moved to write with some alacrity when I recently realized that this development that I had perceived on the far horizon a long time ago had now come to fruition.
The International Safety Management Code (ISM) first moved from discussions into codified international law, and more recently into United States statutory law and detailed regulation. This changes everything related to limitation of liability and the determination of civil liabilities and even criminal culpability in admiralty tribunals.
The ISM Code is a product of the United Nations International Maritime Organization's (IMO); Marine Safety Committee (MSC). The formal original name for "the code" is the International Management Code for the Safe Operation of Ships and for Pollution Prevention. It became known as the International Safety Management Code after amendments in May of 2005 by way of MSC .273 (85) and entered into force on July 2006. The Resolution as amended entered into force on July 1, 2010. Additional amendments followed in 2013. "The code" entered into force at least as codified international law by way of the signatory nations to the International Safety of Life at Sea Convention on January 1, 2015. Some more time would elapse before the signatory nations (66 at my last count, representing about 98% of world shipping by tonnage) would adopt the code into national law or regulation. The ISM is implemented into US law at 46 USC 3201-3205 and detailed regulations enforceable by the U.S. Coast Guard are found in 33 CFR part 96 , subpart D.
This is not just another safety code dealing with shipboard equipment and conditions. This code imposes on ship owners and managers in the international trades the personal and corporate duty to create a "culture of safety" within their company and fleets, My fellow legal practitioners let that sink into the deepest recesses of your admiralty trained minds. The effects of this duty profoundly alter the standing order on limitation of liability as we have known it for better than 200 years. Even more profoundly does the "code" affect civil liabilities in the now most likely event that limitation is denied , it also extends the potential for criminal culpability into the executive suite. This is serious, the time is short, the danger great . The old days when a ship owner and his executives could point to the Master and claim that the cause of an accident was beyond the privity and knowledge of the shore based corporate officers are over. "The Code" requires management at all levels to participate in the creation of the ship's safety management plan, and take responsibility for its effectiveness. The corporate ISM program, complete with formal periodic auditing and third party periodic over sight is here. Ship owners you now need legal scholars , lawyers to aid you in the required planning and documentation , you need legal counseling as you put together the required system to help you insure that your efforts will pass the "due diligence test". The "due diligence test" is a very tough standard. The consequences for failure can be very high, in some international jurisdictions , if there is loss of life you could even face a capital charge (there was a reason why that Korean ferry owner committed suicide in the wake of the passenger school children that died on his ship. His cost savings efforts resulted in a hidden malfeasance and hidden flaw that may have resulted in the removal of the death penalty from the Master's trial). By having a lawyer in your planning team as a counselor vice a litigator you automatically go a long way toward assuring a "good faith effort" at "due diligence". A "good faith effort" won't clear you of liability or culpability but it is a strong mitigating factor that could keep your company away from enterprise killing penalties, and keep you out of jail or even off the gallows.
As a lawyer you don't want to be caught flat footed when the phone rings with your first case under "the Code". With the able assistance of the AAB I will be posting training aids on "the Code" here on the AAB blog. Resolve today to master "the Code" that forever changes the law of admiralty for limitation, and post accident criminal and civil liabilities. Corporate culture changes slowly. You may have clients even now who having learned of the code are already seeking cost shaving measures. That effort, if unguided, can result in a long fall from "due diligence".
If you have serious questions contact our resident ISM expert via E-mail
Capt. William H. Toohey
Master Mariner (unlimited)
ISM Lead Auditor (ABS)
IMCA CMID Vessel Inspector
E-mail: skiffrunner@gmail.com.
_______________________________________
ISM PART 2:
INTRODUCING THE INTERNATIONAL SAFETY MANAGEMENT CODE FOR LAWYERS
The ISM applies globally to ocean going ships.
by Capt. William H. Toohey, Master Mariner and ISM Lead Auditor (ABS)
The United States signed the treaty but made an exception for its Jones Act or domestic fleets such as ferries, excursion boats, tugs, tow boats, and supply boats
Despite the exception we believe that once the courts get involved this changes every thing.
The book imaged above is for sale at Walmart .com
BACKGROUND: The ISM Code is a system for the management of safety aboard ships mandated by the International Maritime Organization (IMO), a body within the United Nations focused on maritime safety. The detailed code was authorized to be developed by article nine of the Safety of Life at Sea Convention (SOLAS). The United States is signatory to the SOLAS Convention and has specifically adopted the ISM Code into U.S law and regulation (46 USC 3201-3205 and 33 CFR Part 96, subpart D. The implementation and enforcement of the code is expected over time to have profound effects on admiralty adjudication in the United States and other western nations.
The code is not another set of detailed technical safety requirements for compliance by the ship board officers. It is a general admonition to ship owners / managers to "establish a culture of safety" with some details as to the how and why. Once the courts become aware of this code through motions and memorandums in support of motions by lawyers seeking to defeat limitation of liability much new precedent is probable in the future. Much of this precedent will be quite different from the days when limitation of liability of a ship owner only required that the proximate cause of an accident was not within his "privity and knowledge". It is now national law and regulation that ship owners / managers create a corporate culture of safety that fully supports the Master's efforts at maintaining safety aboard. The new international convention, national statute, and related regulations place upon shore side management the duty to provide the master with a ship safety plan, and to assist in every way possible to aid the master in implementation.
Lawyers who represent injured seamen, or defend assurers or owners must at least be aware of the impact of this legal development on litigation. Lawyers who hope to counsel clients on the implementation and administration of this new legal regime must have a more detailed understanding. However, since this is not a detailed equipment regulation scheme, lawyers do not need extensive training in the nautical arts, sciences and technologies to counsel clients. Where lawyers are needed is in helping owners and management in assuring that they are exercising due diligence in implementing and administering the code. Moreover, we believe that lawyer presence as counselors regarding due diligence is bound to be considered a factor in court determination of good faith effort. Where due diligence is not judged completely present, a good faith effort possibly could be a mitigating factor when the court considers criminal culpability or civil liabilities
We believe that there is an immediate need for such information to be disseminated within the Admiralty Bar. Presently, most ISM training is provided by Classification societies to compliance surveyors most of whom are licensed merchant marine officers. The Code itself seems to anticipate that such technical types may not be well suited to assist management in their nontechnical attempt at "establishing a culture of safety". There is a requirement for third party auditing by knowledgeable persons not connected to the parties issuing compliance documents. In the United States the ABS, a classification society and provider of most of the existing ISM related training is the issuing authority for issuance of compliance documents. In conjunction with the Marine Division of Helios Ruehls, Inc. we have prepared an introductory course expressly for lawyers by ISM trained Merchant Marine Officers and taught without CLE credit to lawyers providing input before the course being finalized for CLE credit application. Our lead instructors have been trained and credentialed as auditors of ISM by classification Societies. In the United States the ABS ( American Bureau of Shipping) , is the the compliance certificate issuing authority. Our planned courses in ISM familiarization for lawyers are not prepared by the ABS , the U.S. compliance certificate issuing
authority, This considers the provision in the ISM code that at least one advisor or external auditor should have no connection to the certificate of compliance issuing authority (ABS), When offered as a class to the admiralty bar the course will offer CLE credit, We believe that the outside auditor or consultant described in the code free of connection to the certificate of compliance granting authority should be a lawyer well familiar with the ISM system. The other auditors will look at the management system, safety plans. and even shipboard equipment requirements. The final independent auditor should be able to evaluate and advise whether or not the ship owning company is making progress towards "creating a corporate culture of safety" and doing so within the meaning of "due diligence" as required by the code. We think that only by exerting "due diligence" can a ship owner or CEO protect himself from personal liability and even criminal prosecution under the code. We believe the best counsel to have when trying to evaluate your required "due diligence is a lawyer
.
CLE CREDIT SOUGHT: We seek 1 hour of CLE credit for the described course which is actually lesson one of a more detailed course for which we will seek additional CLE credit hours as we continue to test teach this course with various participating law firms. We seek approval of this lesson as a stand-alone course as we feel it represents the minimum knowledge that any admiralty lawyer should have concerning the code immediately. Every maritime lawyer should have the level of detailed awareness of the code represented in this course immediately. Such an awareness should temper any initial opinions the lawyer may have regarding limitation, and trigger research before offering opinion. This is vital at this moment in the history of the development of the code as the code has such a serious effect on centuries old precedent relative to maritime limitation of liability.
When CLE credit is awarded and classes are scheduled we will announce all relevant information in these pages
For more information on the ISM Code E-mail
Capt. William H. Toohey
Master Mariner (unlimited)
ISM Lead Auditor (ABS)
IMCA CMID Vessel Inspector
E-mail: skiffrunner@gmail.com.
--------------------------------------------------------------------
INTRODUCTION TO THE ISM CODE FOR LAWYERS: INITIAL CLASS MEETING HAND OUT CLE COURSE LESSON NO. 1 ( Please note contact Capt. William Toohey of Helios Ruehls for attendance at the next publicly offered CLE course presently under development. Down loading or copying and printing this hand out does not provide anything in terms of CLE credit.
(C) 2019 by Helisos Ruehls , Inc.
WHAT IS THE ISM CODE?
The "ISM" Code refers to the "International Safety Management Code" promulgated by the International Maritime Organization (IMO) of the United Nations. It is a detailed code of safety management that describes how vessel owners, operators and management are to "establish a culture of safety" in ship operations.
DOES THE ISM CODE HAVE THE FORCE OF LAW IN THE UNITED STATES?
Yes, internationally it is an outgrowth of the Safety of Life at Sea (SOLAS) Convention, a
multilateral maritime safety treaty that the United States is signatory to. This convention was amended starting in the late 1990s and continuing into 2017, and anticipated to be periodically amended beyond, to provide for a code that the current and anticipated future ICM Codes model. By our last count in addition to the United States 63 other seafaring nations representing approximately 99% of the world's shipping by tonnage are signatory to the convention and are actively engaged in enforcement of the code. By virtue of the US
Constitution, such international treaties as the U.S. is signatory to are part of the "law of the land". In addition, the U.S. has adopted most elements of the treaty into statutory law and detailed regulation. The U.S. adopts most of the "code" by Federal Statute at 46 USC 32013205 and detailed Coast Guard enforced regulations may be found in 33 CFR Part 96 Subpart D. The U.S. Coast Guard is the "Responsible Administration" as suggested in the Code. However, the USCG relies mostly on its "Trusted Agent" the American Bureau of Shipping (ABS) for the day to day administration of the Code including issuance of the various "documents of compliance" and the routine performance of certain of the required "third party audits" of the ship owner's resulting Safety Management Program.
NOTE: It may be useful at times to be able to cite to the elaborate history of the Code's development much as it is occasionally desirable to bring into pleadings and memorandums in support, the legislative history of a statute or the evolutionary process of detailed regulations. The vocabulary and citation system of the IMO and its related Marine Safety Committee (MSC) are different from, but bears some similarity to the American system of legal citation. A few noteworthy points follow:
-
Adoptions by the IMO Assembly are a bit like the enabling statutes in U.S. admiralty law that direct the U.S. Coast Guard (USCG) to promulgate detailed safety related regulations. The sub body that the IMO Assembly usually addresses is their own MARINE SAFETY COMMITTEE (MSC). The MSC generally does the work of generating technically detailed codes. The IMO Assembly sometime also addresses national governments and their maritime safety administrations or agencies in a general way advocating state action in pursuit of compliance with IMO/ MSC generated safety codes. Adoptions by the IMO Assembly are cited by the letter "A" followed by a numeric part and section identifier. An example of an Assembly citation would be "A.596 (15)" which called on the MSC to develop guidelines for shipboard and shore based management to ensure safe operation of RoRo ferries. Marine Safety Committee "resolutions" are often reflected in resulting nation state detailed regulations verbatim. An example of an MSC Resolution citation would be MSC. 353 (92) which describes amendments entered into force for the Code on 1 January 2018.
-
THE ISM CODE is codified "International law" and has been adopted into statute and regulation by most of the 63 nations signatory to the SOLAS Convention.
OBSERVABLE RESULTS OF THE WIDE SPREAD INTERNATIONAL ADOPTION OF THE CODE:
-
While not a lot of case law and related precedent has emerged yet, there is an observable trend towards the Code being an instrument for defeating actions in limitation of liability. The requirement of the Code for ship owning /operating companies to create a "culture of safety" has a natural inhibiting effect on the ability of management and owners to claim that an accident was due to actions or conditions "beyond the "probity and knowledge" of the owner.
-
There is a growing trend in the U.S. and internationally to hold various levels of management individually civilly liable and / or criminally culpable for a growing number of accidents.
IS THERE A CONCISE GUIDE TO THE ISM CODE AVAILABLE IN PRINT?
"THE ISM CODE, International safety Management Code With Guidelines For
Implementation (last edition at this writing 2018) ,
IMO Publication Sales Number: ID117E
ISBN Number (978-92-801-1696-0
This is an 84-page complete guide including citations and many direct quotes from the code meant as a hand book for all those involved in the Code compliance effort. REMEMBER THAT THE CODE FOR MANAGEMENT DOES NOT CONTAIN MUCH IN THE WAY OF EQUIPMENT RELATED TECHNICAL DATA. THE REQUIRED SYSTEM IS A MANAGEMENT SYSTEM SUBJECT TO FREQUENT PERIODIC PERFORMANCE AUDITING.
LAWYERS HAVE A ROLE TO PLAY IN THE DEVELOPMENT OF EACH CORPORATE CODE AND SUBSEQUENT PERFORMANCE AUDIT PROGRAMS. THE CODE MUST
BE DESIGNED WITH "DUE DiLLlGENCE" IN MIND. SHOULD DUE DILLIGENCE BE FOUND WANTING SUBSEQUENT TO AN ACCIDENT; PROVING A GOOD FAITH
EFFORT MAY BE THE DEFENSE THAT REDUCES JUDGEMENT AMOUNTS OR
CRIMINAL PENALTIES IMPOSED. 02019 Inc
OBSERVATION: Both the ISM Code and U.S. detailed regulations require periodic corporate internal and third party ISM program performance audits. The ABS offers services for most of these but THE ABS is the compliance document issuing authority. The convention provides at article 2.3:
"Any organization performing verification of compliance with provisions of the ISM Code should ensure that the personnel providing consulting services and those involved in the certification procedure are independent of one another. " [See MSC. 208 (81)].
Admiralty lawyers aren't quite in a compliance market for their services relative to the code but they can cite to the above section in soliciting counseling roles at both the original design of the corporate Code compliance system and during the continuing auditing processes. THE CODE IS ABOUT '{DIJE DILLIGENCE" and that is the only thing that will keep corporate income intact and managers out of prison in the wake of serious, especially death dealing accidents. In the event that due diligence is found wanting in a particular instance A GOOD FAITH EFFORT appears to have an effect in reducing the severity of consequences for managers.
HELIOS RUEHLS. INC. MOST URGENTLY SUGGESTS TO ALL SHIPPING COMPANY EXECUTIVES AND MANAGEMENT TO BRING SKILLED ADMIRALTY LAWYERS FAMILIAR WITH THE CODE INTO THE EARLY PLANNING STAGES AS COUNSELORS AND TO CONTINUE TO BRING THEM INTO THE CORPORATE INTERNAL AUDITING PROCESSES AT LEAST ANNUALLY.
If you have serious questions contact our resident ISM expert via E-mail
Capt. William H. Toohey
Master Mariner (unlimited)
ISM Lead Auditor (ABS)
IMCA CMID Vessel Inspector
E-mail: http/www;skiffrunner@gmail.com. or aabmain@aol.com or leave comment at the end of this scroll.
---------------------------------------------------------------------------------------------------------
For more information on the ISM Code E-mail
Capt. William H. Toohey
Master Mariner (unlimited)
ISM Lead Auditor (ABS)
IMCA CMID Vessel Inspector
E-mail: skiffrunner@gmail.com., or aabmain@aol,com or leave a comment at the end of this scroll
| ||||
AAB'S LEGAL CORRESPONDENT, THE GHOST OF LOUIS BRANDEIS, FORMER ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT FROM 1916 to 1939
Introducing the International Safety Management Code (ISM)Next three posts , scroll down don't miss the student handout. If you work in marine transport management , admiralty law the ISM changes everything . It changes the potential liabilities of managers and executives, the standard of care for corporate safety, the ability to limit liability.
EDITORS' S NOTE: For those of you who are unfamiliar with our legal correspondent and may wonder how a dead guy came to write for us we link you to his original introduction into these pages:
https://americanadmiraltybooks.blogspot.com/p/admiralty-law.html (Scroll down until you see the image of Justice Brandeis.)
For Info from a live person and expert contact: Capt. William H. Toohey Master Mariner (unlimited) ISM Lead Auditor (ABS) IMCA CMID Vessel Inspector E-mail: skiffrunner@gmail.com.
As a long deceased jurists I'm beyond semi retirement. I don't do the professional reading that I once did but my interest in the law and the evolution of the American legal system continues. Any interest that so involved the mind as the law did for me, stays with you in the after life. This is why I was so pleased when the Great Catfish offered me an opportunity to once again write on legal matters for publication. But I must admit I'm a bit tardy in reporting on a development in Admiralty that has actually been decades coming and has now reached fruition. I became moved to write with some alacrity when I recently realized that this development that I had perceived on the far horizon a long time ago had now come to fruition.
The International Safety Management Code (ISM) first moved from discussions into codified international law, and more recently into United States statutory law and detailed regulation. This changes everything related to limitation of liability and the determination of civil liabilities and even criminal culpability in admiralty tribunals.
The ISM Code is a product of the United Nations International Maritime Organization's (IMO); Marine Safety Committee (MSC). The formal original name for "the code" is the International Management Code for the Safe Operation of Ships and for Pollution Prevention. It became known as the International Safety Management Code after amendments in May of 2005 by way of MSC .273 (85) and entered into force on July 2006. The Resolution as amended entered into force on July 1, 2010. Additional amendments followed in 2013. "The code" entered into force at least as codified international law by way of the signatory nations to the International Safety of Life at Sea Convention on January 1, 2015. Some more time would elapse before the signatory nations (66 at my last count, representing about 98% of world shipping by tonnage) would adopt the code into national law or regulation. The ISM is implemented into US law at 46 USC 3201-3205 and detailed regulations enforceable by the U.S. Coast Guard are found in 33 CFR part 96 , subpart D.
