Ice Strands Ferry in Baltic

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I wonder what the ice rating is on that ferry.

UK Admiralty Law: Is the Principle of The Amerique Applicable to All Types of Salvage Cases

I just came across an interesting UK salvage case that I thought was noteworthy. In Ocean Crown, the Owners of the Vessel & Ors v Five Oceans Salvage Consultants Ltd, the M/V Ocean Crown a bulk carrier, 189.99 meters in length laden with 49,850.6 tons of copper concentrates ran aground on an uncharted rock in the Canal Darwin in August 2007. Via a Lloyds Open Form standard form of salvage agreement The Owners entered into an agreement with Five Oceans for the contractors to "exercise their best endeavours to salve the vessel and her cargo and that the Contractors' remuneration for doing so would be determined by arbitration in London."

The salvage was successful and the arbitrator made an award of $34,500,000 plus interest and costs; the appeal arbitrator increased that award to the sum of $40,750,000, plus interest and costs. However, the appeal arbitrator made this comment about the contractors:

" This was a case where the service was complex and comprehensive and thus the principle in The Amerique does not apply in terms. Rather general considerations of proportionality and balance are to be applied. "

The High Court of Justice considered the following three issues.

i) Whether, when assessing salvage remuneration payable pursuant to a Lloyds Open Form salvage agreement in the standard form, it is correct to take into account, as an enhancing feature, the possibility that the salvor and/or the salvage industry may experience difficult economic conditions in the future;

ii) If, in principle, it is relevant to take such matters into account, whether it is permissible to take into account the actual economic conditions experienced between the date of termination of the services and the date of the award;

iii) Whether the principle in The Amerique (1874) LR 6 PC 468 is applicable to all types of salvage cases, including complex and comprehensive cases, or whether, as the appeal arbitrator found, a different principle applies in such cases.

The Court answered issues i and ii, no but yes to issue iii. The principle in The Amerique is that when a salvage awarded by the Court below is under appeal it shall not be altered unless the difference between the sum allowed and the sum the Court of Appeals believed should be allotted is very considerable or so excessive (or small) that it would be unjust to confirm it.

The high court concluded that the appeals court erred in concluding The Amerique principle did not apply and that the Owners of the Vessel were entitled to an appeal on the issues.

Amazing Video of Coast Guard Medivac

ELIZABETH CITY, N.C. - Coast Guard crews medically evacuated a 5-year-old boy and his parents Monday afternoon from an oil tanker approximately 250 nautical miles east of Bermuda.

The crew of the tank ship Axel Spirit called Rescue Coordination Center Bermuda Sunday and reported that a boy onboard was experiencing symptoms of appendicitis and needed help. After coordinating with Rescue Coordination Center Norfolk, Va., a Coast Guard flight surgeon determined that his symptoms were severe enough to require immediate medical attention.

The RCC Norfolk watchstanders looked for vessels participating in the Automated Mutual-Assistance Vessel Rescue System, or AMVER vessels, but there were no ships in the area that could provide the appropriate care. Due to the tanker's distance from land, an Air Station Elizabeth City MH-60T Jayhawk helicopter crew had to be pre-staged in Bermuda Sunday in order to rescue the boy Monday when the ship was within range. One of Elizabeth City's HC-130J Hercules aircraft crews flew over the helicopter as they hoisted the people aboard to provide oversight and communications at such a far distance from land.

They were met by local EMS in Bermuda and the boy was taken to King Edward VII Memorial Hospital there.

The Great Things You Find in Old Books

I'm currently looking at a copy of Dudley's Military Law and the Procedures of Courts-Martial published in 1910. Someone wrote on one of the first pages, "Get charges & spec. for drunk, theft, absence without leave, desertion." Leaving me to wonder if this was written the prosecution, the defense, or someone planing to get drunk, steal a truck and go awol.

Despite Court Victory: Navy Sonar Plans Could Face Stricter Rules

In Winter v. Natural Resources Defense Council the Supreme Court found that military preparation trumped environmental concerns regarding the impact of the Navy's sonar on marine mammals. But the story evidently isn't over.

On Jan. 19 a letter to the White House Council on Environmental Quality, Jane Lubchenco, undersecretary of commerce for oceans and atmosphere, outlined new steps by the National Oceanic and Atmospheric Administration, which seeks to collect information and population data of marine mammals and assess impacts of mid-frequency active sonar used by the Navy.

In the letter to Nancy Sutley, the council’s chairwoman and the president’s principal environmental policy adviser, Lubchenco outlined the measures taken by the Navy during training exercises to lessen harm to marine mammals from sonar exposure. These include trained lookouts on bridges to identify marine mammals, course changes to avoid marine mammals, and reducing or shutting down active sonar when mammals are within 1,000 yards of the ship. But she added that it doesn’t have to stop there.

H/T: Navy Times

The America's Cup: The Greatest Sporting Event to Take Place in a Courtroom

Alinghi has threatened to take its marbles and go home if its sails are disqualified. It won't race.

"We have been clear: If BMW Oracle succeeds in disqualifying the defender's sails, then there will be no match," said Fred Meyer, vice commodore of Société Nautique de Genève, the Swiss defender's sponsoring yacht club. "Russell Coutts [BMW Oracle's CEO] will have won the America's Cup for Larry Ellison without sailing. An irony unto itself, given Russell's use of 3DL sails on every AC team he has raced with since 1995 - New Zealand, Switzerland and now the USA."

You want make the America's Cup fun and exciting again for average sailors? Bring back wooden J-class yachts with canvas sails. But that's just one man's opinion. I personally find the court battles very entertaining.

H/T: Trade Only Today

1000 Visitors

Today the Admiralty & Maritime Law Blog hit 1000 visitors*. Or to be more accurate, 1000 visitors since I started counting. Not bad for blog that began a few months ago as just a way to encourage myself to explore topics in Admiralty Law. We've had visitors from every continent except Antarctica and I've learned more about this fascinating area of the law than I dreamed possible. So thanks to everyone who reads and comments I hope you find the blog as enjoyable to read as I do to write.


*Disclaimer: technically the 1000th visitor was the googlebot, so I'm counting the 1,001st visitor (from the US Navy Academy) as number 1000.

Naval Academy Football Player Permitted to Remain in School After Testing Postive for Drugs

A Naval Academy football player is being permitted to continue as a midshipman even after testing positive for drug use, according to multiple sources and Web sites that have sprung up to criticize the decision.

Midshipman 3rd Class Marcus Curry, a star slotback and a key weapon in the team’s potent running offense, tested positive for marijuana in his system in December. According to sources with knowledge of the situation, Curry smoked a cigar packed with a mixture of pot and tobacco — also known as a “blunt” — deeply enough for the drug to show up on a random urinalysis test. But he told Naval Academy leaders he didn’t know that what he was smoking was marijuana and is being permitted to continue at Annapolis, the sources said.

From the Navy Times

Now this isn't Admiralty related but I do love the Navy so I thought it deserved a post. I remember back in the mid-90s when there was a drug scandal at the Academy resulting in the expulsion of 15 students, but what makes this case particularly "notable" are the reports that Curry already had three honor code violations before failing his drug test.

Critics of the decision have set up a Facebook page here.

Aqua Log, Inc. v. Georgia: Sovereign Immunity and in rem Admiralty Proceedings

Another interesting case from my home state of Georgia in the 11th Circuit and while it probably wont have the impact of the GPPA decision, it's still quite interesting. Many years ago the old growth forests of the East were cut and the logs were shipped down river to be processed at mills and markets on the coast. Now some of these logs were lost in transit and sank to the bottom of the river. In todays market these old growth logs are quite valuable being larger and straighter than most trees that grow today.

