ROKS Cheonan May Have Struck Mine

MSNBC is reporting that the ROKS Cheonan may have struck a mine before sinking. According to South Korean Defense Minister Kim Tae-Young, there was no evidence of a direct attack from North Korea.

South Korean Navy Ship Sinks Near Border With the North

There's been a flood of news reports about the sinking of the ROKS Cheonan. The Cheonan is a Pohang class corvette with a crew of 104 and a displacement of 1,350 tons. So far there's been no word on what caused the sinking but concerns have naturally turned toward an altercation with North Korea.

Holly Graf and Sexism

Was Captain Holly Graf's behavior overlooked because she was a woman? That's a question that arose soon after the story broke.

Mark Thompson in a Time Magazine article makes the case.

A better explanation is that the Navy failed to move on Graf earlier not in spite of her gender but because of it. Following the Tailhook scandal — in which Navy aviators assaulted dozens of women at a 1991 convention — the service rushed women to sea to show it was no longer locked in the Dark Ages. The service was under political pressure to diversify its leadership, and Graf was part of the answer: the first woman to command both a destroyer and a cruiser. Some veterans believe Graf needed more time to prepare for those commands. "I have some sympathy for her," says Nicole Waybright, a young female officer who served with Graf on the Wilbur Curtis. "The Navy felt under pressure to take a woman and put her on the best and most complicated tactical platform," Waybright says. "But she didn't have much experience on it." Some rookies could have stepped up to that challenge, she adds, but not Graf. "She was," Waybright says, "a terrible ship handler."

Charles Morgan Restoration From Volunteer's Perspective

An excellent discussion of the restoration of the whaler Charles Morgan at the WoodenBoat Forum.

Atlantic Bluefin Tuna Proposal Not Adopted After Intense Debate

The proposal to list Atlantic bluefin tuna (Thunnus thynnus) under Appendix I of CITES was not adopted today by the Parties. The proposal, sponsored by the Principality of Monaco, and strongly supported by the United States, garnered intense debate by the Parties due to the importance of this migratory fish species for commercial purposes. The final tally was 20 in support, 68 against and 30 abstentions.

The NOAA Press Release is available here.

Once Again This Is Not Admiralty Law

Sigh..

Sadly too many people actually believe this stuff.

Endangered Right Whale Gives Birth in Busy Shipping/Naval Corridor

Scientist from the University of North Carolina-Wilmington have photographed an endangered right whale giving birth off the coast of northern Florida. The whales migrate up and down the east coast often putting them in the path of shipping and naval activities.

Somali Pirates Take Turkish Ship Off Coast of India

The BBC reported this morning that Somali pirates took a Turkish ship some 1600 km from Somalia, and notably 700 km outside the EUNAVFOR patrol zone. The MV Frigia flagged in Malta was bound for Thailand with a crew of 19 Turks and 2 Ukrainians.

Damages for Violation the Fishing Wage Agreement Statute

That's the issue in Borkowski v. F/V Madison Kate.

Hawaii Ocean Law has the scoop.

Supreme Court Denies Cert in Jaldhi

The US Supreme Court has denied certiorari in the case of Shipping Corporation of India v. Jaldhi Overseas PTE.

Maritime Law in the Middle Ages: Part 2

One important development in the middle ages was the practice of assigning maritime disputes to special maritime courts. One of the earliest example of this new kind of court was the maritime court of Pisa. Established in 1200 by the Pisan maritime guild, this court had comprehensive jurisdiction over maritime matters based upon the nature of the cause rather than the status or trade of the individual. From about this time it became common for port cities to have a "sea counsel" or other officials with maritime jurisdiction.

One of the most famous courts was the Maritime Court of Barcelona. The court was administered by a corps of "sea counsels" and it has left to us a complication and digest of its decisions. The Libro del Consulat del Mar, is one of the most comprehensive maritime works of its day and influenced the development of maritime law in France, Germany, and Holland. The Libro del Consulat del Mar also provided the model for the Admiralty of England.

CO of USS Chicago Fired for Drunkenness

The CO of Pearl Harbor based USS Chicago was fired on Monday. Commander Jeff Cima was relieved of command after he was found guilty of “drunkenness” and “conduct unbecoming an officer,” in nonjudicial punishment hearing. Cima has been temporarily reassigned to the staff of SubRon 3.

For those keeping track that's seven COs removed from command in 2010.

COGSA and the $500 Mig

An interesting unpublished opinion out of the 9th Circuit wrestles with the question of what if any liability a carrier faces when their action, or inaction, causes cargo to be seized by port authorities. In M-Cubed LLC v. Maersk Line Ltd., the cargo in question was a de-militarized Mig fighter jet. Maersk, the carrier, had planed to transship the Mig at Hong Kong. However, under Hong Kong law such cargo must have special license for the import of such commodities as military equipment. Maersk did not obtain a special license, testimony indicated that Maersk's agents were unsure or believed they did not need the special license because the plane was demilitarized.

Hong Kong Customs was notified that a MiG fuselage would be offloaded without any import or export licenses. An hour before the vessel docked in Hong Kong, Maersk Yantian notified Maersk Hong Kong and Maersk Czechoslovakia that the fuselage would be offloaded and that, because no licenses had been obtained, the “aircraft will be detained by HKG Customs” and “there's no promised date when this container can be loaded. The fuselage was offloaded and detained by the port authorities. Several days after it had been detained, the cargo was forfeited and seized as an unlicensed “strategic commodity.”

When M-Cubed brought an action against Maersk for the loss of the Mig, Maersk responded with a motion for summary judgment based on the fact that the carriage agreement stated that it would fall under COGSA. As such Maersk's liability was limited to $500. The District Court in the Western District of Washington, granted Maersk's motion, and then denied M-Cubed's motion for reconsideration.