This is not just another safety code dealing with shipboard equipment and conditions. This code imposes on ship owners and managers in the international trades the personal and corporate duty to create a "culture of safety" within their company and fleets, My fellow legal practitioners let that sink into the deepest recesses of your admiralty trained minds. The effects of this duty profoundly alter the standing order on limitation of liability as we have known it for better than 200 years. Even more profoundly does the "code" affect civil liabilities in the now most likely event that limitation is denied , it also extends the potential for criminal culpability into the executive suite. This is serious, the time is short, the danger great . The old days when a ship owner and his executives could point to the Master and claim that the cause of an accident was beyond the privity and knowledge of the shore based corporate officers are over. "The Code" requires management at all levels to participate in the creation of the ship's safety management plan, and take responsibility for its effectiveness. The corporate ISM program, complete with formal periodic auditing and third party periodic over sight is here. Ship owners you now need legal scholars , lawyers to aid you in the required planning and documentation , you need legal counseling as you put together the required system to help you insure that your efforts will pass the "due diligence test". The "due diligence test" is a very tough standard. The consequences for failure can be very high, in some international jurisdictions , if there is loss of life you could even face a capital charge (there was a reason why that Korean ferry owner committed suicide in the wake of the passenger school children that died on his ship. His cost savings efforts resulted in a hidden malfeasance and hidden flaw that may have resulted in the removal of the death penalty from the Master's trial). By having a lawyer in your planning team as a counselor vice a litigator you automatically go a long way toward assuring a "good faith effort" at "due diligence". A "good faith effort" won't clear you of liability or culpability but it is a strong mitigating factor that could keep your company away from enterprise killing penalties, and keep you out of jail or even off the gallows.
As a lawyer you don't want to be caught flat footed when the phone rings with your first case under "the Code". With the able assistance of the AAB I will be posting training aids on "the Code" here on the AAB blog. Resolve today to master "the Code" that forever changes the law of admiralty for limitation, and post accident criminal and civil liabilities. Corporate culture changes slowly. You may have clients even now who having learned of the code are already seeking cost shaving measures. That effort, if unguided, can result in a long fall from "due diligence".
If you have serious questions contact our resident ISM expert via E-mail Capt. William H. Toohey Master Mariner (unlimited) ISM Lead Auditor (ABS) IMCA CMID Vessel Inspector E-mail: skiffrunner@gmail.com. _______________________________________ ISM PART 2:
INTRODUCING THE INTERNATIONAL SAFETY MANAGEMENT CODE FOR LAWYERS
The ISM applies globally to ocean going ships.
by Capt. William H. Toohey, Master Mariner and ISM Lead Auditor (ABS)
BACKGROUND: The ISM Code is a system for the management of safety aboard ships mandated by the International Maritime Organization (IMO), a body within the United Nations focused on maritime safety. The detailed code was authorized to be developed by article nine of the Safety of Life at Sea Convention (SOLAS). The United States is signatory to the SOLAS Convention and has specifically adopted the ISM Code into U.S law and regulation (46 USC 3201-3205 and 33 CFR Part 96, subpart D. The implementation and enforcement of the code is expected over time to have profound effects on admiralty adjudication in the United States and other western nations.
The code is not another set of detailed technical safety requirements for compliance by the ship board officers. It is a general admonition to ship owners / managers to "establish a culture of safety" with some details as to the how and why. Once the courts become aware of this code through motions and memorandums in support of motions by lawyers seeking to defeat limitation of liability much new precedent is probable in the future. Much of this precedent will be quite different from the days when limitation of liability of a ship owner only required that the proximate cause of an accident was not within his "privity and knowledge". It is now national law and regulation that ship owners / managers create a corporate culture of safety that fully supports the Master's efforts at maintaining safety aboard. The new international convention, national statute, and related regulations place upon shore side management the duty to provide the master with a ship safety plan, and to assist in every way possible to aid the master in implementation.
Lawyers who represent injured seamen, or defend assurers or owners must at least be aware of the impact of this legal development on litigation. Lawyers who hope to counsel clients on the implementation and administration of this new legal regime must have a more detailed understanding. However, since this is not a detailed equipment regulation scheme, lawyers do not need extensive training in the nautical arts, sciences and technologies to counsel clients. Where lawyers are needed is in helping owners and management in assuring that they are exercising due diligence in implementing and administering the code. Moreover, we believe that lawyer presence as counselors regarding due diligence is bound to be considered a factor in court determination of good faith effort. Where due diligence is not judged completely present, a good faith effort possibly could be a mitigating factor when the court considers criminal culpability or civil liabilities
We believe that there is an immediate need for such information to be disseminated within the Admiralty Bar. Presently, most ISM training is provided by Classification societies to compliance surveyors most of whom are licensed merchant marine officers. The Code itself seems to anticipate that such technical types may not be well suited to assist management in their nontechnical attempt at "establishing a culture of safety". There is a requirement for third party auditing by knowledgeable persons not connected to the parties issuing compliance documents. In the United States the ABS, a classification society and provider of most of the existing ISM related training is the issuing authority for issuance of compliance documents. In conjunction with the Marine Division of Helios Ruehls, Inc. we have prepared an introductory course expressly for lawyers by ISM trained Merchant Marine Officers and taught without CLE credit to lawyers providing input before the course being finalized for CLE credit application. Our lead instructors have been trained and credentialed as auditors of ISM by classification Societies. In the United States the ABS ( American Bureau of Shipping) , is the the compliance certificate issuing authority. Our planned courses in ISM familiarization for lawyers are not prepared by the ABS , the U.S. compliance certificate issuing
authority, This considers the provision in the ISM code that at least one advisor or external auditor should have no connection to the certificate of compliance issuing authority (ABS), When offered as a class to the admiralty bar the course will offer CLE credit, We believe that the outside auditor or consultant described in the code free of connection to the certificate of compliance granting authority should be a lawyer well familiar with the ISM system. The other auditors will look at the management system, safety plans. and even shipboard equipment requirements. The final independent auditor should be able to evaluate and advise whether or not the ship owning company is making progress towards "creating a corporate culture of safety" and doing so within the meaning of "due diligence" as required by the code. We think that only by exerting "due diligence" can a ship owner or CEO protect himself from personal liability and even criminal prosecution under the code. We believe the best counsel to have when trying to evaluate your required "due diligence is a lawyer .
CLE CREDIT SOUGHT: We seek 1 hour of CLE credit for the described course which is actually lesson one of a more detailed course for which we will seek additional CLE credit hours as we continue to test teach this course with various participating law firms. We seek approval of this lesson as a stand-alone course as we feel it represents the minimum knowledge that any admiralty lawyer should have concerning the code immediately. Every maritime lawyer should have the level of detailed awareness of the code represented in this course immediately. Such an awareness should temper any initial opinions the lawyer may have regarding limitation, and trigger research before offering opinion. This is vital at this moment in the history of the development of the code as the code has such a serious effect on centuries old precedent relative to maritime limitation of liability.
When CLE credit is awarded and classes are scheduled we will announce all relevant information in these pages
For more information on the ISM Code E-mail
Capt. William H. Toohey Master Mariner (unlimited) ISM Lead Auditor (ABS) IMCA CMID Vessel Inspector E-mail: skiffrunner@gmail.com. --------------------------------------------------------------------
(C) 2019 by Helisos Ruehls , Inc.
WHAT IS THE ISM CODE?
The "ISM" Code refers to the "International Safety Management Code" promulgated by the International Maritime Organization (IMO) of the United Nations. It is a detailed code of safety management that describes how vessel owners, operators and management are to "establish a culture of safety" in ship operations.
DOES THE ISM CODE HAVE THE FORCE OF LAW IN THE UNITED STATES?
Yes, internationally it is an outgrowth of the Safety of Life at Sea (SOLAS) Convention, a
multilateral maritime safety treaty that the United States is signatory to. This convention was amended starting in the late 1990s and continuing into 2017, and anticipated to be periodically amended beyond, to provide for a code that the current and anticipated future ICM Codes model. By our last count in addition to the United States 63 other seafaring nations representing approximately 99% of the world's shipping by tonnage are signatory to the convention and are actively engaged in enforcement of the code. By virtue of the US
Constitution, such international treaties as the U.S. is signatory to are part of the "law of the land". In addition, the U.S. has adopted most elements of the treaty into statutory law and detailed regulation. The U.S. adopts most of the "code" by Federal Statute at 46 USC 32013205 and detailed Coast Guard enforced regulations may be found in 33 CFR Part 96 Subpart D. The U.S. Coast Guard is the "Responsible Administration" as suggested in the Code. However, the USCG relies mostly on its "Trusted Agent" the American Bureau of Shipping (ABS) for the day to day administration of the Code including issuance of the various "documents of compliance" and the routine performance of certain of the required "third party audits" of the ship owner's resulting Safety Management Program.
NOTE: It may be useful at times to be able to cite to the elaborate history of the Code's development much as it is occasionally desirable to bring into pleadings and memorandums in support, the legislative history of a statute or the evolutionary process of detailed regulations. The vocabulary and citation system of the IMO and its related Marine Safety Committee (MSC) are different from, but bears some similarity to the American system of legal citation. A few noteworthy points follow:
OBSERVABLE RESULTS OF THE WIDE SPREAD INTERNATIONAL ADOPTION OF THE CODE:
IS THERE A CONCISE GUIDE TO THE ISM CODE AVAILABLE IN PRINT?
"THE ISM CODE, International safety Management Code With Guidelines For
Implementation (last edition at this writing 2018) ,
IMO Publication Sales Number: ID117E
ISBN Number (978-92-801-1696-0
This is an 84-page complete guide including citations and many direct quotes from the code meant as a hand book for all those involved in the Code compliance effort. REMEMBER THAT THE CODE FOR MANAGEMENT DOES NOT CONTAIN MUCH IN THE WAY OF EQUIPMENT RELATED TECHNICAL DATA. THE REQUIRED SYSTEM IS A MANAGEMENT SYSTEM SUBJECT TO FREQUENT PERIODIC PERFORMANCE AUDITING.
LAWYERS HAVE A ROLE TO PLAY IN THE DEVELOPMENT OF EACH CORPORATE CODE AND SUBSEQUENT PERFORMANCE AUDIT PROGRAMS. THE CODE MUST
BE DESIGNED WITH "DUE DiLLlGENCE" IN MIND. SHOULD DUE DILLIGENCE BE FOUND WANTING SUBSEQUENT TO AN ACCIDENT; PROVING A GOOD FAITH
EFFORT MAY BE THE DEFENSE THAT REDUCES JUDGEMENT AMOUNTS OR
CRIMINAL PENALTIES IMPOSED. 02019 Inc
OBSERVATION: Both the ISM Code and U.S. detailed regulations require periodic corporate internal and third party ISM program performance audits. The ABS offers services for most of these but THE ABS is the compliance document issuing authority. The convention provides at article 2.3:
"Any organization performing verification of compliance with provisions of the ISM Code should ensure that the personnel providing consulting services and those involved in the certification procedure are independent of one another. " [See MSC. 208 (81)].
Admiralty lawyers aren't quite in a compliance market for their services relative to the code but they can cite to the above section in soliciting counseling roles at both the original design of the corporate Code compliance system and during the continuing auditing processes. THE CODE IS ABOUT '{DIJE DILLIGENCE" and that is the only thing that will keep corporate income intact and managers out of prison in the wake of serious, especially death dealing accidents. In the event that due diligence is found wanting in a particular instance A GOOD FAITH EFFORT appears to have an effect in reducing the severity of consequences for managers.
HELIOS RUEHLS. INC. MOST URGENTLY SUGGESTS TO ALL SHIPPING COMPANY EXECUTIVES AND MANAGEMENT TO BRING SKILLED ADMIRALTY LAWYERS FAMILIAR WITH THE CODE INTO THE EARLY PLANNING STAGES AS COUNSELORS AND TO CONTINUE TO BRING THEM INTO THE CORPORATE INTERNAL AUDITING PROCESSES AT LEAST ANNUALLY.
If you have serious questions contact our resident ISM expert via E-mail
Capt. William H. Toohey
Master Mariner (unlimited)
ISM Lead Auditor (ABS)
IMCA CMID Vessel Inspector
E-mail: http/www;skiffrunner@gmail.com. or aabmain@aol.com or leave comment at the end of this scroll.
---------------------------------------------------------------------------------------------------------
For more information on the ISM Code E-mail
Capt. William H. Toohey Master Mariner (unlimited) ISM Lead Auditor (ABS) IMCA CMID Vessel Inspector E-mail: skiffrunner@gmail.com., or aabmain@aol,com or leave a comment at the end of this scroll |
---------------------------------------------------------------
THE PENNSYLVANIA - REYES DOCTRINE
JUSTICE BRANDEIS SAYS:Things are very different today for American seamen grievously injured in the service of their ship than they were when I was on the bench. Time works changes and brings into existence new conditions and purposes. Subtler and more far reaching means of discernment of the true, authentic,ordinary safe practices of seamen are more available to the court today due to all of the detailed safety regulations that have been promulgated over the last half century. One of the great challenges for federal judges has always been in the realm of admiralty, so few of us ever went to sea, or have any unique understanding of the specialized vocabulary of the seaman and his craft. In my days on the bench this led to an over reliance on the pronouncements of expert witnesses. The progress of the nautical arts and sciences towards standardization of practices has been reflected in modern times by the regulatory work of the U.S. Coast Guard and the codes and standards work of the International Maritime Organization, a body of the United Nations, an organization that did not exist during my judicial tenure. While justices may still need some clarification from experts on occasion, ordinary legal research skills will most often reveal what the prudent practice is by referral to increasingly comprehensive regulations. Even before my time on the bench in The Pennsylvania [86 U.S. 125 (1873)] it was held that in a collision the vessel which had violated a safety statute was presumed to be at fault. A vessel subjected to the "Rule of the Pennsylvania" could only defeat the presumption of fault by demonstrating that its statutory violation not only did not cause the accident, but that it could not have contributed to causation. A heavy burden of proof indeed and often insurmountable. Time and again the courts in giving effect to the Rule of the Pennsylvania expanded the concept of the "statutory violation" to include maritime safety regulations promulgated in response to statutes of the Congress requiring regulatory agencies, especially the U.S. Coast Guard to promulgate technical and detailed regulations dealing with a growing list of maritime safety concerns. Gradually the Rule of the Pennsylvania was expanded and applied to a variety of personal injury cases.
Most admiralty authorities agree that the "Pennsylvania-Reyes Doctrine" generally operates to the plaintiff's advantage in maritime cases by reducing causation requirements and shifting the burden of proof to the defendant. Subsequent applications of the evolving doctrine that would eventually be called the Pensylvania- Reyes Doctrine allowed an "inference of causation on very thin facts" [see Wilkins v. American Export Isbrandtsen Lines, Inc. 446 F.2d 480, 2nd Cir. (1971). Additionally, it appears that when the Pennsylvania-Reyes Doctrine is successfully invoked under the Jones act, contributory fault by the plaintiff may not be considered. Eventually the Fifth Circuit court, quite some time after my departure from the bench, articulated the concept of the application of the "Rule of the Pennsylvania" to personal injury cases in Reyes v. Vantage SS Co. [609 F.2d 140,5th Cir.(1980). Since 1980, the concept that violation of a maritime safety statute or regulation shifts the burden of proof to the defendant employer in a maritime personal injury case has been referred to as the "Pennsylvania-Reyes Doctrine". While experience should teach us to be most on guard to protect freedom when the government's intentions appear beneficent, these safety regulations, codes and standards do appear to be a boon to the personal safety and security of American seamen.. With so much of prudent seamanship now codified in a form lending itself to ordinary legal research the chances of justice being swayed by the perjured testimony of a malevolent "expert" are greatly reduced. Justices and seamen's lawyers alike today should available themselves of a knowledge of these regulations and the workings of the "Pennsylvania -Reyes Doctrine"
Decency, security and liberty alike demand that when the safe way of performing an operation of seamanship is known that the ship owner and his officers should assure that the crew is properly provided with the correct equipment, organization, instructions, and supervision to both accomplish the task and avoid injury. Indeed safety is part of productivity. Why is it so often argued that there "wasn't time to do it right", when of necessity there is always time to do it over?
Editors note: The Justice will be back tomorrow in these pages and will be making appearances in our ADMIRALTY LAW SECTION and our AUTHORITATIVE LITERATURE SECTION in the near future. You can read more about the Pennsylvania-Reyes Doctrine in our AUTHORITATIVE LITERATURE SECTION by scrolling down to the online publication AMERICAN ADMIRALTY BUREAU COMMENTATOR VOLUME 1
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------
PUNITIVE DAMAGES ARE STILL POSSIBLE IN ADMIRALTY PERSONAL INJURY CASES AND PERHAPS BECOMING MORE SO.
Our newest legal analyst Justice Louis Brandeis, or at least his ghost as channeled by the incredibly talented Giant Catfish,and former demigod NAMAZUThose who won our independence believed that the final end of the State was to make men free to develop their faculties, and that , in its government, the deliberative forces should prevail over the arbitrary. To the casual observer the awarding of punitive damages in personal injury cases can seem arbitrary and capricious. Quite often however injured seamen appear before the court , injured as a direct result of corporate violation of specific safety regulations. More often than not the injury of the seaman through the ship owner's negligent failure to adhere to the requirements of the pertinent safety regulation was an economic decision of the owner. Compliance with the law was weighed as too expensive, and the protection of the crew members deemed uneconomic. Part of this calculus is the the relatively nominal fines imposed by the marine safety agencies when regulatory violations are discovered prior to an injury or fatality. The founding fathers believed that the path of safety lies in the opportunity to discuss freely perceived dangers and proposed remedies and that the fitting remedy for evil counsels is good ones. Punitive damages awarded to injured seamen above and beyond the award necessary to make the successful plaintiff "whole" certainly generate discussion, not only in the law journals, but most importantly, in the offices of shipping management. Punitive damages can often be the means by which the false economy of skirting safety requirements is exposed to those corporate decision makers who are most focused on the "bottom line", because such damages may be large enough to affect the bottom line and generate investor communications with Boards of Directors.
As we mentioned in our previous post, violation of a safety regulation, most especially a Coast Guard safety regulation may invoke the application of the Pennsylvania-Reyes Doctrine [The Pennsylvania 86 U.S. 125 (1873)] and [Reyes v. Vantage SS Co. 609 F.2d 140, 5th cir. (1980)]. This doctrine holds that the burden of proof in a maritime personal injury case for a ship owner who has violated or ignored a safety regulation is against a presumption of causation or contributing causation. In other words the ship owner to avoid the allowed presumption must demonstrate that not only did his statutory or regulatory violation not directly cause the accident, he must demonstrate that it could not have contributed to causation. While this "doctrine" is not yet universally accepted in all U.S. District courts it may and should be argued whenever appropriate. Especially in cases where the accident or injury was not timely reported to the Coast Guard and thus the public was denied the lessons obtained from a Coast Guard investigation, punitive damages may be the only means to bringing the necessary change to the attention of the maritime industry.
