Monday, April 18, 2016

Kickstarter Research Guide for Conflict of Laws (a.k.a. choice of law) in Maritime Cases

Here is a small research guide on a narrow point of law. As always, if you have any questions about this or other research that you're conducting, please let us know

Choice of law generally means “the question of which jurisdiction’s law should apply in a given case.” (Black's Law Dictionary (10th ed. 2014)). When a court is faced with this issue, it will apply conflict of laws rules – a procedural analysis.

“Specifically, a court seeking to reconcile the varying principles of different legal systems must (1) determine that it has jurisdiction over the matter, (2) apply either its own jurisdiction's rules or those of another legal system involved in the litigation, and (3) decide whether any foreign judgment already issued is to be followed.” (Id.

This may include an analysis of foreign law. See the research guides Basics of Foreign and International Law and Where to Find It: Foreign Law

The basic resources listed are designed to help you get a handle on the terminology of maritime and conflicts and a general grasp of the issue. The specific secondary sources listed below will guide you through maritime-specific issues. They will have general sections on jurisdiction and chapters covering other areas of maritime law. 

Important: there may be some differences on conflicts of law over criminal and civil matters, plus there may be maritime-specific rules. Because maritime is such a specific field, you may want to consult maritime-specific resources first. 

Specific secondary sources:
  • Benedict on Admiralty is a “go-to” maritime treatise. Available in print (KF 1104 .B4) or Lexis Advance. Start typing in “Benedict on admiralty” in the main search box. You can either select the name to search all content from there or select the image next to the name, which will bring you to the table of contents. In addition to the usual treatise materials, it also includes a wealth of historical information and copies of treaties and related materials. The “Desk Reference” provides a guide to legal research and quick summaries of the main ideas.
  • Law of Seamen. Available on Westlaw. § 1:29 is on choice of law generally and discusses the leading case Lauritzen v. Larsen, 345 U.S. 571, 1953 A.M.C. 1210 (1953). Other chapters focus on specific substantive areas such as criminal offenses, wages, and piracy.
  • International Conflict of Laws: Common, Civil, and Maritime (1994). Available in print (K 7449 .T47). Looks primarily at trade and commerce issues. Focuses on laws from the U.S., U.K., France, Canada, Australia, and the European Union, but does include summaries of conflicts provisions in 41 different countries. 
  • William Tetley, The Law of the Flag, “Flag-Shopping,” and Choice of Law, 17 Tul. Mar. L. J. 139 (1993). Available on HeinOnline or in print (K 24 .U416). 
Basic resources:
  • For a list of maritime quick references: see Study Aids on the Maritime Law Research Guide written by the Loyola Law Library. Includes: 
  • Quick practice-oriented introduction to conflicts of laws: International Litigation: Applying Foreign Law in US Litigation. You can find this on Westlaw by searching the title in the main search box. This is a very short guide. A similar resource on Westlaw is Litigation of International Disputes in U.S. Courts. If you type that title into the main bar on Westlaw, I would recommend selecting the Index to search for maritime-specific material.
For further consideration:
  • Legal encyclopedias:  
    • For criminal matters: 21 Am. Jur. 2d Criminal Law §§ 442-446, Westlaw (database updated Apr. 2016): discuss maritime jurisdiction, offenses on high seas, and offenses on territorial waters. This is available on Westlaw – type in American jurisprudence 2d in the search box. Find criminal on the list (you may also want to browse conflicts of laws). Select Part One General Principles; VII. Personal and Subject matter jurisdiction; B. place offense is committed; 2. Extraterritorial Jurisdiction. 
    • For civil matters: Restatement (Second) of Conflicts of Laws § 56, Westlaw (database updated Mar. 2016).
  • Maritime Criminal Acts – Draft Guidelines for National Legislation, Int'l Mar. Org. (Aug. 15, 2007),,2766,16632,00.html. This publication from the Comite Maritime International (the leading private maritime international organization) proposes draft guidelines for national legislation on maritime criminal acts. 

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