The 9th Circuit however decided that the District Court had erred in granting the motion. Pointing out that there was a triable issues of material fact as to whether or not Maersk sought to abandon the cargo when it offloaded it in Hong Kong. Prior to the cargo's arrival in Hong Kong, Maersk employees stated that the cargo “will be seized,” and “knew that this sort of thing was something called strategic commodity-a license was required.” Maersk employees also described the cargo to Hong Kong officials as a “military aircraft.” Considering this evidence, a reasonable fact finder could find that Maersk was substantially certain that the MIG was a strategic good subject to forfeiture.

I think the Court of Appeals has it right and the District Court was way off base. To interpret COGSA so broadly that it would protect Maersk in this situation is to invite abuse. If Maersk willfully abandoned the cargo then they are in violation of the carriage agreement and M-Cubed should be awarded just compensation.

SCOTUS Review of Jaldhi Decision Sought

Just when you think the rules for Rule B attachments on EFTs in New York are set, a petition for Writ of Certiorari has been filed with the US Supreme Court seeking review of Shipping Corp. of India, Ltd. v. Jaldhi Overseas Pte, Ltd.

H/T: Hawaii Ocean Law

F-35 costs rise at least 50 percent

The troubled F-35 program hit more rough waters with the announcement that it will breach the Nunn-McCurdy limits as its program costs exceed 50% of the original 2001 baseline.

The Defense Department’s latest estimates predict that each of the jets slated to be purchased will carry a price tag of between $95 million and $113 million in 2009 dollars. As a reminder the F-22, which was shelved as being too expensive, cost $142 million dollars per unit.

Once again we've pretty much put all our eggs in the F-35 basket, if the costs continue to balloon I'm not sure there's an alternative out there.

H/T: Navy Times

Ship Managers and COGSA

Are ship managers, charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel, a “carrier” under the Carriage of Goods by Sea Act (COGSA)? That was the question before 6th Circuit, and in an opinion written by Sandra Day O'Conner, the court concluded that such managers are not carriers under COGSA and therefore COGSA's one-year statute of limitations does not bar the underlying suit.

The case, Fortis Corporate Ins., SA v. Viken Ship Management AS, has its origins in a shipment of steel coils from Szczecin, Poland to Toledo, Ohio. The coils were damaged in shipment by exposure to seawater. Fortis Corporate Insurance insured a cargo of 176 steel coils belonging to Metallia LLC. The coils were carried from Szczecin, Poland to Toledo, Ohio aboard the M/V Inviken, a 17,313 gross ton bulk carrier. During the journey, seawater entered the cargo hold containing the steel coils and caused significant rust damage to 99 of them. Fortis, as underwriter, paid Metallia $375,000 for the damage to the steel coils. Fortis then brought a lawsuit as Metallia's subrogee, alleging negligence and breach of bailment against the Inviken's owner, Viken Lakers, along with the ship's manager, Viken Ship Management.

Viken Lakers and VSM moved for summary judgment on the basis that the suit was filed beyond the one-year statute of limitations provided for under COGSA. The district court agreed with Viken Lakers that it was a “carrier” and that the suit against it was barred by the one-year statute of limitations. However it concluded that because VSM was not an owner or charterer party to the contract of carriage it was not a COGSA carrier and therefore could not invoke the one-year statute of limitations.

In affirming the District Court's decision the Circuit Court rejected VSM's argument that the district court took an unduly formalistic approach to interpreting COGSA's provisions when it determined that VSM did not qualify as a carrier because it was not an owner or charterer party to the contract of carriage. Citing Robert C. Herd & Co. v. Krawill Mach. Corp., 359 U.S. 297, (1959), court pointed out that the Supreme Court had unanimously rejected a similar argument. In Herd the Supreme Court concluded that COGSA's plain terms applied only to carriers, and not their agents.

VSM complained that, unless it was covered as a COGSA carrier, it would be subjected to all of the liabilities of a carrier with none of the protections. The court also rejected this argument. The court went on to explain that VSM is subjected to neither the liabilities nor the protections of a COGSA carrier. For instance, COGSA utilizes a complicated burden-shifting mechanism that effectively leaves carriers liable for any damage to cargo unless they meet the affirmative burden of proving that they exercised due diligence to prevent the damage.

Finally the court explained that shipping parties are free to extend COGSA's coverage by adding provisions to bills of lading extending the COGSA regime to any and all agents or independent contractors who participate in the shipment of goods under a particular contract. The failure to include one of these 'Himalaya clauses' in their agreement is telling that the parties did not want to extend the terms of COGSA to VSM.

Nanoism

Evan Schaeffer of Legal Underground fame, turned me on to Nanoism a site devoted to twitter length fiction. It's more challenging to write than you would expect, and the results are often seem far greater than the 140 character limit would allow.

My 'story' My Dad the Dinosaur was recently featured.

North Korea Signs Deal for Russian Use of Port

North Korea recently gave Russia the right to use its Rajin seaport for 50 years and is considering extending China's 10-year contract signed in 2008 by another 10 years. China is investing tens of millions of yuan or billions of won in modernizing the Rajin pier it took on lease, Yonhap News reported.

By using the Rajin port, China will be able to ship coal and other export items from its most underdeveloped northeastern provinces, which lack transportation infrastructure. Sun Zhengcai, provincial party secretary of China's Jilin, had reportedly introduced a regional development project to Kim Yong-il, chief of the international department under the North Korean Workers' Party, during his visit to the region late last month, saying that "it has opened a new opportunity for cooperation between the two countries in construction of roads and basic infrastructure."

In addition to making Jilin's coal exports more accessible, the Rajin port could also serve as an export path for Siberian crude oil and natural gas to neighboring countries

No Cranes Operational at India's Haldia Port

Container feeder lines are threatening hefty surcharges at Haldia port in Calcutta due to the fact none of the port’s cranes are operational after a maintenance contract expired. None of Haldia Dock Complex’s gantry cranes are operational after a three-year maintenance contract expired at the beginning of March. At present there is no maintenance contract in place plans for a three-month extension of the existing arrangement were scrapped after the contractor demanded a 100% price increase. Problems have been further compounded a strike by dock workers at the port. According to an executive from a Singapore-based feeder line only self-sustaining operations can be undertaken using geared vessels and reach stackers. “It is complete mess,” he said. A letter sent by feeder operators to Haldia’s management said: “We trust you can understand that feeder operators will have no alternative but to recover any increase in costs from the trade.” It is understood feeder lines could double an existing $250 per teu surcharge to $500 if the problems at the port are not resolved.

