Jones, John Paul

English

University of Richmond

University of RichmondUR Scholarship RepositoryLaw Faculty Publications School of Law1996Review of Robert M. Jarvis (ed.), An AdmiraltyLaw AnthologyJohn Paul JonesUniversity of Richmond, jjones@richmond.eduFollow this and additional works at: http://scholarship.richmond.edu/law-faculty-publicationsPart of the Admiralty CommonsThis Book Review is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion inLaw Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contactscholarshiprepository@richmond.edu.Recommended CitationJohn Paul Jones, Book Review, 27 J. Mar. L. & Com. 485 (1996)journal of Maritime Law and Commerce, Vol. 27, No. 3, July, 1996Book ReviewsAN ADMIRALTY LAW ANTHOLOGY. Edited by Robert M. Jarvis.Cincinnati: Anderson Publishing Co., 1995. Pp. ix/159. USD 21.00. ISBN0-87084-017-7.Professor Jarvis, an experienced legal editor with a history of service tothis journal, the University of San Francisco Maritime Law Journal, and theMaritime Law Reporter, has collected thirty articles in one slim volume. Asedited, they average fewer than five thousand words, and range from barely340 words criticizing the U.S. Supreme Court's decision in Bisso v. InlandWaterways Corp.' to the more than ten thousand words of George Healy'ssurvey of maritime personal injury and wrongful death law. Fourteen of thearticles come from professors, one from a judge, eleven from practitioners,two from average adjusters, three from Coast Guard officers, and three fromlaw students. All originally appeared in law journals; none came from books;none from trade journals or newspapers. Nine of the articles first appearedhere, in the Journal of Maritime Law and Commerce; eight first appeared inthe Tulane Law Review.The dictionary on my office shelf defines an anthology as "a collection ofselected writings by various authors, usually in the same literary form or onthe same subject." It is safe to say that all thirty of these law review articlesemploy the same literary form. While they are all writings on the samegeneral subject of maritime law, they address fifteen different topics withinmaritime law, e.g., salvage, general average, the maritime lien. The worktherefore qualifies as an anthology without straining the point. It might bemore accurate, however, to describe it as a reader, and thereby convey theuse for which it was obviously intended. That law students were intended asits consumers seems clear from the way the publisher markets the series inwhich Professor Jarvis's book appears. According to Anderson Publishing,An Admiralty Law Anthology (like its mates) offers "enrichment readingbeyond the traditional casebook." Moreover, the headings of ProfessorJarvis's chapters correspond to those in casebooks offered by leadingAmerican publishers for use in law school courses in admiralty and maritimelaw. Indeed, the number of chapters-fifteen-comes conveniently close to'349 U.S. 85 (1955).485486 Journal of Maritime Law and Commercethe number of weeks in a semester as ordained by the American law schoolaccrediting body. A chapter a week surely must have been the pace in themind of the work's superintendent. For the most part, the articles addressessential elements of maritime law uncontroversially, and without a com-mon theme. An Admiralty Law Anthology thus offers about what thesynecdochic nutshells by West Publishing offer, albeit by various authorsrather than one. What most commends the Anthology to me as a teacher isthe three articles by law students. Beyond their excellent content, they signalto an audience of peers that critical and scholarly writing on a par with thatof professors and practitioners is something for students to dare.All the footnotes have been excised from these law review articles. Ifound this so startling that I began to consider what functions the absenteesought to have been serving. Had they been present for duty, they could haveconveyed citations, that is, offered directions for locating the printed workwhich the writer was discussing or the primary sources on which she wasrelying. Otherwise, they could have presented amplifying, circumferential,or explanatory materials. Because An Admiralty Law Anthology wasintended by its publisher to accompany (rather than to supplant) a casebook,and because the chosen articles address central themes found in famouscases, citation footnotes could be deleted as unnecessary for the studentreaders at whom the book is aimed. On the other hand, I was prepared toobject to the omission of footnotes of the other sort, that is, explanatorynotes. For