In 1985, Georgia passed a statutory scheme governing the use and ownership of submerged cultural resources. See O.C.G.A. § 12-3-80. Under these statutes, the state is given title to all submerged cultural resources and the Georgia Department of Natural Resources (DNR) is empowered to enact such rules and regulations as may be necessary to protect or recover such resources. O.C.G.A. § 12-3-80.

The Wildlife Resources Division of the DNR contracted with the United States Department of the Navy to use sonar to survey portions of the Altamaha River for the presence of deadhead logs. The survey was completed on September 20, 2000, and revealed a relatively low number of logs, many of which have likely changed position since the time of the survey due to normal river conditions.

Aqua Log filed two nearly identical complaints against certain specified in rem defendant logs lying on the bottom of the Altamaha and Flint Rivers in the Southern District and Middle District of Georgia. In each case Aqua Log requested the court to grant a salvage award for its recovery of the in rem defendants, or, if the owners of the logs could not be determined, title to the logs under the law of finds.

At the time Aqua Log filed its complaints, Georgia had a permit procedure in place exclusively applicable to the removal of deadhead logs. See O.C.G.A. § 12-3-82.1 (repealed January 1, 2008). This procedure required anyone who desired to recover deadhead logs to first submit an application to the DNR with a plan detailing the location, scope, and methods of the proposed recovery. O.C.G.A. § 12-3-82.1(c). The DNR was authorized to issue a permit only after considering the operation's effect on factors such as water quality, wildlife habitat, the state's commercial and recreational fisheries, endangered species, and land use. O.C.G.A. § 12-3-82.1(e)(1). The applicant was required to pay an annual fee of $10,000, post a bond of up to $50,000, and pay the DNR adequate consideration for any recovered logs. O.C.G.A. § 12-3-82.1(f)-(h). Anyone who removes a submerged cultural resource without a permit is guilty of a misdemeanor. O.C.G.A. § 12-3-83.

Georgia filed a statement in each case for the limited purpose of alerting the court to Georgia's claim of ownership of the in rem defendants. The statements explicitly stated Georgia did not waive its sovereign immunity. Georgia also filed a motion to dismiss for lack of subject matter jurisdiction in each case, arguing the Eleventh Amendment barred the court from adjudicating its interest in the logs. Both district courts denied Georgia's motions, finding the Eleventh Amendment did not defeat federal jurisdiction because the state lacked actual possession of the res at issue in each case. Georgia appeals these orders in a consolidated appeal.

In Deep Sea Research, the Supreme Court reaffirmed the vitality of a series of cases dating back to the nineteenth century that hold a government can assert sovereign immunity in an in rem admiralty proceeding only when it is in possession of the res. Although these cases hold a state lacking possession cannot assert sovereign immunity, courts have yet to provide a comprehensive definition of the possession requirement. After reviewing the precedent, the court concluded a state must exert some element of physical control over the res to satisfy the possession requirement.

The court concluded that Georgia's possession was, at most, mere constructive possession, which was insufficient to meet the possession requirement of the Supreme Court's in rem admiralty jurisprudence and that Georgia performed no act of physical control with respect to the res. Furthermore, Georgia's legal control of the res is also insufficient to create possession for purposes of Eleventh Amendment immunity.

However the court did not adjudicate the actual ownership of the logs. "We therefore hold Georgia cannot assert Eleventh Amendment immunity and must submit to the district courts' jurisdiction. This Court does not address which party should ultimately prevail on the merits. We express no opinion as to whether Aqua Log may claim the logs under admiralty law."

While this Eleventh Amendment and sovereign immunity arguments are interesting, the actual disposition of the logs may be key to determining if a state can protect "submerged cultural resources" from unauthorized recovery.

City of Adelaide Clipper Ship Doomed

After 145 years as an icon of the British merchant marine, the City of Adelaide, the oldest surviving clipper ship in the world, is to be “disassembled” – bureaucratic doublespeak that means she will now be demolished.
Despite being ranked as one of Britain’s 10 most important historic vessels, City of Adelaide has spent the past 12 years high and dry on the banks of the River Clyde at Irvine, just south of Glasgow. Although the hull remains in good condition, the owners, the Scottish Maritime Museum, have failed in their repeated attempts to raise the £10 million needed for her restoration.

With mounting debts and no viable alternative, the museum was given permission to remove the ship from the protection of Scotland’s Heritage List. After an internal and external laser survey to record her lines, the bow and stern sections are to be cut off and re-housed in the nearby museum. The rest will go for scrap.
City of Adelaide was designed and built in 1864 by William Pile, Hay and Company of Sunderland on the River Wear in northeastern England. The ship has a length overall of 176.8 feet, a beam of 33.2 feet and a draft of 18.8 feet. Her registered tonnage was 791.

With no expense spared on her fit-out, she was lavishly furnished with polished mahogany paneling in her first and second class cabins and in her sumptuous main saloon. She was meticulously maintained and for 17 years rated A1 at Lloyds.
City of Adelaide was one of the earliest composite ships. Her riveted, iron framed hull, planked with the finest American oak and Burma teak, had exceptional strength and allowed her Captain, David Bruce, to drive her hard and fast as she ran her easting down in the Roaring Forties on the long passage through the Great Southern Ocean between the Cape of Good Hope and South Australia.

In 1869, just five years after City of Adelaide’s launching, the opening of the Suez Canal signaled the beginning of the end for the windships. Steamers quickly captured the most lucrative trades and although City of Adelaide carried on as a passenger ship until 1887, the handsome clipper suffered the indignity of being sold first as a collier hauling coal between the Tyne and Dover and then into the North Atlantic timber trade.

In 1893 her days under sail came to an abrupt end when the Corporation of the City of Southampton bought her and fitted her out as a hospital ship to deal with cases of infectious diseases arriving in the Port. She lay at anchor in the River Test near Southampton for 30 years before being sold to the British Admiralty.
Re-named HMS Carrick, she served as a sail training ship for the Royal Navy Volunteer Reserve throughout the Second World War. It was as the RNVR Club that she spent the next 40 years moored in the River Clyde opposite the Customs House in the heart of Glasgow.

In 1990 the RNVR gifted her to the Clyde Ship Trust, which had hoped to feature her in a planned Clydeside Maritime Heritage Centre where she sank at her moorings.
In 1991 the ship was rescued by the Scottish Maritime Museum and hauled out of the water at Irvine, just south of Glasgow, to await restoration. In 1992, with £1 million in hand for her restoration, work started on phase one, but the museum quickly realized the task was going to cost a great deal more money than it had any prospect of raising.

While her clipper cousin, Cutty Sark, was given Heritage Lottery grants of £23 million in London, no such funding was forthcoming for the City of Adelaide. For 12 years the ship has sat high and dry under covers on her slipway at Irvine while various restoration schemes were considered and rejected.
Then, in February 2001 the financial dilemma forced the Scottish Maritime Museum to do something that no conservation body in Britain had ever done: it formally requested consent to demolish the ship.
The application was made despite the ship’s status as a protected A-listed historic structure, a status enjoyed by only a handful of other iconic British vessels like Nelson’s flagship, HMS Victory, the steamship Great Britain and the tea clipper Cutty Sark.

An unprecedented storm of international protest arose. Objections were made by individuals, universities and heritage bodies throughout the UK, Europe, the United States and Australia.