New Hope for the Chandlers

The Somali government said the Chandlers could be free in two weeks

Somali President Sheikh Sharif Sheikh Ahmed has said efforts are being made to free a Kent couple held by pirates at the "earliest possible date".

Paul and Rachel Chandler, 60 and 56, were kidnapped four months ago while sailing in the Indian Ocean.

The LHWCA, Average Weekly Wages, and Alternative Work

The Longshoreman and Harbor Workers Compensation Act is a statutory scheme to provide workers compensation benefits to maritime workers who are not seamen. However, a recent case out of the 9th Circuit should serve as a reminder that the protections and benefits of the LHWCA aren't as great as many commonly believe.

In Rhine v. Stevedoring Services of America, Lloyd Rhine appealed the decision of the Benefits Review Board (BRB) as it related to his average weekly wage and alternative employment. The BRB must accept the Administrative Law Judge 's, who initially hears the complaint, (ALJ) findings unless they are contrary to the law, irrational, or unsupported by substantial evidence.

Rhine's claim extends from a 1997 accident that occurred the course of his employment as a B-registered longshoreman. After an initial hearing before the ALJ and a remand from the BRB, the ALJ determined in a second hearing that Rhine's average weekly wage was $877.96, the average wage in 1997 of all “B-registered” longshoremen (known as the “Pacific Maritime Association Average” or “PMA Average”).

Rhine argued that the BRB erred in determining his average weekly wage because: (1) it was based on average earnings for all “B” workers as of December 31, 1997 including some who had few hours as longshore workers; (2) it included Rhine's total earnings for the year even though he was injured the majority of time that he was a “B” worker; (3) it did not include holiday and vacation pay for some workers; (4) it excluded pay guarantee income for all workers; and (5) it did not adjust the “B” earnings for a mid-year contract wage increase. Rhine argues that using the 1997 PMA “B” average resulted in an inflexible mathematical calculation that has no basis in section 910(c) or the cases interpreting it.

The court was not persuaded by Rhine's argument. Stating that Rhine misconstrued the case law he cited, the court citing Palacios v. Campbell Industries, 633 F.2d 840 (9th Cir.1980), the court clearly stated that earning capacity after the date of injury may, not must, be considered in the ALJ's determination of an employee's wages. (emphasis added) Furthermore, pointing to the exact language of 33 U.S.C. § 910(a)-(c), the court went on to explain the average annual earnings “shall be such sum as ... shall reasonably represent the annual earning capacity of the injured employee.”

Rhine also argued that the ALJ committed legal error by reducing his average wage by the amount he could have earned in alternative non-longshore employment. The crux of Rhine's argument was that seeking alternative employment could threaten his status as a longshoreman. The ALJ had concluded on the basis of a vocational survey that alternative employment was available to Rhine as a parking-lot cashier and security guard. The court concluded that such concerns were not sufficient to render the substitute employment inadequate. In affirming the BRB's decision, the court again pointed to the language of the statute, that permanent partial disability, when it does not fall within a set of enumerated injuries, is compensable at 66 % of “the difference between the average weekly wages of the employee and the employee's wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of partial disability.”

Transportation Safety Board of Canada to Investigate Concordia Sinking

The Transportation Safety Board of Canada has decided to conduct a safety investigation into the capsizing and sinking of the sailing vessel (SV) Concordia, which occurred on February 17, 2010, off the coast of Brazil.

The SV Concordia is registered as a sail-training yacht and operated as a "floating classroom." It is Canadian-owned and operated out of the port of Lunenburg, Nova Scotia. Sixty-four high school students and crew, including 43 Canadians, were aboard the ship when it capsized and sank for, as yet, undetermined reasons. Barbados, the flag state of the SV Concordia, has opened an investigation.

Graf Assigned to Naval Surface Warfare Center

The former cruiser commanding officer who was fired in January after a years-long pattern of “cruelty and maltreatment” toward her crew is to report this week to a new job at Naval Surface Warfare Center Dahlgren, Va., Navy Times has learned.

Capt. Holly Graf, fired from the cruiser Cowpens on Jan. 13 in Yokosuka, Japan, has been assigned to Navy Air and Missile Defense Command, said Cmdr. Jeff Davis, a spokesman for 7th Fleet in Japan.

...

Davis said he did not have more information on Graf’s specific job at Navy Air and Missile Defense Command, which was created last year, or why she is no longer being reassigned to the Navy Staff in the Pentagon.

Commanders’ initial willingness to permit Graf to transition to her planned reassignment in the Navy office of information, plans and strategy — known as “N3/N5” around the Pentagon — was unusual for a skipper who has been relieved. One explanation could be that Graf was already close to a scheduled change of command on Cowpens; her successor, Capt. Robert Marin, was already aboard the ship when Graf was relieved.

Even as Graf reports for duty this week at her new job in Dahlgren, she faces another administrative step in continuing her career. Officers who are found guilty in a nonjudicial proceeding are required to “show cause” for why they should stay in the Navy to a board appointed by Navy Personnel Command.


From Navy Times.

The Strange Legal World of Aubree Guancione

I've previously blogged about Aubree Guancione's strange notion of admiralty jurisdiction and her novel ideas about the legal ramifications of the Treaty of Guadeloupe Hidalgo, but just who is Aubree Guancione and how does she find herself repeatedly involved in this litigation.