The mere fact of my death hasn't expunged my existence, just my bodily earthly presence. I still follow those things that interested me when I bodily roamed the halls of the court. Since my death , and especially over the last twenty years there have been increasing restrictions on the types of monetary damages that may be awarded in maritime personal accident and illness cases. The peak of restrictions came with the 1990 land mark U.S. Supreme Court case Miles v. Apex Marine Corp [498 U.S. 19 (1990]. This case involved damages payable to a seaman's surviving mother, parents have traditionally not been allowed much in the way of damages for the loss of an adult child who does not provide major financial support. Insurance defense lawyers quickly parlayed this decision into a seemingly across the board prohibition against punitive damages for mariners. That trend towards general prohibition of maritime punitive damages changed dramatically in 2009. That year the Supreme Court of the United States found in Townsend v. Atlantic Sounding Company [557 U.S. 404 (2009) found that the recovery of punitive damages is allowed when a seaman's employer willfully or arbitrarily fails provide Jones Act required maintenance and cure payments. In October of 2012 the McBride v. Estis Well Service [LLC, 2012 A.M.C. 1674 (W.D. La
Basically the rule of law concerning punitive damages for seamen is about as it has always been; available on an individual case by case basis where exceptionally egregious behavior by the ship owner or his agents is demonstrated, and there is an eligible survivor. Personally I think that the accepted definition of an eligible survivor will expend in the coming years. The shrinking of the government social safety net may bring back a common perception and necessity of grown children contributing to the welfare of aging parents. When that happens one's offspring either grown or as real children may be assigned economic value as they were in an agricultural society. The expansion of legal domestic partnership arrangements will increase the number of eligible survivors beyond the traditional widow and orphans. I urge all seamen's lawyers to reexamine the issue of punitive damages and to carefully consider applying for such when a case warrants. Anything less is not due diligence.
Louis
-----------------------------------------------------------------------------------------------------------------------------------------------
BEWARE THE DOUBLE EDGED SWORD
EDITOR'S NOTE: Our Admiralty Legal Correspondent and Analyst, the late Justice Louis Brandeis. See Our post of Sunday January 5, 2014 for an explanation by the Great Namazu of how we were able to retain the services of a ghost who writes. Also if you didn't catch Justice Brandeis's earlier essays on the Pennsylvania -Reyes Doctrine or Punitive Damages in Admiralty you might want to check them out; there is a strong correlation between these earlier essays and today's post.
THE WALKER - REINHART DOCTRINE
Said the boatswain to the seaman "One hand for you and one for the ship". This was said often enough and for such an extended historical period that something based on all of the nuances of that phrase found its way into admiralty law. Certainly the phrase indicated that a seaman had a duty of concern for his own safety, but also a duty towards the mission of the ship. All too often a maritime personal injury case , like a salvage case, became a contest between two "sea stories". In the case of a claim for a salvage award for rescue towing, the towed vessel inevitably claimed that they had a minor engine problem which they were quickly resolving in a glass calm sea when a tug came along side and with out so much as a "by your leave sir" affixed a towing hawser and towed the ship a few hundred yards to safe harbor. The tug master's story always begins with "it was a dark and stormy night". Similarly almost as soon as seamen won the right to sue for personal injury incurred in the service of the ship, ship owners began to see every accident as a direct result of carelessness and imprudence on the part of the seaman, while seamen attributed injury to some element of "unseaworthiness" of the ship. The Pennsylvania -Reyes Doctrine placed upon the ship owner a most serious duty towards the provision of a seaworthy vessel. Under the Pennsylvania-Reyes Doctrine a ship owner was presumed liable for any accident that involved, in some cases even tangentially a violation of a safety regulation. Owners argued that seamen should be held to a high standard of care relative to knowing, applying, and rigidly following the best and safest work practices for every evolution of seamanship.
The courts however, wanted to know exactly what was the real duty of the seaman towards knowing and applying best practices as compared to his duty to follow orders to carry out the mission of the ship. The court couldn't help but notice that ship's crews are divided into officers and seamen. This would certainly imply leaders and followers. When questioned on the relative duty of ordinary and able seamen to obey orders vice know and apply best work practices this exchange once occurred in the Fifth Circuit
QUESTION ; "Captain, what is the duty of the common seaman relative to obeying orders vice applying safe work practices to the task at hand?
RESPONSE: " When the boatswain says 'shit', the correct reply of the seaman is; 'how high and what color sir'!
QUESTION: "Are we to take it then that in your opinion a seaman has a very high order of duty to obey orders and a relatively low order of duty to know and apply the best and safest work practices?"
RESPONSE: "An ordinary seaman takes no competency examination at all. An able seaman must demonstrate minimal work experience and pass a written examination and some practical skill demonstrations involving the tying of knots , the boxing of a compass, and the handling of life craft.
That and the ability to grab his ass with both hands is all that is required of an able seaman. If we expect a seaman to know and apply best work practices as you say....they have to pass an officers exam."
Quite a number of similar exchanges under oath may be found in the trial transcripts of every federal district court located in or near a port. It became clear to the court that crewmen, ordinary or able, had a high order of duty to obey orders and little obligation to know the best and safest work practices, they should be able to rely on their officers for proper supervision including the provision of the necessary safety elements. Officers on the other hand had a more complex duty relative to safe work practices. They had a duty towards the seamen and were often acting as agent for owner in this regard. But officers were seamen too and sometimes subjected to hazard by fellow crewmen, visitors such as long shoremen, or indeed their own negligence. The courts have long needed a comprehensive standard of measure of these various duties. To this date there is no universally agreed to and adhered to in every jurisdiction standard. But there is a sort of best recognized test, even if not universally applied it is know as the WALKER-REINHART DOCTRINE.
The maritime employer under the general maritime law has a duty to provide a seaworthy vessel. When unseaworthiness is alleged the effects of the Walker -Reinhart Doctrine should be considered. [ "the doctrine" evolves from these two cases: Walker v. Lykes Brothers SS CO. , Inc. U,S. Court of App.. 2nd Cir. 1952, case no. 114, Docket 22180 and Robert Reinhart v. United States U.S. Court of App. 9th Cir., 1972 no. 25039]. This "doctrine" reflects the apparent trend in the general maritime law to hold seamen to a high order of duty relative to obeying orders and a very low order of duty relative to knowing, choosing, or employing the safest work methods. Walker -Reinhart holds that a momentary inattention to one's own safety should not be treated as so serious a fault as the breach of duty assumed by an employee for the protection of others, although incidentally for his own benefit too. Both Walker and Reinhart were officers vice non supervisory seamen. The officer status of both injured plaintiffs has affected the application of the "doctrine" in a number of ways and was the cause for the court's comparison of the duty to look out for one's self with the duty to look out for others.
This distinction the courts made between duties to others and duty to look out for one's self has also given rise to what some call the "WALKER-REINHART DEFENSE" . The defense argument holds that if a particular crewman, such as master or mate, was responsible for correction of a hazard and knew of the hazard and did not take corrective action, he has no cause of action if injured by the hazard. Argument has been made with varying results that any seaman injured as a result of neglect of a personal duty has no cause of action.
Most often this "doctrine" has been construed to articulate the primacy of the seaman's duty to obey orders and his relatively low order of duty to know and apply the safest work methods. The comparison of the relative fault of Walker and Reinhart in their own injuries relative to their duties as officers for the safety of others has somewhat clouded this aspect of the "doctrine". However the most important holding in the two cases usually works to the advantage of the plaintiff seaman. That holding is; that neither contributory negligence nor voluntary assumption of risk is a defense in action for breach of warranty of seaworthiness. Walker Reinhart can be a powerful sword for the seaman's advocate but it is two edged and may sometime play to the advantage of the defense. He who cites these cases beware. There is a lot more information on this "doctrine" in the AUTHORITATIVE LITERATURE SECTION of this blog, once in the section just scroll down to the American Admiralty Bureau's COMMENTATOR VOLUME 1 COMMENT NO.2. There you will find not only additional discussion but a list of holdings and cites to related cases.
EDITORS NOTE: A WORD FROM JOHNAS PRESBYTER, EDITOROK we have to hand it to Namazu we are having trouble believing in judicial ghosts but he did find a legal scholar willing to work for our low wages. But while we respect the opinion of the good justice I would be remiss in my duty if I did not warn our readers that nothing anywhere in this blog should be considered legal advice. Lawyers who are capable of being their own judge of the utility of any scrap of legal information may of course do as they see fit. But we can take no responsibility for the legal musings of a dead justice or a live giant catfish. Also we'd like to once again remind our non lawyer readers that he who attempts to represent himself in a legal proceeding has a fool for a client.
------------------------------------------------------------------------------------------------------------------------
"THE CONCEPT OF STATUTORY UNSEAWORTHINESS"
EDITOR'S NOTE: Our Admiralty Legal Correspondent and Analyst, the late Justice Louis Brandeis. See Our post of Sunday January 5, 2014 for an explanation by the Great Namazu of how we were able to retain the services of a ghost who writes. Also if you didn't catch Justice Brandeis's earlier essays on the Pennsylvania -Reyes Doctrine or Punitive Damages, or The Walker -Reinhart Doctrine in Admiralty you might want to check them out; there is a strong correlation between these earlier essays and today's post.
Just because I died doesn't mean that I don't still follow the progress of the law. I'm not here to provide revelations about the after life, but I can tell you that your compelling interests linger. One of the big changes in admiralty law that I've noticed evolving since the 1970s and continuing on today is the greater ease with which a finding of unseaworthiness based on clear statutory and regulatory duties may be made today. Today I think we may apply the term "Statutory Unseaworthiness" to such a finding, though it was not long ago that jurists would have scoffed at the concept.
Basically what appears to have happened since I left the bench is something of a statutory merging of the concepts of a "Safe Work Place" and a "Seaworthy Vessel". The duty of the ship owner to provide a "seaworthy vessel" has existed in the general maritime law of the English speaking peoples for centuries. Labor law came later. In the United States the Occupational Safety and Health Act (OSHA) (P.L.91-596) established in 1970 a "general duty" for all employers to provide a workplace "free of recognized hazards. Over the years as additional laws addressed areas not covered in the original OSHA Act incorporated similar "general duties" and there came to be something of a blending of the ancient duty to provide a "seaworthy vessel" with the newer statutory duty to provide a "safe workplace". You might say that in the maritime context today the duty of the ship owner is to provide a safe work place aboard a seaworthy vessel.
Rather early on a number of cases began to equate the duty to provide a safe work place with the duty to provide a seaworthy vessel. See: John R. Buckner v. State Boat Operators, Inc. et al, Civ. A, No. 86-898 USDC, E.D. Louisiana ( 680 F.Supp. 239) and Herbert v. Otto Candies [402 F. Supp 503 (E.D. LA 1975). The appearance of this language in the case law in this time frame reflects language in Section 5 of the Occupational Safety and Health Act of 1970 (29 USC 651-678). This blending of the duty to provide a "seaworthy vessel" and a "safe work place" has broadened the meaning of a "seaworthy vessel" to some considerable extent. These is no doubt that a "seaworthy vessel" in the eyes of the American courts today is more than sound of hull , appurtenances, and rigging. A "seaworthy vessel" today is a "safe work place" with proper crew levels , safe access and egress, safe walking and working surfaces, and many other considerations previously un-thought of . Today , the duty to provide a "safe work place "aboard a commercial vessel is often a matter of quite specific statute or regulations.
To fully understand and apply or defend against the concept of "statutory unseaworthiness" the advocate must completely understand the relevant vessel's status relative to the several statutes imposing the "general duty" to maintain the vessel "free of recognized hazards", the definition of "recognized hazards", and the specific regulations that apply to the relevant class of vessels. I suggest as a starting point that the advocate review the discussions and cases cited in the American Admiralty Bureau's COMMENTATOR VOL .1 , COMMENTS 3 and 4 which appear on line here in updated form in the AAB's AUTHORITATIVE LITERATURE SECTION. Once in the section just scroll down to the American Admiralty Bureau Publications section. When I was a live justice on a real bench I had my doubts about "statutory unseaworthiness", not today however, the law has grown.
-------------------------------------------------------------------------------------------------------
MAINTENANCE , CURE, AND LOST WAGES VERY RARELY INCLUDE LOST OVER TIME
|
| OUR CHIEF ADMIRALTY LEGAL CORRESPONDENT, THE LATE LOUIS BRANDEIS, FORMER ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT FROM 1916 to 1939, The only true legal commentator in the nation worthy of the title "ghost writer"
An injured American seaman injured in the course of his duties is entitled by common law that predates the Republic and by 20th century statute to "Maintenance", "Cure", and "Lost Wages" regardless of relative "fault" for the cause of his injuries. This assured "recovery" is to be awarded the injured commercial mariner without him having to prove any fault on the part of the ship owner. But it is not a generous recovery despite its inclusive sounding name. "Maintenance" refers to the costs to ship owners for providing the seaman a bunk and meals at sea, about enough to pay for a bunk in a flop house ashore. "Cure" refers to the point where medical doctors determine that they can do no more to relieve pain and restore function, nothing in it usually about rehabilitation, or vocational re-training. The mariner who loses a leg generally gets a peg and best wishes. "Lost wages" generally means the normal wage paid to the end of the voyage or contract, its a very lucky seaman who draws much more than a month or two base wages.
To many modern international trade mariners. routine over time is an important part of the wages of any voyage. Sometimes an average over time wage provision is negotiated into the shipping articles by a seaman's union. Absent a contract that the court can uphold generally seamen seeking to add over time wages to their lost wage settlement are sent empty away. In the "bad ole days" they could be seen outside the "Stone Frigates" ( seamen's flop houses) of England teaching themselves how to trod a deck on a peg leg.
The precedent in these matters is not especially good for the seaman with no or a poorly written contract. Barnes v. Andover Co. L.P. F.2d 630 (3ird Cir.1990) does give courts the authority to impose an over time recovery where evidence is sufficient to demonstrate that the unearned wage rate in a contract or articles is insufficient for the purposes of justice and equity. "Sufficient evidence"and insufficiency and rarely found in the plaintiff seaman's favor. Recently the Third Federal Circuit ruled against a seaman's over time claim setting aside arguments that both the common law and Barnes (Supra) allowed the court to rule in the seaman's favor. In Joyce v. Maersk Line Ltd, Dist. of NJ 16-3553 the lower court ruled against the plaintiff seamen's claim for over time pay and was upheld by the applet court. The standard for proving an over time pay claim as part of the assured no fault recovery of maintenance, cure and lost wages is obviously almost impossibly high.
Before the middle of the 20th century the U.S. Navy eliminated its old regulations governing the lives of its enlisted sailors known as the "Rocks and Shoals" in favor of the then new Uniform Code of Military Justice . No equivalent change has occurred yet for the Merchant Mariner, the admiralty system is ancient and full of rocks and shoals over which, more frequently than not, the unlucky seaman is dragged over. Mariners and their union reps need to carefully construct and negotiate over time provisions into shipping articles and contracts. Labor contracts too are probably the only way that rehabilitation might find its way into any no fault personal injury recovery.
|
---------------------------------------------------------------------------
TODAY THERE IS HELP FOR THE ADVOCATE IN FINDING AND PRESENTING ETHICAL EXPERTS AND IMPEACHING THE UNETHICAL
Louis Brandeis, our Chief Legal Correspondent
We want a court system that will fairly represent the laboring seaman, the professional officer, the ship owner, the cargo owner, the insurer, and the affected public. We want such a court system for our maritime causes not because it is good for the nation's maritime business but because it is dishonorable to tolerate any other kind. There are many societal forces that combine against this desired end state. The counsel selected to represent important private interests such as those of the ship owner or insurer possesses usually ability of a high order, while the injured seaman, or the public interest is often inadequately or wholly unrepresented. That alone presents a condition of great unfairness to the injured mariner or the public interest. Additionally complicated matters not a part of the every day experience of the ordinary public such as most matters involving the nautical arts and sciences often force the court to rely excessively on the professional opinions of expert witnesses. Since my departure from the American Supreme Court Bench to serve at the bar of an even more supreme court I have observed that maritime endeavor has amassed in the last half century an abundant body of easily cited codes, standards, and regulations. It has become rather difficult to believe that an expert must rely on the "custom of the industry" for a description of the proper and safe way to conduct a maritime operation. This is particularly so when the custom of the industry seems to be the direct cause of an injury.
But even a maritime expert who cites to some codes, standards, and regulations in his reports and testimony may be simply using that old lawyer trick, "useful language". The advocate who builds a case on "useful language" simply selects from the codes, standards, regulations, and authoritative literature out of context language that sounds like it supports his argument. But the duty of the expert witness is to justice and not to the plaintiff or defendant. It is the duty of the lawyer to defend his client, it is the duty of the expert to defend his findings only. It is the duty of the expert to inform the court on technical issues. It is not the duty of the expert to advocate for one side or the other in a dispute. To that end in an ideal world the Judge would appoint the experts and apportion costs to both sides with the expert answering only to the judge, but then that might deny one side or the other of the unique insight of a particular expert. So it has evolved that either side may hire experts. The trier of fact must be able to discern when the hired expert is in fact a hired gun utilized only to support the attorney's theory of the case and line of argument and willing to bend the truth or formulate it in an argumentative manner. Since the trier of fact may have little subject matter expertise , hence the theoretical need for an expert, the trier of fact must test the integrity and ethics of the expert. How does one do that with an expert in an unfamiliar profession? Here I think the American Admiralty Bureau about twenty years ago found an answer which we again bring to the attention of the Admiralty bar.
The American Admiralty Bureau Code of Professional and Ethical Conduct may be referred to, or cited by any expert involved in a maritime dispute resolution and providing services of a forensic nature. An "adherent" to the code must comply with the enumerated standards for investigative methodologies and standards of presentation. The code is derived from authoritative literature on good forensic practices and ethics and can serve the cross examining lawyer as well as the report or testimony preparing expert. Because the code is condensed (about 7 pages) a lawyer can review the basics of good forensic ethics and methodologies quickly and prepare a cross examination that explores the process the expert took to arrive at and report on his conclusions. Often, without revealing a specific technical error an expert purveying "junk science" to the court has been exposed and impeached by simply demonstrating that good forensic methods, ethics, or standards of presentation were not followed. We will be posting a link to the code permanently in the AUTHORITATIVE LITERATURE SECTION. You may read it now by clicking on this link: AAB CODE OF FORENSIC ETHICS
.............................................................................................................................................................................................
A WORD FROM OUR LEGAL EDITOR ABOUT AN IMPORTANT NEW PRECEDENT IN ADMIRALTY DAMAGING TO THE PERSONAL INJURY CLAIMS OF OFF SHORE WORKERS
Our legal editor, the late Justice Louis Brandeis (1856-1941), to learn how a dead scholar communicates his scholarly analysis with us click on: AUTHORITATIVE LITERATURE and scroll down till you see his image.
RE: DANYON McCARROLL,
Plaintiff - Appellant
v.
WOOD GROUP MANAGEMENT SERVICES, INCORPORATED,
Defendant - Appellee - Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-2402 - Case: 13-30891 Document: 00512590456, U.S.Fifth Circuit Court of Appeals-Link to:
Plaintiff - Appellant
v.