The furor was such that the Duke of Edinburgh as Chairman of Britain’s Historic Ships Trust, convened a conference in Glasgow in September 2001 to consider ways in which the ship might still be saved. The conference produced a lot of well-intentioned talk but no action.

The coup de grâce was finally delivered by the Scottish Executive. In 2002 the government in Edinburgh tied its funding for the Scottish Maritime Museum to the condition that none of its money was to be spent on City of Adelaide.
Notwithstanding the fact that the museum holds the major collections of Scotland’s considerable maritime history, it is now on “survival funding”, a drip-feed from the government that means the very future of the museum and its collections of national and international importance is now in question.

CO of Naval Weapons Station Charleston, Arrested for Solicitation

Capt. Glen Little, 55, was immediately relieved of command and reassigned to administrative duties with Navy Region Southeast, after being arrested Tuesday and accused of trying to pay a prostitute $20 for oral sex.

Little, began his naval career in 1972 as an enlisted man and was promoted to senior chief petty officer before receiving a commission as a limited duty officer in 1985.

According to the Navy Times, Little was the third commanding officer to be fired in January.


From Navy Times.

Tradearbed Inc. v. Western Bulk Carriers K/S: Private Carriage, Voyage Charter, and COGSA

An interesting unpublished decision out of the 5th Circuit addresses liability for steel coils damaged my moisture in the hold. In December 2002, TradeArbed entered into a charter party with Western Bulk to ship hot-rolled and cold-rolled steel coils on the Medi Trader, from Bourgas, Bulgaria, to New Orleans. When cold-rolled coils reached their destination they were rejected due to heavy rust and TradeArbed was forced to sell them at a depreciated value.

Surveyors agreed hold three contained “tide marks”-evidence of standing water in the hold. In the three holds containing the coils at issue, surveyors also found “drip-down condensation” resulting from water condensing at the top of the hold and dripping onto the cargo. Surveyors generally agreed this was fresh-water, as opposed to salt-water, condensation, and attributed it to the moisture introduced during loading. It was also noted that some coils were dripping water during unloading in New Orleans.

Western Bulk contended: TradeArbed failed to prove its prima facie case for damage to cargo; the district court applied an improper method to calculate damages and, in the alternative, erred by not applying COGSA's $500-per-package damage limitation; and this was an instance of common, not private, carriage, and, consequently, Western Bulk is not the only party liable as a COGSA carrier.

In affirming the District Courts decision the court of appeals found: Because the district court did not err in determining Western Bulk to be the sole carrier for the pipes, its awarding damages against Western Bulk is not inconsistent with the bifurcation order. As the sole COGSA carrier, Western Bulk is solely responsible for the COGSA damages. This result does not mean, as Western Bulk asserts, that the district court treated Western Bulk's admission that the pipes were damaged as tantamount to an admission of liability. Rather, the court's ruling that Western Bulk was the sole carrier simply precluded consideration of the further question of how to allocate liability among the carriers, which would have been considered at the second stage of the bifurcated trial.

Happy Birthday Coast Guard

Today in 1915 the Revenue Cutter Service and the Life Saving Service were combined to form the United States Coast Guard. Of course the Coast Guard tradition can be traced all the way back to the formation of Alexander Hamilton's formation of the Revenue Cutter Service in 1790, but today is as good as any to recognize the great and often unappreciated work of the Coast Guard.

New Lawsuit Over Non-Authorization of Incidental Taking of Humpback Whales

An association long line fishermen has filed suit in federal court in Hawaii against the National Marine Fisheries Service, alleging the agency has not authorized the incidental taking of humpback whales in Hawaiian waters. Hawaii Ocean Law has posted a link to the complaint.

South African Court – public port authority not eligible for salvage award

Bryant's Maritime Blog has the scoop on The Cleopatra Dream, AC 54/2004 (WCHC, South Africa, 22 January 2010).

Coast Guard responds to overboard containers

MIAMI - Coast Guard crews are responding to a report Tuesday of about 30 containers that fell off the deck from Seaboard's 544-foot container ship Intrepid, approximately 30 miles south of Key West, Fla., Monday.

Watchstanders at the Coast Guard Sector Key West Command Center were notified at approximately 5 p.m. Monday from the master of the Intrepid stating the shipping containers had fallen in the water and were reported to have sunk.

An HU-25 Falcon aircrew from Coast Guard Air Station Miami was launched to assess the situation Monday. Once on scene, the aircrew located a few containers still floating. During a second HU-25 Falcon flight Tuesday, no containers were located.

Personnel from Seaboard shipping are determining the contents of the overboard containers. Seaboard shipping is currently working with Coast Guard Sector Miami personnel to conduct a full assessment of the vessel to ensure safe return to the Port of Miami. Once at the port, an in-depth survey will be conducted to facilitate the safe removal of the cargo.

The Coast Guard advises all mariners transiting through the area to proceed with caution and report any container sightings to the Coast Guard.


Floating and semi-submerged containers present a huge hazard to small ships and recreational sailors. So what if any liability would Seaboard face for the lost containers. Well the Carriage of Goods By Sea Act (COGSA) there is a statutory per package limitation for lost packages, provided that the carrier gave the shipper proper notice. Furthermore the act provides, "neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;" and a whole host of other circumstances including acts of war and acts of god. Now some believe that COGSA is far to generous to carriers and that the US should adopt the Hague-Visby Rules which provide shippers slightly more in restitution.


Note: This post has been modified since the original posting, proving once again I should never post while eating.

Jurisdiction and Admiralty Claims

There's a case out of the 11th Circuit that reminds us of the importance of jurisdictional questions in admiralty suits. In Fraser v. Smith, Charles Fraser died, and several of his family members suffered injuries, in an explosion aboard the Sundance, a boat operated by J&B Tours in the Turks and Caicos Islands. Charles's estate and his injured relatives sued J&B Tours and several other defendants in the Southern District of Florida, asserting various common-law claims and a federal statutory claim under the Death on the High Seas Act (DOHSA). The Frasers appeal from the district court's order dismissing their claims against J&B Tours for lack of personal jurisdiction.

Personal jurisdiction can be established by demonstrating that there are sufficient "minimum contacts" between the defendant and the forum. In this case J&B Tours advertised consistently in the forum, they sent employees to be trained in the forum, purchased boats in the forum, and sent employees to trade shows in the forum. Despite this the three judge panel of the 11th Circuit concluded that there were not sufficient minimum contacts and upheld the district court's order.

I'm going to go back and read the case in further detail but as it stands now I think the panel may have gotten this one wrong. Updates to follow.

Coast Guard to Establish Security Zone for State of the Union

BALTIMORE - The Coast Guard will establish a temporary security zone in designated waters of the National Capitol Region for the State of the Union address Wednesday. During this period, security zone enforcement will prohibit navigation by commercial and recreational waterway users.

Coast Guard Station Washington, D.C., along with temporarily relocated units from Coast Guard Station St. Inigoes, Md., Coast Guard Maritime Safety and Security Teams from Boston, Mass., and Kings Bay, Ga., will work with the Secret Service, U.S. Capitol Police, D.C. Harbor Patrol and U.S. Customs and Border Patrol in providing security during the State of the Union address.

The security zone will include the Potomac River from the Francis Scott Key Bridge (U.S. Route 29) down to Potomac River buoy number four, approximately 1 mile north of the Woodrow Wilson Bridge from shoreline to shoreline. The security zone will include the Georgetown Channel Tidal Basin as well as the Anacostia River from the 11th Street Bridge down to its confluence with the Potomac River.