Rosalie Aubree Guancione and her paramour, William Bullock Stewart III, seem to be quite busy. They founded the Stewart University: New Scotland International School of Medicine, which among other things required no bachelors degree, no MCAT, and no age limit. They were both officers of Royal House of Stewart Corporation, which makes sense when you read legal briefs that among other things that Aubree Guancione is a princess and therefore a sovereign, not subject to the laws of the United States. An example of her legal chutzpah can be seen in Guancione v. Stumpf, an action filed in the Northern District of California where the amount demanded was $999 million.

Mr. Stewart has his own creative legal theories. In San Francisco Police Credit Union v. Stewart, SFPCU filed an action in the Santa Clara Superior Court, asserting claims against Stewart for breach of contract, monies had and received, and fraud. Stewart represented that he was employed by Larkspur Consultants, Inc., that he had earned more than $152,000 in 2006, and that he planned to use the loan funds to purchase stocks. After making one partial payment, Stewart defaulted on the loan in March of 2007.

SFPCU discovered that Stewart's alleged employer did not exist. When Stewart was confronted, he claimed that he worked for an organization named Larkspur. SFPCU alleges that after thorough investigation of Larkspur, there was nothing to indicate that the company had been actively engaged in business or that it was sufficiently active to pay any employee $152,000. SFPCU also discovered that Stewart had used the loan money to fund his business, “Stewart University of America,” rather than to purchase stocks.

Stewart attempted to remove the case to federal court. In the Notice of Removal, Stewart alleged that SFPCU provided a report to the San Mateo Police with respect to his alleged loan fraud. He also claimed that based on SFPCU's allegations, he was “stalked, wiretapped, slandered, and libeled” by San Mateo Police Officers acting as collections agents. He asserted that the San Mateo Police provided fraudulent testimony to obtain an arrest warrant and an excessive bail amount of $100,000. Finally, he alleged that San Mateo Police unlawfully invaded his home without presenting a warrant, and that he was incarcerated for approximately twelve days and was denied his fundamental rights.

Of course the District Judge was having none of this and remanded the case back to state court.

Sadly, I'm afraid there will be much more from Aubree and William in the future

Navy Inspector General's Report on Holly Graf: Part 7 and 8 plus Final Thoughts.

Seventh Allegation: That Graf was derelict in the performance of her duties by failing to qualify the newly-reported Ensigns and Lt. Junior Grade as Surface Warfare Officers in a timely fashion.

A confidential complainant alleged that Captain Graf "shows no apparent interest in her crew's professional development." The complainant went on to describe the difficulties that Junior Officers aboard the Cowpens had in earning their SWO qualification.

[redacted] stated that, when he approached Graf regarding her availability for a SWO board, she stated, "I don't have time to train Junior Officers." This statement was corroborated by [redacted]

...

[redacted] stated that aboard the Cowpens "Junior Officer development is non-existent."

Numerous witness stated that beginning during an underway period during the summer of 2009, numerous SWO boards were held and the qualification process appeared to be working well. [redacted] provided a statement that read, "This last underway period we qualified six OODs and three SWOs." Numerous witnesses stated that this improvement was the result of two Junior Officers, [redacted] and [redacted], proactively taking responsibility for mentoring their subordinates.

Before the program was taken over by these JOs it was described as directed weakly and bring "sporadic at best" with no follow through.

Graf provided a statement that read in part:

It is the responsibility of the Senior Watch Officer per the SORM (consistent with all ships in the Navy) "to coordinate the training of deck watch standers." The [redacted] has been the weak link, and the [redacted] and I have spent a considerable amount of time managing the program. As a result, we have increasingly relied on [redacted] and [redacted] to run the program for us.

[redacted], when interviewed, was asked if he felt the suggestion that he was the "weak link" in the Cowpens SWO training program was warranted. He admitted that it was warranted and stated that he and his fellow department heads do not play a particularly active role in training [redacted] and [redacted] for their SWO qualifications.

A [redacted] witness who was onboard the Cowpens in July of 2009, described the SWO training program as being in a "death spiral" and was concerned that the reliance on the use of an "A-Team" watch team for all special evolutions, deprived other crewmembers of training opportunities.

The IG found that although there had been improvement in the training program on the Cowpens there was sufficient evidence that Graf was delinquent in her duties for an extended period of time, therefore the allegation was substantiated.

To me this is one of the most serious allegations made against Graf. Being an Naval Officer is something that really requires on the job training, the slow walking of people through their SWO qualifications not only hurts their careers, it hurts the officer corps as a whole.


Eighth Allegation: That Graf was derelict in the performance of her duties by failing to address waste management problems which resulted in crewmembers disposing of waste by throwing it overboard at night.

[redacted] was questioned about his role in jettisoning trash at night. He stated that he was never directed to jettison trash while he was AUXO. He states that while he the [redacted] he used the ship's PWP system, commonly referred to as the 'pulper' , to process all the garbage except the plastics. [redacted] stated that the 'pulper' did not break while he was the [redacted].

[redacted] stated that [redacted[. the [redacted] from October 2008 thru June 2009, told him in December 2008, that after the 'pulper' broke she had directed the dumping of trash overboard and had done it at night because she did not want to do it during the day.

However another witness stated that he never ordered the crew to refrain from disposing of trash overboard during the day. He further stated that he never relayed words to that effect to anyone in his Department.

This allegation was unsubstantiated, however I think it's further evidence of the breakdown in the chain of command aboard the Cowpens.



I've read the IG's report about ten times and what's clear to me was the command structure aboard the Cowpens was irreparably broken. Many of the allegations contained in the report were caused or exacerbated by this breakdown. Which leads us to the question, did Holly Graf deserve to lose her command? In my opinion the answer is an unquestionable yes. The atmosphere above the Cowpens impeded its mission, and because of that her CO had to go.

