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Authors

Buffy D. Lord

Document Type

Article

Abstract

The sea lies all about us. The commerce of all lands must cross it. The very winds that move over the lands have been cradled on its broad expanse and seek ever to return to it. The continents themselves dissolve and pass to the sea, in grain after grain of eroded land. So the rains that rose from it return again in rivers. In its mysterious past it encompasses all the dim origins of life and receives in the end, after, it may be, many transmutations, the dead husks of that same life. For all at last returns to the sea-to Oceanus, the ocean river, like the ever-flowing stream of time, the beginning and the end. Since the dawn of humanity, the sea has been a source of sustenance, providing food and avenues of trade. The earliest civilizations used the sea as an avenue to search for wealth in the form of spices, minerals, and other natural resources. The search for natural resources and wealth resulted in the establishment of the maritime industry that would continue in some form or another until the present. The long history of the the maritime industry is dotted with both success and disputes. In the maritime industry, arbitration has served as a common tool for the settlement of disputes for several decades. In the past, the large amount of informal personal contact, the limited number of people, and the concentration of the shipping industry in New York led to an atmosphere conducive to the amicable resolution of disputes before "dreaded lawyers" could become involved. Presently, the shipping industry is no longer made up of a small number of people or concentrated in one state. This results in a loss of the close personal contact that facilitated arbitration in the past. These changes in the shipping industry led to the immediate consultation of lawyers as a necessity when problems arise, and the continued presence of lawyers through the resolution of those problems. Despite any changes, maritime arbitration remains a popular way to resolve maritime disputes that arise, in part because of the often lower costs involved and the ability to mold the process to the needs of the parties involved. Maritime arbitration is most often the result of an arbitration clause in a contract, in which case, the clause controls. The clause may contain provisions pertaining to the site of arbitration, the procedures to be followed in arbitration, the makeup of the arbitral tribunal, and the remedies available. Part I of this Article discusses the availability of interim measures in maritime arbitrations. Part II of this Article examines the treatment of forum selection clauses under the Carriage of Goods by Sea Act. Part III of this Article focuses on the choice of law selection in maritime arbitrations. Part IV discusses damage awards in maritime arbitrations. Part V concludes that while many areas of maritime arbitration have evolved over time to facilitate maritime arbitrations, other areas have not. Punitive damage awards must become a recognized weapon in the arsenal of arbitral panels where applicable and, more importantly, the evaluation of the validity of foreign forum selection clauses must go to the fundamental fairness of the applicable law, not only to the costs involved.

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