The waterways will be closed to recreational and commercial traffic from noon to midnight.
For vessels seeking authorization to enter or transit the security zone, contact the Coast Guard at 410-576-2693 or via marine-band radio on VHF channel 16.

H/T: Coast Guard news

All Navy Ships Built by Northrop on Gulf Coast to be Inspected for Faulty Welds

The Navy Times is reporting that that all Northrop’s warships built on the Gulf Coast were being re-inspected for faulty welds.

“In the rare instance where an issue like this arises, the Navy and industry have always worked together toward a quick and effective resolution. This remains the case today,” said Sean Stackley, the assistant secretary of the Navy for research, development and acquisition, in a statement released Monday.

“At no time did the weaknesses that were discovered endanger the safety of the crews, and the Navy has determined that existing welds are satisfactory for current ship operation. We have worked hard to ensure all ships meet or exceed fleet standards, and are reliable and combat ready assets. Plans are in place for inspections and required repairs to all affected ships during their normal industrial availabilities, with many already in progress.”

Between this and the recent issue with the bearings in the San Antonio class, it's been a rough couple of months for the people at RD&A.

Oil Spill in Port Arthur Texas

The United States Coast Guard says the spill from a Malaysian owned tanker in Port Arthur has been contained. The 95,000dwt, Singapore-registered, Eagle Otome, owned by MISC tanker arm AET Tankers, spilled around 1,460 tonnes of crude in Port Arthur, Texas after it collided with a barge at the weekend. As a result of the spill the Sabine/Neches waterway was closed for cleanup, however the Coast Guard expects the channel to reopen within five days.

Somali Pirates Once Again Threaten to Kill British Captives

In October 2009 Paul and Rachel Chandler were taken from their 38-foot yacht, the Lynn Rival, after setting sail from the Seychelles bound for Tanzania. The pirates demanded a 7 million dollar ransom for the couple which the British government as refused to pay in line with its policy on piracy. The Chandlers were not wealthy individuals, in fact it's my understanding they had sold their home to finance their trip. Now in an interview with ITN Rachel Chandler has conveyed the message that if their captors don't receive payment in 3 or 4 days, they will kill one of the hostages.

Perhaps the saddest part of this story are reports that the nearby RFA Wave Knight were under orders not to open fire as Paul and Rachel Chandler, of Tunbridge Wells, Kent, were taken from their yacht for fear that the couple could be executed by the pirates.

Cruise ship passenger murdered during port call in Antigua

The Royal Clipper.

A 30-year-old American woman sailing in the Caribbean this week on a Star Clippers cruise ship was murdered during a port call in Antigua.

In a statement issued today to USA TODAY, Star Clippers confirms several reports in small Caribbean news outlets that the woman, identified as Nina Elisabeth Nilssen, was attacked and killed on Tuesday after she went ashore from the 227-passenger Royal Clipper.

"According to Antiguan police officials, Nilssen's body was discovered around 5 p.m. on a secluded trail at Windward Bay, near Pigeon Point Beach," the statement says. "Authorities have a description of the alleged assailant, but have not made an arrest."
A story in the Antigua Sun says Nilssen's body was found with what appeared to be a stab wound to the neck and was partially unclothed.

The murder is just the latest serious crime against tourists in Antigua. A 38-year-old Australian man visiting the island last year on his yacht was shot dead while walking with his girlfriend and daughter, and in 2008 the island was the scene of a double murder of a honeymooning British couple -- incidents that have raised questions about the safety of visiting the island. The British couple were shot in their room at Antigua's Cocos Hotel.

Antigua's tourism industry also suffered a black eye in September when six Carnival cruise passengers were arrested after a brawl with local police. Carnival announced shortly after the incident that it was ending most cruises to Antigua. The Carnival Victory's last stop on the island took place earlier this month.

Star Clippers says Nilssen's family disembarked Royal Clipper Tuesday evening and received assistance from both Star Clippers and the Antiguan government with accommodations, flights home and arrangements to return Nilssen's body to the United States.

"Star Clippers CEO Mikael Krafft has expressed his heartfelt sympathy and condolences to the members of Ms. Nilssen's family," the line's statement says.

"Star Clippers also is cooperating with Antiguan authorities in their ongoing investigation and search for the assailant."
A spokesperson for Star Clippers says the line hasn't decided whether the Royal Clipper will return to the island. The ship normally visits every two weeks.


H/T:Cruise Ship Law

Workers at Australian Iron Ore, Grain Port to Strike

Workers at Australia’s Esperance port, which handles nickel, iron ore and grain shipments, will strike for two days in a dispute over pay. The strike starts at 5 a.m. on Jan. 24 and ends at the same time on Jan. 26, according to a notice from the port posted on the Web site of Inchcape Shipping Services. The notice was confirmed by phone by Esperance’s acting Chief Executive Officer Devinder Grewal.

Maritime Union of Australia is seeking a “significantly higher” pay award than the 13.5 percent being offered by Esperance over a three-year period, according to a Jan. 11 notice from the port, also published by Inchcape.
Esperance is the deepest port in southern Australia and will handle 8 million metric tons of iron ore this year, according to its Web site. The nation is the world’s largest iron-ore producer and third-largest nickel miner.

Early Maritime Law Part 3: The Basilica of Leo the Wise

In the ninth century Emperor Leo the Wise promulgated the Basilika, a translation of and update of the Laws of Justinian. Book LIII of the Basilika was devoted to maritime law. It has been argued that both Book LIII of the Basilika and Part III of the Rhodian Sea Code are imperfect but taken together they form a picture of the substantive maritime law that applied to the eastern Mediterranean. These Byzantine codes governed such things as access to the sea; fighting and theft; damage to ship and cargo; ship chartering; maritime loans and partnerships; equitable liens; shipwrek; salvage; collision; and contribution in general average.

Georgia Prompt Pay Act and Attorney's Fees in Admiralty Suits

A very important case for Georgia practitioners is just out of the 11th Circuit. At issue is whether a claim for attorney's fees under the Georgia Prompt Pay Act (GPPA) O.C.G.A. § 13-11-1, conflicts with principles of maritime law. For those unfamiliar with Georgia law, the GPPA regulates construction contracts and payments between contractors and subcontractors. Section 8 of the GPPA provides for the recovery of attorneys' fees by a prevailing party. However, under general maritime law each side must bear its own attorney's fees, see Natco Ltd. P'ship v. Moran Towing of Fla., Inc., 267 F.3d 1190, 1193 (11th Cir.2001). There are a few exceptions for this rule, attorneys' fees will be awarded if: (1) they are provided by the statute governing the claim, (2) the nonprevailing party acted in bad faith in the course of the litigation, or (3) there is a contract providing for the indemnification of attorneys' fees.

The case in question, Misener Marine Const., Inc. v. Norfolk Dredging Co., arises from work at the Port of Savannah. Misener was contracted by the Georgia Ports Authority (GPA) to demolish a dock and build a new dock at the Port. As part of this project, Misener subcontracted Norfolk to dredge parts of the Savannah River in the Port near the project. Norfolk drafted a two-page dredging contract that was subsequently signed by Misener. The contract did not contain a choice-of-law provision nor did not contain a provision providing for attorneys' fees. While Norfolk was dredging on July 12, 2004 two mooring dolphins pulled partially from the riverbed, causing the vessel the Steven N to come loose from its secured position. Misener blamed Norfolk's dredging and brought suit in the Southern District of Georgia for negligence, breach of the dredging contract, and breach of warranty.

