Sorry for the lack of updates this week. I've been a bit under the weather. So here's everything we've missed.
Most people know about the North Pacific Garbage Patch, but what about the one in the Atlantic.
Currently the Coast Guard has more to do than ever. So why is the Obama Administration trying to cut their budget?
Pentagon moves to end the ban on women serving aboard subs.
There was an increase in the number of pirate attacks in Asian waters in January with 11 incidents reported. Anti-piracy centre ReCAAP said there were 11 incidents of piracy and armed robbery reported in January this year compared with just two last year. Quite frankly with Somali pirates showing the big reward to risk ratio of piracy I expect we'll see a lot more of this everywhere.
Aubree Guancione is back, continuing to try and assert admiralty jurisdiction over Santa Clara University. The court is not amused.
Friday, February 26, 2010
Friday, February 19, 2010
Students rescued after Canadian ship S/V Concordia sinks
The Concordia, a Canadian-based student ship sank off the coast of Brazil on Friday but all 64 passengers have been rescued, according to news reports. The tall ship SV Concordia sank about 555 kilometres off the coast of Rio de Janeiro in rough seas on Thursday night. All 64 passengers and crew had been safely rescued by the Brazilian navy with the assistance of Japanese merchant ship, Hokuetsu Delight.
A spokeswoman for the Canadian Department of Foreign Affairs and International Trade, Simone MacAndrew said,
“Officials at Foreign Affairs and International Trade Canada and at the Embassy of Canada in Brasilia and the General Consulate in Rio de Janeiro, are aware of the sinking of the West Island College Class Afloat ship, SV Concordia, off the coast of Brazil.”
Canadian Foreign Affairs Minister Lawrence Cannon said,
“All crew and passengers have been recovered and are uninjured. This is good news. I thank Brazilian authorities who led a search and rescue operation and acted swiftly to assist the ship and its passengers.”
The SV Concordia is a 57.5-metre ship with a 35-metre mast and 15 sails belongs to the West Island Class Afloat alternative school in Montreal. The ship was carrying high school seniors and first-year university students on an educational voyage.
Hat Tip:BitterEnd
Thursday, February 18, 2010
Supplemental Admiralty Rule F(4)
Supplemental Admiralty Rule F(4) grants courts discretion to allow the filing of a late claim in a limitation of liability proceeding “for cause shown.”
So do the late effects of an injury qualify as cause shown? In the case In re Orion Dredging Services, LLC out of the Middle District of Florida, Leon Martin sought to intervene in a claim six months after the deadline for filing. Martin argued that he had suffered psychological injuries from the sinking of the tug Barbara H near Cay Sal Bank, Bahamas. Martin argued that his late intervention was justified by the fact that he was forced to leave his job because of the psychological injuries. However, he did not offer evidence that he first became aware of the injuries after the filing deadline.
The court citing Complaint of Kirby Inland Marine, L.P., 365 F.Supp.2d 777, 782 (M.D.La.2005) affirmed that it would set a bad precedent to allow a person to delay filing a claim until that claimant can “realize” that the individual has sustained an injury. Therefore, the Court found that Martin failed to show cause exists for his failure to file a claim before the expiration of the monition period.
So do the late effects of an injury qualify as cause shown? In the case In re Orion Dredging Services, LLC out of the Middle District of Florida, Leon Martin sought to intervene in a claim six months after the deadline for filing. Martin argued that he had suffered psychological injuries from the sinking of the tug Barbara H near Cay Sal Bank, Bahamas. Martin argued that his late intervention was justified by the fact that he was forced to leave his job because of the psychological injuries. However, he did not offer evidence that he first became aware of the injuries after the filing deadline.
The court citing Complaint of Kirby Inland Marine, L.P., 365 F.Supp.2d 777, 782 (M.D.La.2005) affirmed that it would set a bad precedent to allow a person to delay filing a claim until that claimant can “realize” that the individual has sustained an injury. Therefore, the Court found that Martin failed to show cause exists for his failure to file a claim before the expiration of the monition period.
Monday, February 15, 2010
Somaliland Court Sentences Pirates to 15 Years
A court in Somalia handed out 15-year prison sentences to 11 pirates on Sunday, writes AFP after a phone interview with the presiding judge. Prosecutors at the court in Berbera, in the breakaway northern state of Somaliland, brought a number of charges against the men, including piracy and attempted armed kidnapping. They showed the court photos obtained from NATO naval forces showing the pirates when they were arrested last December.
"The trial, which lasted a week, was finally concluded today after the evidence brought before the court showed that the eleven were involved in piracy and hijacking. The court finally announced its verdict -- a jail term of 15 years each", Osman Ibrahim Dahir, the presiding judge, told AFP by phone from Berbera.
The pirates were detained last December after they attacked an international naval force ship mistaking it for a commercial ship off the Somali coast.
The international forces released them after disarming them, but they were arrested against a few days later by Somaliland coastguards who spotted them in a coastal village near Djibouti.
"Some of the pirates confessed their crimes while others were still reluctant to confess, but they were sentenced and sent to jail," Jamal Abdikarin, security officer in Berbera told AFP by phone.
Somaliland has long been one of the most stable regions in Somalia and perhaps now is the time for the international community to extend them the recognition they've long sought.
"The trial, which lasted a week, was finally concluded today after the evidence brought before the court showed that the eleven were involved in piracy and hijacking. The court finally announced its verdict -- a jail term of 15 years each", Osman Ibrahim Dahir, the presiding judge, told AFP by phone from Berbera.
The pirates were detained last December after they attacked an international naval force ship mistaking it for a commercial ship off the Somali coast.
The international forces released them after disarming them, but they were arrested against a few days later by Somaliland coastguards who spotted them in a coastal village near Djibouti.
"Some of the pirates confessed their crimes while others were still reluctant to confess, but they were sentenced and sent to jail," Jamal Abdikarin, security officer in Berbera told AFP by phone.
Somaliland has long been one of the most stable regions in Somalia and perhaps now is the time for the international community to extend them the recognition they've long sought.
CO of USS Wasp Took Kickbacks
When the amphibious assault ship Wasp pulled into Bahrain in 2007 for a port call, crew members thought it was odd that their skipper, Capt. Michael Hawley, kept making announcements on the 1MC about things he wanted them to buy.
A suit-maker was flying in from Rota, Spain, who would make sailors a great deal on some new threads. A Bahraini rug-seller set up his wares for the officers, who were all but required to browse and strongly encouraged to buy.
So why was Hawley pushing all these vendors? Each one of them was paying him a kickback.
From the Navy Times
A suit-maker was flying in from Rota, Spain, who would make sailors a great deal on some new threads. A Bahraini rug-seller set up his wares for the officers, who were all but required to browse and strongly encouraged to buy.
So why was Hawley pushing all these vendors? Each one of them was paying him a kickback.
From the Navy Times
Thursday, February 11, 2010
Odyssey Marine Scores Victory in Court:
There's been a long running court battle between Odyssey Marine and the Kingdom of Spain over the so-called "Black Swan Project." Well on February 1, Odyssey Marine scored a victory in the Middle District of Florida. The court adopted the Magistrate Court's report and recommendation and granting title to Odyssey Marine under the law of finds.
This case is of special interest to me because I'm currently in the early stages of working on an article about salvage.
Odyssey Marine was represented by Fowler White Boggs Banker.
This case is of special interest to me because I'm currently in the early stages of working on an article about salvage.
Odyssey Marine was represented by Fowler White Boggs Banker.
Wednesday, February 10, 2010
Somali Pirates Free Panamanian Flagged Indian-operated Ship
Somali pirates said Tuesday they have released a Panamanian-flagged ship and its mostly Indian crew of 26 after receiving a ransom of 3.1 million dollars. "The ship was freed this afternoon after 3.1 million US dollars were paid to the pirates who had been holding it for a long time," Mohamed Ilkase, a pirate leader, told AFP by phone.
The Al Khaliq bulk carrier was hijacked on October 22 around 180 nautical miles from Seychelles in the Indian Ocean.
The European Union naval mission in the region confirmed that the vessel had been release after a ransom was paid, and that its help had not been requested. No further details were provided.
"The ship is still here but the pirates have already deserted it and have come back to shore with their ransom money," said Ilkase, speaking from the main pirate lair of Harardhere, north of the capital Mogadishu.
The Al Khaliq bulk carrier was hijacked on October 22 around 180 nautical miles from Seychelles in the Indian Ocean.
The European Union naval mission in the region confirmed that the vessel had been release after a ransom was paid, and that its help had not been requested. No further details were provided.
"The ship is still here but the pirates have already deserted it and have come back to shore with their ransom money," said Ilkase, speaking from the main pirate lair of Harardhere, north of the capital Mogadishu.
Tuesday, February 9, 2010
Maritime Law in the Middle Ages
As power shifted away from the declining Byzantine Empire and to the emerging cities and states of Western Europe new sea codes began to emerge. The Italian cities took ideas from the Byzantine codes, the Rhodian Sea Law, and the Basilica, and modified them according to their own customs. Two of the earliest and most influential of the medieval Italian sea codes were the Ordinance of Trani (circa 1063) and the Tables of Amalfi (1010). But they weren't the only sea codes in the west. Pisa had the Consitutum Usus and later the Breve Curiae Maris, Venice the Ziani, the Tiepolo, and the Zeno. Barcelona had its own code. When the crusaders entered the middle east they brought their sea codes with the. The Assizes of Jerusalem (circa 1187) became the maritime law of the Latin population of Cyprus and Antioch.