WOOD GROUP MANAGEMENT SERVICES, INCORPORATED,
Defendant - Appellee - Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-2402 - Case: 13-30891 Document: 00512590456, U.S.Fifth Circuit Court of Appeals-Link to:
No law written or unwritten can be understood without a full knowledge of the facts out of which it arises and to which it is to be applied. In McCarroll vs Wood Group we see a rush to judgement, a decision based on; " Whether the defendant owes a duty is a threshold question and is a question of law." The Fifth Circuit found that the defendant, a contractor aboard an off shore rig did not owe the plaintiff, an employee of a different contractor aboard the same rig, a duty of care. In so finding there is no evidence in the published opinion that the court tested this concept of duty against the "general duty clause " in the federal offshore safety regulations. [ 33 CFR 142.4 (a) (b)]. The offshore oil exploration, drilling and production industries are characterized by a contractor and sub contractor work force. This organization is a deliberate strategy by management to make an offshore rig a difficult if not impossible place for union organization being characterized by so many different employers aboard a single vessel or platform. It has also made the industry a difficult place within which to affix liability for worker injuries and to enforce effective safety regulations.
The Coast Guard anticipated this reality in constructing their offshore safety regulations starting with a "general duty clause" that holds each holder of a lease or permit, and all persons responsible for actual operations, including owners, operators, contractors, and subcontractors responsible to ensure that those operations subject to their control comply with applicable work place safety and health regulations , and in addition free from recognized hazards. In the instant case there is apparently no recognition by the court of the Woods Group's responsibility imposed by federal regulation to ensure that those operations subject to their control comply with applicable workplace safety and health regulations, and in addition free from recognized hazards. To claim that Woods owed no duty to a different contractor's employee while working at a task under Wood's obvious control is to ignore the specific wording and intent of the applicable regulatory general duty, which the published decision fails to mention ever considering. In short given the actual federal law in the case the circumstances had to be tested under the general duty clause before any attempt was made to apply Louisiana liability law or any other law while the defense was maintaining that no duty was owed the plaintiff. The question of duty owed is indeed a "threshold question", but given the general duty expressed in regulations it is necessary to proceed to an examination of the pertinent operational facts before deciding this issue. This entire decision should be reversed for ignoring applicable federal regulation concerning duties owed employees aboard offshore rigs. If it is not tested at the Supreme Court level, advocates for injured seamen should be ready to contest its application in any particular case based on any general duty expressed in regulation. 33 CFR 142.4 (a) (b) is not the only general duty clause in federal regulations applicable to maritime adventure. Defense advocates attempting to deflect charges of duty owed should not over rely on this precedent, it rests on very shaky foundations and its application can be limited on a case by case basis.
In the wake of the McCarroll v. Wood Group Management decision by the Federal Fifth Circuit we urge advocates preparing for personal injury case aboard offshore platforms and vessels manned by multiple contractor personnel to read :
AAB COM. NO. 3, VOL. 1, (1994 as revised 2012) ISBN 1-879778-27-0
THE GENERAL DUTY TO PROVIDE A SAFE WORKPLACE AND A SEAWORTHY VESSEL.
The Coast Guard anticipated this reality in constructing their offshore safety regulations starting with a "general duty clause" that holds each holder of a lease or permit, and all persons responsible for actual operations, including owners, operators, contractors, and subcontractors responsible to ensure that those operations subject to their control comply with applicable work place safety and health regulations , and in addition free from recognized hazards. In the instant case there is apparently no recognition by the court of the Woods Group's responsibility imposed by federal regulation to ensure that those operations subject to their control comply with applicable workplace safety and health regulations, and in addition free from recognized hazards. To claim that Woods owed no duty to a different contractor's employee while working at a task under Wood's obvious control is to ignore the specific wording and intent of the applicable regulatory general duty, which the published decision fails to mention ever considering. In short given the actual federal law in the case the circumstances had to be tested under the general duty clause before any attempt was made to apply Louisiana liability law or any other law while the defense was maintaining that no duty was owed the plaintiff. The question of duty owed is indeed a "threshold question", but given the general duty expressed in regulations it is necessary to proceed to an examination of the pertinent operational facts before deciding this issue. This entire decision should be reversed for ignoring applicable federal regulation concerning duties owed employees aboard offshore rigs. If it is not tested at the Supreme Court level, advocates for injured seamen should be ready to contest its application in any particular case based on any general duty expressed in regulation. 33 CFR 142.4 (a) (b) is not the only general duty clause in federal regulations applicable to maritime adventure. Defense advocates attempting to deflect charges of duty owed should not over rely on this precedent, it rests on very shaky foundations and its application can be limited on a case by case basis.
In the wake of the McCarroll v. Wood Group Management decision by the Federal Fifth Circuit we urge advocates preparing for personal injury case aboard offshore platforms and vessels manned by multiple contractor personnel to read :
AAB COM. NO. 3, VOL. 1, (1994 as revised 2012) ISBN 1-879778-27-0
THE GENERAL DUTY TO PROVIDE A SAFE WORKPLACE AND A SEAWORTHY VESSEL.
Which is located in our Authoritative Literature Section scroll down after entering until you see the trademark (eagle atop crossed fouled anchors and scroll ) of the American Admiralty Bureau. Then keep scrolling until you reach AAB'S COMMENTATOR VOLUME 1. The relevant comment is no.3 you may also order this or any other volume of the American Admiralty Bureau's Guides or Commentator directly from MARINE EDUCATION TEXT BOOKS.
EDITOR'S NOTE: While we are an Amazon portal we suggest Marine Education Textbooks for price, availability and service. This is the original distributor for all American Admiralty Bureau publications and they still have all of the AAB books and pamphlets on a print on demand basis at very reasonable prices. Other vendors are either ordering from them and retailing with a mark up or selling used volumes sometimes at rare book prices. These very useful books are not rare just under advertised.
---------------------------------------------------------------------------------------
AN EXPLANATION OF THE LEGAL CONCEPT OF THE "COMMONS" AS IT APPLIES AT SEA
Hi Louis Brandeis here. As a contributor to the AAB's ADMIRALTY LAW section I was recently asked to explain such concepts as the territorial sea as contrasted with international waters, and other aspects of the oceans as a "commons'. However when I started my research I discovered that the Great Namazu had once addressed this issue. His article, particularly his title is much more attention getting than any staid legal tract I might construct. Who would think that a giant catfish would "get", as you moderns are wont to say, a concept like the law of commons so well. So instead of writing new tract on the subject I'm pleased to introduce lawyer and layman alike to the law of the ocean commons as explained by the Great Namazu: After this re-posting to the blog space we'll find a permanent home for this essay in the admiralty law section. -JB (Editors note: If you didn't catch his introduction a few weeks ago you may be wondering how we came to hire a dead U.S. Supreme Court Justice as a legal analyst.For an explanation click :( Introduction to our new legal correspondent)
Namazu on the "Commons"
| Namazu, Giant Japanese Catfish and Former Demigod, now Coastal Environmental Analyst and ntator Social Commentator for American Admiralty Books |
 |
| THE GREAT NAMAZU AAB'S STAR POLITICAL ANALYST |
EARN TO SHARE THE COMMONS OR DIE
My Dear Bipeds:
The headline above in red is not meant as a threat from a catfish the size of Japan. It is the warning of a friend of the inevitable results of collective human misconduct. Believe me I know about the power for both good and evil of the collective human intelligence on this planet. I was literally created by a regional human collective intelligence as a dragon demigod, then morphed into the giant catfish I am today by a change in that same collective intelligence.
Not long ago through the initial efforts of some writers, artists, and singers I came to the attention of a larger more diverse human intelligence collective and morphed into a "personification of natural forces". I am of course, merely a personification of the same old natural forces the contemplation of which by a collective biped intelligence gave rise to my first incarnations as a demigod. Now through perception of me as a "personification" the same forces of nature that I represent are now seen absent of malice, despite their innate destructive potential. Obviously as a creature of the collective biped intelligence I have a vested interest in seeing that it is not wiped from the face of the earth. There seems to be only one power capable of that sad destruction and that is a human collective intelligence bent on destruction, such as a "thug State".
Not long ago through the initial efforts of some writers, artists, and singers I came to the attention of a larger more diverse human intelligence collective and morphed into a "personification of natural forces". I am of course, merely a personification of the same old natural forces the contemplation of which by a collective biped intelligence gave rise to my first incarnations as a demigod. Now through perception of me as a "personification" the same forces of nature that I represent are now seen absent of malice, despite their innate destructive potential. Obviously as a creature of the collective biped intelligence I have a vested interest in seeing that it is not wiped from the face of the earth. There seems to be only one power capable of that sad destruction and that is a human collective intelligence bent on destruction, such as a "thug State".
Here is my observation in a nut shell. If you bipeds don't learn to effectively and productively manage all the resources that you hold in common, you will soon start killing each other over them big time. If you ever get finished with the idea of killing each other over ideas like economic theories and religions you will still be staring the threats that come from mismanagement of the commons. This mismanagement leads to war over very real resources and wealth. At sea the problem is, and has been, determining exactly what is held in common by "all mankind" and what belongs to adjacent coastal states. You must collectively master this or soon you will again be littering my seafloor living room with the bodies of your sailors and the war probably won't be confined to the sea.
Actually you've made some progress in such a determination. Unfortunately not all biped intelligence collectives are willing to abide by the existing and agreed definitions. The "commons of mankind" which we former demigods simply refer to as the "biped commons" consists of the solar system, where, by international agreement, no territorial claims can be made. The commons also includes the atmosphere which moves at will across international borders carrying weather and pollutants in all directions that the wind blows. The "commons" also includes the electromagnetic spectrum where among other things "cyber space" partially exists. Telecommunications also utilize the electromagnetic spectrum. There seems to be little disagreement that the electromagnetic spectrum is part of the commons and there have been many successful attempts at regulating its use in terms of nation state usage. But there are problems of piracy and lawlessness in this spectrum of the "commons" just as there are at sea. But most of the bad apples are individuals or gangs of law breakers mostly recognized as such by the "community of nations".
The "world ocean" is where the consensus breaks down and the bad actors are all too often as much "thug states" as pirates and outlaws.By agreement, based on practicality, not all of the oceans are in the "commons". Those portions of the World Ocean that are in the international "commons" require some regulation and policing on behalf of mankind and much of the services related to that policing and regulation have been delegated by the international community to the "adjacent coastal states" in a system that might be called "graduated sovereignty". The problems arise when thug states abuse the system to claim parts of the commons or proprietary parts of neighboring state's waters (As is the case with the swimming dragon so often spoken of in this blog space).
Alternatively sometimes powerful political actors in otherwise law abiding states convince national governments to turn a blind eye to the spirit of the law when the letter of international law appears to give these special interests a loop hole to rob the commons (The Rising Sun and Whaling). Finally those parts of the world ocean that are not part of the international commons are generally part of a national commons where again politically powerful private interests, some of international origin, often take national governments for a ride (the inability or unwillingness of the USCG and CBP to enforce the Jones Act on the American OCS). So the first step in understanding what is in the "international commons" and what is in someone's "national commons" is understanding this concept of "graduated sovereignty". So, here in this essay I'll do my best to explain the concept. My explanation is not dependent on the current "Law of the Sea Convention", which everyone , particularly the United States has not signed. As far as I can determine nothing in my explanation is contrary to the provisions of the current convention, but these broad underlying principals that I am about to explain pre-date the convention and are not dependent upon it for force. Even the non signatory nations relative to the present convention have agreed to the following precepts for a long time.
Alternatively sometimes powerful political actors in otherwise law abiding states convince national governments to turn a blind eye to the spirit of the law when the letter of international law appears to give these special interests a loop hole to rob the commons (The Rising Sun and Whaling). Finally those parts of the world ocean that are not part of the international commons are generally part of a national commons where again politically powerful private interests, some of international origin, often take national governments for a ride (the inability or unwillingness of the USCG and CBP to enforce the Jones Act on the American OCS). So the first step in understanding what is in the "international commons" and what is in someone's "national commons" is understanding this concept of "graduated sovereignty". So, here in this essay I'll do my best to explain the concept. My explanation is not dependent on the current "Law of the Sea Convention", which everyone , particularly the United States has not signed. As far as I can determine nothing in my explanation is contrary to the provisions of the current convention, but these broad underlying principals that I am about to explain pre-date the convention and are not dependent upon it for force. Even the non signatory nations relative to the present convention have agreed to the following precepts for a long time.
THE TERRITORIAL SEA IS NOT IN THE INTERNATIONAL COMMONS BUT EVEN THERE IMPORTANT SERVITUDE'S APPLICABLE TO THE SHIPPING OF ALL NATIONS ARE RECOGNIZED .
The "territorial sea" is a term in international law that denotes portions of the ocean under the legal control of the adjacent coastal state. The "territorial sea" is distinguished from the "high seas" and "internal waters" . The "high seas" are those portions of the oceans not under the control of any individual nation state and subject to international law. "Internal waters" are those waters of the adjacent coastal state inland from the headlands or breakwaters. The "territorial sea" is physically part of the ocean. The sovereignty exercised by the adjacent coastal state over the territorial sea is tempered by several recognized servitudes in international law based on the connection between the high seas and the territorial sea and the realities of surface navigation. The most important of these servitudes is the right of innocent passage.
China which in this blog is often referred to as "the dragon" utilizes this servitude to its advantage in the non violent aspects of its attempted appropriation of the China Sea right up to nearly the beach lines of Vietnam, the Philippines, and Japan. Chinese vessels take up station in the international waters of the China Sea and radio transiting merchant vessels their identity and official status. They "welcome" these "innocent transits" to "China's territorial sea" and announce that they will be "escorting them" while they are "visiting". Of course if such shipping which is in fact on the high seas and entitled to unrestricted passage were actually in China's territorial seas bound for elsewhere they would still have the right of innocent passage. The net result is that most often the merchant ships ignore the Chinese ship and continues its intended course and speed since even if the claim had any validity it wouldn't change the ships basic right to proceed exactly as intended. The dragon ship then runs a parallel course for a while at a safe distance off and then usually radios a "farewell and safe voyage" message at some point completing its bogus "escort". The entire purpose of this charade is to build witnesses among the world professional merchant mariner community of "effective administration" by China over this portion of the ocean where they have no real rights of administration what so ever.
The reason that China can not claim the entire ocean out to what they call "the first island chain" is that the breadth of the territorial sea has always been strictly limited. For centuries the limit of the territorial sea was set at three miles from the shore. This was roughly the range of a smooth bore cannon shot. The rule was thought to prevent the taking of war prizes from under the cannon of neutral coastal fortifications. Over the centuries the rule was slowly recognized as impractical. The rule today sanctioned in the latest International Convention on the Law of The Sea is that the territorial sea extends twelve miles out from the shoreline of the adjacent coastal state, unless that distance encroaches on the waters of another state. In those circumstances the exact boundary must be established by bilateral treaty. While the United States has still not signed off on the convention the twelve mile limit to territorial seas is recognized by the Presidential proclamation of December 28, 1988 (Presidential Proclamation No. 5928, Federal Register Mon. Jan.9, 1989 vol. 54 #5 page 777. )
In establishing the 12 mile rule territorial sea limit the international community abandoned the concept of basing the limit on the range of land based coastal defense weapons. Today defense considerations are dealt with through air and surface/subsurface defense zones. These zones may vary in distance from the shore and may change from time to time by unilateral declaration of the adjacent coastal state. However these zones apply only to the right to take defensive action against hostile aircraft or ships of declared belligerence, or upon "due cause" to suspect such belligerent intent. Commercial traffic both merchant marine, and air line are generally unaffected by such zones. There have been some notable errors within such zones by Russia, China, and Korea resulting in massive loss of civilian life on innocent passage. None of these thug states have apologized or made reparations. The United States accidentally shot down an Iranian airliner not in our own domestic air defense zone but in a war zone. The airliner was not "squawking" the commercial identity signal but none the less the U.S. apologized and paid reparations for the incident. The system isn't perfect but it seems to work most of the time, and works best with law abiding states, pretty much the case with any type of biped made law. Before the adoption of the 12 mile territorial sea limit and the addressing of other adjacent coastal state concerns through more limited servitude there were quite a few states attempting to enforce 200 mile territorial seas. A few still do. You bipeds live on a very complex planet and have evolved very complex societies, but far too many of you seem only to be able to follow very simple legal rules. The thug states recognize only one rule "might makes right" and that is the reason for such concern over the commons.
To the catfish mind which tends to go deep (pardon the pun), it seems that if there is any kind of galactic legal regime it is a good thing that manned space flight is presently on such a slow development course. If the earthly bipeds can't manage to govern their planetary commons there will probably be a forceful intervention before you are really allowed out into the cosmic commons.
In establishing the 12 mile rule territorial sea limit the international community abandoned the concept of basing the limit on the range of land based coastal defense weapons. Today defense considerations are dealt with through air and surface/subsurface defense zones. These zones may vary in distance from the shore and may change from time to time by unilateral declaration of the adjacent coastal state. However these zones apply only to the right to take defensive action against hostile aircraft or ships of declared belligerence, or upon "due cause" to suspect such belligerent intent. Commercial traffic both merchant marine, and air line are generally unaffected by such zones. There have been some notable errors within such zones by Russia, China, and Korea resulting in massive loss of civilian life on innocent passage. None of these thug states have apologized or made reparations. The United States accidentally shot down an Iranian airliner not in our own domestic air defense zone but in a war zone. The airliner was not "squawking" the commercial identity signal but none the less the U.S. apologized and paid reparations for the incident. The system isn't perfect but it seems to work most of the time, and works best with law abiding states, pretty much the case with any type of biped made law. Before the adoption of the 12 mile territorial sea limit and the addressing of other adjacent coastal state concerns through more limited servitude there were quite a few states attempting to enforce 200 mile territorial seas. A few still do. You bipeds live on a very complex planet and have evolved very complex societies, but far too many of you seem only to be able to follow very simple legal rules. The thug states recognize only one rule "might makes right" and that is the reason for such concern over the commons.
To the catfish mind which tends to go deep (pardon the pun), it seems that if there is any kind of galactic legal regime it is a good thing that manned space flight is presently on such a slow development course. If the earthly bipeds can't manage to govern their planetary commons there will probably be a forceful intervention before you are really allowed out into the cosmic commons.
Within the territorial sea the adjacent coastal state is as sovereign as it is within its' own territory subject to only one international servitude , the right of innocent passage. Vessels of all nations not at war with the adjacent coastal state may enter the territorial sea without special permission to use aids to navigation or to pass through to nearby destinations outside of the jurisdiction of the adjacent coastal state. While within the territorial sea all such vessels on innocent passage must conform to all of the international navigational safety laws and observe the anti pollution statutes of the adjacent coastal state. All submarines must transit on the surface.
Beyond the twelve mile territorial sea adjacent coastal states have other interests and responsibilities but these are limited, and mostly are of the nature of a servitude granted by the international community to the adjacent state. The exercise of such servitudes are contingent upon compliance with enumerated conditions. Lets look at some of these zones beyond the twelve mile territorial sea.