example, in Benjamin W. Yancey's article, The Carriage ofGoods: Hague, Visby, and Hamburg, the author reports that the troublesomeeffect of the "benefit of insurance" clause in a carrier's bill of lading (that is,cutting off the cargo underwriters' right of subrogation) was nullified byinvention by cargo underwriters of the loan receipt. Page 50. Surely if thebenefit-of-insurance clause needed defining for a typical Anthology reader,then the loan receipt would, too. As the former was defined in the text, I fullyexpected the latter to be defined in a footnote, and therefore to offer anexample of a jettisoned note better left aboard. But a loan receipt is notdefined in Mr. Yancey's article as it appeared in the Tulane Law Review, sothe absence affords no basis for my exercising either Professor Jarvis or theseries editor regarding footnote deleting. In Marine Insurance: Varieties,Combinations, and Coverages, authors Raymond P. Hayden and Sanford E.Balick refer to "red-letter clauses" in builder's risk policies, but do notdefine the term in their text as reprinted in the Anthology. Turning to theTulane Law Review, I again found the omission chargeable to the originalauthors or their law review editors, and not to those who trimmed thefootnotes for the Anthology. In the end, I could identify no more grievousconsequence from eliminating footnotes than that in the article by Mr.Hayden and Mr. Balick, where omission of an identifying note made crypticVol. 27, No. 3the authors' reference to "a frequently criticized Supreme Court decision"which constrained towing companies more "than their salty counterparts inthe matter of indemnification." Page 127. Without assistance, most lawstudents probably would not recognize this as a reference to Bisso v. InlandWaterways Corp.Coincidentally, Bisso is soundly and succinctly criticized by Daniel B.MacLeod in his The Use of Exculpatory (Red Letter) Clauses in Ship RepairContracts thirty pages before. Page 94. Not much of Mr. MacLeod's articleappears in An Admiralty Law Anthology, but that does not seem strange inview of what appears to have been a decision to stick to the basics. Indeed,the excerpt from Mr. MacLeod's article is only 343 words long; it is,therefore, the best evidence of the sharp scalpel deftly wielded by EditorJarvis. What was almost a digression in the article as it appears in theUniversity of San Francisco Maritime Law Journal stands perfectly wellalone, Lilliputian but undiminished, in the Anthology.One edits by inserting as well as by deleting. Professor Jarvis is anunobtrusive editor, saving his two cents respecting the more controversialassertions of some contributors for another venue, another day. Here, heoffers only the most neutral of introductions to each chapter. Typical of hisgentle touch is the introduction to Chapter 14, Limitation of Liability:Shipowners historically have been permitted to limit their liability to the valueof their vessels. The reading below outlines the development of limitation anddiscusses the judiciary's hostility towards the concept.Page 133. In one or two places, the reader might have profited from editorialintrusion in the form of a set of brackets enclosing information of particularuse. For example, the first and supposedly simplest illustration in Peter N.Swan's excellent piece, Client Counseling and Settlement Evaluation-AProbabilistic Approach with Special Reference to Admiralty, surely wouldmake more sense were it accompanied by a brief explanation as to whydamages claimed by a stranded vessel admitting its own liability ought to bedivided in half for a calculation on behalf of the other vessel said to havebeen involved. My assumption is that Professor Swan, writing monthsbefore United States v. Reliable Transfer Co.2 even was argued in the U.S.Supreme Court, applied the historical rule of equal division of damages.Given that the Anthology seems to have been aimed primarily at studentreaders, interpolations relating the traditional rule of collision damageapportionment to stranding, and calling to the reader's attention whatReliable Transfer soon did to Professor Swan's unstated premise would haveenabled a fuller appreciation of Professor Swan's work. Indeed, for the latter2421 U.S. 397 (1975).Book Reviews 487/July 1996488 Journal of Maritime Law and Commerce Vol. 27, No. 3point, an editor's note could have referred elsewhere in the Anthology to thelucid and succinct Basic Principles of the Law of Collision by Nicholas J.Healy and Joseph C. Sweeney. Another simple cross reference mightotherwise have prevented the