Misener's complaint stated that the lawsuit was filed pursuant to the district court's maritime jurisdiction. Norfolk answered Misener's complaint and counterclaimed for payment for the dredging work, interest, and attorneys' fees pursuant to the GPPA. In pleading its counterclaim Norfolk stated that the district court had jurisdiction, but did not explicitly state the basis for jurisdiction.

Subsequent investigations into the failure of the mooring dolphins determined that Norfolk was not responsible. Misener filed a voluntary dismissal of its claim. Norfolk moved for summary judgment on its claim for payment, interest, and attorneys' fees. After granting Norfolk's motion for summary judgment, the district court judge ruled that there is not an established federal rule regarding attorneys' fees in maritime cases, and attorneys' fees is not the type of issue that requires a uniform national rule. Therefore, the recovery of attorneys' fees under the GPPA was not inconsistent with maritime law, and the GPPA should supplement maritime law. However, the judge passed away prior to issuing a ruling setting the amount of attorneys' fees.

A new district court judge was assigned to the case. In determining the amount of attorneys' fees Norfolk was entitled to recover, the new judge found that the GPPA conflicted with a general principle of maritime law, that each party bears its own attorneys' fees. The district court entered an order denying Norfolk attorneys' fees under the GPPA.

In rejecting Norfolk's claim for attorney's fees, the 11th Circuit rejected Norfolk's theory that state statutes can govern the claim and thus attorney fees should be awarded. Noting, "Logic and a proper reading of case law demand limiting “statutes governing the claim” to federal statutes. Since the GPPA is not a federal statute it does not fall within this exception." The court also rejected Norfolk's request to incorporate the GPPA into substantive maritime law.

But where the decision gets really interesting for me is in its discussion of whether or not "the American Rule" is a characteristic feature of substantive maritime law. In this discussion the court distinguishes this case from one of my favorites American Dredging Co. v. Miller, 510 U.S. 443 (1994). As someone who has toyed with some scholarly work on forum non conveniens and admiralty the dissent in American Dredging seems to have it right, but that's a discussion for another day. The Circuit court concluded that the American Rule was a characteristic feature of substantive maritime law and that attorney's fees could not be awarded.

As I said this is a huge case for Georgia practitioners and probably one that deserves further examination.

China's Largest Coal Port Reopens as Fog, Gale Pass

Qinhuangdao, China’s biggest coal port, reopened yesterday after being shut for three days by heavy fog and high winds that disrupted deliveries to the nation’s eastern and southern coasts. The northern port delivered 460,000 metric tons of coal yesterday, David Fang, a director at the China Coal Transport and Distribution Association, said by telephone in Beijing today. Qinhuangdao has been shipping on average 650,000 tons of the fuel a day prior to its closure to meet winter demand, Fang said earlier this week.

China has been hit by bad weather in the past two months including snowstorms that disrupted overland coal deliveries and sea ice that froze 40 percent of Bohai Bay in the northeast. Qinhuangdao, which receives coal from inland provinces including Shanxi, delivers about half of China’s seaborne coal shipments. Coal is used to fire about 80 percent of China’s power stations.
Sea ice hasn’t had an impact on Qinhuangdao port traffic, Fang said today. The freeze off China’s northeastern coast, the worst in 40 years, has disrupted oilfield operations and caused more than 1 billion yuan ($146 million) of losses for the fishing industry in the eastern Shandong province, Xinhua News Agency said today.

Finnish Engine Builder Forced to Move Production from the Netherlands to China

From De Volkskrant

The Netherlands and China are on the verge of a diplomatic conflict due to a misunderstanding over job losses, the Volkskrant reports on Friday.

The paper says junior economic affairs minister Frank Heemskerk has ordered officials to find out if Chinese officials demanded that Finnish ship engine builder Wärtsilä move production from Drunen in the Netherlands to China.

He was responding to comments made by Wärtsilä Nederland boss Fred de Beers in a news show on Tuesday in which he said: 'China puts pressure on companies to locate there in a general sense. Their policy is to go for '100% made in China'.'

The comment led Heemskerk to investigate the claim, the paper says.

Investigation

'It is a pity I learn of this through the media,' the paper quoted him as saying. 'If Wärtsilä had approached me we could have raised the issue through the European Commission and World Trade Organisation. We will do that now.'

A member of the Wärtsilä board told the paper the minister had misinterpreted Van Beer's statement. 'He was only referring to China's growing dominance in shipbuilding... we were not forced,' Gert van Doorn told the paper.

Some 570 jobs in the Netherlands are going because of the transfer of production.

According to Nos tv, the country's two main employers organisations had also raised the issue with the minister.

Houston Ship Channel Halted by Fog; 70 Vessels Wait

Thursday, 21 January 2010

Bloomberg is reporting that fog stalled 70 vessels waiting to navigate the Houston Ship Channel, the U.S. Coast Guard said. The channel closed on Jan. 19 at 3 p.m. and may reopen later today, a watch supervisor at the Coast Guard said by phone from Houston. The waterway is a link for tankers delivering crude oil to refineries at the biggest U.S. petroleum port. Pilots stop navigating the channel when they deem weather conditions are unsafe. Thirty-five ships are waiting to enter the port and 35 are waiting to leave, the watch supervisor said.

Fog also halted shipping at nearby Texas City since Jan. 19 and 18 vessels are waiting to leave or enter the area, the supervisor said.

Interesting Scholarly Works on Cyberwarfare

This isn't admiralty related but its an emerging area of the law that I find very interesting.

I recently read two interesting articles on cyberwarfare. The first RESOLVING TOMORROW’S CONFLICTS TODAY: HOW NEW DEVELOPMENTS WITHIN THE U.N. SECURITY COUNCIL CAN BE USED TO COMBAT CYBERWARFARE Toby Friesen was featured in the Naval Law Review. The second was from the Military Law Review Fall 2009, SOLVING THE DILEMMA OF STATE RESPONSE TO CYBERATTACKS: A JUSTIFICATION FOR THE USE OF ACTIVE DEFENSES AGAINST STATES WHO NEGLECT THEIR DUTY TO PREVENT Lieutenant Commander Matthew J. Sklerov.

The reason I mention this is not only that I think these two articles are very good, but I also think there's a lot of good scholarly work that appears in these journals that's often overlooked by civilian scholars.

Coast Guard Coordinates Rescue of Three Fishermen

KODIAK, Alaska - The fishing vessel Tempest tows the 32-foot fishing vessel Butterfly after the Butterfly's crew reported their vessel was taking on water about a mile off Gull Point in Ugak Bay near Kodiak Island Jan. 16, 2010.

The Coast Guard Cutter Acushnet escorted the vessels to Old Harbor.



H/T:Maritime Injury Blog

Speaking of the Superferry

Marine Weekly is reporting:

U.S. Secretary of Transportation Ray LaHood said yesterday that the Department’s Maritime Administration (MARAD) is sending five ships, including the former Hawaii Superferry Huakai, to assist with relief efforts in Haiti. Hornblower Marine Services (HMS) will be operating the Huakai for MARAD and supplying crews.

H/T: BitterEnd

Aubree Guancione Has Another Novel Legal Argument

You'll remember Aubree Guancione from a previous posting where she claimed that Santa Clara University was a vessel subject to admiralty jurisdiction. Well now she has a new legal argument that's almost as good. In Wachovia Mortg. FSB v. Guancione, the Plaintiff Wachovia Mortgage FSB filed an unlawful detainer action on November 12, 2009 in Santa Clara County Superior Court. According to the complaint, in September 2009, [co-defendant] Stewart signed a six-month lease agreement to rent the subject property from the Guanciones for $1471 per month. Shortly thereafter, the plaintiff acquired the property, but no rent was paid to it as the successor in interest to the rental agreement. The Plaintiff served defendants with a three-day notice to pay rent or quit and then filed this unlawful detainer action when defendants failed to do so. Guancione sought to remove the case to federal court from Santa Clara Superior Court.