Beyond the territorial sea is a zone that is recognized by many nations known in U.S. law as the Contiguous zone. Within this zone the customs and border control forces of the adjacent coastal state may stop, board and search any vessel that it has probable cause to suspect such vessel of violating or intending to violate the customs laws of the adjacent coastal state. Commonly accepted evidence of such illegal activity may include "hoovering behavior", contact with small craft from shore,and intercepted radio transmissions or other signals indicative of illegal behavior.
Absent "probable cause" customs and border control forces have no jurisdiction over commercial surface traffic in this zone.
With the discovery of offshore oil the adjacent coastal states began to claim conflicting rights to the mineral and other natural resources of the sea floor. The first global biped attempt to deal with the issues related to sea floor rights was the International Convention on the Outer Continental Shelves. The U.S. did sign this convention and gave it the force of domestic law by way of the Outer Continental Shelf Lands Act (43 USC 1331-1356). This international system of law grants to the adjacent coastal state an exclusive right for the mining of subsurface minerals and the harvesting of benthic (bottom dwelling) fisheries. Originally this right extended to the perceived limits of the outer continental shelf or about 200 miles from shore. Within that zone only the adjacent coastal state could establish mineral extractive platforms or semi permanently moored mineral extractive vessels.
These structures and vessels on the surface had to conform to International Light House Authority standards for obstruction marking and lighting and had to be reported to all charting authorities. Nothing in the exclusive OCS rights allowed an adjacent coastal state to interfere with the operation of surface transportation by any nation. In the event that the OCS waters as described in the international convention were in conflict with a local situation of uncertain boundaries, or the straits between nations were narrower than 200 miles the OCS waters were to be determined by bilateral treaty or international arbitration.
Eventually improved subsurface geological research techniques led to expanded claims by some nations based on language in the original OCS convention to claims beyond 200 miles from the adjacent coastal state's shore line. For example Russia claims the entire arctic ocean floor to within about twelve miles of Canada and the U.S., Iceland, Greenland, Norway and others as part of the Russian outer Continental Shelf. No one recognizes this claim yet nor has the science been peer reviewed. Similar situations resulted in the evolution of an international concept that has largely folded in and expanded on the OCS concept.
The post OCS concept of international sea bottom rights is referred to as the Exclusive Economic Zone or EEZ. Exclusive Economic Zones are recognized by most coastal states and are expressly described in the latest International Convention on the Law of Sea, which the United States did not sign. However the U.S. actually coined the term and described the concept in the Outer Continental Shelf Lands Act(43 USC 1331-1356). The concept of the EEZ is that a nation's exclusive mineral rights and benthic fisheries rights might extend past the usual 200 miles if there is scientific evidence that the continental shelf extends beyond the traditional limit.
The international commons is not the only ocean related commons. When the Presidential proclamation extending the U.S. Territorial Sea to twelve miles from shore was published, the wording stated that the extension was for international purposes only . Nothing in the Proclamation was intended to affect or extend geographic application of the then current U.S. domestic law. Consequently state, as opposed to Federal water bottoms , with their associated mineral rights remain as fixed prior to December 28, 1988, the date of the proclamation.So just as the international commons of the "High Seas" has a boundary separating it from the national commons of the Territorial Sea within the territorial sea of many larger nations there are state or provincial waters forming a commons belonging to a more localized population than the entire nation. All of these commons are supposed to be administered in trust for the various Holders in Common. The Holders in Common of these places and waters are the people of the World for the High Seas, the population of the adjacent coastal state for those parts of the Territorial Sea not under the jurisdiction of a smaller political subdivision of the state. Unfortunately in fact all such commons appear to be constantly under threat of misappropriation.
In Louisiana as I write this, the public has finally become aware of a scam by three previous and now long dead governors to skim the public oil revenues from the state commons where oil is found within three miles from shore. Not only did three successive governors in the 1930s skim millions from the revenues derived from the state's commons, their heirs continue to do so. This rip off has been going on for so long that the heirs feel entitled and some judges are reluctant to disturb the arrangement. Theft, continued over time can seem legitimate after a while. And this is true with China which simply covets its neighbor's property and the potential revenues from the international commons. But by making its claim long enough, and loud enough, and visibly enough, coupled with a very thinly gloved mailed fist in a few more years even some of the defending adjacent coastal states may start to believe the groundless claims. Its all the same, what belongs to everyone soon seems to belong to no one and then the strong begin to claim it.
Bipeds, you can't go on living this way. After 5,000 years of the evolution of Western Civilization , western legal views relative to the "Freedoms of the Seas" prevail and are recognized. But thug states like China or delusional states like Argentina, or fanatical states like Iran, or failed states like Somalia find complex regimes like "graduated sovereignty" too complex and simply start to grab what so few really understand as collectively theirs. But by permitting them to play these games so close to acts of war you are doomed to have them step over the line at some point. The Philippines are drawing closer to Japan and a few weeks ago announced their support for the rearming of Japan.
There are still plenty citizens of the Philippines who have first hand memories of the brutal Japanese occupation. Yet the behavior of the dragon is more threatening than the idea of a militarily resurgent Japan. If China persists in their lack of respect and understanding of the international law of the sea eventually they will come to blows with Japan or the Philippines or both and by treaty obligations the United States will become involved as well. War between the United States and China spells the immediate financial ruin of China and an over night massive loss to many personal fortunes in the United States, as well as major hardship and inconvenience. We then have two ruined states armed to the teeth with nuclear weapons facing off in extreme anger. The commons is a difficult concept to get a biped mind around. But if you fail the entire planet could become a glow in the dark parking lot. This is why the article is simply titled "LEARN TO SHARE THE COMMONS OR DIE" that is in fact the only choice.
Namazu
ALEXANDER v, EXPRESS ENERGY SERVICES OPERATING LP, (Federal Fifth Circuit 2015 Case: 14-30488 Document: 00513035192 Date Filed: 05/07/2015 http://www.ca5.uscourts.gov/opinions/pub/14/14-30488-CV0.pdf
OUR GHOSTLY LEGAL COMMENTATOR REPORTS ON A PRECEDENT MAKING CASE
Greetings Justice Brandeis here. It's been a while, but as you know I've been dead for quite some time, a sort of ultimate retirement and it really takes a corking good precedent making case to motivate me to write. As always thanks to my pal NAMAZU for the transcription services. Being dead, not just anyone can hear me. But I definitely received an earful while listening to oral argument in the Fifth Circuit Federal Appeals Court down in New Orleans recently. In a maritime personal injury case it is important early on to accurately determine the "seaman status" of the injured party. If someone working on the water is not a seaman their prayer for recovery from injury is pretty much going to be limited to that provided for in the Longshoremen and Harbor Workers Act. If an injured party is declared a "seaman" within the meaning of the Jones Act the initial potential for recovery may seem even more limited than in a Longshoremen and Harbor Workers Act case, but under the Jones Act a "Seaman" in aggravating circumstances may receive additional and even punitive damages.The U.S. Gulf Coast offshore oil and mineral industry is serviced by many workers who spend significant time aboard vessels traveling to or from various drilling or production structures. These workers are engaged in the maintenance and repair of such structures. The vessels they commute on are generally utility craft serving as a sort of maritime version of the pick up truck and crew van. Other workers may serve aboard vessels such as lay barges which have as a mission of the vessel the creation, maintenance, or repair of offshore oil and mineral industry structures. The service technicians who live and work aboard these larger "industrial vessels" designed to have as a mission the construction, service, or repair of offshore structures are generally considered "Jones Act seamen" under the law as "crewmen" who contribute to the mission of the vessel. Those who are brought to work on crew boats and utility craft, and especially when they also perform similar services on occasion to shore based oil industry structures, often are not classed as Jones Act Seamen.
Traditionally, the seaman status test has two elements. First the claimant of seaman status must demonstrate that their duties contribute to the function of a vessel or the accomplishment of its mission. Secondarily the seaman status claimant must have an employment connection to a vessel or an identifiable group of vessels, in navigation.. In Alexander v. Express Energy Services the Federal Fifth Circuit Court of Appeals applied a test devised by the Federal Fifth Circuit as a partial indicator of seaman status. The test is meant for situations where technicians travel aboard crew boats and utility craft, often owned by their employer, operated by a a Coast Guard licensed boat operator, and where they occasionally handle mooring lines or other simple chores related to the maneuvering of the vessel. However, in these cases the worker's primary tasking is the service of the oil industry structures. In such cases the Fifth Circuit applied a percentage of time aboard test. The apparent Fifth Circuit rule was that if 30% of an employees time was spent aboard a vessel then Jones Act seaman status might be awarded for such workers. In the instant case (Alexander v. Express Energy. Supra) the Appeals court considered evidence demonstrating that the plaintiff employees spent about 65% of their on the job time working on a fixed platform without any need for or contact with an adjacent vessel. Based on the evidence that the employees did not spend 30% or more of their time aboard vessels the appeals court upheld an earlier fifth circuit trial court ruling granting the defendants a motion for dismissal. This case moves the percentage of time test developed at the Fifth Circuit trial level to acceptability at the appeals level making the concept much stronger precedent.
Well, stay dry and stay alive until next time.
Link to original post
----------------------------------------------------------------------------
THE INTERNATIONAL SAFETY MANAGEMENT SYSTEM
A SERIES OF ESSAYS ON THE SAFETY SYSTEM THAT CHANGES EVERYTHING
ESSAY NO1:
|
AAB'S LEGAL CORRESPONDENT, THE GHOST OF LOUIS BRANDEIS, FORMER ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT FROM 1916 to 1939
EDITORS' S NOTE: For those of you who are unfamiliar with our legal correspondent and may wonder how a dead guy came to write for us we link you to his original introduction into these pages:
https://americanadmiraltybooks.blogspot.com/p/admiralty-law.html (Scroll down until you see the image of Justice Brandeis.)
As a long deceased jurists I'm beyond semi retirement. I don't do the professional reading that I once did but my interest in the law and the evolution of the American legal system continues. Any interest that so involved the mind as the law did for me, stays with you in the after life. This is why I was so pleased when the Great Catfish offered me an opportunity to once again write on legal matters for publication. But I must admit I'm a bit tardy in reporting on a development in Admiralty that has actually been decades coming and has now reached fruition. I became moved to write with some alacrity when I recently realized that this development that I had perceived on the far horizon a long time ago had now come to fruition.
The International Safety Management Code (ISM) first moved from discussions into codified international law, and more recently into United States statutory law and detailed regulation. This changes everything related to limitation of liability and the determination of civil liabilities and even criminal culpability in admiralty tribunals.
The ISM Code is a product of the United Nations International Maritime Organization's (IMO); Marine Safety Committee (MSC). The formal original name for "the code" is the International Management Code for the Safe Operation of Ships and for Pollution Prevention. It became known as the International Safety Management Code after amendments in May of 2005 by way of MSC .273 (85) and entered into force on July 2006. The Resolution as amended entered into force on July 1, 2010. Additional amendments followed in 2013. "The code" entered into force at least as codified international law by way of the signatory nations to the International Safety of Life at Sea Convention on January 1, 2015. Some more time would elapse before the signatory nations (66 at my last count, representing about 98% of world shipping by tonnage) would adopt the code into national law or regulation. The ISM is implemented into US law at 46 USC 3201-3205 and detailed regulations enforceable by the U.S. Coast Guard are found in 33 CFR part 96 , subpart D.
This is not just another safety code dealing with shipboard equipment and conditions. This code imposes on ship owners and managers in the international trades the personal and corporate duty to create a "culture of safety" within their company and fleets, My fellow legal practitioners let that sink into the deepest recesses of your admiralty trained minds. The effects of this duty profoundly alter the standing order on limitation of liability as we have known it for better than 200 years. Even more profoundly does the "code" affect civil liabilities in the now most likely event that limitation is denied , it also extends the potential for criminal culpability into the executive suite. This is serious, the time is short, the danger great . The old days when a ship owner and his executives could point to the Master and claim that the cause of an accident was beyond the privity and knowledge of the shore based corporate officers are over. "The Code" requires management at all levels to participate in the creation of the ship's safety management plan, and take responsibility for its effectiveness. The corporate ISM program, complete with formal periodic auditing and third party periodic over sight is here. Ship owners you now need legal scholars , lawyers to aid you in the required planning and documentation , you need legal counseling as you put together the required system to help you insure that your efforts will pass the "due diligence test". The "due diligence test" is a very tough standard. The consequences for failure can be very high, in some international jurisdictions , if there is loss of life you could even face a capital charge (there was a reason why that Korean ferry owner committed suicide in the wake of the passenger school children that died on his ship. His cost savings efforts resulted in a hidden malfeasance and hidden flaw that may have resulted in the removal of the death penalty from the Master's trial). By having a lawyer in your planning team as a counselor vice a litigator you automatically go a long way toward assuring a "good faith effort" at "due dilligence". A "good faith effort" won't clear you of liability or culpability but it is a strong mitigating factor that could keep your company away from enterprize killing penalties, and keep you out of jail or even off the gallows.
As a lawyer you don't want to be caught flat footed when the phone rings with your first case under "the Code". With the able assistance of the AAB I will be posting training aids on "the Code" here on the AAB blog. Resolve today to master "the Code" that forever changes the law of admiralty for limitation, and post accident criminal and civil liabilities. Corporate culture changes slowly. You may have clients even now who having learned of the code are already seeking cost shaving measures. That effort, if unguided, can result in a long fall from "due dilligence".
If you have serious questions contact our resident ISM expert via E-mail Capt. William H. Toohey Master Mariner (unlimited) ISM Lead Auditor (ABS) IMCA CMID Vessel Inspector E-mail: skiffrunner@gmail.com. |
-------------------------------------------------------------------------
A Marine Safety Information Bulletin Alerting The Boating And Aviation Communities To Specific Hazards Relating To Parasailing Operations Has Been Issued By The U.S. Coast Guard.
PD
The hazards of concern involve flight issues when aircraft operate in the vicinity of parasail operations and operating limitations for the vessel operators towing parasailors. Additionally the Marine Safety Information Bulletin (MSIB) addresses banner towing by aircraft, this type of aerial advertising is frequently seen over public beaches. Pilots, flight crews, vessel operators and crews should be especially alert when operating in the vicinity of parasailing and aerial banner towing operations. Moreover parasail operators and banner towing operations should be especially aware of each other as frequently they are operating at altitudes where contact is possible.
The Coast Guard Marine Safety Information Bulletin noted:
" Last summer, there were two incidents where aircraft towing banners (banner tows) collided with parasail rigs aloft that were being towed by small passenger vessels. Fortunately, there were no passenger injuries, only property damage, but these incidents could have resulted in serious injury or a fatality. "
The MSIB we are alerting our readers to outlines the applicable FAA and USCG regulations and provides additional guidance to promote safety of parasailing while operating with passengers aloft in the vicinity of banner tow or other aircraft operations. The FAA regulates both the aviation operations involved in both para sailing and banner towing and other forms of aerial advertising, and the USCH regulates the vessel operations. The FAA sets altitude limits for both operations but in this MSIB the Coast Guard reminds both parasail operators and banner tow aviators that frequently towed banners are flying as much as 100 to 150 feet below the aircraft, which according to its altimeter, is flying at the regulation minimum altitude. Additionally the aircraft pilot has blind spots immediately ahead and below him and may not see the parasailor if banner and parasailor are at the same altitude and in close proximity. It is at such times that danger of aerial collision exists.
Here is an especially good piece of advice from the MSIB:
"The FAA concluded that parasails and parasail operations are subject to regulations applicable to kites under Title 14 Code of Federal Regulations (CFR) part 101, and, therefore, has prescribed certain operating (flight) limitations and notice and marking requirements. Parasail operators who need to deviate from these limitations and requirements must request and receive approved waivers for parasail flight from the nearest FAA Service Center (see enclosure 1). Commonly requested and waived regulations include 14 CFR 101.13 (a)(4), 14 CFR 101.15, and 14 CFR 101.17. Additionally, when requesting waivers, parasail operators should maintain a copy of their waiver request as evidence of submission. This may be used for compliance purposes until the waiver arrives. To promote maritime and aviation safety, parasail and banner tow operators, who fly within common geographic areas, are encouraged to be proactive in meeting with each other through regular safety meetings, especially before the start of each operating season"
The American Admiralty Information Services Organization has never been big fans of Coast Guard regulations but we do laud one aspect of the Coast Guard regulatory culture. The Coast Guard institutionally follows the process Lyndon Johnson called "Jaw Boning" in that they use their Marine Safety Information Bulletins , Notice to Mariners System, and Industry Advisory Committees to avoid ineffective or counterproductive regulations (with distressing inconsistent results) and to correct safety and environment hazards without regulation. The banner towing and parasailing business communities are being encouraged through "jaw boning" to take up some effective "jaw boning" of operating altitudes between and among themselves. This usually is a signal to do something or be subjected to additional regulation, possibly with some ham handed business killing provisions.
Our analysis is that the party with the most room to compromise is the parasailors. The banner towing community already has a difficult time getting the banners down to a level where they can be read by beach goers. This keeps the aircraft flying at minimum regulatory compliance levels. That often results in the banner itself intruding into kite operations air space, the realm of the parasailor, parasailing surfboarder , and beach kite flyers. We remind banner towing aviators that "minimum regulatory compliance" is not the court test of safe operation in the event of liability lawsuits. A "standard of care" that a court will impose on any sort of marine or aviation, and especially on blended operations is likely to be quite a bit higher than "minimum regulatory compliance" or a "reasonable man test". The USCG and the FAA must write national regulations that may or may not work for both or either of these two types of business very well on a local level. The Coast Guard reminds the two business communities that there are procedures for variances and exceptions built into both the USCG and FAA regulations. Its time to get together and review you local situation before the season really gets started. Time is short. Locally agreed upon "standard operating procedures" that do not exceed any regulatory requirement often need no Federal endorsement and if observed tend to improve the posture of any such business involved in a post accident liability claim. Operators who refuse to operate within such "jaw boned" parameters hazard their liability positions and insurance.
We again note that in our opinion the parasail operators have the most room to compromise. Generally any height above treetop level provides a thrill ride. It is conceivable that extra height gives the boat a bit more surface vessel collision avoidance maneuverability. But such operations can probably be well performed pretty far below maximum kite air space. The towed banner business community has no business if their banners can not be read and suffers the constant temptation to operate at "minimal regulatory compliance" altitudes which often drops the banner itself into kite air space. A local compromise on an air space safety margin could be solution. Another alternative is surface operations lanes. This would involve parasailing take off and landing and flight operations at a designated distance off the beach and banner towing operations parallel to and usually inshore ( for better readability" of the advertising banner. Such a solution may well require application for Coast Guard and / or FAA variances, but the concerned business communities should be confident of approval if their local proposal actually improves on the base federal regulations.