And then there are the Rolls of Oleron. Created to help manage issues resulting from the flourishing wine trade between Aquitaine, England, and Flanders they were most likely complied in the second half of the 13th century. The Rolls were derived from Roman and Italian sources but adapted to the local customs of the North Sea and Atlantic. They were adopted with little change by the ports of Brittany and Normandy and formed the basis of the Judments of the Damme, the earliest body of maritime law in Flanders. They also provided the foundation for the laws of Wisby and the laws of the Hanse League. Because of their widespread acceptance the Rolls of Oleron also became the chief early authority relied upon by English Admiralty.
And then there are the Rolls of Oleron. Created to help manage issues resulting from the flourishing wine trade between Aquitaine, England, and Flanders they were most likely complied in the second half of the 13th century. The Rolls were derived from Roman and Italian sources but adapted to the local customs of the North Sea and Atlantic. They were adopted with little change by the ports of Brittany and Normandy and formed the basis of the Judments of the Damme, the earliest body of maritime law in Flanders. They also provided the foundation for the laws of Wisby and the laws of the Hanse League. Because of their widespread acceptance the Rolls of Oleron also became the chief early authority relied upon by English Admiralty.
Drunk Passengers and Jones Act Claim
Interesting unpublished decision out of the Court of Appeals of Washington. At issue in Caraska v. State of Washington Dept. of Transp., are injuries suffered by Frank Caraska when Gary Collins, a drunk passenger on a Washington State Ferry (WSF), assaulted him. Caraska worked for the WSF as an able bodied seaman aboard the ferry M/V Klahowya. Collins, who was believed to be intoxicated by both the ticket seller, the ticket taker, and other passengers, struck Caraska with his fist and then jumped on his back. The two men fell onto the deck near the edge of the ferry with Collins on top. When Caraska hit the deck he jammed his elbow and injured his shoulder. Crew members and passengers were able to pull Collins off Caraska and restrain him, while the captain of the ferry called the police. When the police arrived they also had to physically restrain Collins while physically removing him from the ferry. As a result of the assault, Caraska sprained his elbow and suffered serious injuries to his right shoulder. Caraska underwent right shoulder open anterior acromioplasty and rotator cuff repair surgery due to the injuries.
Caraska sued the WSF asserting a negligence claim under the Jones Act and a federal maritime unseaworthiness claim against the WSF. Following a three-day bench trial, the court dismissed Caraska's lawsuit against the WSF. The court ruled that the WSF employees were not negligent in allowing Collins to board the ferry. The Court of Appeals reversed and remanded trial courts decision because it was not clear that the trial court correctly applied the Jones Act slight evidence causation standard.
The parties did not present any new evidence on remand. Instead, Caraska and the WSF submitted proposed supplemental findings of fact and conclusions of law. The trial court issued a 42-page “Memorandum Decision, Order, and Supplemental Findings of Fact and Conclusions of Law on Remand.” After reexamining the evidence to determine whether Collins was disorderly, disruptive, or confrontational, the trial court concluded that Caraska did not establish a breach of duty by the WSF employees under the Safety Management System (SMS) policy by allowing Collins to board the ferry. Because there was no breach of duty under the SMS policy, the court also concluded it was unnecessary to reach the unseaworthiness claim based on inadequate training.
Caraska appealed again however this time the Court of Appeals concluded that the trail court's record supported the dismissal. But what about the Appeals Court's direction to consider the Jones Act standard? The Trial Court states that it was unnecessary to address those claims because the WSF employees did not violate the SMS policy, nonetheless, “mindful of the clear direction of the Court of Appeals,” the court did so.
Interesting case and it wouldn't surprise me to see it appealed to the Washington Supreme Court.
Caraska sued the WSF asserting a negligence claim under the Jones Act and a federal maritime unseaworthiness claim against the WSF. Following a three-day bench trial, the court dismissed Caraska's lawsuit against the WSF. The court ruled that the WSF employees were not negligent in allowing Collins to board the ferry. The Court of Appeals reversed and remanded trial courts decision because it was not clear that the trial court correctly applied the Jones Act slight evidence causation standard.
The parties did not present any new evidence on remand. Instead, Caraska and the WSF submitted proposed supplemental findings of fact and conclusions of law. The trial court issued a 42-page “Memorandum Decision, Order, and Supplemental Findings of Fact and Conclusions of Law on Remand.” After reexamining the evidence to determine whether Collins was disorderly, disruptive, or confrontational, the trial court concluded that Caraska did not establish a breach of duty by the WSF employees under the Safety Management System (SMS) policy by allowing Collins to board the ferry. Because there was no breach of duty under the SMS policy, the court also concluded it was unnecessary to reach the unseaworthiness claim based on inadequate training.
Caraska appealed again however this time the Court of Appeals concluded that the trail court's record supported the dismissal. But what about the Appeals Court's direction to consider the Jones Act standard? The Trial Court states that it was unnecessary to address those claims because the WSF employees did not violate the SMS policy, nonetheless, “mindful of the clear direction of the Court of Appeals,” the court did so.
Nevertheless, mindful of the clear direction of the Court of Appeals, this court has combed the record for evidence of improper training. The court has considered the all [sic] of the evidence. Plaintiff has failed to carry his burden of proof to establish that WSF breached its duty to implement the SMS policy by not properly training its employees. Plaintiff also has failed to carry his burden of proof to establish unseaworthiness because of the presence of an understaffed or ill-trained crew, whether WSF terminal employees or others.
Interesting case and it wouldn't surprise me to see it appealed to the Washington Supreme Court.
Cutty Sark restoration turning into a fiasco?
Last week the Prime Minister, Gordon Brown, announced that the vessel, which has been under restoration since 2006, would be "brought back to its former glory" in time for the Olympics.
"It will be yet another jewel for visitors in 2012 to enjoy," said Mr Brown.
However, it can now be revealed that:
– The project's chief engineer, Peter Mason, has resigned, saying the restoration should be "stopped and reviewed" because it will "damage the fabric of the ship" and could cause it to fall apart.
From the Telegraph
The Cutty Sark is the last surviving Tea Clipper and was severely damaged in a fire in 2007. The story also includes this photo and caption.
The front of the Cutty Sark is removed as part of an ongoing conservation project in Greenwhich Photo: GETTY
But I'm pretty sure that's the stern of the ship not the bow.
Here's a happier restoration story from the BBC.
"It will be yet another jewel for visitors in 2012 to enjoy," said Mr Brown.
However, it can now be revealed that:
– The project's chief engineer, Peter Mason, has resigned, saying the restoration should be "stopped and reviewed" because it will "damage the fabric of the ship" and could cause it to fall apart.
From the Telegraph
The Cutty Sark is the last surviving Tea Clipper and was severely damaged in a fire in 2007. The story also includes this photo and caption.
The front of the Cutty Sark is removed as part of an ongoing conservation project in Greenwhich Photo: GETTY
But I'm pretty sure that's the stern of the ship not the bow.
Here's a happier restoration story from the BBC.
LawStack
I don't have an iPhone, in fact my cheap cell phone is the frequent butt of jokes, but I do have an iPod touch. I recently came across a free app that is worth recommending to law students and practitioners. LawStack puts the Federal Rules for Civ Pro, Crim Pro, Appellate Procedure, Evidence, and Bankruptcy Procedure right on your iphone or ipod touch. At first I thought it was just a novelty but I find myself using it quite frequently when I'm out and about.
And yes I understand just how geeky it is to be out at dinner and suddenly need to consult the Federal Rules of Civil Procedure.
And yes I understand just how geeky it is to be out at dinner and suddenly need to consult the Federal Rules of Civil Procedure.
Singapore Shipping Association: Somali Pirate Tactics Could Be Copied
he violent methods of Somali pirates could easily been copied in other parts of the world warns the Singapore Shipping Association. “As SSA, we are very concerned with the deteriorating situation in the Somali basin. In the absence of any firm response from the United Nations, the Somali methods of hijack and violent kidnapping can be easily emulated by others elsewhere,” SS Teo president of SSA told a piracy seminar in Singapore. Teo’s own company Pacific International Lines had one of its containerships, Kota Wajar, was held by Somali pirates for 75 days after it was hijacked on October 15. He described the relative ease with which pirates could extort and escape with millions of dollars as “unimaginable in the modern day and age”. SSA said the current level of response to the piracy situation was simply “insufficient”. “It is vitally important that all governments, at the very highest level, become more engaged in finding a long term solution to this crisis,” Teo said.
From SeaTrade Asia
From SeaTrade Asia
Stewart v. Washington Mut., FA: Another Bizarre Claim of Admiralty Jurisdiction
I've previously blogged about Aubree Guancione and her novel legal arguments regarding admiralty jurisdiction. (and there's more coming on some of her legal actions) Well in a case out of the Federal District Court for Oregon, we have yet another pro se litigant attempting to assert admiralty jurisdiction over real property. In Stewart v. Washington Mut., FA., Morse Edward Stewart sought an order quashing non-judicial foreclosure proceedings involving real property in Clackamas County, Oregon, and also sought a judgment for more than $35 million.