Then there's the question of whether or not Graf's military career should be over. It seems I'm in the minority in thinking no. The report seems to indicate that Graf's leadership style exacerbated the problems onboard the Cowpens. Leadership is a funny thing. Most people confuse leadership with management, but there's major a difference. When you manage a person it's simply about getting a job done. Leadership is about getting people to achieve their potential, whether it's scrubbing a deck or navigating a ship a good leader helps them understand why they're doing what they are and how they can do it better. Some people are born leaders some have to learn it. One would hope that after a career as a Naval officer you would acquire the skills necessary to lead. Some do some don't, if you don't that doesn't mean you have no value to the service it just requires a different role.

Then there's the question that first sparked my inquiry. Why was this an Article 15 hearing and not a court-martial? To be honest when I first read the reports of "cruelty" I thought that this was an example of officers' privilege, I thought had this been an enlisted person there surely would have been a court-martial. However, having read the entire report I can say I've changed my mind. There were serious allegations made against Graf, but reading the report shows that many were less serious than they first appeared. As I said previously, Graf deserved to lose her command but in this case it appears an Article 15 hearing was the proper venue for resolving these allegations.

Finally, I think its necessary to point out that much of the criticism faced by Graf in the media and on the internet has less to do with her actions than her sex. In fact the level of misogyny in the comment sections of many blogs and online forums was quite shocking. Many seemed to think that Graf rose to her command by some sort of politically correct promotion schedule, but having studied her career I see no evidence of that. I think it also should be noted of the six Navy COs who have lost there job in the past year Graf is the only female.

A Time article referred to her as a female Captain Bligh, which is unfair to Bligh who was acquitted for losing the Bounty and, as all sailors know, accomplished one of the great feats of open water navigation, traveling over 3000 miles to Timor after being set adrift by the Bounty's mutineers.

Others have compared her to Captain Queeg of the USS Caine, in the Caine Mutiny. I don't think that's an apt comparison either, but it does raise an interesting point.

Near the end of the Caine Mutiny, Barney Greenwald (one of my favorite fictional lawyers) berates the officers of the Caine for not helping Queeg when he came to them. Like the Caine, the Cowpens suffered a breakdown in the command structure. If only its officers and Graf would have communicated better, if only Graf would have been able to see her "directive" style of leadership wasn't working perhaps this whole ugly incident could have been avoided.

And that's my last word on the Holly Graf story. Barring one of the complainants contacting me willing to go on the record about what life was like on the Cowpens, or Captain Graf herself wanting to tell her side of the story, I won't be touching this topic again.

Update: One final note. A friend commented that I might have ruined any chance of becoming a Navy Judge Advocate with this series of posts. I hope that's not true because I graduate in December and I need a job. In fact the more I think about it, I think the Navy would have been well served by releasing a redacted copy of this report when the story first broke. There's so much rumor and innuendo floating about that I think having the actual text of the report available makes situation far more clear.

Part 6 of the report

Part 5 of the report

Part 4 of the report

Part 3 of the report

Part 2 of the report

Part 1 of the report

Midshipman sentenced for stealing lab equipment

A military judge sentenced a U.S. Naval Academy midshipman to one year in the brig on Thursday for stealing about $28,000 worth of electronic lab equipment from the academy and selling it on eBay.

Midshipman Thomas Hayes, a senior electrical engineering major, pleaded guilty to larceny and loss or destruction of government property.

At a court-martial on the academy’s grounds, Hayes told a military judge that he was trying to help his mother, who was having financial difficulties that included a home foreclosure. He said his mother regularly made frantic phone calls to him, and he said she was suicidal.

“I intend to repay it back with every cent I make,” Hayes, of South Glens Falls, N.Y., told Capt. Bruce MacKenzie, the judge.

Although Hayes highlighted financial stresses on his family, prosecutors said he still managed to own a car and take a trip to Jamaica. Prosecutors also said he could have taken out a loan or sought work.

From the Navy Times

Terror attacks feared on oil tankers in Malacca Strait

Singapore: An unidentified terrorist group may be planning attacks against oil tankers in the Malacca Strait, the Singapore Navy and Singapore Shipping Association warned today, reports AFP.

The SSA said it had received an advisory from the Singapore Navy Information Fusion Centre about "an indication that a terrorist group is planning attacks on oil tankers in the Malacca Strait." It added "this does not preclude possible attacks on other large vessels with dangerous cargo."

"The terrorists' intent is probably to achieve widespread publicity and showcase that it remains a viable group," the navy said in its advisory.
It recommended that ships should "strengthen their onboard security measures and to adopt community reporting to increase awareness and strengthen the safety of all seafarers."

Navy Inspector General's Report on Holly Graf: Part 6

Sixth Allegation: That Graf misused her subordinates for personal gain by having them walk her dogs.

Graf provided a written statement at the time of her interview addressing the alleged dog-walking.

I never directed a Junior Officer to walk my dogs... I talked about the dogs a lot in the wardroom and the officers were aware of their antics. Some of the Junior Officers appeared to be interested in meeting and playing with the dogs. I have them what appeared to be an opportunity to be with the dogs. They also appeared to enjoy it when I asked them about it afterwards.

During the investigation the IO asked the Cowpens's Junior Officers if they ever walked Graf's dogs (as the report later goes on to point out they were not Graf's dogs she was merely looking after them through a "dog sitting" arrangement with a veterinarian) or if they had been asked to attend to any other personal business. Two Lieutenants said they had walked Graf's dogs, they both went on to say they found it enjoyable and did so willingly. They stated they did not feel forced or obligated to spend time with the dogs.

The IG found that this allegation was substantiated by the evidence. As the report points out the applicable standard clearly states that " an employee shall not encourage, direct, coerce, or request a subordinate to preform activities other than those required in the performance of official duties." The report goes on to say that there is evidence that Graf requested these services be carried out be her subordinates.

As I stated previously this further demonstrates the fine lines that COs must observe when dealing with their subordinates. Both of these allegations seem minor but the rules are in place to prevent abuses that might grow out of minor requests. Tomorrow we will post the final parts of the report along with my thoughts on this incident, including whether or not an Article 15 hearing or a court martial was the proper forum to address the allegations.

