The Admiralty & Maritime Law Blog

Lozman v. City of Riviera Beach, Florida

2012-10-01T07:57:00.000-04:00

I know I haven't really be keeping up the blog but I thought this case deserved note. The question at issue is whether a floating home indefinitely moored should be considered a vessel and thus subject to federal maritime rules. I'll try and make a more in depth post later but after reading the briefs I come down firmly on the side of the respondents. The ABA's Supreme Court Preview has kindly made the briefs available.

Pardon The Mess

2010-04-06T10:08:00.003-04:00

We're moving to Wordpress. Over the next few days I will be adding automatic redirects to all the links. Until then feel free to visit the new Admiralty and Maritime Law Blog or my new blog on general law topics Pro Hac Vice.

ROKS Cheonan May Have Struck Mine

2010-03-30T09:38:00.003-04:00

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

2010-03-26T22:14:00.002-04:00

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

2010-03-25T16:01:00.002-04:00

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

2010-03-25T14:54:00.002-04:00

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

Atlantic Bluefin Tuna Proposal Not Adopted After Intense Debate

2010-03-25T14:50:00.000-04:00

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

2010-03-25T14:35:00.001-04:00

Sigh..

Sadly too many people actually believe this stuff.

Endangered Right Whale Gives Birth in Busy Shipping/Naval Corridor

2010-03-24T10:48:00.002-04:00

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

2010-03-24T10:42:00.003-04:00

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

2010-03-23T18:13:00.001-04:00

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

Hawaii Ocean Law has the scoop.

Supreme Court Denies Cert in Jaldhi

2010-03-23T09:22:00.001-04:00

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

2010-03-18T16:48:00.005-04:00

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

2010-03-18T09:09:00.002-04:00

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

2010-03-16T17:35:00.004-04:00

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

2010-03-14T11:38:00.004-04:00

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

2010-03-12T09:45:00.005-05:00

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

2010-03-12T09:14:00.004-05:00

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

2010-03-10T12:35:00.002-05:00

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

2010-03-10T09:42:00.002-05:00

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

2010-03-10T09:40:00.000-05:00

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

2010-03-09T20:35:00.000-05:00

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

2010-03-09T15:26:00.003-05:00

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

2010-03-09T09:19:00.001-05:00

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

2010-03-09T09:15:00.001-05:00

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.