Of course the court dismissed the claim, but it got me thinking where are these people getting the idea they can assert admiralty jurisdiction over anything. Well Google has provided the answer, it seems there's a cottage industry trying to convince people that all actions should be filed in admiralty.
Admiralty law has a great and fascinating history, and with the dependence of the global economy on shipping, it's more relevant now than ever.
THIS, HOWEVER, IS NOT ADMIRALTY LAW (the good stuff starts about 1:50)
Of course the court dismissed the claim, but it got me thinking where are these people getting the idea they can assert admiralty jurisdiction over anything. Well Google has provided the answer, it seems there's a cottage industry trying to convince people that all actions should be filed in admiralty.
Admiralty law has a great and fascinating history, and with the dependence of the global economy on shipping, it's more relevant now than ever.
THIS, HOWEVER, IS NOT ADMIRALTY LAW (the good stuff starts about 1:50)
Monday, February 8, 2010
Tulane Law School Gives Students the Day Off
In honor of the New Orleans Saints victory in the Super Bowl, Tulane University Law School has given its students tomorrow off to celebrate. What does this have to do with admiralty law? Well if you don't know, Tulane is home of one of the nation's best admiralty law programs and the Tulane Law Review.
Update from the comments section:brad v said...
And the Tulane Maritime Law Journal!
http://www.law.tulane.edu/tlsjournals/maritime/index.aspx
Brad Vogel, Editor in Chief
Update from the comments section:brad v said...
And the Tulane Maritime Law Journal!
http://www.law.tulane.edu/tlsjournals/maritime/index.aspx
Brad Vogel, Editor in Chief
Court Upholds New York State Ballast Water Regulations
Ballast water has become a means for invasive and foreign plant and animal species to enter new environments. Ships often take in ballast water in their home waters and pump out the water at their destinations. As a result several states have examined or implemented restrictions on the dumping of ballast water. In Port of Oswego Authority v. Grannis, the port of Oswego challenged New York's rules. The New York Court stated that ” the reviewing court may not substitute its judgment for that of the agency and the agency's determinations will be disturbed only when they lack a rational basis or are arbitrary and capricious." Finding ample scientific evidence to support the regulations and concluding the state had legal authority to enact the regulations, the court upheld the lower courts decision in favor of the state.
Dutch Warship Absalon Stops Somali Hijacking Attempt
According to EU NAVFOR the HDMS Absalon foiled an attempted hijacking in progress of the M/V Ariella. This was a truly international operation, the INS Tabar was the first first to receive the alert, a French maritime patrol aircraft confirmed the presence of pirates, and the Russian frigate Neustrashimyy detained and boarded a second pirate skiff nearby.
Goodbye Loran-C
Today Loran-C transmissions will cease in a cost cutting measure. The Coast Guard recommends that users of Loran-C switch to GPS navigation. As I've said before I think this is a mistake. Loran-C wasn't as idiot proof as GPS but it was almost bulletproof. And as someone who has worked for a GPS manufacturer in the past I can tell you they are not as accurate as commonly presumed.
As I've said before pennywise but pound foolish.
As I've said before pennywise but pound foolish.
Saturday, February 6, 2010
Winter Weather Delays Deployment of the USS Cole
Sailors stationed onboard the destroyer USS Cole will get an extra weekend at home before heading out on deployment.
The Cole was originally scheduled to deploy Friday for a seven-month deployment to the Mediterranean and Persian Gulf areas of operations. But officials delayed the deployment until Monday, because of heavy winter weather that is expected to hit the Hampton Roads area Friday and Saturday, according to Chief Mass Communications Specialist (SW/AW) Scott Boyle, spokesman for Naval Surface Force Atlantic.
The ship, commanded by Cmdr. Edward Devinney, will conduct maritime security operations while deployed.
From the Navy Times
You'll remember that the Cole was a victim of a suicide attack on October 12, 2000 while in port at Aden. 17 sailors aboard the Cole were killed and 39 injured. The Cole is an Arleigh Burke class destroyer, which happens to be my favorite class ships currently active with the US Navy. The ship is named in honor of Marine Sergeant Darrell S. Cole, a machine-gunner killed in action on Iwo Jima.
Friday, February 5, 2010
Olympic Marine Security Zones
Mariners are advised that Olympic Marine Security Zones will be in effect around various waterside venues and areas beginning 10 January 2010 until 25 March 2010. Specific dates and restrictions will be published separately but in summary the following areas will have increased security activity and/or restrictions.
Burrard Inlet
* Ballantyne Pier – 10 January to 5 March 2010
* Main Media Centre (Canada Place/New Convention Centre) – 30 January to 25 March 2010
False Creek
* East Basin – Vancouver Athlete’s Village – 25 January to 25 March 2010
Fraser River Middle Arm
* Richmond Olympic Oval – 1 February to 28 February 2010
Vancouver Harbour, Strait of Georgia and Howe Sound (enhanced surveillance only)
* 25 January – 25 March 2010
CANADA – VANCOUVER HARBOR AND FRASER RIVER – Olympic Security Zones (revised from LNM 03/10)
Olympic Security Zones have been established in Vancouver Harbor, Canada in the following locations:
1. In the vicinity of Canada Place and around Ballantyne Pier from the northwest end of the Centerm facility to the Southern Railway Dock. This restricted area is marked by lighted buoys and a floating marine barrier. Mariners are requested to keep clear of this barrier by 50 meters.
2. In the area northwest of Canada Place, with the perimeter marked by four white lighted can buoys, with flashing yellow lights.
3. In the area west of Canada Place, with the western perimeter marked by two white lighted buoys with flashing yellow lights.
4. On the Fraser River on the south side of the channel between the #2 Road Bridge and the Dinsmore Bridge. Three buoys with flashing yellow lights and unlit buoys between them have been placed to mark this zone.
H/T: BitterEnd
Burrard Inlet
* Ballantyne Pier – 10 January to 5 March 2010
* Main Media Centre (Canada Place/New Convention Centre) – 30 January to 25 March 2010
False Creek
* East Basin – Vancouver Athlete’s Village – 25 January to 25 March 2010
Fraser River Middle Arm
* Richmond Olympic Oval – 1 February to 28 February 2010
Vancouver Harbour, Strait of Georgia and Howe Sound (enhanced surveillance only)
* 25 January – 25 March 2010
CANADA – VANCOUVER HARBOR AND FRASER RIVER – Olympic Security Zones (revised from LNM 03/10)
Olympic Security Zones have been established in Vancouver Harbor, Canada in the following locations:
1. In the vicinity of Canada Place and around Ballantyne Pier from the northwest end of the Centerm facility to the Southern Railway Dock. This restricted area is marked by lighted buoys and a floating marine barrier. Mariners are requested to keep clear of this barrier by 50 meters.
2. In the area northwest of Canada Place, with the perimeter marked by four white lighted can buoys, with flashing yellow lights.
3. In the area west of Canada Place, with the western perimeter marked by two white lighted buoys with flashing yellow lights.
4. On the Fraser River on the south side of the channel between the #2 Road Bridge and the Dinsmore Bridge. Three buoys with flashing yellow lights and unlit buoys between them have been placed to mark this zone.
H/T: BitterEnd
Cal. Harbors and Navigation Code Sec. 1198 and Federal Maritime Law
Does Federal Maritime Law preempt Section 1198(c) of the California Harbors and Navigation Code? According to the Northern District of California, no. On November 7, 2007, there was an allison between the M/V Cosco Busan and the Bay Bridge. The California Harbors and Navigation Code section 1198, provides that a vessel, or its owner or operator, shall either purchase trip insurance from the pilot, or defend, indemnify and hold harmless the pilot if an accident occurs due to the pilot's negligence. Under federal maritime law, the owner of a vessel is not personally liable for the negligence of a compulsory pilot.
Now there is some tension between general maritime principle that shipowners cannot be held personally liable for the negligence of compulsory pilots, and section 1198, which requires shipowners who do not purchase trip insurance to defend, indemnify, and hold harmless compulsory pilots. This tension is mitigated somewhat by the fact that section 1198 provides shipowners with a choice: even though pilots are compulsory in the Bay of San Francisco, shipowners do not have to defend, indemnify and hold harmless pilots if they purchase trip insurance. More importantly, however, federal legislation provides that pilots shall be regulated only in conformity with the laws of the states. Therefore, the Court found that the general maritime principle at issue here does not preempt section 1198.
The District Court pointed to both Guangco v. Edward Shipping and Mercantile, S.A., 705 F.2d 360 (1983) and United States v. S.S. President Van Buren, 490 F.2d 504 (1973) from the Ninth Circuit as being consistent with this decision.
The court also concluded that Section 1198 was not preempted by the Oil Pollution Act (“OPA”). Because, the OPA contains a savings clause, which provides that nothing in the act shall “affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under ... State law, including common law.”
Now there is some tension between general maritime principle that shipowners cannot be held personally liable for the negligence of compulsory pilots, and section 1198, which requires shipowners who do not purchase trip insurance to defend, indemnify, and hold harmless compulsory pilots. This tension is mitigated somewhat by the fact that section 1198 provides shipowners with a choice: even though pilots are compulsory in the Bay of San Francisco, shipowners do not have to defend, indemnify and hold harmless pilots if they purchase trip insurance. More importantly, however, federal legislation provides that pilots shall be regulated only in conformity with the laws of the states. Therefore, the Court found that the general maritime principle at issue here does not preempt section 1198.