To recap; the parasailors need above tree top level plus altitudes that are within the kite regulations for both the effect of a thrill ride and for a sufficient tow line cantentary to give the towing vessel surface navigation collision avoidance maneuverability. The banner towing business need sufficiently low altitudes and close in horizontal transit lanes for banner readability. THE COAST GUARD IN THIS MSIB IS ALERTING THE TWO BUSINESS COMMUNITIES THAT THE MOST EFFECTIVE WAY TO ACHIEVE THIS IS LOCAL AGREEMENTS, SOME OF WHICH MAY REQUIRE THE FEDERAL REGULATORY VARIANCE PROCEDURES. The Coast Guard is issuing this helpful notice in the wake of a couple of near misses. If there is a fatal accident this season it may be too late to avoid additional federal regulation, which often because it must address an issue nationally ends up killing certain local businesses. Get the job done locally starting this pre season. Meanwhile we suggest if at all possible given your local situation that both business communities observe common sense this season and avoid operations any where near the edge of your allotted air space.
Now there is another issue, the limitations on surface maneuverability on the towing water craft once parasailors are launched. It is imperative that such vessels with their aerial tow advertise their restricted maneuverability to other surface vessels. Most recreational boaters and personal watercraft operators have little knowledge of the inland or international rules to avoid collision. Parasail water craft operators are supposed to have at a minimum a U.S. Coast Guard motor boat operator license and have had to pass formal written examination on these regulations. There can be no excuse for such vessels not using the related whistle signals, especially the danger signal if another surface vessel invades your required maneuver space, or displaying the required or suggested lights or day shapes indicating your restricted maneuverability status. But a "prudent operator" will go beyond that given the wide spread general knowledge that you are operating within a recreational boating space dominated by vessel operators of typically limited skills. This is a job for management. It is important to ADVERTISE at boat launch sites, marinas, and other venues where recreational boaters congregate that they should stay well clear of parasail operation due to the limited maneuverability of the towing vessel.
Finally, the beach going public can help. If you decide to go parasailing tell your operator that you would like to fly at the minimal safe altitude for avoiding aerial advertising air space and still providing him as vessel operator ample surface maneuverability. We promise you that such a height will still be a thrill ride. But no one needs the thrill of aerial collision or near miss.
PD--------------------------------------------------------------------
MARINE INSURANCE INSTRUCTIONAL VIDEOS
License All rights reserved by baasiilb15 Creative Commons License
Interestingly, in admiralty law the words "maritime business", "commerce". etc. are rarely used. Most voyages and maritime endeavors are described as "maritime adventures". Given the element of risk in any ocean enterprise this is hardly surprising. Maritime commerce never would have expanded into the global endeavor it is today if a way to manage the enormous risks involved had not been found. The British crown led the way in the mid 1500s by spreading the risk among contributors organized by Queen Elizabeth into syndicates. If the assured ship made it back intact the syndicate members made a profit from the premium paid for the assurance that the enumerated losses if they occurred would be covered by the syndicate and the ship owner would not be thrown into debtor's prison. By the 1700's an enterprising Brit started a coffee house called "Lloyd's" in London specially designed to attract the syndicate members and ship owners seeking assurance of some maritime adventure. This marked the beginning of the competitive "sale of risk" and the maritime insurance trade as we know it. Today every marine professional, not just those in the admiralty law or insurance professions must have some knowledge of marine insurance. Below are a number of links to specially selected video resources that can give you the basics and the link to the Amazon Marine insurance book shelf for resources for deeper study.
HOW DOES MARINE INSURANCE WORK : 1.5 minute general explanation
INTRODUCTION TO MARINE INSURANCE, THE TRANSFER OF RISK: 10 minute gen. explanation
THE BASICS OF CARGO INSURANCE ("Make Sure You Get "Door To Door Coverage)
THE MARINE INSURANCE CONTRACT: 30 minute general discussion of the key elements in the typical marine contract for insurance
MARINE INSURANCE BOOK SHELF
How does Marine Ins.Wk https://www.youtube.com/watch?v=Z2R3HxFlygo
Introduction https://www.youtube.com/watch?v=-MVXBCTgaW8
Cargo Insurance: https://www.youtube.com/watch?v=A7aMskbifo4
The Marine Insurance Contract: https://www.youtube.com/watch?v=rTlJ0LqfBv4
-------------------------------------------------------------------
THE ADMIRALTY AND MARITIME LAW GUIDE
The Admiralty and Maritime Law Guide includes over 1,500 annotated links to admiralty law resources on the Internet and a growing database of admiralty case digests, opinions and international maritime conventions.http://www.admiraltylawguide.com/
...........................................................................................................................................................................................
ADMIRALTY and MARITIME LAW GUIDE (Codes and Rules)
This isn't a book but a free website that can be a tremendous aid in performing maritime legal research.
Our hyperlink brings you to the index of this free research tool. Here you will find fast routes to the sections of the United States Code that deal with admiralty and maritime law such as Titles 18, 28, 33, 46, and 49. Not only are you able to get into the maritime titles of the code quickly but the search feature allows you to key word search. Maritime cases, regulations, international codes and standards are all here. Unfortunately the system doesn't seem to work with all browsers. But when fully functional this is an excellent site to speed up admiralty and maritime legal research. If it doesn't work with your browser keep checking here. We will be linking to other systems as often as we find ones we find useful. We mean this section to be not only a great place find admiralty books but a great starter page for professional legal research into admiralty and maritime law issues.
http://www.admiraltylawguide.com/codes.html
............................................................................................................................................................................................
ADMIRALTY or MARITIME LAW:
Note: The Cornell site when you arrive in the Admiralty section has two tabs : "Overview" and "Resources". If you are doing legal research the "Resources" tab is a fast route into most relevant statutes, and regulations, Supreme Court Cases, and even some state cases.
............................................................................................................................................................................................
TETLEY'S MARITIME AND ADMIRALTY LAW: LINKS FOR LEGAL RESEARCH
This is not a book but a hyper-linked legal research site for admiralty and maritime law.
This site is very useful for finding international conventions and foreign maritime laws as well as U.S. law
http://www.mcgill.ca/maritimelaw/links#leg_us
...........................................................................................................................................................................................
Code of Federal Regulations;
Most of the detailed rules that regulate the daily operations and safety of American flag commercial vessel operations are found in the Code of Federal Regulations . The most important titles from the maritime perspective are Titles 18, 28, 33, 46, and 49 of the Code of Federal Regulations (CFR). Title 18 CFR contains much of what might be described as the maritime criminal code and details about maritime jurisdictions. Title 33 CFR contains much of the governance of the Coast Guard and much of its aids to navigation mission. Title 46 CFR is divided into many sub-chapters dealing with specific fire, life safety, survival equipment , and operational details for many different classes of vessels. In title 46 you will also find such details as the definition of reportable accidents and the requirements for re[porting accidents as well as information on such ship's business subjects as establishing maritime liens and relevant commercial instruments. Title 49 CFR will introduce you to the Maritime Administration and certain rules for dangerous cargoes. Below is a hyperlink to a searchable electronic version of the Code of Federal Regulations
Code of Federal Regulations
...........................................................................................................................................................................................
UNITED STATES CODE SEARCHABLE PREPARED BY CONGRESSIONAL OFFICE OF LAW REVISION
http://uscode.house.gov/
.........................................................................................................................................................................................
CARGO LAW: A Website sponsored by the law offices of Countryman and McDaniel of Los Angeles specializing in cargo claims and transportation law. Many useful features for research in cargo law, special search features opening out to the world wide web. A big help for those working on cargo claims or issues for cargo consolidators, freight forwarders, custom house brokers, and non vessel owning common carriers.
http://www.cargolaw.com/
.........................................................................................................................................................................................
INTERNATIONAL CONVENTIONS: International treaties dealing with maritime subjects available on line.http://www.admiraltylawguide.com/interconv.html
........................................................................................................................................................................................
CANADIAN MARITIME, ADMIRALTY, AND CARGO LAW:
A General site for maritime law run by a leading Canadian law firm with plenty of links to Canadian maritime legal data bases, and also links to British, and Common wealth sites.
http://www.admiraltylaw.com/links.htm ........................................................................................................................................................................................
AMERICAN NATIONAL STANDARDS INSTITUTE:
Quite a number of codes and standards have been incorporated by reference into the maritime regulations contained in the relevant titles of the Code of Federal Regulations. Often the regulatory language incorporating the non federal code cites directly to the incorporated code itself. One common example is direct incorporation of elements of the code of the National Fire Protection Association (NFPA). On occasion the regulations cite to an overall catalog of widely recognized codes called the AMERICAN NATIONAL STANDARDS INSTITUTE (ANSI). Using the ANSI number cited a search of the ANSI catalog will bring up the precise incorporated code section from whatever source it was drawn from whether the NFPA, the National Petroleum Institute or some other source. ANSI can also be searched by subject and will always lead you to at least an authoritative code on the subject though it will take additional legal research to determine the legal relevance in particular circumstances. Below is a hyper link to more information on the ANSI system.
http://www.ansi.org/
...........................................................................................................................................................................................
WESTLAW: If you are a lawyer, law clerk or paralegal we presume that you know what WESTLAW is, and how to use it and that you have an account and pass word. We have provided a hyperlink to the sign on page here for your convenience and ease of return to our pages if needed. If you do not have a WEST LAW account or pass word you can arrange for one on line. If you are attempting to represent yourself....back away from the computer
http://web2.westlaw.com/signon/default.wl?vr=2.0&fn=_top&rs=WLW12.04&bhcp=1
...........................................................................................................................................................................................
GovTrack: Free service for tracking the progress of bills through Congress
http://www.govtrack.us/
...........................................................................................................................................................................................
ADMIRALTY LAW IN A NUTSHELL
6th edition, West Publishing, by Frank L. Maraist, Thomas Galligan and Catherine M. Maraist
ISBN-10: 0314926992 ISBN-13: 978-031492699
Every law and paralegal student in America is probably familiar with the "Nutshell" series on substantive areas of law. These are about as popular with law and paralegal students as "Cliff Notes" are with undergraduates. However this 487 page text is not a "Cliff Note". These texts tend to be very comprehensive introductory coverage of their respective subjects rendered in simpler language than the typical university text, and often organized very logically and simply with the information given in a style that is often entertaining to the interested reader. This "nutshell" exploration of law is not just for lawyers, paralegals and students. Working mariners can get a lot out of reading this book. This is the law that deals with the every day labors of professional mariners. The text covers in an introductory manner maritime torts, collision law, personal injury of crewmen and passengers, wrongful death at sea and on the navigable waters, seaman employment contracts, seaman wages, marine insurance, pilotage, matters of admiralty jurisdiction, and legal procedures in maritime claims, to list just some of the areas described between these covers. Unlimited tonnage deck officers who may point to their professional examination in "ships business and law" would be well advised to read this comprehensive introductory guide early and often in a career. This book helps the Master Mariner develop some of that "instant knowledge" so important in the starting hours of a salvage or assistance operation, accepting a tow, or discovering a potential cargo claim, when what the ship's officers say, do, record, or sign can make a big difference in the final adjudication of the event. Reading this before taking a formal admiralty law course will make the entire experience easier and more enjoyable. American Admiralty Books highly recommends Admiralty in a Nutshell. This would be an important book for any professional mariner starting into a career transition as a marine surveyor, or maritime insurance professional. It is a must for the general practitioner lawyer who finds himself in a personal injury claim with any sort of maritime context.
http://www.amazon.com/dp/0314926992/ref=as_li_ss_til?tag=ameradmibook-20&camp=213381&creative=390973&linkCode=as4&creativeASIN=0314926992&adid=0WXPEC47KT5RW0FQN3QH&&ref-refURL=
.............................................................................................................................................................................................
THE LAW OF THE SEA IN A NUTSHELL
2nd edition (2010) by Louis B. Sohn, John E. Noyes, Kristen Gusafson, and Eric Franckx.
ISBN: 10: 0314169415 ISBN 13-978-031469419
Unlike the Admiralty in a Nutshell which deals with the law as it applies to individual officers, seamen, passengers, workers, ships, and harbor and waterway infrastructure this volume deals more with a specific branch of "public international law" or maritime relations between nations, or imposed on ships and their officers by international agreement. This comprehensive guide offers a summary of current principals and rules governing the international law of the sea, especially as defined in the most recent Convention on the Law of the Sea which the United States still has not signed but generally adheres to. Topics include the rights and responsibilities of states in the various zones of the oceans, fisheries and non- living resources, vessel nationality and jurisdictions over vessels, maritime terrorism, maritime boundaries and base lines. Like all "nutshell" treatments of law the 613 pages of this book are narrative in style and skip a lot of the case analysis that is typical of law school texts. This book is not only helpful to the lawyer or paralegal new to maritime law, but also to the ship's officer. However, there are available some guides to this area of law that are more focused on the daily concerns of the ship's officer and are written from that view point. We will discuss some of these in this section of book descriptions.
.............................................................................................................................................................................................
PUBLIC INTERNATIONAL LAW IN A NUTSHELL
ISBN 10 031417169X ISBN 13 978-031417696
Today's Merchant Marine Officer or maritime lawyer is part of the world of "intermodal" cargo movement. The system is often centered on the shipping container designed to be sealed by customs officials at its point of loading and transported sealed across oceans by ship and across vast distances on continents by rail and truck and unsealed at final destination. "The law of the sea" is part of "public" international law as are international mail conventions, international radio and telecommunications conventions, space treaties, and the "law of armed conflict." Naval officers are strictly charged with adhering to and enforcing international law. Consular officers must be well versed in this sort of international law, especially international customs conventions, so should those who have regular contact with consular officers. Consular officer "customers" often include; steamship agents, freight forwarders and brokers, and officials of non vessel owning common carriers (NVOCCs) all of which will benefit from a knowledge of this area of law. Like all of the books in the "nutshell" series. This guide is concise but accurate while not really short at over 400 pages. It covers well the basic sources (international "conventions" or multi nation treaties), actors, and procedures in this legal area. The book provides descriptions of key areas in this body of law including the law of the sea, international environmental law, the law of armed conflict, U.S. foreign relations law and important institutions such as international courts of human rights, and relevant U.S. Supreme court decisions. American Admiralty Books recommends this volume for our readers whose interest in public international law extends beyond the everyday labors of the ship's officer.
The former distributor is Marine Education Text Books they are still located at 124 North Van Avenue in Houma, Louisiana 70363-5895. Their telephone number is (985) 879-3866. Sometime after the book was published the zip code and the area code of the distributor changed. Their website is http://www.marineeducationtextbooks.com/ "Met" was formerly commonly used as a reference to this publisher but as a key word in a Google search is probably more associated with the Metropolitan Opera or various museums of art, and in fact, a non maritime German interest actually owns the domain name "Met.com". Due to the capture of the domain name after the publication of the works of the American Admiralty Bureau, Marine Education Text Books changed its domain name but a lot of former customers and potential new customers are having difficulty finding them on the Internet. They are there however and there is no need to pay rare book prices for any of the publications of the American Admiralty Bureau or for MET's own famous "Blue Books" used by Merchant Mariners to prepare for Coast Guard administered occupational credentialing exams. The publisher of the AAB Guides and Commentators the American Admiralty Bureau, ltd. went out of business about three years ago after more than twenty years of service to the admiralty courts of the nation. However it is th eintention of American Admiralty Books to make all of the American Admiralty Bureau publications available on a print on demand basis. Leave a comment indicating your interest and a return E mail address in the "Comments Section" at the end of this scroll. Special orders are available now but the there is a long wait.
All of the "Commentators"and "Guides" of the American Admiralty Bureau are available at whole sale prices to distributors such as Amazon but apparently Amazon, like so many other interested parties, is unaware that the books are still in print and being distributed. We are working on correcting that misconception Do not pay collector or rare manuscript prices for American Admiralty Bureau publications, at least not yet. If Amazon doesn't have them at prices between $150 and $35 or less (depending on title) invest in a phone call and some postage stamps. This title in particular is highly recommended for naval and Coast Guard senior enlisted, especially those advancing to the Chief Petty Officer grades and it was near the bottom of the American Admiralty Bureau pricing structure to make it affordable to enlisted personnel. The technical literature generated by the court cases of the American Admiralty Bureau were only printed in such volumes initially as required to provide library copies and a few display copies at a very few Gulf Coast area nautical book vendors. As a collection they were print and bind on order. They still are.
ISBN-10: 031484805
INTERNATIONAL LAW FOR SEAGOING OFFICERS
ISBN -10-0870213059
Admiralty and Maritime Law by Robert Force (2004)
This comprehensive overview was prepared at the behest of, and published by the Federal Judicial Center. Their intention was to produce a book for use in training judges, attorneys and other legal professionals in admiralty and maritime law. This is a more sophisticated treatment than the "Nutshell" series as it was intended for use by judges. But the language is simple enough for those with some formal legal training such as law clerks, law students, and paralegals. The book was priced under $20 on our last check (1/19/2012) and is an American admiralty Books "suggested reading" for legal professionals just starting in admiralty or those only occasionally involved in admiralty or maritime cases as part of a more generalized practice.
ADMIRALTY AND MARITIME LAW
(Hornbooks) by Thomas J. Schoenbaum
ISBN-10: 0314149046
AMERICAN ADMIRALTY BUREAU'S GUIDE
ISBN-1-879778-39-4
Marine Education Textbooks
PUBLIC INTERNATIONAL LAW IN A NUTSHELL
4th edition (West Publishing), by Thomas Buergenthal, and Sean D. Murphy
ISBN 10 031417169X ISBN 13 978-031417696
Today's Merchant Marine Officer or maritime lawyer is part of the world of "intermodal" cargo movement. The system is often centered on the shipping container designed to be sealed by customs officials at its point of loading and transported sealed across oceans by ship and across vast distances on continents by rail and truck and unsealed at final destination. "The law of the sea" is part of "public" international law as are international mail conventions, international radio and telecommunications conventions, space treaties, and the "law of armed conflict." Naval officers are strictly charged with adhering to and enforcing international law. Consular officers must be well versed in this sort of international law, especially international customs conventions, so should those who have regular contact with consular officers. Consular officer "customers" often include; steamship agents, freight forwarders and brokers, and officials of non vessel owning common carriers (NVOCCs) all of which will benefit from a knowledge of this area of law. Like all of the books in the "nutshell" series. This guide is concise but accurate while not really short at over 400 pages. It covers well the basic sources (international "conventions" or multi nation treaties), actors, and procedures in this legal area. The book provides descriptions of key areas in this body of law including the law of the sea, international environmental law, the law of armed conflict, U.S. foreign relations law and important institutions such as international courts of human rights, and relevant U.S. Supreme court decisions. American Admiralty Books recommends this volume for our readers whose interest in public international law extends beyond the everyday labors of the ship's officer.
