November 24, 2020 Articles

Top Seven Considerations for Mediating a Maritime Dispute

Mediators who are asked to mediate an admiralty and maritime dispute should consider federal common law or state law, arrest and attachment, limitation of liability, security, and letters of undertaking.

By David Loh

Admiralty and maritime law are the only areas of law specifically referenced in the U.S. Constitution, in Article III, section 2. Today, there is no distinction between the two, but when the Constitution was written, it was still the age of sailing and the use of privateers was common. A privateer was a private individual who was granted a government or royal commission during wartime to use any means necessary to capture vessels flying the enemy flag. The captured vessel and its contents would be registered with a court in admiralty, and anyone with a claim to that property would be required to file against that property. Any unencumbered property would be sold at auction and the proceeds distributed by the court. Courts in admiralty would hear other types of what were then known as “blue water” disputes. “Brown water” disputes—such as disputes involving barges, piers, and the like—would be considered “maritime” matters.

With that bit of history under our belt, let’s discuss some of the most important considerations in mediating an admiralty or maritime dispute. 

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