Part 5 of the report

Part 4 of the report

Part 3 of the report

Part 2 of the report

Part 1 of the report

NAS Pensacola CO Fired

The skipper at Naval Air Station Pensacola, Fla., was formally fired Wednesday after a brief investigation into “inappropriate conduct,” Navy officials said.

Capt. William Reavey Jr. was “temporarily relieved of command” Friday after Navy officials launched an inquiry into the alleged misconduct, Navy officials said.

That relief became permanent Wednesday “based on information obtained during the inquiry,” according to a news release from Navy Region Southeast.

Navy spokesman Bill Dougherty said he could not disclose further information at this time.

Reavey, 51, became the sixth commanding officer to be fired this year.

From the Navy Times

Incredible Video: The Sinking of the Secota

On 22 March 1986, near Midway Island, Secota (YTM-415) had just completed a personnel transfer with the USS Georgia (SSGN-729), when the Secota lost power and collided with the Georgia. Secota sank. Ten crewman were rescued, but two drowned. Georgia was undamaged.

H/T: BitterEnd

Admiralty Writing Competition

The Admiralty and Maritime Law Committee of the American Bar Association Tort Trial & Insurance Practice Section is offering a writing competition, open to all law students. By writing an essay on Recent Developments in Admiralty and Maritime Law, students are eligible to win $500, plus up to $500 reimbursement towards attendance at the ABA Annual Meeting in San Francisco.

Click here to learn more.

Navy Inspector General's Report on Holly Graf: Part 5

Allegation 5: That Graf used her office for personal gain by having a junior officer provide entertainment at a Christmas party.

Graf provided the following written statement at her interview addressing the allegation that she obligated an officer to play piano at a Christmas party at her house:

I never directed a junior officer to play Christmas carols. I had invited a group of Japanese businessme who were art of a civic group, and officers from George Washington, Cowpens, CTF 74 (Carrier Task Force 74) and C7F (Commander 7th Fleet) to a Christmas party. The purpose of the party was to encourage cultural exchange. The officers I invited were a good fit, because they had expressed an interest in meeting the Japanese and they would mingle well. [redacted] was one of those officers, and also a piano player. I had told [redacted] there would be a Japanese lady who would likely bring her recorder and might want to play Christmas carols with her. At the end of the evening when everyone was preparing to leave, [redacted] did play a few carols with her while everyone sang along.

The JO in question, provided the following statement in response to questions:

Yes. After our ship won first place for a holiday lighting contest, where I had played piano for our sailors to sing Christmas carols, the CO asked me if I would like to play for her friends that she sails with at a holiday party she was hosting. She was not pushy, and did not make me feel that I had to attend. She was warm and inviting and I had a great time. Other JO's were invited to the party, and I spent most of my time talking with them and with their friends. At the end of the evening, after the guests had eaten dinner, we all star around the keyboard and sand a few carols. The CO thanked me sincerely.

According to the report the JO who did attend and play the piano at the party was not the first officer that Graf approached about playing.

When [redacted] was asked that if she felt that she could have said "No" to playing at the party, [redacted[ responded, "not really; I mean I could have said no, but it probably wouldn't have made [Graf] too happy." When asked if she felt compelled to agree to attend the party, she answered, "yes."

The IG found this allegation was substantiated by the evidence.

I think this allegation demonstrates just what a fine line CO's have to walk with their JOs. Unlike the recent situation onboard the USS Wasp, this is far less clear cut. However as I've repeatedly said we have to hold our officers to the highest standards, the great control they have over their subordinates means that the risk of abuse is great. The JO in question felt that she couldn't say no to the Graf's request which makes me wonder if the overall environment on the Cowpens would have been better would this particular allegation been resolved differently.

Part 4 of the report

Part 3 of the report

Part 2 of the report

Part 1 of the report

Navy Inspector General's Report on Holly Graf: Part 4

Fourth Allegation: That Graf was derelict in the performance of her duties by not qualifying an Engineering Officer of the Watch (EOOW) from February to July 2009, despite the fact that there were two Chief Petty Officers awaiting their qualification boards.

A confidential complaint alleged, "Cowpens has not qualified an EOOW since February 2009 despite the fact that two engineering chiefs are waiting for their boards.

When interviewed, [redacted] stated that he was ready for his EOOW board in March 2009, but it took jim until June before a board was held.

Another witness when interviewed stated that he attempted to schedule an EOOW board in March or April of 2009. He states that he asked [Graf] to schedule a board and she replied, "Whenever CHENG (Chief Engineer) says you're ready, I'd love to hold a board."

Graf provided a written statement reading in part: I was not aware that there were two CPOs waiting for their EOOW qual. Even if I had know, I'm not sure I would have qualified them. Just before the previous [redacted] departed, we qualified three CPOs. At the same time we turned over the CHENG bllet, we turned over [redacted] The new [redacted] and [redacted] did not qualify for EOOW for a few months... I am sure I would have made a decision to wait until the new [redacted] was qualified.

The IG found this allegation unsubstantiated.

Having read this report section I don't think there's much to this allegation but I think it's symptomatic of the problems onboard the Cowpens. When it becomes clear that various members of the command staff can't work well together other complaints will arise in short order.

Part 3 of the report

Part 2 of the report

Part 1 of the report

Canada Proposes Arctic Traffic Zone

OTTAWA — Canada’s Transport Minister John Baird today announced that as part of Canada’s Northern Strategy, the federal government is proposing a regulated Arctic traffic zone, requiring certain vessels to report information to authorities as they pass through Canada’s northern waters

The new measures will help to ensure efficient navigation, enhance the safety of vessels, crew and passengers, and protect the unique and fragile Arctic marine environment. They are intended to replace the current voluntary reporting system and ensure that the most effective services and information are available to manage current and future marine traffic in the Arctic.

“Mandatory vessel reporting will help keep maritime traffic moving safely and efficiently,” said Baird. “Knowing the positions and movements of vessels, for example, will make it easier to respond quickly to an oil spill. This information will become more important as vessel traffic rises due to development in the Arctic.”