Diversity isn't at issue so the Defendants point to the federal question. What federal question you may ask. The Defendants claim that the plaintiff has no right to the subject property because defendants have a “land patent” for it under the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War. Yes you read that correctly, the Treaty of Guadalupe Hidalgo. But wait there's more. They also make the conclusory assertion that their counterclaims, seeking a multi-million dollar payment, are based in admiralty law.

Needless to say, the district court did not accept these arguments and District Court Judge Howard R. Lloyd sent the case back to state court.

Possible Bryde's Whale Washes Ashore in Puget Sound

PIERCE COUNTY, Wash. - Biologists responding to a report of a whale carcass in Case Inlet in Puget Sound suddenly have a mystery on their hands.

Why would a whale that is normally found only in warm and tropical waters venture into the frigid Northern Pacific?
It will take DNA testing to determine if the carcass is indeed a Bryde's Whale. The dead whale was spotted this week after several reports of a mysterious living whale swimming through the area over the last few weeks.
Cascadia Research teams conducted a necropsy on the mammal on Tuesday and hope to have preliminary results of its possible cause of death soon.

Lead Biologist John Calambokidis told KING 5 it does not appear the creature was struck in the ocean and pushed into Puget Sound on the bow of a ship.

If it is indeed a Bryde's whale, it would be considered very odd that a whale that prefers tropical waters would venture into the frigid seas of the Northern Pacific and Puget Sound.

King 5 TV has the full story.

Spare Engines as Appurtenances

There's a bankruptcy case out of Delaware (surprise) that I think is noteworthy. In re HSF Holding, Inc. is part of the Hawaii Superferry, bankruptcy proceeding. The district court examined if the spare engine that was ordered with the two high speed ferries was an appurtenance to the ferry Alakai. The Bankruptcy court wrestled with the question of a broad or narrow view of appurtenances. The Committee argued that “[A]n appurtenance is [ (1) ] any specifically identifiable item that is destined for use aboard a specifically identifiable vessel and [ (2) ] is essential to the vessel's navigation, operation, or mission.” Gonzales [sic] v. M/V Destiny Panama, 102 F.Supp.2d 1352, 1356 (S.D.Fla.2000). The court however accepted the broader definition as demonstrated by Stewart & Stevenson Serv. v. M/V Chris Way MacMillan, 890 F.Supp. 552, 561-62 (N.D.Miss.1995), where spare parts that could be utilized on two vessels in the fleet and which the court found became appurtenances to the vessel that was the subject of a preferred ship mortgage. As well as Anderson v. United States, 317 F.3d 1235 (11th Cir.2003), where aircraft aboard the USS Kennedy were also found to be appurtenances to that vessel.

Sea Ice Closes Chinese Ports, Cuts Off Inhabited Island

Worsening sea ice has completely isolated a populated island on Bohai Bay off northeast China's Liaoning Province, stranding more than 3,200 people, Xinhua news agency reported Tuesday.

Bohai Bay is presently suffering from the worst sea ice in four decades. Almost 30,000 square km of ice now covers up to 40 percent of the bay.

The island of 13.5 square km is the largest in Liaodong Bay. It is only separated by 7.5 km gulf from Xingcheng City, Liaoning Province.

Meanwhile Marine Weather Forecast Official with the State Oceanic Administration Wang Hua said on Tuesday that the sea ice would continue to expand this week, as another cold front would arrive in the area today.

The ice has affected marine transport, fishing, aquatic breeding and offshore mining in Liaoning, Hebei, Shandong provinces and Tianjin Municipality.

Wang Weiliang, head of the Marine Fishing Bureau in Yingkou City, Liaoning, said the port in Yingkou, dubbed as China's northern most ice-free port, was currently covered by ice up to one meter thick.

Piracy on the Rise in Asian Waters

The number of piracy incidents in Asian waters increased by 5% last year, with a sharp rise in attacks in the South China Sea. In 2009 there were 101 incidents of piracy in Asian waters, comprising 81 actual attacks and 20 attempted, reported to the ReCAAP Information Sharing Centre in Singapore.

Full story at SeaTrade Asia Online

FOIA Request for Inspector General's Report on Holly Graf Filed

As part of my ongoing research into UCMJ non judicial hearings, I've filed a FOIA request for the Inspector General's report that led to the removal of Captain Holly Graf as CO of the USS Cowpens.

Supreme Court Passes on Asian Carp

The Supreme Court denied Michigan's request for an injunction that would have ordered the closing of locks to prevent the invasive species from damaging Great Lakes fishing and shipping. Michigan sought to reopen three Supreme Court cases dating back to the 1920s that governed disputes among states over Great Lakes water issue.

More Thoughts on Captain Holly Graf

The more I think about this case the more it interests me. Absent the Inspector General's Report I'm afraid we must rely on second and third hand reports. For example, Susan Katz Keating is reporting that after the USS Cowpens hit a whale, Capt. Graf put the ship on lockdown.

We hit a whale about 8 months ago off the coast of Japan.
***
i was on the fantail (the very back part) when we hit it. it made a really loud noise, and very soon after i saw the bloody mess right behind us. everyone was forced to go inside. nobody was allowed to take pictures. we couldnt send any emails whatsoever for a few hours.
***
If you were not on watch, you were asked to stay below. One lucky guy took pics on his cell phone. Gruesome, very very gruesome. You definately felt the thud when we stuck it. We were aksed not to talk about it. Someone needs to stand up for the whale!!
***
Navy policy is to notify the CNO any time a ship hits a whale and any time a dead whale is spotted.... There's no reason to cover it up but if you do, it says something about you.

But what do we know about Captain Graf? She graduated the Naval Academy in 1985. [edit] She received an Masters in Civil Engineering from Villanova in 1991. Before being made CO of the Cowpens, she had a commander command, the Arliegh Burke class USS Winston Churchill. According to the 7th Fleet's Public Affairs office Graf relieved Captain Terry Mosher as commander of the Cowpens. Mosher was "well known throughout the ship for not only his sharp ship-handling skills, but also for his ability to mentor and teach young Sailors and Officers, CAPT Mosher will be remembered for his calm, yet commanding presence. His exceptionally high standards of excellence drove the Crew, Chief’s Mess, and Wardroom to raise their own standards and create a more operationally and combat ready ship."

Last year Graf spoke at a Womens History Month event aboard the USS George Washington. Here's what she had to say:

“Their [women’s] actions and advances were not all about their gender, but were all about their motivations. They were adventurers and explorers who believed in something bigger than themselves they just happened to be women as well,” said Graf.

Graf described the change of attitudes towards Navy women that she has noticed over her 23-year career. “When I was headed to command USS Winston S.Churchill [DDG 81], I was frequently asked ‘Are you the first?’” she said. “Six years later, headed back to sea in command of Cowpens, no one asked me. I think that’s definitely a sign of the times.”

She emphasized that both men and women working together are a part of history-in-the making, and are what helps bring GW to life, as the centerpiece of the Forward-
Deployed Naval Forces. “I think women bring a different perspective to solving problems… a different way of looking at things,” Graf added.

So here is my question and I think it's what a lot of people want to know; if Graf is unfit for command, is this something that developed in the last few years or is it characteristic of her personality. And if it is characteristic of her personality, how on earth did she rise to the command of a Tico class cruiser?