confusion engendered in the article by Mr.Hayden and Mr. Balick, when deletion of an identifying footnote left themalluding disparagingly to Bisso v. Inland Waterways Corp. without namingit. A note from the Anthology editor could have identified the case clearlyand referred readers to Mr. MacLeod's sharp but brief criticism.From editing, I would distinguish proofreading. Even a casual readingturns up one or more proofreading errors in each article, invariably of thesort that spelling checking software programs do not detect. For the mostpart, these amount to very minor distractions while the reader fathoms"criminal seal law," "a contact for towing," "civil are," and the like. Onesuch error is worth bringing to the attention of readers before they begin. InProfessor Swan's article on evaluating claims for settlement purposes, 2nappears as 2n. Page 146. Admitting to deeply seated math phobia, Inevertheless venture that the former is not accurately conveyed by the latter.One who takes the trouble to edit a collection of writings surely earns theprivilege of choosing, without superintendence, what to include or omit. Itseems natural, nevertheless, to indulge in the pastime of What If I Had BeenEditor? Few could quibble with Professor Jarvis's decisions to include; thecollection is excellent on the subjects he has covered. My only quibble iswith what he did not include. Contrary to the laudable interest of brevity, Imight have argued for articles on three more subjects: treasure, pleasure, andcrime. The tension between treasure salvage and marine archaeology iscertainly dynamic, and therefore worthy of study in an era of technologicalbreakthroughs in deep water search and retrieval. As the law seems to beout-pacing attempts to write about it, were I editor, I would opt fortimeliness over comprehensiveness and take up Gold, Abandonment, andSalvage, Patrick J. O'Keefe's recent comment in Lloyd's Maritime andCommercial Law Quarterly3 on the decision by the U.S. Court of Appealsfor the Fourth Circuit in Columbus-America Discovery Group v. AtlanticMutual Insurance Co. (The Central America).4 The only omission byProfessor Jarvis that I might call glaring is that pertaining to the relationshipof admiralty law to recreational boating. Where is Preble Stolz's seminalarticle from the California Law Review, Pleasure Boating and Admiralty:Erie at Sea?5 Finally, I suspect that the editor's charming tendency forself-effacement lies behind the absence of an article on maritime criminal[11994] LMCLQ 7.4974 F.2d 450, 1992 AMC 2705 (4th Cir. 1992), cert. denied, 507 U.S. 1000 (1993).551 Cal. L. Rev. 661 (1963).law, as my first choice for a work on that subject would be Professor Jarvis'sown Common Ethical Problems in Maritime Criminal Cases, published inan earlier issue of this journal. 6 Because of its focus on the ethical perilsassociated with representing a criminal defendant, Professor Jarvis's articleis an excellent introduction for maritime students who, no doubt, regard acriminal case as the farthest thing on their professional horizons. For otherreaders, very useful footnotes identifying a most helpful treatise and theimportant cases commend the original version.Any law school offering a course in maritime law shelves the journalsfrom which An Admiralty Law Anthology has been compiled. There is,therefore, available to the Anthology's anticipated buyers, free and easyaccess to the originals. Nevertheless, I expect today's law students to regardtwenty-one dollars well spent in exchange for the convenience offered byProfessor Jarvis's combination and abridgments. I will offer that opinion tomine.John Paul Jones*623 J. Mar. L. & Com. 387 (1992).Professor of Law, University of Richmond. Member of the Editorial Board of the Journal ofMaritime Law and Commerce.Book Reviews 489July 1996Journal of Maritime Law and Commerce, Vol. 27, No. 3, July, 1996INTERNATIONAL CONFLICT OF LAWS: COMMON, CIVIL ANDMARITIME. By William Tetley. Montreal: International Shipping Publica-tions, 1994. Pp. cix/1103. CD 195.00. ISBN 2-89073-988-0.The title of this book suggests a number of things about the materialtherein. For example, the "international" prefix brings to mind contrast withso-called "interstate" conflict of laws to be found in federal jurisdictions.Similarly, the "Common, Civil and Maritime" subtitle may be read to inferthat the regimen of maritime law deserves to be, or is best, examined in itsown right alongside the other traditions identified. Professor Tetley brings arecognized wealth of academic as well as practical experience to unavoid-ably