The District Court pointed to both Guangco v. Edward Shipping and Mercantile, S.A., 705 F.2d 360 (1983) and United States v. S.S. President Van Buren, 490 F.2d 504 (1973) from the Ninth Circuit as being consistent with this decision.
The court also concluded that Section 1198 was not preempted by the Oil Pollution Act (“OPA”). Because, the OPA contains a savings clause, which provides that nothing in the act shall “affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under ... State law, including common law.”
Thursday, February 4, 2010
Rear Admiral Bruce MacDonald Makes the Case for the Law of the Sea Treaty
The Navy Judge Advocate Generals Corps has been at the forefront in advocating for the ratification of the Law of the Sea Treaty. In fact, they've done more to advertise the benefits to the US of ratification than many political leaders. Here's a short video of Rear Admiral Bruce MacDonald explaining why the treaty is good for the US.
Down Under vs Kookaburra Sits in the Old Gum Tree
Not admiralty related but I had to comment on this. Everyone of my generation remembers Men at Work and "Down Under."
Now if you have kids or have a clear memory of kindergarten you might also be familiar with the Kookaburra song.
Now an Australian court has found that that the flute riff in “Down Under” ... infringes on the copyright of Kookaburra because it replicates in material form a substantial part. Adam Simpson, Larrikin Music’s lawyer, said outside court the company might seek up to 60 percent of the royalties “Down Under” earned since its release.
“Down Under” and the album “Business As Usual” topped the Australian, American and British charts in early 1983. The song remains an unofficial anthem for Australia and was ranked fourth in a 2001 music industry survey of the best Australian songs. Men at Work won the 1983 Grammy Award for Best New Artist, which of course was pretty much the kiss of death for their career.
“Kookaburra Sits in the Old Gum Tree” was written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition, and the song has been a favorite around campfires from New Zealand to Canada.
The teacher died in 1988, and publishing company Larrikin Music owns the copyright to her song about the native Australian bird. Larrikin filed the copyright lawsuit last year. Which makes me wonder do they not apply laches to copyright claims in Australia?
Here's an Australian report on the case.
And what the heck here's Colin Hay being awesome on Scrubs.
Now if you have kids or have a clear memory of kindergarten you might also be familiar with the Kookaburra song.
Now an Australian court has found that that the flute riff in “Down Under” ... infringes on the copyright of Kookaburra because it replicates in material form a substantial part. Adam Simpson, Larrikin Music’s lawyer, said outside court the company might seek up to 60 percent of the royalties “Down Under” earned since its release.
“Down Under” and the album “Business As Usual” topped the Australian, American and British charts in early 1983. The song remains an unofficial anthem for Australia and was ranked fourth in a 2001 music industry survey of the best Australian songs. Men at Work won the 1983 Grammy Award for Best New Artist, which of course was pretty much the kiss of death for their career.
“Kookaburra Sits in the Old Gum Tree” was written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition, and the song has been a favorite around campfires from New Zealand to Canada.
The teacher died in 1988, and publishing company Larrikin Music owns the copyright to her song about the native Australian bird. Larrikin filed the copyright lawsuit last year. Which makes me wonder do they not apply laches to copyright claims in Australia?
Here's an Australian report on the case.
And what the heck here's Colin Hay being awesome on Scrubs.
Somali Pirates Hijack North Korean Ship
A North Korean-flagged general cargo vessel was hijacked by Somali pirates on Wednesday morning. EU NAVFOR said the 4,800 dwt vessel RIM, owned by Libya’s White Sea Shipping was north west of the Gulf of Aden, and close to the Yemini coast when it was hijacked. The vessel was not registered with the Maritime Security Corridor naval forces. According to reports the vessel normally has crew of 17 Romanian and Libyan seafarers. Following the hijacking the vessel changed course and headed for the Somali Basin.
Senior Chief Accused of Hazing Faces Retirement Board
A senior chief who ran a military working dog kennel in Bahrain and allegedly permitted hazing, hookers and other misconduct will face a retirement board Thursday, Navy officials said.
The Navy is forcing Senior Chief Master-at-Arms Michael Toussaint, 38, into retirement. The board convening at Naval Station Norfolk, Va., will determine the rank he’ll retire with and the size of the pension he’ll receive.
The board is expected to last two days.
Toussaint’s retirement comes after Chief of Naval Operations Adm. Gary Roughead last year ordered a fresh review of the 2007 command investigation that confirmed widespread misconduct in the Bahrain security unit Toussaint led but did not result in significant disciplinary actions.
The original command investigation found one sailor was ordered to simulate homosexual sex acts, tied up and locked in a dog cage, and forced to eat dog biscuits. Gambling, fraternization and socializing with prostitutes were also commonplace among some of the unit’s sailors, investigators found.
From the Navy Times
The Navy is forcing Senior Chief Master-at-Arms Michael Toussaint, 38, into retirement. The board convening at Naval Station Norfolk, Va., will determine the rank he’ll retire with and the size of the pension he’ll receive.
The board is expected to last two days.
Toussaint’s retirement comes after Chief of Naval Operations Adm. Gary Roughead last year ordered a fresh review of the 2007 command investigation that confirmed widespread misconduct in the Bahrain security unit Toussaint led but did not result in significant disciplinary actions.
The original command investigation found one sailor was ordered to simulate homosexual sex acts, tied up and locked in a dog cage, and forced to eat dog biscuits. Gambling, fraternization and socializing with prostitutes were also commonplace among some of the unit’s sailors, investigators found.
From the Navy Times
ProShipLine Inc. v. Aspen Infrastructures Ltd.: Rule B Attachments and Equitable Vacatur
A case out of the Ninth Circuit examines when equitable vacatur of a writ of maritime attachment is appropriate. In ProShipLine Inc. v. Aspen Infrastructures Ltd., ProShipLine, as the designated agent and assignee of EP-Team, agreed to act as Aspen's general sales and port services agent. ProShipLine and EP-Team solicited cargo for return trips to India and handled port and terminal operations for Aspen throughout America.
The Agreement between the companies contains both a forum selection clause and a choice-of-law clause. The forum selection clause says, in the case of a dispute between the parties, arbitration should take place in Singapore. (Yes Singapore) The choice-of-law clause says, in such a dispute, the Agreement should be construed and enforced in accord with English law.
As so often happens in business the relationship soured and litigation commenced in New York, Washington, and Texas. In Texas a Rule B attachment was first granted then vacated because the court concluded ProShipLine and EP-Team had failed to sufficiently show that Aspen could not be “found” within the district, a requirement of Rule B.
In New York, Aspen alleged admiralty jurisdiction and sought an order and writ of maritime attachment pursuant to Rule B. The district court ordered the issuance of the writ. Pursuant to that writ, Aspen successfully seized funds belonging to EP-Team. ProShipLine independently filed a separate action against Aspen in the Southern District of New York and sought its own attachment. ProShipLine garnished Aspen and seized approximately $2 million from Aspen's bank accounts. On January 16, 2008, Aspen moved to vacate the district court's order in the Second New York Action. The district court ruled in favor of Aspen on February 1, 2008, and vacated the writ. ProShipLine appealed the district court's grant of this motion to the Second Circuit, which affirmed the district court.
In Washington, ProShipLine and EP-Team filed another ancillary Rule B action in the Western District. roShipLine and EP-Team successfully obtained a writ of maritime attachment against Aspen. In light of the district court's order, Aspen posted security pursuant to Supplemental Admiralty and Maritime Claims Rule E(5) (“Rule E(5)”) in lieu of allowing ProShipLine and EP-Team to garnish the fuel and lube oil aboard one of Aspen's chartered vessels within the district. However when the M/V Beluga Fusion entered the Western District of Washington ProShipLine and Aspen sought to garnish its fuel and lube oil. This time, Aspen declined to provide security to substitute for garnishment of those resources. Despite ProShipLine's emergency motion to compel Aspen to provide security, the fuel and lube oil was removed from the vessel and sold.
Aspen then moved to vacate the writ that the district court issued in the Washington Action and to exonerate the security held by ProShipLine and EP-Team pursuant to that writ. The district court granted Aspen's motion and ordered ProShipLine and EP-Team to return the full value of the garnished property. The district court held that equitable vacatur was appropriate because the Agreement did not give rise to admiralty jurisdiction, res judicata applied from the Second New York Action and all of the parties were present within the same district.
When examining the equitable vacatur in the context of admiralty law issue the court looked three specific instances where the Second Circuit has concluded it maybe appropriate.
1) the defendant is subject to suit in a convenient adjacent jurisdiction;
2) the plaintiff could obtain in personam jurisdiction over the defendant in the district where the plaintiff is located; or
3) the plaintiff has already obtained sufficient security for the potential judgment, by attachment or otherwise.
In reversing the district courts decision in regard to EP-Team, the court concluded that the “the district where the plaintiff is located” suggests that the plaintiff must have a materially significant presence in the district where it is obtaining in personam jurisdiction over the defendant. Because there was no evidence that EP-Team had a significant presence in the Southern District of Texas, the lower court improperly vacated their writ.
The dissent however argues that EP-Team acceded to in personam jurisdiction there by choosing to file the underlying lawsuit against Aspen within that district, and counsel conceded jurisdiction there at oral argument.