.............................................................................................................................................................................................
http://www.divelawyer.com/for-divers/publications/legal-rights-of-commercial-divers/
---------------------------------------------------------------------------------------------------------------
FREE ON LINE E BOOK
FREE BOOK AVAILABLE ON REQUEST OR READ ON LINE FROM A LEADING DIVER"S LAW FIRM IN NEW ORLEANS
It is said that there are "old divers and bold divers,but no old bold divers. If you are a professional diver you know the saying and you know its true. Despite their own best efforts and following all of the rules and recommended practices some time the negligence of others lead to death and injury. Diving law is complex. Diving causes of action happen in a maritime context, often vessels are involved but the status of the diver as seaman or harbor worker is often complex and the tests are circumstantial. Injured divers or their survivors need specially trained and experienced lawyers. On the Central Gulf Coast you might try The Law Firm of Delise & Hall Attorneys at Law and Admiralty . We are afraid that we can't recommend them per se as we don't actually know the firm or the individual lawyers but we have no negative information either. However we are in the business of reviewing maritime books and we can recommend a book they publish both on line and in print. Delise and Hall's LEGAL RIGHTS OF COMMERCIAL DIVERS. This is a work that every commercial diver who aspires to one day be an old diver should read. It provides a great deal of practical information on what to do in the wake of an accident with injury and what to expect as the maritime claims process proceeds. While the legal concepts are complete the book is written in non technical language and its messages are clear. The Price is spot on, it's free, as in zip, nada, zero. Basically the firm makes the book available on line at: http://www.divelawyer.com/for-divers/publications/legal-rights-of-commercial-divers/ and will also mail you a paper copy for the asking. If you click on either of the links above you will pull up the table of contents. Click on any subject of interest in the table of contents and the text will appear. OK you spent a lot of time learning about buoyancy compensation, the dive tables and decompression, special gases, the bends, etc. take a little time and learn about the laws that are supposed to protect you.
---------------------------------------------------------------------------------------------------------------
FREE ON LINE E BOOK
THE ENDURING PRINCIPALS OF MARITIME INTERNATIONAL LAW Click on this link to view the book:
An E-book available for you to read or use as a reference on line without charge. The book is a derivative work of the AMERICAN ADMIRALTY BUREAU'S GUIDE TO THE ENDURING PRINCIPLES OF INTERNATIONAL MARITIME LAW by R.F. Bollinger, ISBN 1-879778-28-9 copyrighted in 1995. It was produced under special derivative intellectual property rights and agreements and contains updated text that reflect events such as the Somalia pirate problems and the China Seas issues that have arisen since 1995. The original book is still available as a print on demand spiral bound paperback suitable for keeping on a navigation bridge for ready reference. It was published as a practical work a day guide for Merchant Marine Officers, steamship agents Naval and Coast Guard Officers, and Senior Petty Officers. It contains the basic and unlikely to change enduring basic principles of maritime international law. The work was designed to help equip the professionals out there at sea and in foreign ports on America's ships to make good decisions when faced with unwanted boarders, overzealous local harbor authorities, pirates, asylum seekers, crewmen in need of notarial services, and a host of other issues common to the daily work situations of such professionals. If you would like the paper bound earlier version it is still available as a print on demand book at a very reasonable price from :
The American Admiralty Bureau's Series of COMMENTATORS and GUIDES are no longer readily available through
MARINE EDUCATION TEXT BOOKS (MET)
MARINE EDUCATION TEXT BOOKS (MET)
124 NORTH VAN AVENUE
Houma, LA 70363-5895
Phone: (985) 879-3866
Their Website is undergoing renovation as of this writing 11/3/2013
We are trying to make them available on line or in hard copy as print on demand books
We are trying to make them available on line or in hard copy as print on demand books
-------------------------------------------------------------------------------------------------------------
AMERICAN ADMIRALTY BUREAU'S GUIDE
TO THE ENDURING PRINCIPLES OF INTERNATIONAL MARITIME LAW
by Raymond F. Bollinger
WARNING: This book is still in print and available new at a price that reflects the original plus inflation since publication. For some reason the Amazon link on 1/9/2012 offered one used book in excellent condition for over $300. We have seen other such offerings.
The book may be found in some of the maritime academy libraries and the libraries on some naval stations. In a mere 70 some odd pages it gives the officer or petty officer an overview of public maritime international law and the law of armed conflict and provides very practical real life situational advice. It was prepared by the American Admiralty Bureau's Chief Forensic Examiner, himself a licensed Merchant Marine Officer and reserve Coast Guard Master Chief Boatswain's mate for use by professional seafarers of all grades. The book was intended to be affordable to junior enlisted personnel. It is still in print, still available new at a reasonable price. Here is how it may have become regarded as an out of print and a "rare book."
Editor's note: Marine Education Text Books no longer sells the present edition unless they still have a few copies in stock. The book may be available through several Univerty presses as the copy right was allowed to expire and we are informed by third parties that at least two university presses are distributing this and other titles by the old American Admiralty Bureau. When Amazon gets a number of used copies in they may shift their classification from "Rare Book" to "Used" with a signifigant price drop. Meanwhile watch this space and the NOTICES section of the HOME PAGE for when the updated book wil be available as a print on demand paperback publication.
Editor's note: Marine Education Text Books no longer sells the present edition unless they still have a few copies in stock. The book may be available through several Univerty presses as the copy right was allowed to expire and we are informed by third parties that at least two university presses are distributing this and other titles by the old American Admiralty Bureau. When Amazon gets a number of used copies in they may shift their classification from "Rare Book" to "Used" with a signifigant price drop. Meanwhile watch this space and the NOTICES section of the HOME PAGE for when the updated book wil be available as a print on demand paperback publication.
The former distributor is Marine Education Text Books they are still located at 124 North Van Avenue in Houma, Louisiana 70363-5895. Their telephone number is (985) 879-3866. Sometime after the book was published the zip code and the area code of the distributor changed. Their website is http://www.marineeducationtextbooks.com/ "Met" was formerly commonly used as a reference to this publisher but as a key word in a Google search is probably more associated with the Metropolitan Opera or various museums of art, and in fact, a non maritime German interest actually owns the domain name "Met.com". Due to the capture of the domain name after the publication of the works of the American Admiralty Bureau, Marine Education Text Books changed its domain name but a lot of former customers and potential new customers are having difficulty finding them on the Internet. They are there however and there is no need to pay rare book prices for any of the publications of the American Admiralty Bureau or for MET's own famous "Blue Books" used by Merchant Mariners to prepare for Coast Guard administered occupational credentialing exams. The publisher of the AAB Guides and Commentators the American Admiralty Bureau, ltd. went out of business about three years ago after more than twenty years of service to the admiralty courts of the nation. However it is th eintention of American Admiralty Books to make all of the American Admiralty Bureau publications available on a print on demand basis. Leave a comment indicating your interest and a return E mail address in the "Comments Section" at the end of this scroll. Special orders are available now but the there is a long wait.
All of the "Commentators"and "Guides" of the American Admiralty Bureau are available at whole sale prices to distributors such as Amazon but apparently Amazon, like so many other interested parties, is unaware that the books are still in print and being distributed. We are working on correcting that misconception Do not pay collector or rare manuscript prices for American Admiralty Bureau publications, at least not yet. If Amazon doesn't have them at prices between $150 and $35 or less (depending on title) invest in a phone call and some postage stamps. This title in particular is highly recommended for naval and Coast Guard senior enlisted, especially those advancing to the Chief Petty Officer grades and it was near the bottom of the American Admiralty Bureau pricing structure to make it affordable to enlisted personnel. The technical literature generated by the court cases of the American Admiralty Bureau were only printed in such volumes initially as required to provide library copies and a few display copies at a very few Gulf Coast area nautical book vendors. As a collection they were print and bind on order. They still are.
Lawyers should especially note the expanded copyright license provided to lawyer purchasers of the books. The books are spiral bound to facilitate photocopying and lawyers who wish to attach any of the contents to pleadings are automatically noticed that full chapters or more are considered "fair usage" by the copy right owner if attached to pleadings.The American Admiralty Bureau "Guides" and "Commentators deal with techno-legal maritime subjects that often require the assistance of expert witnesses to resolve. The Bureau was the a leading opponent of "junk science" and especially their "Commentator" series is useful in detecting, avoiding, or suppressing junk science in maritime litigation. Again the link for all American Admiralty Bureau publications will be announced shortly and the last distributor of the famous "Blue Book" Coast Guard examination preparation guides is:
...........................................................................................................................................................................................
INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL
4th edition (2009)
by Thomas Burgenthal, Dinah Shelton, and David Stewart.
ISBN-10: 031484805
ISBN-13: 978-0314184801
At any moment a naval officer or petty officer standing Officer or the Deck or Junior Officer of the Deck watch in a foreign port could be thrust into a potential major international incident with life and death potential for the main participant, an asylum seeker who makes it up the gangway. This has happened sometimes with the local police hot on the asylum seeker's heels. To know what to do one needs a knowledge of not only the specific international law governing the privileges and immunities of war ships, but also the current naval policies, and a bit of international human rights law. The Nutshell guide to this area of law, like all of the nutshell series, is concise yet accurate. It provides overviews on such subjects as international, regional, and domestic human rights systems, and reviews of recent developments in international humanitarian law, and descriptions of the relevant tribunals. Any lawyer or paralegal interested in this area of law would find this a great first book length read. Maritime professionals may benefit from it as well, though there are some books available that are definitely focused on the Officer of the Deck or coxswain of the liberty launch. These are typical maritime individuals or naval persons who may find themselves in the presence of an asylum seeker or confronted by the local law and we will review some of these volumes in this space.
.............................................................................................................................................................................................
INTERNATIONAL LAW FOR SEAGOING OFFICERS
by Burdick H. Brittin and Liselotte B. Watson (1994),
published by the U.S. Naval Institute Press
ISBN -10-0870213059
ISBN-13-978-0870213052
This book as served as the standard of instruction for Navy, Coast Guard, and Merchant Marine Officers since its first edition in 1956. In non technical language it addresses the law as it applies to many specific situations that commissioned and licensed sea service officers often find themselves in. Of course, on smaller vessels, senior petty officers often actually fill the positions such as "Officer of the Deck" that the book so often depicts commissioned officers in. No one at a supervisory level in the naval establishment should really be without the type of knowledge imparted in this book. Lawyers involved in cases involving asylum seekers, fisheries enforcement, near approach and high seas visit and search, at sea rules of engagement, and similar issues may find this text extremely helpful despite its non technical approach and non legalistic language. The book is helpful because it is a standard of instruction and helps establish exactly what a competent officer in such situations should know. The book helps reliably describe expected behaviors under particular circumstances that often lead to international incidents. American Admiralty Books highly recommends this book for every professional deck officer's personal library.
.............................................................................................................................................................................................
.............................................................................................................................................................................................
Admiralty and Maritime Law by Robert Force (2004)
This comprehensive overview was prepared at the behest of, and published by the Federal Judicial Center. Their intention was to produce a book for use in training judges, attorneys and other legal professionals in admiralty and maritime law. This is a more sophisticated treatment than the "Nutshell" series as it was intended for use by judges. But the language is simple enough for those with some formal legal training such as law clerks, law students, and paralegals. The book was priced under $20 on our last check (1/19/2012) and is an American admiralty Books "suggested reading" for legal professionals just starting in admiralty or those only occasionally involved in admiralty or maritime cases as part of a more generalized practice.
.............................................................................................................................................................................................
ADMIRALTY AND MARITIME LAW
(Hornbooks) by Thomas J. Schoenbaum
ISBN-10: 0314149046
ISBN-13: 978-03141149046
Beyond the "Nutshell" series, the first real professional back ground read in many specialized areas of law will be the "Hornbook." The material may be introductory but at a professional level suitable for lawyers and well trained paralegals seeking to specialize in this area. At 1316 pages this isn't the book for the Merchant Marine or Naval Officer with a simple interest in the subject. But for he or she who would be a "Proctor of Admiralty" this is the starting point. Hornbooks are well known and trusted source of such texts and Thomas J. Scoenbaum is a name that would be admiralty scholars should know. Schoenbaum is, or was at the time the Hornbook was written, the Dean Rusk Professor of Law at the University of Georgia. He had five previous books prior to the Horn book and more than one hundred periodical articles on admiralty, environmental, and international law. You will see his name again in these pages.
This book provides a detailed introduction to such subjects as the Law of the Sea and the related international conventions, admiralty jurisdiction, maritime torts, seaman's remedies, and maritime worker compensation. The book also addresses the carriage of goods by sea, towage, charter parties, marine pollution, and maritime insurance topics generally and such specifics as general and specific "average." This is the first professional book on admiralty that every future "Proctor" should own. American Admiralty Books recommends this text as a reliable guide from a well respected publisher and major admiralty law author.
.............................................................................................................................................................................................
AMERICAN ADMIRALTY BUREAU'S GUIDE
TO SEAMAN'S RIGHTS AND LEGAL REMEDIES
American Admiralty Bureau, publisher, Marine Education Textbooks, distributor.
by Raymond F. Bollinger
ISBN-1-879778-39-4
If you are a working seaman you should own this book, most especially if you are not a union member. If you are a seaman's union official you should have this book. If you are a Proctor of Admiralty you probably don't need it but admiralty paralegals and personal injury lawyers who occasionally represent seamen may find it quite useful. At 51 pages this "book" (actually more of a "booklet') covers a lot of ground in very little space and in mostly simple language. Each section describes a particular right of seamen such as the right to "Maintenance, Cure, and Lost Wages" if injured on the job. Care was taken in describing the right and its related legal remedy if violated to avoid difficult, technical or legal language, these descriptions are designed for the working seaman. However each section also has a separate section titled "Notes for the Seaman's Lawyer." The Lawyer's section provides references and leading cases using the standard system of legal citation. The book also has sections explaining how injured seamen can obtain contingency legal counsel and how to work with such counsel.
This is another American Admiralty Bureau publication designed for seamen and originally priced for seamen.
While the American Admiralty Bureau is no longer in business all of their publications are available on a print on demand basis from the original distributor Marine Education Textbooks. The prices from Marine Education Textbooks are still quite reasonable. We have provided an Amazon link to the publication. When we last checked it, they were offering one new copy at a price similar to the print on order price from a vendor who had only the one copy. A book review published on Amazon quite a while ago noted that the book was still in print and suggested that buyers through Amazon request a "special order" vice an "out of print order." If you are interested in purchasing through Amazon you may need to provide Amazon with updated distributor information. Since the 1995 publication of the book, Marine Education Textbooks has changed zip code and area codes, their correct location and contact information is :
While the American Admiralty Bureau is no longer in business all of their publications are available on a print on demand basis from the original distributor Marine Education Textbooks. The prices from Marine Education Textbooks are still quite reasonable. We have provided an Amazon link to the publication. When we last checked it, they were offering one new copy at a price similar to the print on order price from a vendor who had only the one copy. A book review published on Amazon quite a while ago noted that the book was still in print and suggested that buyers through Amazon request a "special order" vice an "out of print order." If you are interested in purchasing through Amazon you may need to provide Amazon with updated distributor information. Since the 1995 publication of the book, Marine Education Textbooks has changed zip code and area codes, their correct location and contact information is :
Marine Education Textbooks
124 North Van Avenue
Houma, Louisiana 70363-5895
Phone: (985) 879-3866
24 Hour FAX: (985) 879-3911
Website: www.marineeducationtextbooks.
American Admiralty Books highly recommends this title for working seamen but issues a vendor warning on all American Admiralty Bureau Books. MET still offers whole sale service to other book sellers and retail service direct to the customer, contrary to the good faith belief of some vendors these are not "rare books" or books not in print. These are print on demand books whose price ranges vary widely by title but typically retail in a price range from $150 to $15 plus shipping. We have discovered a number of these titles sold used at prices in the $300 per copy range. Presently there is no need pay rare book prices.
.............................................................................................................................................................................................
COURTS OF ADMIRALTY AND THE COMMON LAW: Origins of the American Experiment. by Steven L. Snell
ISBN: 10: 1594601739
ISBN: 13: 978-1594601736
American Admiralty Books: Suggested for Proctors and Proctors in training in Admiralty
A lawyer doesn't always need to know the full history of the tribunal he is arguing in to win a case, but in a tough case every advantage helps. Tribunal histories can be interesting and entertaining and are worthwhile reading for the specialists. Certainly anyone aspiring to the title "Proctor in Admiralty" ought to know the history of their unique tribunal.
This book draws from a wide variety of primary sources from ancient Roman times through the colonial period in America to describe the evolution of American Admiralty practice. The author ranges over Roman law to medieval English records and the early colonial period in both England and America to describe the English Admiralty practice on the eve of the American Revolution, the moment in time when America was poised to formulate its own way based on English models in the realm of the law of admiralty. The book details how the English High Court of Admiralty and its civil law practitioners became involved in the struggle between the Crown and Parliament in the seventeenth century. As a result of the politics between the Crown and Parliament the English High Court of Admiralty lost much of its traditional jurisdiction to the courts of the common law just as the American colonies were just starting to establish specialized maritime tribunals. Since maritime jurisdiction was in a state of flux in the mother country the colonies adopted an ad hoc system in which both colonial common law courts and the newly established specialized colonial vice admiralty courts had concurrent power to adjudicate a wide variety of maritime cases. By examining the pre-Revolutionary situation the book helps shed light on how the debate over admiralty jurisdiction was instrumental in shaping the language of Article III of the Constitution and later in determining structure of the Federal Courts as outlined in the Federal Judiciary Act of 1789.
A detailed understanding of this history should be one mark of distinction between the true "Proctor" in Admiralty and a lawyer who is simply trying a maritime case. For those who are serious about being a specialists in maritime law we suggest reading this book.
.............................................................................................................................................................................................
REPORTS OF PRIZE CASES DETERMINED IN THE HIGH COURT OF ADMIRALTY: before the Lords Commissioners of Appeals in Prize cases and before the Judicial ....Privy Council for 1745 to 1857.
ISBN 10: 1594601739
ISBN 13: 978-1594601736
American Admiralty Books: Suggested for real Naval and Admiralty law history buffs and sea adventure screen writers.
I own an ancient copy of this book in a crumbling leather bound version. For some odd reason I acquired it right after the movie "MASTER AND COMMANDER" was released. I loved the movie and really wondered where screen writers got the ideas for such naval history dramas. Then a fellow member of the Naval Intelligence Professionals (NIP) Association sent me this ancient volume out of the blue. One look inside and I not only knew where the seminal ideas but much of the detail came from. The cases reports are like a time machine. Naval battles by British forces that resulted in captured, vice sunk enemy ships and cargos were adjudicated in the prize courts. In those days naval crews earned their pitiful salaries but could share in prize money from captures as well. The amounts were awarded in the prize courts after several fact sets were determined. The enemy identity of the ship had to be confirmed. If the ship was neutral but carrying contraband the contraband nature of the cargo had to be determined and the circumstances of the case examined to determine if ship and cargo could be seized or only the cargo in accordance
As the record of a prize adjudication unfolded in court the story of the sea battle or confrontation, and some of the personality of the Captains and crews unfold in the court record. Below is a quote from the publishers (Nabu Press) description so that you'll know exactly how this modern copy was produced.