Ship engineer files Jones Act suit in Galveston

From the Southeast Texas Record:

An Alabama seaman is suing his employer for $75,000 for injuries he reportedly sustained on the job.

Leslie Vincent Tapia accuses Supreme Offshore Services Inc. of failing to furnish him safe and proper equipment on board the M/V Warren Thomas.

"Such a failure to provide proper working equipment proximately caused and resulted in the injuries and damages sustained by the plaintiff," the suit says.

Under the Jones Act, the suit was filed Jan. 6 in Galveston County District Court and claims the vessel was not seaworthy.



Now all of us casual sailors may think we know when a vessel is seaworthy but there's a specific legal definition of unseaworthiness, and I think it deserves a look.

In order to have a cause of action for unseaworthiness a plaintiff must allege his injury was caused by a defective condition of the ship, its equipment or appurtenances. This warranty extends to the hull of the ship, its cargo handling machinery, hand tools aboard the ship, ropes and tackle, and all kinds of equipment either belonging to the ship or brought aboard by stevedores. It also includes the ship's stores and material in which the ship's stores are wrapped. Other crew members are also warranted as seaworthy and there may be liability for crew assaults, brutality, negligent orders, or utilizing an understaffed or untrained crew. A ship may also be unseaworthy if it lacks certain types of equipment.

The legal test comes down to whether or not a vessel, its equipment, and appurtenances were "reasonably fit for their intended use."


H/T:Dwayne Clark at Lawboat.com

Early Maritime Law Part 2: The Rhodian Sea Code

When you talk to an Admiralty Law scholar about the Rhodian Sea Code, you're speaking of a set of Byzantine Laws from around the 8th century. Because the classical Rhodian Sea Code is Byzantine in origin some scholars doubt the existence of any kind of Rhodian sea law. (See Benedict, The Historical Position of the Rodian Law, 18 Yale L.J. 233 (1909) However the Digest of Justinian, that great collection of laws, points to an earlier widely used system of laws originating in Rhodes.

The petition of Eudaemon of Nocomedia to the Emperor Antoninus. "Lord and Emperor Antoninus. Making shipwreck in Italy we have been plundered by taxgathers inhabiting the islands of the Cyclades." Antoninus answers Eudaemon, "I am indeed lord of the world, but the law is the lord of the sea. Let it be judged by the maritime law of the Rhodians, provided that no law of seas is opposed to it.

It's clear that Rhodes was a great maritime power in the ancient world, it's only natural that their system of maritime law would persist for centuries.

Bunkers Convention and Supplementary Fund Protocol Comes into Force in Canada

The International Convention on Civil Liability for Bunker Oil Pollution Damage and the Supplementary Fund Protocol 1992 to the International Convention on Civil Liability for Oil Pollution Damage, 1969 (as enacted by amendments to the Marine Liability Act (Bill C-7) and ratified by Canada on 2 October 2009) will come into force in Canada on 2 January 2010.

H/T:Shipping Law News

Cruise Ships Still Make Port in Haiti

The Guardian is reporting that just miles from devastated Port Au Prince, Royal Caribbean cruise ships are still docking at Labadee. Labadee is a private resort leased from the Haitian government to Royal Caribbean and employs some 200 Haitians.

Some may see this as being in bad taste, in fact some of the passengers expressed concerns about visiting, but to my eyes carrying business as usual will help Haiti to recover. Moreover some of the cruise ships are bringing relief supplies along with passengers. During the current crisis its easy to imagine that everything should be focused on the earthquake zone, however for many Haitians these cruise ships are vital to maintaining their standard of living. In a country where 80% of the population lives in poverty, sending the cruise ships away isn't a smart move.

Greenpeace Builds New Rainbow Warrior

The Guardian is reporting that workers will soon begin construction on the Rainbow Warrior III. The new 23 million dollar ship is designed to be one of the greenest afloat. Notably it will carry 1,300 sq meters of sail, reducing the load on its diesel-electric engines.

Commander of the USS Cowpens Relieved of Duty for “Cruelty and Maltreatment”

The Navy Times is reporting the Capt. Holly Graf, commander of the USS Cowpens, was brought before an admiral’s mast with Rear Adm. Kevin Donegan, the commander of Carrier Strike Group 5, after an inspector general’s investigation found problems with her “temperament and demeanor vis-a-vis her subordinates,” said Cmdr. Jeff Davis, a spokesman for 7th Fleet.

A mast is a non-judicial disciplinary hearing conducted by a commanding officer, if you've seen the mini-series Carrier you've seen a captain's mast. As its name implies an admiral's mast is conducted by an admiral. Masts are Article 15 hearing under the UCMJ. If you're unfamiliar with the UCMJ, this Army fact sheet lays out the basics.

Hat Tip: BitterEnd

UPDATE:
Over at I Like the Cut of His Jib commenters including some who claim to have served with/under Capt. Graf have weighed in.

Jaldhi, Hawknet, and Retroactivity: The Fallout from Overturning Winter Storm

You will recall that in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte. Ltd., the 2nd Circuit Court of Appeals overturned Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir.2002), declaring that EFTs in the temporary possession of an intermediary bank were not the property of the originator or the beneficiary under New York law, and are not attachable under Rule B.

Now in Cosco Bulk Carrier Co., Ltd. v. Stratus Shipping Pty, Ltd., out of the Southern District of New York, we begin to sort out how the Jaldhi decision will be applied. Cosco argued that their heavy reliance on Winter Storm led them to enter into long costly arbitration process, should prevent a retroactive application of Jaldhi. However, in Hawknet, Ltd. v. Overseas Shipping Agencies, et al., the Court of Appeals specified that Jaldhi would apply retroactively. The District Court citing both Hawknet and HK (UK) Ltd. v. Ashapura Minechem Ltd., makes it clear that equitable concerns are not sufficient to prevent the the retroactive application of Jaldhi.

Handling like cases as a group the court also vacated attachments in Bulk Atlantic, Inc. v. Humara Shipping Agency and Wind Container Leasing Limited v. C & Line Co., Ltd., in both cases rejecting the equitable concerns argument.

Celebrating 100 Years of the Canadian Navy

Visit the official site of the Canadian Navy Centennial.

H/T BitterEnd

Requirements to Withstand Motion to Vacate Rule B Attachment

Hawaii Ocean Law has excellent coverage of Equatorial Marine Fuel Management Services Pte Ltd. v. MISC Berhad, an important decision out of the 9th Circuit.

San Antonio Class Bearing Failure

Jane's is reporting that the recent bearing failure the struck the USS New York may affect the entire class of ships. The San Antonio class is designed to replace four earlier classes of ships reducing the number of dock landing ships from 41 to 12.

Known Ships in Route to Haiti

Here's a list of known Navies involved in earthquake relief. I'll update the list as information becomes available.

Canada
HMCS Halifax
HMCS Athabaskan

United States
USS Carl Vinson
USS Comfort
USCGC Forward
Update 1/17/2010
USS Bataan and the Fort McHenry and Carter Hall have been ordered out of Norfolk, Va., to conduct humanitarian relief exercises in preparation for Haiti relief efforts.

Also on standby to assist are the Norfolk-based cruiser Normandy and the Mayport, FL-based frigate Underwood

Update 1/19/10
USS Gunston Hall (LSD 44) has arrived in Haiti.


Update 1/17/2010
USCGC Tahoma

France
2 ships yet to be identified

Update 1/15/2010
Mexico
2 ships yet to be identified
Update 1/17/2010
The Mexican Ships have been identified.
The Hospital Ship El Huasteco
ARM Papaloapan former USS Newport

Early Maritime Law Part 1

From Hammurabi's Code of Laws (1780 B.C.)