Furthermore the dissent blasts EP-Team and ProShipLines legal strategy:
Because the record strongly suggests that maritime attachments are being employed by ProShipLine and EP-Team for the vexatious purpose of harassing Aspen in order to gain tactical advantage in the pending commercial disputes among the parties in Singapore and Houston, the district court did not abuse its discretion in vacating the writs. Equity should not countenance such litigation tactics even in a maritime case.
Interesting case and as the Ninth Circuit has examined this question before a precedent setting one.
The Agreement between the companies contains both a forum selection clause and a choice-of-law clause. The forum selection clause says, in the case of a dispute between the parties, arbitration should take place in Singapore. (Yes Singapore) The choice-of-law clause says, in such a dispute, the Agreement should be construed and enforced in accord with English law.
As so often happens in business the relationship soured and litigation commenced in New York, Washington, and Texas. In Texas a Rule B attachment was first granted then vacated because the court concluded ProShipLine and EP-Team had failed to sufficiently show that Aspen could not be “found” within the district, a requirement of Rule B.
In New York, Aspen alleged admiralty jurisdiction and sought an order and writ of maritime attachment pursuant to Rule B. The district court ordered the issuance of the writ. Pursuant to that writ, Aspen successfully seized funds belonging to EP-Team. ProShipLine independently filed a separate action against Aspen in the Southern District of New York and sought its own attachment. ProShipLine garnished Aspen and seized approximately $2 million from Aspen's bank accounts. On January 16, 2008, Aspen moved to vacate the district court's order in the Second New York Action. The district court ruled in favor of Aspen on February 1, 2008, and vacated the writ. ProShipLine appealed the district court's grant of this motion to the Second Circuit, which affirmed the district court.
In Washington, ProShipLine and EP-Team filed another ancillary Rule B action in the Western District. roShipLine and EP-Team successfully obtained a writ of maritime attachment against Aspen. In light of the district court's order, Aspen posted security pursuant to Supplemental Admiralty and Maritime Claims Rule E(5) (“Rule E(5)”) in lieu of allowing ProShipLine and EP-Team to garnish the fuel and lube oil aboard one of Aspen's chartered vessels within the district. However when the M/V Beluga Fusion entered the Western District of Washington ProShipLine and Aspen sought to garnish its fuel and lube oil. This time, Aspen declined to provide security to substitute for garnishment of those resources. Despite ProShipLine's emergency motion to compel Aspen to provide security, the fuel and lube oil was removed from the vessel and sold.
Aspen then moved to vacate the writ that the district court issued in the Washington Action and to exonerate the security held by ProShipLine and EP-Team pursuant to that writ. The district court granted Aspen's motion and ordered ProShipLine and EP-Team to return the full value of the garnished property. The district court held that equitable vacatur was appropriate because the Agreement did not give rise to admiralty jurisdiction, res judicata applied from the Second New York Action and all of the parties were present within the same district.
When examining the equitable vacatur in the context of admiralty law issue the court looked three specific instances where the Second Circuit has concluded it maybe appropriate.
1) the defendant is subject to suit in a convenient adjacent jurisdiction;
2) the plaintiff could obtain in personam jurisdiction over the defendant in the district where the plaintiff is located; or
3) the plaintiff has already obtained sufficient security for the potential judgment, by attachment or otherwise.
In reversing the district courts decision in regard to EP-Team, the court concluded that the “the district where the plaintiff is located” suggests that the plaintiff must have a materially significant presence in the district where it is obtaining in personam jurisdiction over the defendant. Because there was no evidence that EP-Team had a significant presence in the Southern District of Texas, the lower court improperly vacated their writ.
The dissent however argues that EP-Team acceded to in personam jurisdiction there by choosing to file the underlying lawsuit against Aspen within that district, and counsel conceded jurisdiction there at oral argument.
Furthermore the dissent blasts EP-Team and ProShipLines legal strategy:
Because the record strongly suggests that maritime attachments are being employed by ProShipLine and EP-Team for the vexatious purpose of harassing Aspen in order to gain tactical advantage in the pending commercial disputes among the parties in Singapore and Houston, the district court did not abuse its discretion in vacating the writs. Equity should not countenance such litigation tactics even in a maritime case.
Interesting case and as the Ninth Circuit has examined this question before a precedent setting one.
Wednesday, February 3, 2010
Vernon C. Bain - Prison Barge
This is the Vernon C. Bain Prison Barge.
It's moored but not permanently moored at the Rikers Island Complex. It is required by the Coast Guard to maintain a maritime crew, including a mate, an engineer, and an oiler. So here's the question, if an inmate or an employee is injured on the barge would it fall under admiralty jurisdiction? Believe it or not it appears the question has never been litigated, at least I can't find it in my search of federal and New York cases.
It's moored but not permanently moored at the Rikers Island Complex. It is required by the Coast Guard to maintain a maritime crew, including a mate, an engineer, and an oiler. So here's the question, if an inmate or an employee is injured on the barge would it fall under admiralty jurisdiction? Believe it or not it appears the question has never been litigated, at least I can't find it in my search of federal and New York cases.
Maritime Liens in Rent Dispute
At issue in Sea Village Marina, LLC v. A 1980 Carlcraft Houseboat out of the New Jersey District Court are maritime liens on vessels from a marina for non-payment of rent. The facts of this case are somewhat twisted so they deserve special attention.
Sea Village Marina, operates a community of houseboats in Egg Harbor Township, New Jersey. The vessels in this action have occupied the slips at which they are currently moored for many years. On February 28, 2007, Egg Harbor Township passed a revision of its rent control ordinance applying it to the marina's agreements with the owners of the floating homes. A few weeks after the rent control ordinance was revised, apparently believing that it could set the baseline dockage fee under the ordinance, Sea Village Marina issued notices to the vessel owners that their agreements with the marina would be terminated and that a new, much higher dockage rate would go into effect. According to the notice, the marina was already experiencing financial troubles and it feared that the rent control would only exacerbate the problem. The notice indicates that the rate being billed at the time was $633.75 per month, and that the new rate would be $1,165.25.
That did not go over well with the residents. Sea Village bookkeeper Beverly Cox testified that in April 2007, the manager of Sea Village, Patricia Best, resigned from her position, and an interim administratrix, Barbara Lieberman, took over on May 25, 2007. Lieberman instructed Cox to bill the dockage at a rate of $633.75 per month, instead of the rate in the notices to quit, in an effort to resolve an ongoing “rent strike.” Cox testified that Defendants were billed $633.75 for dockage from May 2007 until August 2009.
Lieberman's plan to end the rent strike by billing the dockage at $633.75 instead of the higher notice to quit rate was also unsuccessful. In June 2007, the marina's lease from the State of New Jersey to occupy the tidelands upon which it sits expired, apparently because the marina could not afford to pay the licensing fees for renewal. On July 13, 2007, the vessel owners occupying 32 slips, including Defendants, entered into an agreement with the marina according to which dockage fees would be paid into an escrow until a new well was built for the marina. The terms of the “Agreement As To Rent Dispute” provided that the dockage fee was to be set at $600 (with a $100 credit until the problems with the water were remedied) for the period from May 2007 through July 2008. Each month, half of the dockage payment (i.e.$250) was to be released to the marina.
According to Cox, despite the agreement, the vessel owners continued to be billed for dockage at a rate of $633.75, of which no portion was paid including no payments of $250 per month according to the rental agreement. Cox testified that no portion of the dockage owed since December 1, 2006 for the Allen vessel and May 21, 2007 for the Patterson vessel has been paid to the marina.
Ms. Cox did testify that $500 from the escrow was distributed to an attorney to draft a new dockage agreement. She also said that “[t]here was another distribution of a little over $20,000 early on ... in July of 2007.” However, no part of the $20,500 of distributed escrow funds was credited to any of the tenants because the attorney managing the escrow “did not give [the marina] any kind of a breakdown on where to apply, he didn't tell us who paid how much, what portion of it should be applied to any tenant.”
In May 2008, Sea Village, by then under the management of Bill Garry, brought actions in state court for non-payment of rent against Allen, Patterson, and three others. The dockage rate alleged in the state court documents was $633.75. For unknown reasons, the marina did not pursue these actions and they were dismissed for lack of prosecution on March 10, 2009. This brings us to June 2009 when the new owner of Sea Village, Thomas Martinolich, embarked on a novel approach to the problem of the rent dispute: maritime liens. Shortly after he took over on June 16, according to Cox, he instructed Cox to edit the computer data in the bookkeeping software to retroactively reflect the dockage fee proposed in the notices allegedly sent to the vessel owners in March 2007, namely $1,165.25, rather than the dockage fee that was actually billed to the residents of Sea Village, namely $633.75.
On July 7, he filed the present action in rem pursuant to 46 U.S.C. § 31342 to enforce maritime liens on four of the floating homes as the result of the delinquent dockage payments. Cox tabulated the amounts due for the Verified Complaint based on the computer data she had been instructed to revise upward. On July 7, 2009, Plaintiff filed its Verified Complaint in rem against the four vessels, asserting claims arising under the maritime lien statute, 46 U.S.C. § 31342(a), invoking the Court's admiralty jurisdiction to collect unpaid houseboat dockage fees. These claims asserted the amounts of $49,130.59 as to the Allen Vessel and $44,117.47 as to the Patterson Vessel.