international maritime law, with special reference to its conflictualaspects.The main contribution of the review book is in the author's radical "fifth"thesis, "a consistent and uniform methodology" (page 37) aimed at isolatingthe properly applicable law. The methodology deprecates rigid adherence tothe institutional distinction made between procedure and substance and,moreover, leans toward a more substantivistic, civilian law-type redefinitionof these basic precepts. This is very much in line with the current "fourth"approach in national legislation and international conventions. Conse-quently, the "fifth" would extend proper law rationales, flexibility ofapproach, and the practical function of the precepts to several areas that haveconceptually been regarded as regulated by forum law because they areessentially procedural. This is the subject of the first substantive Part of thebook, "The Theory," and runs into six chapters which trace the historicaldevelopment of general aspects of conflict theory and method not limited tothe shipping law aspects. It rounds off with a discussion of such topics asrenvoi, public policy, and mandatory rules in international and comparativecontexts, e.g., forum statutes, the Hague Rules 1924, the Hague-Visby Rules1968, and the Hamburg Rules 1978."The Theory" is consistently masterful in its conflictual analysis andexposition, and is especially commendable on a number of points. Forexample, Professor Tetley argues in favor of the application of an interna-tional definition of public policy (presumably limited to shipping) andaddresses the contradistinction between conflict avoidance and evasion bythe litigants, always with ample sketches of existing case law and with morethan adequate references to the variety of national laws and internationalconventions. A bona fide choice of law clause in a charterparty or in a saleagreement is given to illustrate avoidance, while a marine insurance policyor a bill of lading clause that specifies a law other than the governing lawtypifies evasion. Choice of jurisdiction clauses are valid in a charterparty butnot necessarily so in bills of lading or in towage contracts. Pages 154-166.492 Journal of Maritime Law and CommerceThe remainder of the book is in nine Parts which carry twenty furtherchapters (between Parts Two and Eight), plus Part Nine (summaries offorty-one national maritime conflicts systems) and Part Ten (appendices ofvarious pertinent documents). Part Two deals with territoriality and nation-ality; Three with contracts; Four with torts and delicts; Five with "specialquestions" of shipowners' limitation of liability and of maritime liens,mortgages, and claims; Six with so-called ancillaries; and Seven with proofof foreign law, jurisdiction, and recognition. Part Eight is the concludingchapter. Parts Nine and Ten, respectively, detail national maritime conflictssystems plus several definitive international instruments. Pervasive issuesinclude the contemporary inadequacies of the application of the law of theflag, the quality of the notion of closest connection, and the reference toselection either of a rule of the applicable legal system or of the legal systemitself. These are raised and discussed in the ensuing chapters. Every chapterends with a conclusion or set of conclusions invariably along the lines of theauthor's definitional thesis/methodology identified. Professor Tetley realis-tically predicts that the "next frontier will be international conventions onprocedure." Page 868.In relation to (say) the English tort position, the reader might question theopening gambit that "it has been the traditional and accepted view thatmatters which were deemed substantive were subject to their own properlaw, even if it was a foreign law." Page 47 (emphasis added). In no waycould this diminish the book's sound academic basis nor, for that matter,should the fair, referential detail not capture the practitioner's attention. Acontemporary, eminently accessible book well-conceived of, and one whichaffirms its author's experience across several jurisdictions, it should have itsplace alongside cognate authoritative texts.Aleka Mandaraka-Sheppard* and Olusoji Elias**Director, Shipping Law Centre, University College London.Doctorant, University College London; Visiting Lecturer, Law of Conflict of Laws, Bar Finals.Vol. 27, No. 3

Review of  Robert M. Jarvis (ed.), An Admiralty Law Anthology

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Review of Robert M. Jarvis (ed.), An Admiralty Law Anthology

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