234. If a shipbuilder build a boat of sixty gur for a man, he shall pay him a fee of two shekels in money.

235. If a shipbuilder build a boat for some one, and do not make it tight, if during that same year that boat is sent away and suffers injury, the shipbuilder shall take the boat apart and put it together tight at his own expense. The tight boat he shall give to the boat owner.

236. If a man rent his boat to a sailor, and the sailor is careless, and the boat is wrecked or goes aground, the sailor shall give the owner of the boat another boat as compensation.

237. If a man hire a sailor and his boat, and provide it with corn, clothing, oil and dates, and other things of the kind needed for fitting it: if the sailor is careless, the boat is wrecked, and its contents ruined, then the sailor shall compensate for the boat which was wrecked and all in it that he ruined.

238. If a sailor wreck any one's ship, but saves it, he shall pay the half of its value in money.

239. If a man hire a sailor, he shall pay him six gur of corn per year.

240. If a merchantman run against a ferryboat, and wreck it, the master of the ship that was wrecked shall seek justice before God; the master of the merchantman, which wrecked the ferryboat, must compensate the owner for the boat and all that he ruined.

275. If any one hire a ferryboat, he shall pay three gerahs in money per day.

276. If he hire a freight-boat, he shall pay two and one-half gerahs per day.

277. If any one hire a ship of sixty gur, he shall pay one-sixth of a shekel in money as its hire per day.

Coast Guard Arrives in Haiti for Earthquake Relief

The USCGC Forward a Famous Class Medium Endurance Cutter arrived at Port Au Prince on Wednesday making it the first American ship in the earthquake zone. Together with Maritime Intelligence Support Team 0410 they were able to assess some of the damage to the port. Reports are that many of the cranes at the port were damaged which may hamper efforts to offload relief supplies.

Many Americans tend to overlook the work of the Coasties but often when a natural disaster strikes they are the first on the scene. Truly they are semper paratus.

Amicus Briefs in Kawasaki Kisen Kaisha v. Regal-Beliot Corp

Hawaii Ocean Law has a list of the recently filed briefs in this case.

Endicott v. Icicle Seafoods, Inc: More on Maritime Claims and Concurrent Jurisdiction

As we've discussed before under the "saving to suitors" clause, state courts may exercise in personam jurisdiction over maritime claims. In Endicott v. Icicle Seafoods, Inc, Endicott was working in a freezer aboard Icicle Seafoods Bering Star* when a fish cart crushed his arm. Fans of the Deadliest Catch might be interested to know that the Bering Star is a processing barge that processes the Opilio Crab catch in Dutch Harbor.

Endicott brought suit under the Jones Act and under the general maritime doctrine of unseaworthiness in King County Superior Court. The trial court refused Icicle's request for trial by jury and after a bench trial the judge ruled in favor of Endicott on both claims, awarding him both damages and prejudgment interest.

Interestingly there's a split among the state and federal court of appeals on whether or not the Jones' Act exclusively gives the plaintiff the right to elect the mode of trial (jury or non-jury). The Ninth Circuit Court has adopted a statutory interpretation that favors the plaintiffs right to choose. “The plain language of the Jones Act gives a plaintiff the option of maintaining an action at law with the accompanying right to a jury trial. The Act makes no mention of a defendant.” Craig v. Atl. Richfield Co., 19 F.3d 472, 476 (9th Cir.1994) While the Fifth and Seventh Circuits have adopted a jurisdictional position that a plaintiff's Jones Act election is limited to choosing the jurisdictional basis of trial and that jury trial rights flow from this election as procedural incidents.

Ultimately the Washington Supreme Court chose to follow the jurisdictional interpretation and because under Washington law the right to trial by jury attaches to a Jones Act claim, the court vacated the trial courts judgment and remanded the case for a new trial.

But there's more. Icicle also argued that the award of prejudgment interest was also in error. While it is true that many federal courts have held that prejudgment interest is unavailable in Jones Act claims, Endicott's claim is a mixed general maritime and Jones Act claim. In perhaps the most interesting portion of the decision, the Washington Supreme Court concludes that in mixed claim cases the portion of the award associated with the general maritime claim can be awarded prejudgment interest.

Another interesting case that might be appealed to the US Supreme Court in attempt to resolve the differing Circuit Court rules.


* You might remember the Bering Star and Icicle Foods from this post and the 1.3 million dollar punitive damage award.

Coal Ships Sent Around Cape to Avoid Piracy

Reuters is reporting that coal ship owners are now sending their ships from South Africa to the Mediterranean via the Cape of Good Hope to avoid pirates in the Gulf of Aden. Now this is an interesting development, in 2009 Egypt's revenue from the Suez dropped 20% due to global economic problems. If this becomes a trend it could make the recovery of Suez's revenue recovery a long slow process. If that happens I would not be surprised to see more aggressive anti-piracy operations by the Egyptian Navy.

Via Hellenic Shipping News.

Comparative Negligence or Contractual Indemnity When Vessels Break Free of Moorings

Every first year law student knows the case of US v. Carroll Towing Co. It was this case that gave us Learned Hand's famous formula for determining liability, BPL. In Carroll, a barge broke away from her mooring hit a tanker, and sank. Judge Hand noting there was no general rule with which to deal with liability when the barge of an absentee bargee breaks free and causes damage created his formula:

Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL.

In the case Cape Caution, Inc. v. Port of Grays Harbor currently before the Western District of Washington the F/V Cape Caution was secured to a dock by three lines, bow, stern, and amidship. During a storm the Cape Caution lost two of the lines (amidship and stern lines) leaving the Cape Caution to pivot about the bow line coming into contact with the F/V Gallows Point with which it shared a slip. After the incident inspection of the cleats revealed corrosion and sharp edges. In his Motion for Summary Judgment the Plaintiff argues that the contractual indemnity theory from Ryan Stevedoring Co., Inc. v. Pan-Atlantic Corp, should be applied in this case. [ Having not seen the Plaintiff's brief I can't comment on their argument but I like the line of thinking. ]

However, the Court in denying the motion notes: "Within this Circuit, application of Ryan indemnity has not been extended beyond personal injury claims. This Court will not extend the doctrine beyond its current boundary." But that's not the end of the story. I think this issue may come up again. Given the current Supreme Court's seeming preference for finding contractual claims in the place of negligence, I think that if this issue goes all the way, we may have to start thinking about claims like these in a whole new way.

Coast Guard Announces Intention to Terminate Loran-C

In one of those pennywise pound foolish moves that politicians are so found of, the USCG has announced plans to cease broadcasting Loran-C signals. The thinking is that GPS has made Loran-C redundant. As someone who worked at a GPS company in the past, I think this move is premature.

BitterEnd has the complete notice.

Will the Christmas Day Terror Plot Hurt Anti-Pirate Operations

Well it certainly won't help that some naval assets are being shifted from anti-piracy operations to anti-terror operations.

CANWEST News Service is reporting that a Canadian Naval Frigate, the HMCS Fredericton, that had been attached to NATO's anti-piracy operations in the Gulf of Aden was being transitioned to a new mission of keeping extremist out of Yemen.

The Fredericton has been running escort missions through shipping lanes in the Gulf of Aden and will now be placed under the command of an Australian warship leading the counter-terror mission.

Back to Our Regularly Scheduled Programing

Now that my law review article is mostly done I can get back to the important work of keeping track of news in admiralty.