Upon reviewing the Verified Complaint, this Court issued warrants for the arrest of the vessels the same day the complaint was filed. On July 28, 2009, two of the owners of the floating homes requested a post-arrest hearing which was held two days later. At that first hearing on July 30, 2009, Plaintiff entered into evidence for each vessel a document described by Cox as an “internal statement of the account showing all of the open invoices.” Cox testified that these statements were the records she consulted to calculate the dockage owed, and that they were kept in the ordinary course of business. In fact, according to Cox's later testimony, the statements were produced based on the data that was edited in advance of this litigation in June 2009 to retroactively reflect the higher amounts-amounts that were not actually billed.
The court has held four hearings on these issues:
At this first hearing, Defendants made a number of objections to the seizure, including objections to the exercise of subject matter jurisdiction in admiralty in this matter, arguing that the floating homes were not vessels. It became clear to the Court that some discovery would be needed in the case, and the Court ordered that the owners be permitted to board and occupy the homes while they remained within the custody of the Court and ordered limited discovery and ordered briefing from the parties on the issue of subject matter jurisdiction.
The second hearing, on October 9, 2009, was focused on the threshold question of whether these floating homes constituted vessels for the purposes of admiralty jurisdiction. In a written opinion of October 19, 2009, the Court determined that it had admiralty jurisdiction over the matter based on the seaworthiness of the vessels and their lack of permanent mooring.
During the third hearing on November 24, 2009 the nature of Plaintiff's unorthodox bookkeeping was revealed.
The fourth hearing, held on December 10, 2009, examined the fruits of this expedited discovery. Defendants also called Robert Cozen, a marine surveyor, and Defendant John Allen. Both testified about conditions at the marina.
As I said twisted.
Do determine the Plaintiff's ability to collect dockage and enforce the lien the court looked at three issues, fraud, the applicability of state landlord tenant statutes, the rent control issue, the escrow issue, and the tidelands lease issue.
The court decided that based on the record there was insufficient evidence to determine if a fraud had been perpetrated on the court. However it would hold a separate hearing to determine if any fraud occurred or if Rule 11 had been violated. As for the current claim in which the existence of a lien, but not necessarily its quantum, the plaintiff exhibited that the owners of the vessels had not paid there dockage, only the amount was in question.
The court also concluded that New Jersey state laws (N.J. Stat. Ann. § 46:8-28, N.J. Stat. Ann. § 2A:18-61.1, & N.J. Stat. Ann. § 2A:42:10-10.10.) regulating the relationship between landlords and tenants do not apply in this situation. The language of N.J. Stat. Ann. § 46:8-28 defines a landlord is one who owns or controls “any building or project in which there is rented or offered for rent housing space for living or dwelling purposes.” Clearly the marina falls outside this definition. N.J. Stat. Ann. § 2A:18-61.1, New Jersey's Anti-Eviction Act is only applicable to actions initiated in New Jersey Superior Court. Finally the Tenant's Reprisal Act, prohibits eviction in response to various protected actions, such as good faith complaints to government authorities about the conditions of the premises. It applies to “all actions and proceedings by a landlord against a tenant to recover possession of premises used for dwelling purposes.” However based on precedent in New Jersey courts, Pohlman v. Metropolitan Trailer Park, Inc., 312 A.2d 888, (N.J. Ch.1973) the language of this statute would need to be modified by the legislature to specifically cover vessels not owned by the one providing dockage to them, or some evidence that these vessels the act should not apply.
On the rent control issue the court found that it need not examine the applicability of the law, because even with it enforced on the marina, it would not reduce the amount owed to the plaintiff to zero. Therefore a lien was still available to them.
As to the contention that the escrow payments prevents the lien, the court found that neither waiver nor substitute security applies here. The escrow has not been accepted by Plaintiff or offered to the Court pursuant to Rule E(5), so it cannot constitute substitute security, even if it met the other requirements of such security.
Finally, Defendants urge that Plaintiff cannot collect for the necessaries provided after the expiration of the tidelands lease since Plaintiff was merely trespassing upon the tidelands, However, a fundamental tenet of property law is that a lawful entrant onto land does not become a trespasser at the termination of his license. They instead, become a tenant at sufferance.
The Court was not aware of any precedent on the question of whether a tenant at sufferance may benefit from services he provided incident to his occupancy of the premises. The party wronged in such a scenario is the landlord (here, the State of New Jersey), if anyone, whose remedy was to remove the tenant or seek reasonable rent for the period of his tenancy. The Court could see no reason why a third party beneficiary of a tenant at sufferance's tenancy should be given the benefit of free services as a result of any wrong done to the landlord.
The Court then examined the quantum of the lien. To that end Court concluded that the necessaries the marina provided over the relevant period were worth more than the amount of money that has been released to it from the escrow.
Therefore the Plaintiff was entitled to a maritime lien and has shown reasonable grounds for the arrest of the vessels pursuant to Supplemental Rule E(4)(f) and Local Admiralty Rule (e)(8).
Sea Village Marina, operates a community of houseboats in Egg Harbor Township, New Jersey. The vessels in this action have occupied the slips at which they are currently moored for many years. On February 28, 2007, Egg Harbor Township passed a revision of its rent control ordinance applying it to the marina's agreements with the owners of the floating homes. A few weeks after the rent control ordinance was revised, apparently believing that it could set the baseline dockage fee under the ordinance, Sea Village Marina issued notices to the vessel owners that their agreements with the marina would be terminated and that a new, much higher dockage rate would go into effect. According to the notice, the marina was already experiencing financial troubles and it feared that the rent control would only exacerbate the problem. The notice indicates that the rate being billed at the time was $633.75 per month, and that the new rate would be $1,165.25.
That did not go over well with the residents. Sea Village bookkeeper Beverly Cox testified that in April 2007, the manager of Sea Village, Patricia Best, resigned from her position, and an interim administratrix, Barbara Lieberman, took over on May 25, 2007. Lieberman instructed Cox to bill the dockage at a rate of $633.75 per month, instead of the rate in the notices to quit, in an effort to resolve an ongoing “rent strike.” Cox testified that Defendants were billed $633.75 for dockage from May 2007 until August 2009.
Lieberman's plan to end the rent strike by billing the dockage at $633.75 instead of the higher notice to quit rate was also unsuccessful. In June 2007, the marina's lease from the State of New Jersey to occupy the tidelands upon which it sits expired, apparently because the marina could not afford to pay the licensing fees for renewal. On July 13, 2007, the vessel owners occupying 32 slips, including Defendants, entered into an agreement with the marina according to which dockage fees would be paid into an escrow until a new well was built for the marina. The terms of the “Agreement As To Rent Dispute” provided that the dockage fee was to be set at $600 (with a $100 credit until the problems with the water were remedied) for the period from May 2007 through July 2008. Each month, half of the dockage payment (i.e.$250) was to be released to the marina.
According to Cox, despite the agreement, the vessel owners continued to be billed for dockage at a rate of $633.75, of which no portion was paid including no payments of $250 per month according to the rental agreement. Cox testified that no portion of the dockage owed since December 1, 2006 for the Allen vessel and May 21, 2007 for the Patterson vessel has been paid to the marina.
Ms. Cox did testify that $500 from the escrow was distributed to an attorney to draft a new dockage agreement. She also said that “[t]here was another distribution of a little over $20,000 early on ... in July of 2007.” However, no part of the $20,500 of distributed escrow funds was credited to any of the tenants because the attorney managing the escrow “did not give [the marina] any kind of a breakdown on where to apply, he didn't tell us who paid how much, what portion of it should be applied to any tenant.”
In May 2008, Sea Village, by then under the management of Bill Garry, brought actions in state court for non-payment of rent against Allen, Patterson, and three others. The dockage rate alleged in the state court documents was $633.75. For unknown reasons, the marina did not pursue these actions and they were dismissed for lack of prosecution on March 10, 2009. This brings us to June 2009 when the new owner of Sea Village, Thomas Martinolich, embarked on a novel approach to the problem of the rent dispute: maritime liens. Shortly after he took over on June 16, according to Cox, he instructed Cox to edit the computer data in the bookkeeping software to retroactively reflect the dockage fee proposed in the notices allegedly sent to the vessel owners in March 2007, namely $1,165.25, rather than the dockage fee that was actually billed to the residents of Sea Village, namely $633.75.
On July 7, he filed the present action in rem pursuant to 46 U.S.C. § 31342 to enforce maritime liens on four of the floating homes as the result of the delinquent dockage payments. Cox tabulated the amounts due for the Verified Complaint based on the computer data she had been instructed to revise upward. On July 7, 2009, Plaintiff filed its Verified Complaint in rem against the four vessels, asserting claims arising under the maritime lien statute, 46 U.S.C. § 31342(a), invoking the Court's admiralty jurisdiction to collect unpaid houseboat dockage fees. These claims asserted the amounts of $49,130.59 as to the Allen Vessel and $44,117.47 as to the Patterson Vessel.
Upon reviewing the Verified Complaint, this Court issued warrants for the arrest of the vessels the same day the complaint was filed. On July 28, 2009, two of the owners of the floating homes requested a post-arrest hearing which was held two days later. At that first hearing on July 30, 2009, Plaintiff entered into evidence for each vessel a document described by Cox as an “internal statement of the account showing all of the open invoices.” Cox testified that these statements were the records she consulted to calculate the dockage owed, and that they were kept in the ordinary course of business. In fact, according to Cox's later testimony, the statements were produced based on the data that was edited in advance of this litigation in June 2009 to retroactively reflect the higher amounts-amounts that were not actually billed.