The proposed regulations would require vessels to report information such as identity and intended route before entering, while operating within and when leaving Canada’s northern waters. By identifying and monitoring vessels, the Canadian Coast Guard would be able to provide vessel traffic services to help prevent pollution and better coordinate both pollution response and search and rescue.

“Our government is committed to vessel safety and pollution prevention in our Arctic waters,” said the Honourable Gail Shea, Minister of Fisheries and Oceans. “The proposed new measures are designed to help ensure safety while maintaining the most effective services for current and future levels of marine traffic.”

The proposed regulations would apply to both Canadian and foreign vessels, and are consistent with international law regarding ice-covered areas.

The proposed Northern Canada Vessel Traffic Services Zone Regulations will be published in the Canada Gazette, Part I, on February 27, 2010. After consideration of the comments received, Transport Canada will proceed to final approval and publication in the Canada Gazette, Part II, with a proposed coming into force date of July 1, 2010.

Saudi Tanker Hijacked in Gulf Of Aden

EU NAVFOR has been informed that on Monday 1st of March a Merchant Vessel, the Saudi Arabia-flagged Product tanker, in ballast, AL NISR AL SAUDI with deadweight of 5,136 tonnes, was hijacked in the Gulf of Aden.

The ship was heading to Jeddah and has a crew of 14. The master of the ship is Greek and the nationality of the rest of the crew has not been confirmed. They are all believed to be well. The ship was outside the Internationally Recognised Transit Corridor (IRTC) and was not registered on MSCHOA. The vessel is now in the vicinity of Garacad, a well know pirate stronghold. EU NAVFOR continues to monitor the situation.

EU NAVFOR Somalia – Operation ATALANTA’s main tasks are to escort merchant vessels carrying humanitarian aid of the ‘World Food Program’ (WFP) and vessels of AMISOM, and to protect vulnerable ships in the Gulf of Aden and Indian Ocean and to deter and disrupt piracy. EU NAVFOR also monitors fishing activity off the coast of Somalia.

Navy Inspector General's Report on Holly Graf: Part 3

Allegation 3: That Graf improperly hazard the Cowpens throughout the period if her command by issuing unsafe orders to bridge watchstanders in violation of UCMJ Article 110.

UCMJ Article 110 states "(a) Any person subject to this chapter who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall suffer death or such other punishment as a court-martial may direct.

A confidential complainant provided a written statement that read in part:

About 25 minutes later [Graf] called and wanted to know why we were so "close" to the carrier and expressed discomfort with the way the situation was developing and wanted us to get back into our assigned sector (we had been out of sector all night to support [Deck Landing Qualifications].. I Told her that we were not in any danger with the carrier and I expressed concern about turning the ship. Doing so would put us in a dangerous situation with the carrier and also put winds out of the envelope -this would have prevented us from landing the helo. which was running low on fuelat the time. The [CO] initially seemed satisfied with this explanation, but ten minutes later she called again and this time was very upset. She ordered me to turn the ship immediately. At this time the carrier was minutes away from crossing behind us and she wanted me to turn on a reciprocal course and cross in front of the carrier. Additionally, the helo now only had 15 minutes of fuel remaining and we needed to land them immediately.

....

[The CO] ignored my recommendations and ordered me to turn immediately. Upon hanging up the phone I made the conscious decision to remain on course and land the helo. ... Following the [CO's} order when there was no tactical or navigational reason to do so would have put the ship and especially the helo in serious danger. (emphasis theirs)

According to the complainant, after the helo landed, Graf confronted the [redacted] on the bridge with angry words but did not relieve hum and never mentioned the incident again.

Graf provided a written statement that read, "I do not recall any situation where we hazarded the ship in plane guard."

[redacted] was also interviewed. He recalled the incident, and he stated that he had spoken with the [redacted] following the incident, and he told the [redacted] he did a good job getting them back on deck safely. He also stated; "At no time were we in any danger or really low on fuel. We {the aircrew} were just eager to get on deck for the fay. There was no safety issue with my helo. The [redacted] tended to overreact sometimes."

Several witnesses described an incident in which the Cowpens and the USS John S. McCain engaged in a "race." At the conclusion of the race, the two ships were positioned in close enough proximity where (sic) some crewmembers felt it was an unsafe situation. Graf stated she sanctioned this "race" as an event to boost crew morale. [redacted] was on the bridge for the "race" and described the situation as "definitely unsafe."

[The CO of the McCain] corroborated that his ship did race the Cowpens in early 2009. ... He stated that in his opinion, Graf recognized a potentially unsafe situation and ordered her ship to come to "All Stop" while using the momentum of the Cowpens to Cross behind the John S. McCain's port quarter to its starboard quarter. He also stated that he did not think that either vessel was in any danger or hazarded as a result of the race.

In a separate incident a confidential complainant wrote:

The ship was heading in the direction of a fleet of fishing contacts that were located off the starboard bow. [redacted] called the [CO] to give a contact report and said he had intentions of turning to port to avoid the contacts. Graf was furious and said that was incorrect and to go read the rules of the road book. Graf said you can never turn to port to avoid contacts... she ordered the turn to starboard as the [redacted] ordered. This sent the ship coming within 1500 yeards of the fishing fleet...

[redacted], has 19+ years in the Navy and previously served as a [redacted]. He is a qualified [redacted] that served on Cowpens for the entire length of Graf's Command tour stated, "I never seen her put the ship in an unsafe environment; I can honestly say that."

The IG's report found this allegation unsubstantiated.

Putting one's ship in danger is one of the most serious charges that you can make against a Navy Captain. As the IG's report points out one of the most experience shiphandlers on the Cowpens never felt that Graf hazarded the ship despite his strained relationship with her. Furthermore the reports indicates evidence that the Officer of the Deck, on at least one occasion, openly countermanded [Graf's] order and proceeded on a course of action contrary to her direct order. Though there was no negative outcome to this situation, it demonstrates a breakdown in the chain of command on the bridge of the Cowpens.

