The Admiralty & Maritime Law Blog

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.

The Strange Legal World of Aubree Guancione

2010-03-08T08:23:00.004-05:00

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.

2010-03-05T13:04:00.008-05:00

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

2010-03-05T09:22:00.001-05:00

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

2010-03-05T09:20:00.000-05:00

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

2010-03-04T17:20:00.003-05:00

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

2010-03-04T15:35:00.001-05:00

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

2010-03-04T13:14:00.001-05:00

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

2010-03-04T12:30:00.002-05:00

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

2010-03-04T10:34:00.007-05:00

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

2010-03-04T10:11:00.005-05:00

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

2010-03-04T10:08:00.000-05:00

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

2010-03-04T10:06:00.000-05:00

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

2010-03-04T09:06:00.003-05:00

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

2010-03-03T19:39:00.002-05:00

CNN has the details.

Update: Video of the incident.

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

2010-03-02T11:18:00.003-05:00

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

2010-03-02T11:03:00.006-05:00

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

2010-03-01T08:16:00.014-05:00

We've moved to Wordpress. To see this post click here.

A Week's Worth of Updates in One Post

2010-02-26T12:00:00.002-05:00

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.

Students rescued after Canadian ship S/V Concordia sinks

2010-02-19T14:03:00.001-05:00

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

Supplemental Admiralty Rule F(4)

2010-02-18T11:08:00.002-05:00

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.

Somaliland Court Sentences Pirates to 15 Years

2010-02-15T13:27:00.004-05:00

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.

CO of USS Wasp Took Kickbacks

2010-02-15T10:16:00.002-05:00

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

Odyssey Marine Scores Victory in Court:

2010-02-11T17:28:00.004-05:00

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.

Somali Pirates Free Panamanian Flagged Indian-operated Ship

2010-02-10T07:23:00.001-05:00

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.

Maritime Law in the Middle Ages

2010-02-09T17:02:00.002-05:00

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.

Drunk Passengers and Jones Act Claim

2010-02-09T15:28:00.003-05:00

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.

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?

2010-02-09T13:18:00.002-05:00

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.

LawStack

2010-02-09T11:33:00.003-05:00

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.

Singapore Shipping Association: Somali Pirate Tactics Could Be Copied

2010-02-09T09:44:00.001-05:00

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

Stewart v. Washington Mut., FA: Another Bizarre Claim of Admiralty Jurisdiction

2010-02-09T09:14:00.003-05:00

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)

Tulane Law School Gives Students the Day Off

2010-02-08T19:53:00.005-05:00

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

Court Upholds New York State Ballast Water Regulations

2010-02-08T09:58:00.003-05:00

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

2010-02-08T09:48:00.002-05:00

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

2010-02-08T09:04:00.004-05:00

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.

Winter Weather Delays Deployment of the USS Cole

2010-02-06T10:57:00.003-05:00

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.

Olympic Marine Security Zones

2010-02-05T19:51:00.001-05:00

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

Cal. Harbors and Navigation Code Sec. 1198 and Federal Maritime Law

2010-02-05T17:27:00.002-05:00

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.”

Rear Admiral Bruce MacDonald Makes the Case for the Law of the Sea Treaty

2010-02-04T20:15:00.005-05:00

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

2010-02-04T17:01:00.005-05:00

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.

Somali Pirates Hijack North Korean Ship

2010-02-04T13:50:00.001-05:00

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

2010-02-04T11:50:00.001-05:00

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

ProShipLine Inc. v. Aspen Infrastructures Ltd.: Rule B Attachments and Equitable Vacatur

2010-02-04T11:13:00.003-05:00

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.

Vernon C. Bain - Prison Barge

2010-02-03T15:32:00.002-05:00

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.

Maritime Liens in Rent Dispute

2010-02-03T10:20:00.006-05:00

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).

China International Marine Containers to Acquire 75% Stake in Friede & Goldman United

2010-02-03T10:09:00.001-05:00

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.

Report: CAG ignored procedures over Venezuela

2010-02-02T13:51:00.003-05:00

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.

Randsom Paid for M/V Filitsa

2010-02-02T13:41:00.001-05:00

(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.

Somali Pirates Collected More Than $60 million in Ransom in 2009

2010-02-02T13:37:00.001-05:00

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.

Head of JSF Program Fired

2010-02-01T15:11:00.004-05:00

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.

Somali Pirates Use Captured Vessel as Pirate Mothership

2010-02-01T14:56:00.002-05:00

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

2010-02-01T14:52:00.002-05:00

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.

Longshore and Harbor Workers' Compensation Act and Maritime Status

2010-02-01T12:54:00.004-05:00

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.

Ice Strands Ferry in Baltic

2010-01-31T14:20:00.003-05:00

Visit msnbc.com for breaking news, world news, and news about the economy

I wonder what the ice rating is on that ferry.

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

2010-01-31T12:46:00.003-05:00

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

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

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

The High Court of Justice considered the following three issues.

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

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

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

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

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

Amazing Video of Coast Guard Medivac

2010-01-30T16:41:00.001-05:00

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

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

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

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

The Great Things You Find in Old Books

2010-01-30T13:51:00.003-05:00

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

Despite Court Victory: Navy Sonar Plans Could Face Stricter Rules

2010-01-30T10:29:00.002-05:00

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

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

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

H/T: Navy Times

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

2010-01-29T14:07:00.003-05:00

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

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

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

H/T: Trade Only Today

1000 Visitors

2010-01-29T13:35:00.005-05:00

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

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

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

2010-01-29T13:25:00.004-05:00

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

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

From the Navy Times

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

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

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

2010-01-29T08:39:00.002-05:00

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

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

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

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

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

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

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

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

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

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

City of Adelaide Clipper Ship Doomed

2010-01-28T22:21:00.002-05:00

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

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

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

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

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

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

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

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

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

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

CO of Naval Weapons Station Charleston, Arrested for Solicitation

2010-01-28T19:16:00.003-05:00

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

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

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

From Navy Times.

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

2010-01-28T11:23:00.003-05:00

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

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

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

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

Happy Birthday Coast Guard

2010-01-28T10:56:00.003-05:00

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

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

2010-01-27T12:04:00.003-05:00

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

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

2010-01-27T12:01:00.002-05:00

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

Coast Guard responds to overboard containers

2010-01-27T09:05:00.003-05:00

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

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

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

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

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

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

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

Jurisdiction and Admiralty Claims

2010-01-26T17:11:00.003-05:00

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

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

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

Coast Guard to Establish Security Zone for State of the Union

2010-01-25T17:45:00.002-05:00

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

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

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

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

H/T: Coast Guard news

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

2010-01-25T12:39:00.002-05:00

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

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

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

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

Oil Spill in Port Arthur Texas

2010-01-25T10:20:00.003-05:00

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

Somali Pirates Once Again Threaten to Kill British Captives

2010-01-22T22:16:00.003-05:00

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

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

Cruise ship passenger murdered during port call in Antigua

2010-01-22T20:17:00.003-05:00

The Royal Clipper.

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

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

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

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

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

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

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

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

H/T:Cruise Ship Law

Workers at Australian Iron Ore, Grain Port to Strike

2010-01-22T19:29:00.000-05:00

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

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

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

2010-01-22T17:07:00.004-05:00

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