The court has held four hearings on these issues:
At this first hearing, Defendants made a number of objections to the seizure, including objections to the exercise of subject matter jurisdiction in admiralty in this matter, arguing that the floating homes were not vessels. It became clear to the Court that some discovery would be needed in the case, and the Court ordered that the owners be permitted to board and occupy the homes while they remained within the custody of the Court and ordered limited discovery and ordered briefing from the parties on the issue of subject matter jurisdiction.
The second hearing, on October 9, 2009, was focused on the threshold question of whether these floating homes constituted vessels for the purposes of admiralty jurisdiction. In a written opinion of October 19, 2009, the Court determined that it had admiralty jurisdiction over the matter based on the seaworthiness of the vessels and their lack of permanent mooring.
During the third hearing on November 24, 2009 the nature of Plaintiff's unorthodox bookkeeping was revealed.
The fourth hearing, held on December 10, 2009, examined the fruits of this expedited discovery. Defendants also called Robert Cozen, a marine surveyor, and Defendant John Allen. Both testified about conditions at the marina.
As I said twisted.
Do determine the Plaintiff's ability to collect dockage and enforce the lien the court looked at three issues, fraud, the applicability of state landlord tenant statutes, the rent control issue, the escrow issue, and the tidelands lease issue.
The court decided that based on the record there was insufficient evidence to determine if a fraud had been perpetrated on the court. However it would hold a separate hearing to determine if any fraud occurred or if Rule 11 had been violated. As for the current claim in which the existence of a lien, but not necessarily its quantum, the plaintiff exhibited that the owners of the vessels had not paid there dockage, only the amount was in question.
The court also concluded that New Jersey state laws (N.J. Stat. Ann. § 46:8-28, N.J. Stat. Ann. § 2A:18-61.1, & N.J. Stat. Ann. § 2A:42:10-10.10.) regulating the relationship between landlords and tenants do not apply in this situation. The language of N.J. Stat. Ann. § 46:8-28 defines a landlord is one who owns or controls “any building or project in which there is rented or offered for rent housing space for living or dwelling purposes.” Clearly the marina falls outside this definition. N.J. Stat. Ann. § 2A:18-61.1, New Jersey's Anti-Eviction Act is only applicable to actions initiated in New Jersey Superior Court. Finally the Tenant's Reprisal Act, prohibits eviction in response to various protected actions, such as good faith complaints to government authorities about the conditions of the premises. It applies to “all actions and proceedings by a landlord against a tenant to recover possession of premises used for dwelling purposes.” However based on precedent in New Jersey courts, Pohlman v. Metropolitan Trailer Park, Inc., 312 A.2d 888, (N.J. Ch.1973) the language of this statute would need to be modified by the legislature to specifically cover vessels not owned by the one providing dockage to them, or some evidence that these vessels the act should not apply.
On the rent control issue the court found that it need not examine the applicability of the law, because even with it enforced on the marina, it would not reduce the amount owed to the plaintiff to zero. Therefore a lien was still available to them.
As to the contention that the escrow payments prevents the lien, the court found that neither waiver nor substitute security applies here. The escrow has not been accepted by Plaintiff or offered to the Court pursuant to Rule E(5), so it cannot constitute substitute security, even if it met the other requirements of such security.
Finally, Defendants urge that Plaintiff cannot collect for the necessaries provided after the expiration of the tidelands lease since Plaintiff was merely trespassing upon the tidelands, However, a fundamental tenet of property law is that a lawful entrant onto land does not become a trespasser at the termination of his license. They instead, become a tenant at sufferance.
The Court was not aware of any precedent on the question of whether a tenant at sufferance may benefit from services he provided incident to his occupancy of the premises. The party wronged in such a scenario is the landlord (here, the State of New Jersey), if anyone, whose remedy was to remove the tenant or seek reasonable rent for the period of his tenancy. The Court could see no reason why a third party beneficiary of a tenant at sufferance's tenancy should be given the benefit of free services as a result of any wrong done to the landlord.
The Court then examined the quantum of the lien. To that end Court concluded that the necessaries the marina provided over the relevant period were worth more than the amount of money that has been released to it from the escrow.
Therefore the Plaintiff was entitled to a maritime lien and has shown reasonable grounds for the arrest of the vessels pursuant to Supplemental Rule E(4)(f) and Local Admiralty Rule (e)(8).
China International Marine Containers to Acquire 75% Stake in Friede & Goldman United
China International Marine Containers (Group) Ltd. (CIMC) said Tuesday it would acquire a 75-percent stake in Friede & Goldman United (F&G), a U.S.-based naval architecture and marine engineering firm for the offshore drilling market.
In a statement filed to the Shenzhen Stock Exchange, CIMC, one of the world's largest container producers, said it would purchase F&G shares owned by Russian shipbuilder MNP Group, for 75 million U.S. dollars. It said this acquisition was approved at a board meeting Monday.
The Shenzhen-based company said the acquisition could help Yantai Raffles Shipyard (pictured) Limited, a Singapore-based marine company it acquired in November 2009, to improve its design capability and win more orders.
In a statement filed to the Shenzhen Stock Exchange, CIMC, one of the world's largest container producers, said it would purchase F&G shares owned by Russian shipbuilder MNP Group, for 75 million U.S. dollars. It said this acquisition was approved at a board meeting Monday.
The Shenzhen-based company said the acquisition could help Yantai Raffles Shipyard (pictured) Limited, a Singapore-based marine company it acquired in November 2009, to improve its design capability and win more orders.
Tuesday, February 2, 2010
Report: CAG ignored procedures over Venezuela
In May 2008 a US S-3 Viking on a counter narcotics mission entered Venezuelan airspace around the island of La Orchila about 80 miles from the mainland.
Now a Navy investigation has assigned blame for incident. The Navy report blamed Capt. James Paulsen, commander of the Virginia-based Carrier Air Wing 1, and his detachment for failing to review the area’s geography before conducting operations and being unaware of the 12 nautical-mile standoff rules that the U.S. military maintains in the politically sensitive area, the report said.
When Paulson was notified of the intrusion, he made contact with the Venezuelan radio tower and told them he was returning immediately to international air space. Paulsen received a punitive letter of reprimand in October 2008, from Fleet Forces Command chief Adm. Jonathan Greenert but remained in command of the air wing until August 2009.
Paulson is currently assigned to Naval Personnel Command and did not immediately respond to a request for comment by the Navy Times.
What makes this intrusion especially sensitive is that La Orchila is home to a Venezuelan military base, and is where Hugo Chavez was held in the short-lived coup of April 2002.
Now a Navy investigation has assigned blame for incident. The Navy report blamed Capt. James Paulsen, commander of the Virginia-based Carrier Air Wing 1, and his detachment for failing to review the area’s geography before conducting operations and being unaware of the 12 nautical-mile standoff rules that the U.S. military maintains in the politically sensitive area, the report said.
When Paulson was notified of the intrusion, he made contact with the Venezuelan radio tower and told them he was returning immediately to international air space. Paulsen received a punitive letter of reprimand in October 2008, from Fleet Forces Command chief Adm. Jonathan Greenert but remained in command of the air wing until August 2009.
Paulson is currently assigned to Naval Personnel Command and did not immediately respond to a request for comment by the Navy Times.
What makes this intrusion especially sensitive is that La Orchila is home to a Venezuelan military base, and is where Hugo Chavez was held in the short-lived coup of April 2002.
Randsom Paid for M/V Filitsa
(RTTNews) - Somali pirates have freed a Greek cargo vessel along with its crew of 22 after receiving the demanded ransom, said Greek officials on Monday.
Pirates had hijacked MV Filitsa off the Seychelles on 11 November when it was on its way to South Africa with a cargo of chemicals on board.
The ship's owner, Order Shipping, said that the pirates released MV Filista on Monday after the demanded ransom was delivered earlier in the day. The company said that the three Greek officers and the 19 Filipino crew on board the vessel were safe and healthy, but refused to specify the amount of money paid as ransom.
Meanwhile, the Greek Coast Guard in a statement said MV Filista was heading towards the Kenyan port of Mombasa after being released by he pirates.
The Somali coast, particularity the Gulf of Aden, has been infected with piracy in recent years. More than 160 pirate attacks have been reported in the waters off Somalia last year. The pirates have managed to hijack at least 34 vessels, and are currently holding some 10 ships and 200 hostages. Generally, the crew and the vessels are returned unharmed on receiving the demanded ransom.
Somalia has been without a functioning government since the fall of dictator Mohamed Siad Barre's government in 1991.
Currently, a weak UN-backed interim government under President Sheikh Sharif Sheikh Ahmed is trying to enforce its authority in the country, most of which is controlled by various Islamist insurgent groups.
Pirate attacks off the Somali coast have continued despite the presence of several warships, deployed by navies of the NATO, the European Union, Russia, China, South Korea and India, in the region to protect cargo and cruise ships against piracy.
The UN Security Council has approved four resolutions since June to promote international efforts in fighting the escalating piracy problem off the coast of Somalia, and has authorized countries engaged in anti-piracy operations off the Somali coast to conduct land and air attacks on Somali pirates after obtaining prior permission from the Somali government.