"This is an EXACT reproduction of a book published before 1923. This IS NOT an OCR'd book with strange characters, introduced typographical errors, and jumbled words. This book may have occasional imperfections such as missing or blurred pages, poor pictures, errant marks, etc., that were either part of the original artifact, or were introduced by the scanning process. We believe this work is culturally important, and despite the imperfections, have elected to bring it back into print as part of our continuing commitment to the preservation of printed works worldwide. We appreciate your understanding of the imperfections in the preservation process, and hope you enjoy this valuable book."
We can't really claim that reading this book will make you a better admiralty lawyer but we think many admiralty lawyers would find it entertaining, and we bet Hollywood has a few of these spread around the Screen Writer's Guild. We think the same is true for a lot of naval history buffs and naval professionals, so we have posted this book in both sections; Admiralty Law and Naval History. Great tales told in the bloodless tone of the court reporter. The book is also a priceless primary historical source, but thanks to Nabu Press is available at a quite reasonable price.
.
............................................................................................................................................................................................
THE LAW OF SALVAGE: AS ADMINISTERED IN THE HIGH COURT OF ADMIRALTY and THE COUNTY COURTS WITH PRINCIPAL AUTHORITIES, STATUTES, FORMS, TABLE OF FEES etc. (1870)
ISBN 10:111241088
ISBN 13: 978-1112414084
American Admiralty Books: Suggested for serious collectors, maritime historians, screen writers, and very serious students of maritime law.
Maritime Salvage cases are the Merchant Marine equivalent of the old prize court cases, but salvage is still practiced today. A salvage award litigation is always a tale of two sea stories. The first tale is told by the salvor, the crew claiming compensation for saving life and or property at sea. The second story is told by the owners and the saved, the beneficiaries of the salvage or rescue effort.
The salvors story seems to always begin on a dark and stormy night amid high seas and howling wind. At great risk of life and loss of their vessel the intrepid salvage crew approaches the endangered vessel at the critical moment when it is about to be lost to the forces of nature. However, after speeding through dark and dangerous waters all night the salvor arrives on scene and through the Herculean and death defying efforts of the salvage crew and at great risk to the vessel (remember the almost never present ship owner gets part of the final salvage award) the endangered vessel is saved from total loss.
Oddly set on the same date, at the same time, aboard vessels with the identical names in the first sea story a second sea story unfolds. This is the tale of the salvaged vessel. According to the legal defenders of the saved vessel it had merely had a minor engine problem in clear daylight on a calm sea. The Captain and Chief Officer were enjoying a little break on some deck chairs while the Chief Engineer and his trusty fireman were fixing the main propulsion engines. Suddenly, and without warning, a piratical group of motley seamen on a powerful tug pulled along side and boarded stepping lightly across the gunwales in that near calm sea. With out so much as a "by your leave, sir" they affixed a towing hawser on the bow and ran it out to their tug through the bullnose, swinging back aboard their vessel by grappling lines. The tug then took the ship into tow and brought into the nearest port which was a convenient fifteen minutes away where upon the Captain was served with an unsolicited bill for salvage services which he was never in need of and did not solicit. Mind you, these are just the opening statements.
But with the opening statements the die is cast and the court is off on a merry chase of the truth which only rarely resembles strongly either one of the competing sea stories. At stake is a salvage award worth whatever percentage of the fair market value of the ship and cargo that the judge ultimately assigns. American law follows British precedent to such a degree that there seems to be a conscious effort by the courts to not deviate from a mutually agreed set of precedents. This book is another reprinted old court reporter that might actually make a Proctor at Admiralty seem more professional, or at least give him a storehouse of ancient precedent in the salvage arena that few others may be very aware of. This is an important primary source for the maritime historian and a treasure chest of wild sea stories for the screen writer who is perfectly free to adapt the salvors tale of extraordinary daring do scans the sobering language of the cross examination. "Based on a True Story recorded in the High Court of British Admiralty." This could be a fun volume to own and at under $30 it's affordable.
...........................................................................................................................................................................................
THE LAW OF THE SEA: A Manual of Principals of Admiralty Law for Students, Mariner's and Ship Operators. By Jasper Yeats Brinton and George Lewis.
ISBN 10: 114718643X
ISBN 13: 978-1147186437
340 pages, priced under $25
This is a reprint of a book published prior to 1923 and tailored to non lawyer admiralty interests of the day. If you are a ship's officer, agent, manager, or surveyor in need of a broad general understanding of admiralty law we suggest something more contemporary such as International Law for the Ship's Officer, The American Admiralty Bureau's Guide to the Enduring Principals of Maritime International Law, or even Admiralty Law in a Nut Shell. But if you are a serious student of admiralty, litigator or not, especially a maritime historian at less than $25 this could be an interesting and useful acquisition. Let me give you an example from my own rather eclectic maritime career of how the study of non lawyer maritime texts is sometimes employed.
About a decade ago I personally published such a guide, I won't disclose which one here to avoid the appearance of a sales pitch. Needless to say that before I wrote such a book I read everything of the prior works in similar vein. Someone within the Naval Intelligence Professionals (NIP) Association alerted a Canadian admiral about to embark on a war game of my knowledge. The Admiral wanted a staffer who could analyze what the Red team's Head of Government's naval staff were likely to know about international maritime law, and what they might be advising the head of state as the game played out. Since traditional maritime international law places a duty of observation and enforcement on all naval officers it stands to reason that most senior naval officers have some knowledge of maritime international law. The dispute was over certain fishing grounds.
As the game played out the "red" country committed increasingly unfriendly but not war like acts. As the acts escalated in intensity I was asked what the Red Head of State's naval advisors were probably advising him. My overall task was to spot when the Red State was acting beyond the scope of what a non lawyer naval advisor might recommend in such a confrontation where there was a fair presumption that neither red nor blue country really wanted war. The assumption was that if the actions of the red country started to exceed the typical advice that a naval flag officer might give for a demonstration of will that did not violate international law or slide into an act of war that the situation might be resolved by an admiralty type litigation before an international tribunal. For the first three days of the exercise Red Country's behavior fit neatly into identifiable patterns escalating but legal actions such that a naval advisor might give. We (blue team) were expecting a gradual escalation with a gradual escalating response from us. Unfortunately we woke up on the next morning to learn that the game creators had thrown us a curve. The red country had gone from invasive fishing activities and saber rattling to mining Blue's interior waters overnight. Mining another country's waters is an act of war. So in the end my analysis, though accurate as far as it went, was inadequate to predict the point where the head of red state's government threw caution to the wind and went over the heads of his naval advisors. .
However you can bet that besides maritime analysts working on the puzzle there would be political and psychological subject matter expert analysts looking at Red State's Head of State's personal history and stress levels.
I hope that gives you a viable example of why certain subject matter experts might study the subject of what do non lawyer maritime professionals know about maritime and admiralty law. Hopefully I've given the reader an understanding of why such obsolete and obscure books are actually important. I think NABU Press does a public service in making such titles available at such reasonable prices. Years ago when I under took such study I had to rely on high priced rare book dealers and inter-library loans. Today I could purchase all the books I needed for under $350. Making books like this which will never sell even one hundred copies in a given year for around $25 is an accomplishment and public service worth noting.
...........................................................................................................................................................................................
In addition to the historical volumes described above Amazon has available a number of historical treatments of admiralty subjects any of which may be of utility to the legal historian and more rarely the legal practitioner. We are not able to review each individually at this time. However we wish to draw the attention of the seafaring and legal communities to the reappearance of these once rare books on the market as reasonably priced reprints. The movement of historically important works into the public domain, the evolution of electronic scanning technology, and print on demand technology is bringing back additional historic volumes into the realm of affordable reference works every day. If you have any information on new volumes coming on the market soon we invite you to post notice as a comment to this blog. Please provide all vendor information, the vendor need not be one of our commission paying linked vendors. American Admiralty Books applauds and hopes to encourage the reprinting of important but rare admiralty works. We wish to do our part in keeping the entirety of admiralty literature and references in the English language alive and available.
...........................................................................................................................................................................................
MARITIME TERRORISM: RISK AND LIABILITY by Michael D. Greenberg, Peter Chalk, Henry H. Willis, Ivan Khilko, and David S. Ortiz.
While this book has many authors the resulting work is quite coherent and benefits from the diverse backgrounds of the contributing authors. The contributing authors have backgrounds in statistical analysis and mathematics, counter terrorism, risk analysis, and law. The result is a policy level discussion of maritime terrorist threats, vulnerabilities, and consequences as well as application of civil liability in the wake of maritime terrorist incidents. We recommend this as a minimal background reading for anyone involved in post incident "due diligence type litigation involving carriers, security services, governments, freight forwarders or consolidators, or non vessel owning common carriers.
------------------------------------------------------------------------------------------------------------------------------------------------------
Our response to an interesting key word search:
An "Oar Mace of Admiralty"
Sir Robert Phillimore was the last judge of the historic court of the Lord High Admiral of England. (PD-1996)
I used to watch movies like "MASTER AND COMMANDER" or video series like the HORATIO HORNBLOWER series, and read related fiction on the era and marvel at how on earth the writers could come up with such stories, details, and authenticity. Then someone gave me a gift of a book of written British Prize Court decisions from the era. Each decision outlines and provided considerable detail on some amazing "sea stories" that actually happened. Each decision could have easily been the basis for a book or film. The stories that ended up being litigated in the prize court after passing through the hands of skilled Hollywood writers made for some amazing cinematography. So if the subjects of maritime and admiralty law can be so photogenic, why are the people, objects, places, and processes of admiralty law not considered photogenic? Of course there is only one reason why we ever came up with this question. We recently were the referral site for a key word searcher looking for , of all things a "coffee table book on maritime law". We of course assumed that they meant a traditional
large volume heavy with photographs that the book industry typically calls a "coffee table book". We knew they didn't find an answer in our pages we have certainly never reviewed such a publication. So we searched Amazon and Books in Print. Apparently the world of professional photographers and photo publishers have over looked the admiralty courts as a photogenic subject. Unfortunately, we have no such book to suggest here, our search was in vain. But we actually think that the admiralty courts of the world are in fact filled with interesting and photogenic people, customs, and artifacts, and historical illustrations of past practices. To prove that such a book is possible and potentially interesting we decided to comb the public domain for interesting related images for this, our photo essay on admiralty law. Maybe we'll inspire some photographer to assemble a book.
A link to: Canute Road Conservation Area – Draft Appraisal . This study of a historic area of South Hampton, England contains many contemporary photos, some historic photos, and historic drawings of the area around the location of the "Admiralty Gallows". Constructed seaward of the high tide mark, within "admiralty jurisdiction" it was there that convicted pirates were led to their deaths proceeded in solemn procession by a court officer holding aloft the "silver oar mace of admiralty". We have a colonial version of such a mace depicted at the top of this post. We aren't showing any of the photos from this site here due our inability to confirm that the unaccredited photos in the report which appears to be a local government report are in the public domain. The collection also includes a photo of the former headquarters of the White Star Line, owners of the Titanic where the families of the crew gathered to await word of the fate of their loved ones.
One of the most famous criminal defendants ever to appear before a court of admiralty the Edward Teach aka "Black Beard", the pirate (PD-old-100). There are many other public domain images of Black Beard.
An image of the Marshalsea, an admiralty prison in London from a print believe dated 1878 (PD-old-100)
The Tower of London, housed a few famous defendants before the British Court of Admiralty. (PD-
The Tower of London from a print dated 1832 PD-old-100)
The U.S. District Court House and Customs House at Galveston Texas. U.S. Federal District Courts are the courts of admiralty jurisdiction in America. At the Customs house merchant ships are entered and cleared through customs . (Licensed under Creative CommonsAttribution-Share Alike 3.0 Unported by photographer Nsaum75
Jose V. Toledo Federal Building Houses the Admiralty court for Puerto Rico. (PD-donation of Osvaldo Ocasio)
Wax figure of a pirate from Madame Tussauds,museum London, executed at the London Dock on order of the Admiralty Court (PD, Photographer:Wolcott)
The hanging of a pirate at London's Execution Dock, last used in 1830. (PD-old-100)
U.S. Coast Guard (photo U.S.Navy )
Photo by Chief Petty Officer Aaron Glover : Members of the Malaysian Maritime Enforcement Agency (MMEA performing typical "coast guard" functions for Malaysia, one of the best small "coast guards" in the world)
ADMIRALTY LAWYERS PRESENT AND PAST:
Louisiana Admiralty Lawyer
Sir Robert Phillimore whose photo graced our opening of this post dressed a bit more formally in the old days.
We hope we've provided enough photographic food for thought that some enterprising professional photographer will consider a traditional coffee table book on maritime or admiralty law. Our research tells us there isn't much, if anything. on the market now. Our demographic research indicates a potential market of admiralty lawyers, judges, paralegals, law clerks and investigators around the English speaking world of thousands. The enforcers, the coast guards of the world represent another market, the U.S. Coast Guard alone has about 42,000 active duty members, about 8, 000 reserve members, over 40,000 auxiliary members and about 11,000 civilian employees. Just about every coastal nation has some form of coast guard. Many images are available free in the public domain. Some need to be captured but travel and production costs need not be prohibitive. We think an initial run of 1500 copies would sell out rather quickly.
This on line photo essay is likely to be about as far as we will ever take the idea. We really aren't in the publishing business. Our business is helping the public to find their needed maritime / nautical information where ever it is. In the case of the "Coffee Table Book on Admiralty or Maritime Law" the photo data appears to be as yet unorganized and formally presented. We hope we made a start here.
Johnas Presbyter, Editor
--------------------------------------------------------------------------------------------------------
Our response to an interesting key word search:
COULD ADMIRALTY LAW EVER BE CONSIDERED PHOTOGENIC ENOUGH FOR A TRADITIONAL "COFFEE TABLE BOOK".
An "Oar Mace of Admiralty" Sir Robert Phillimore was the last judge of the historic court of the Lord High Admiral of England. (PD-1996)
I used to watch movies like "MASTER AND COMMANDER" or video series like the HORATIO HORNBLOWER series, and read related fiction on the era and marvel at how on earth the writers could come up with such stories, details, and authenticity. Then someone gave me a gift of a book of written British Prize Court decisions from the era. Each decision outlines and provided considerable detail on some amazing "sea stories" that actually happened. Each decision could have easily been the basis for a book or film. The stories that ended up being litigated in the prize court after passing through the hands of skilled Hollywood writers made for some amazing cinematography. So if the subjects of maritime and admiralty law can be so photogenic, why are the people, objects, places, and processes of admiralty law not considered photogenic? Of course there is only one reason why we ever came up with this question. We recently were the referral site for a key word searcher looking for , of all things a "coffee table book on maritime law". We of course assumed that they meant a traditional
large volume heavy with photographs that the book industry typically calls a "coffee table book". We knew they didn't find an answer in our pages we have certainly never reviewed such a publication. So we searched Amazon and Books in Print. Apparently the world of professional photographers and photo publishers have over looked the admiralty courts as a photogenic subject. Unfortunately, we have no such book to suggest here, our search was in vain. But we actually think that the admiralty courts of the world are in fact filled with interesting and photogenic people, customs, and artifacts, and historical illustrations of past practices. To prove that such a book is possible and potentially interesting we decided to comb the public domain for interesting related images for this, our photo essay on admiralty law. Maybe we'll inspire some photographer to assemble a book.
A link to: Canute Road Conservation Area – Draft Appraisal . This study of a historic area of South Hampton, England contains many contemporary photos, some historic photos, and historic drawings of the area around the location of the "Admiralty Gallows". Constructed seaward of the high tide mark, within "admiralty jurisdiction" it was there that convicted pirates were led to their deaths proceeded in solemn procession by a court officer holding aloft the "silver oar mace of admiralty". We have a colonial version of such a mace depicted at the top of this post. We aren't showing any of the photos from this site here due our inability to confirm that the unaccredited photos in the report which appears to be a local government report are in the public domain. The collection also includes a photo of the former headquarters of the White Star Line, owners of the Titanic where the families of the crew gathered to await word of the fate of their loved ones.
One of the most famous criminal defendants ever to appear before a court of admiralty the Edward Teach aka "Black Beard", the pirate (PD-old-100). There are many other public domain images of Black Beard. An image of the Marshalsea, an admiralty prison in London from a print believe dated 1878 (PD-old-100)The Tower of London, housed a few famous defendants before the British Court of Admiralty. (PD-
Vera Kratochvil )
The Tower of London from a print dated 1832 PD-old-100) The U.S. District Court House and Customs House at Galveston Texas. U.S. Federal District Courts are the courts of admiralty jurisdiction in America. At the Customs house merchant ships are entered and cleared through customs . (Licensed under Creative CommonsAttribution-Share Alike 3.0 Unported by photographer Nsaum75 Jose V. Toledo Federal Building Houses the Admiralty court for Puerto Rico. (PD-donation of Osvaldo Ocasio)Wax figure of a pirate from Madame Tussauds,museum London, executed at the London Dock on order of the Admiralty Court (PD, Photographer:Wolcott)
The hanging of a pirate at London's Execution Dock, last used in 1830. (PD-old-100)ENFORCERS OF ADMIRALTY LAW TODAY: Coast Guards are the usual long arms of the admiralty law at sea
U.S. Coast Guard (photo U.S.Navy )
U.S. Coast Guard photo ID 090826-G-7510C-020 -The Japanese Coast Guard
Photo by Chief Petty Officer Aaron Glover : Members of the Malaysian Maritime Enforcement Agency (MMEA performing typical "coast guard" functions for Malaysia, one of the best small "coast guards" in the world)
ADMIRALTY LAWYERS PRESENT AND PAST:
Louisiana Admiralty LawyerRobert J. Young Jr.
Sir Robert Phillimore whose photo graced our opening of this post dressed a bit more formally in the old days.We hope we've provided enough photographic food for thought that some enterprising professional photographer will consider a traditional coffee table book on maritime or admiralty law. Our research tells us there isn't much, if anything. on the market now. Our demographic research indicates a potential market of admiralty lawyers, judges, paralegals, law clerks and investigators around the English speaking world of thousands. The enforcers, the coast guards of the world represent another market, the U.S. Coast Guard alone has about 42,000 active duty members, about 8, 000 reserve members, over 40,000 auxiliary members and about 11,000 civilian employees. Just about every coastal nation has some form of coast guard. Many images are available free in the public domain. Some need to be captured but travel and production costs need not be prohibitive. We think an initial run of 1500 copies would sell out rather quickly.
This on line photo essay is likely to be about as far as we will ever take the idea. We really aren't in the publishing business. Our business is helping the public to find their needed maritime / nautical information where ever it is. In the case of the "Coffee Table Book on Admiralty or Maritime Law" the photo data appears to be as yet unorganized and formally presented. We hope we made a start here.
Johnas Presbyter, Editor
--------------------------------------------------------------------------------------------------------