In an earlier posting a commenter jokingly compared Graf to Captain Queeg. I don't think that's a fair comparison. But on both the Cowpens and the Caine the command structure broke down, and that's something we can't have on Navy ships.

Part 2 of the report

Part 1 of the report

Waves hit cruise ship killing two

CNN has the details.

Update: Video of the incident.

Navy Inspector General's Report on Holly Graf: Part 2

Allegation 2: Assault of Subordinates


UCMJ, Article 128, Assault, states, "Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to, another, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct." The Manual for Courts Martial, Chapter 54, Article 128- Assault, Section c., Explanation, section (1), Simple Assault, Subparagraph (a) states, "Bodily harm means any offensive touching of another, however slight,"

The reports lays out several instances where witnesses testified of alleged assaults by Graf.

From the report:

[redacted], described an incident in which Graf made physical contact with him in late June of 2009. Prior to any physical contact, [redacted] stated that he had briefed Graf on a SATCOM failure as she was delivering the Night Orders to CIC.

--and in a moment of frustration and stress because there are some error events going on at the time, I think she just didn't want to listen to an explanation. She just wanted it to get fixed. So she, you know, I guess pushed me towards Radio to like -- like just go, go fix it.. but it was a, you know, side of the arm kind of like push. It wasn't like a man handle, grab, choke, or anything like that.

Later in the stateroom Graf issued an apology.

According to Graf, the touching occurred after the complainant made a "smart-aleck remark" and turned to walk away. She wasn't finished with him and reached out to get his attention.

Another alleged incident occurred when Graf balled up watchbill and threw it in the former SWO's chest across the wardroom table. However the former SWO, stated that Graf didn't throw it at me.

A witness testified that while observing the bridge watch team engage in a Seamanship Training Team event, Graf grew frustrated with him and

-- tot he point where she was getting so frustrated she-- you know she grabbed my arm, squeezed it pretty hard and like pushed me towards the thing, towards OOD. "Hey go train them."

[redacted] also stated that on several occasions, he witnessed Graf pull OODs, while yelling at them, to a new position on the bridge.

[redacted] stated that Graf has grabbed him serveral times throughout the period he served under her while he was standing watch as OOD to physically reposition hum. He also stated on one occasion in late 2008, Graf physically threatened him with a raised fist while standing watch. (emphasis added)

Graf responded via email that read in part, "I have touched people for four reasons: To get their attention, to steer someone to where they should be, to soften the bit of my tone, and to express affection. I was never violent and I never acted with an intention to harm."

The IG substantiated the allegations of assault and recommended that the Commander of Task Force Seventy/ Carrier Strike Group Five that action to hold Graf accountable for violating UCMJ Article 128.


These allegation are quite serious, a commanding officer exercises enormous power over their subordinates and the potential for abuse is great. However, these allegations are not quite as scandalous as media reports made it seem. Regardless we have to hold Commanders of US warships to the highest standards, and physical intimidation as a means of motivation can't be tolerated.



Part 1 of the report is here.

Comparative Fault and the Oregon Rule

The Oregon Rule establishes a rebuttable presumption that the moving object is at fault when it hits a stationary object. In Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transport, out of the 6th Circuit the court examined whether or not defendants were required to rebut the presumption under the Oregon rule that a moving vessel was at fault when it hit a stationery object in order to raise a comparative fault defense.

In October 2005, the Enterprise a 730 foot cargo ship operated by Seaway, pulled into Dock 3 to receive a load of coal from the shiploader. Captain Frederick Penney secured the ship and turned control over to First Mate Louis Drolet, who coordinated the loading process. With the boom extended across the ship and shiploader operator James Fertig in the cab, the shiploader emptied coal into hatch five, which is near the bow of the vessel. The loading plan then called for the shiploader to empty coal into hatch fourteen, located midship, which required the ship to move forward 210 feet to align hatch fourteen with the boom and the chute. Because the ship's self-unloader obstructs access to hatch fourteen when it is in a resting position, the crew swung the self-unloader to the side of the ship away from the dock before beginning the shift.

With the self-unloader off to the ship's side, Drolet radioed Fertig and asked for permission to shift the ship, which Fertig granted. The crew began to move the boat slowly, with Drolet using controls at the bow, Wheelsman Jim Donnelly using controls at the stern and two deck hands handling the ship's wires from the dock. Drolet could not see the self-unloader from his location, and Donnelly acknowledges that he was looking at the controls, not the self-unloader. Fertig watched the ship move beneath him from his cab suspended over the deck of the ship. He faced forward with the shiploader behind him, and he had windows in front of and behind him but watched the ship only from the front windows. Throughout the maneuver, Fertig counted off the distance the ship needed to travel and radioed the distances to Drolet.

With about 45 feet to go, the ship's self-unloader struck the shiploader's boom, causing damage to the boom, which took five weeks to repair. Bessemer sued, alleging that the ship's crew negligently failed to swing the self-unloader out far enough to clear the shiploader's boom. Relying on the rule of The Oregon, the district court granted summary judgment on liability, holding Seaway solely responsible for the incident and entitling Bessemer to $522,605.73 in cost-of-repair damages. At the same time, however, the district court found that Bessemer had failed to comply with Civil Rule 26's requirement that it produce documents supporting its claim for lost profits damages. In view of Bessemer's noncompliance with Rule 26, the court excluded evidence of lost profits under Civil Rule 37(c)(1) and granted summary judgment on the lost-profits claim to Seaway. Seaway appealed the liability ruling, and Bessmer appealed the lost-profits ruling.

The court concluded that while the Oregon Rule requires the defendant to rebut the presumption if they wish to avoid all liability. However they need not rebut the presumption in order to raise a comparative fault defense. Otherwise the Oregon Rule would become one of ultimate liability.

Navy Inspector General's Report on Holly Graf: Part 1

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