Pirates had hijacked MV Filitsa off the Seychelles on 11 November when it was on its way to South Africa with a cargo of chemicals on board.
The ship's owner, Order Shipping, said that the pirates released MV Filista on Monday after the demanded ransom was delivered earlier in the day. The company said that the three Greek officers and the 19 Filipino crew on board the vessel were safe and healthy, but refused to specify the amount of money paid as ransom.
Meanwhile, the Greek Coast Guard in a statement said MV Filista was heading towards the Kenyan port of Mombasa after being released by he pirates.
The Somali coast, particularity the Gulf of Aden, has been infected with piracy in recent years. More than 160 pirate attacks have been reported in the waters off Somalia last year. The pirates have managed to hijack at least 34 vessels, and are currently holding some 10 ships and 200 hostages. Generally, the crew and the vessels are returned unharmed on receiving the demanded ransom.
Somalia has been without a functioning government since the fall of dictator Mohamed Siad Barre's government in 1991.
Currently, a weak UN-backed interim government under President Sheikh Sharif Sheikh Ahmed is trying to enforce its authority in the country, most of which is controlled by various Islamist insurgent groups.
Pirate attacks off the Somali coast have continued despite the presence of several warships, deployed by navies of the NATO, the European Union, Russia, China, South Korea and India, in the region to protect cargo and cruise ships against piracy.
The UN Security Council has approved four resolutions since June to promote international efforts in fighting the escalating piracy problem off the coast of Somalia, and has authorized countries engaged in anti-piracy operations off the Somali coast to conduct land and air attacks on Somali pirates after obtaining prior permission from the Somali government.
Somali Pirates Collected More Than $60 million in Ransom in 2009
Somali pirates managed to scoop more than $60 million in ransom payments from shipowners in 2009, according to a report from a regional anti-piracy watchdog. Last year 47 vessels and nearly 300 crewmembers were seized by pirates, the Seafarers' Assistance Programme report said.
In the first month of this year a further 12 ships have been hijacked.
From SeaTrade Asia.
In the first month of this year a further 12 ships have been hijacked.
From SeaTrade Asia.
Monday, February 1, 2010
Head of JSF Program Fired
Secretary of Defense Robert Gates has fired the head of the Joint Strike Fighter program, Marine Major General David Heinz.
One has to wonder what this means for the JSF program and questions the wisdom of current procurement policies that have seen the JSF slated to replace everything from the F/A-18 to the A-10.
One has to wonder what this means for the JSF program and questions the wisdom of current procurement policies that have seen the JSF slated to replace everything from the F/A-18 to the A-10.
Somali Pirates Use Captured Vessel as Pirate Mothership
A giant car carrier, operated by Eukor and owned by Zodiac Maritime Agencies, is reportedly being deployed by Somapiracy_thumb.jpgli pirates as a mother ship on raids out into the Indian Ocean. The ship was nabbed on January 1, some 1,100 km off the Somali coast with a crew predominantly from eastern Europe. The 4,500 unit carrier was en route from Ulsan to Saudi Arabia with 2,405 cars, of which 2,388 were Hyundais, the manufacturer which Eukor has long held an exclusive relationship with. Security experts were baffled at how the pirates had managed to board the car carrier, given its vertiginous 23 m freeboard. The ship then made for the Somali coast, where presumably the cars were offloaded.
Wire reports on Sunday suggested the ship is now back out at sea, helping pirates snare more victims further out into the ocean. Meanwhile, Russian wire reports said that the pirates had mock staged the execution of the Bulgarian master of the British flagged Asian Glory.
PLA Soldiers to be Placed on Hong Kong Registered Ships
Chinese army soldiers are being deployed on board Hong Kong-registered ships sailing off Africa to counter the threat of pirates, a newspaper reported on Monday. The People's Liberation Army is providing special forces soldiers to patrol slower, vulnerable Hong Kong-registered ships as they sail through the Gulf of Aden, the South China Morning Post said.
Roger Tupper, director of Hong Kong's Marine Department, said the offer of armed soldiers had been accepted by ships registered in Hong Kong although it was not known how many escorts had been provided.
Naval officials involved in the operation off Somalia told the newspaper the teams of soldiers were drawn from China's deployment of three warships stationed off Somalia.
Other Hong Kong shipping companies operating bulk carriers have accepted escorts from the Chinese warships as they pass through the pirate-plagued seas, but not armed soldiers on board their vessels.
Roger Tupper, director of Hong Kong's Marine Department, said the offer of armed soldiers had been accepted by ships registered in Hong Kong although it was not known how many escorts had been provided.
Naval officials involved in the operation off Somalia told the newspaper the teams of soldiers were drawn from China's deployment of three warships stationed off Somalia.
Other Hong Kong shipping companies operating bulk carriers have accepted escorts from the Chinese warships as they pass through the pirate-plagued seas, but not armed soldiers on board their vessels.
Longshore and Harbor Workers' Compensation Act and Maritime Status
There's an interesting case out of the 8th Circuit involving Longshore and Harbor Workers' Compensation Act and maritime status. To be covered by the Longshore Act, an employee must be injured while working: (1) at a maritime situs; and (2) in a maritime status. Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 265, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). In In re Norfolk Southern Ry. Co., David Demay, an employee of the Norfolk Southern, was injured while working in Norfolk, Virginia, at the Lamberts Point Coal Terminal. The terminal is a coal-loading facility that is used to load coal into oceangoing vessels. The terminal is divided into four areas: the CT Yard, the Barney Yard, Pier 6, and the empty yard.
Demay, a railroad switchman employed by Norfolk Southern, is a resident Missouri. In October 2008, he was temporarily working at Lamberts Point when he was injured. Demay was working spotting the rail cars when he fell onto the tracks breaking several ribs. Demay filed a lawsuit in the Circuit Court of St. Louis County, Missouri, to recover for his injuries under the Federal Employers' Liability Act(FELA). A case filed in state court under the FELA may not be removed to federal court by the defendant. However, Norfolk Southern removed Demay's suit to federal court, claiming that Demay's claim were controlled exclusively by the Longshore Act because Demay was engaged in maritime employment at the time of his injury.
To determine is Demay's work classifies as a maritime status, we must examine just what Demay did for Norfolk Southern. Demay's job involved setting the brakes on rail cars full of coal in Lambert's Barney Yard where they are then released one by one and roll down an incline onto one of two rotary dumpers. The dumpers rotate the cars and dump the coal onto conveyors, which move the coal to Pier 6 to be deposited into the holds of oceangoing colliers. Once the cars are unloaded, they are moved to the empty yard to return to the coal mines for refilling.
Now the Supreme Court has held that land-based activity, including work done by railway employees, can qualify for coverage under the LHWCA. See Chesapeake & O. Ry. Co. v. Schwalb, 493 U.S. 40, 48, 110 S.Ct. 381, 107 L.Ed.2d 278 (1989) (holding that railway employees engaged in cleaning spilled coal during the loading process were covered by the Longshore Act). the Supreme Court did hold that janitors (whose work at times took them elsewhere on Lamberts Point) were covered by the LHWCA, because they were injured while cleaning up coal that had spilled at the dumper location during the loading process.
Because the nexus of Demay's activity was removed from the actual process of loading and unloading, he was not in a maritime status and therefore there is no LHWCA claim. Therefore it was not proper to remove it to federal court, and the District Courts remand was upheld.
Demay, a railroad switchman employed by Norfolk Southern, is a resident Missouri. In October 2008, he was temporarily working at Lamberts Point when he was injured. Demay was working spotting the rail cars when he fell onto the tracks breaking several ribs. Demay filed a lawsuit in the Circuit Court of St. Louis County, Missouri, to recover for his injuries under the Federal Employers' Liability Act(FELA). A case filed in state court under the FELA may not be removed to federal court by the defendant. However, Norfolk Southern removed Demay's suit to federal court, claiming that Demay's claim were controlled exclusively by the Longshore Act because Demay was engaged in maritime employment at the time of his injury.
To determine is Demay's work classifies as a maritime status, we must examine just what Demay did for Norfolk Southern. Demay's job involved setting the brakes on rail cars full of coal in Lambert's Barney Yard where they are then released one by one and roll down an incline onto one of two rotary dumpers. The dumpers rotate the cars and dump the coal onto conveyors, which move the coal to Pier 6 to be deposited into the holds of oceangoing colliers. Once the cars are unloaded, they are moved to the empty yard to return to the coal mines for refilling.
Now the Supreme Court has held that land-based activity, including work done by railway employees, can qualify for coverage under the LHWCA. See Chesapeake & O. Ry. Co. v. Schwalb, 493 U.S. 40, 48, 110 S.Ct. 381, 107 L.Ed.2d 278 (1989) (holding that railway employees engaged in cleaning spilled coal during the loading process were covered by the Longshore Act). the Supreme Court did hold that janitors (whose work at times took them elsewhere on Lamberts Point) were covered by the LHWCA, because they were injured while cleaning up coal that had spilled at the dumper location during the loading process.
Because the nexus of Demay's activity was removed from the actual process of loading and unloading, he was not in a maritime status and therefore there is no LHWCA claim. Therefore it was not proper to remove it to federal court, and the District Courts remand was upheld.
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