Proctor in Admiralty

U.S. Coast Guard issues new anti-piracy requirements

The Navy Times is reporting that the US Coast Guard updated anti-piracy guidelines Tuesday for U.S. Flagged commercial vessels operating off the coast of

Somalia

.  The new requirements mandate the use of guards on vessels transiting around the Horn of Africa but allow ship owners to decide whether to use armed or unarmed guards.

 According to the Navy Times article:

 All U.S.-flagged vessels must submit plans for combating terrorism and piracy that incorporate the guidelines by May 25.

 Most vessels that move through high-risk areas such as the

Gulf of Aden

have had some type of plan, but the measures now must be approved by the Coast Guard, said Rear Adm. Brian Salerno, assistant commandant for marine safety, security and stewardship.

 The directive requires that ship owners “assess and plan for their vulnerabilities,” he said. “If they haven’t taken adequate measures, then we can suggest they take more stringent ones.”

 There are multiple issues involved with placing armed guards on board commercial vessels.  The basic areas of concern include but are not limited to: liability issues involving crewmembers; international regulatory requirements; and insurance related issues as well as union issues concerning the crewing contracts with vessel operators.

 

Liability Issues:

 The use of armed personnel while at sea might give rise to Jones Act negligence for failure to provide a "reasonably safe place to work" or numerous other bases for findings of negligence by the employer in personam.  Further, it might result in a finding of unseaworthiness, creating claims against the vessel operator in personam and against the vessel in rem as improper operations by contractors has been found to create an unseaworthy condition. 

 A seaman assumes the risks normally incident to his perilous calling but as to perils resulting from unreasonably unsafe working conditions and/or negligence of fellow employees, the common law doctrine of “assumption of risk” has been eliminated by the Federal Employees Liability Act (“FELA”) which is made applicable to seamen by the Jones Act.    While liability for injury caused by combating pirates (or incidental to the combating of pirates) is novel in the modern age, it should be noted that soon after the M/V MAERSK ALABAMA was hijacked, numerous websites of law firms specializing in plaintiffs’ seamans’ claims began listing themselves with tags to piracy related matters and calls for carriers to “ensure” the safety of the crew from piracy and Richard E. Hicks, Chief Cook aboard the vessel, filed suit in Texas claiming unseaworthiness of the vessel for failing to better protect the crew from pirates.

 

International Regulatory Requirements:

 A decision to carry armed guards aboard commercial vessels will require a review and potentially modifications to the vessel’s International Ship and Port Facility Security Code (“ISPS”) plan.  Additionally, these vessels are required to have a designated Ship Security Officer (“SSO”) to oversee implementation of the vessel’s security plan and both the plan and the SSO will likely need a greater level of knowledge to manage a plan which includes armed response to security concerns.

 Nowhere in the ISPS Code is there a discussion of the engagement or use of armed guards or the use of firearms on board vessels, whether by members of the crew or hired guards, although the ISPS Code recognizes that ships will employ outside contractors to provide security services, especially in port. Additionally, the ISPS Code recognizes that "[a]t all times the Master of a ship has the ultimate responsibility for the safety and security of the ship."  Presumably any limitations as to how this responsibility is carried out would be dictated by other authorities, such as the

Flag

State

.  The ISPS Code appears to contemplate the situation that while ship's personnel (and any locally-hired security service) will keep a close watch on the vessel, the response to acts of violence will necessarily have to be made by governmental authorities, a presumption which makes sense in the context of a vessel in port.

 Specifically related to piracy and armed robbery against ships, the International Maritime Organization (“IMO”), the United Nations Agency concerned with the safety of shipping and cleaner oceans, has issued written guidance to the maritime industry suggesting that an armed response to any attack is discouraged: "Aggressive responses, once an attack is underway and, in particular, once the attackers have boarded the ship, could significantly increase the risk to the ship and those on board…The carrying and use of firearms for personnel protection or protection of a ship is strongly discouraged ... Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an already dangerous situation, and any firearms on board may themselves become an attractive target for an attacker. The use of firearms requires special training and aptitude and the risk of accident with firearms on board ship is great. In some jurisdictions, killing a national may have unforeseen consequences even for a person who believes he has acted in self-defense.” 

Insurance Related Issues:

 The carrying of armed personnel may violate the rules of the basic insurance that vessel owners have in place including cover from Protection and Indemnity Associations (“P&I Clubs”) and

Hull

and Machinery Insurance Policies.  Some brokers have suggested in articles and promotional materials and that hull underwriters may give a discount to owners who employ armed guards to protect their assets.  However, the use of these guards may in fact violate some rules of the P&I Club and written opinions from P&I Clubs would be warranted prior to the use of such guards.

 Requiring the use of guards, armed or otherwise and the updating of security plans certainly makes sense in this age of increased frequency of piratical attacks.  However, owners of US Flagged assets will need to give significant attention to these and other issues before submitting their plans in the next 12 days.  It will also be interesting to see if other Flag States follow suit with the imposition of similar requirements on their fleets.

Support for the Rotterdam Rules

As I mentioned in a post earlier this week, the so-called Rotterdam Rules are gaining traction in the US as industry group and trade associations voice support for the UN Convention designed to replace the international hodgepodge of laws regulating the carriage of cargo through ocean shipping.  In the US, the Carriage of Goods by Sea Act, or COGSA has been the law since 1936 with nary an amendment.  According to the Journal of Commerce, on May 5, the National Industrial Transportation League ("NITL") or "NIT League" voted unanimously in support of the new rules.  This is hardly a surprise as the rules are well favored by most shippers and counsel for the NIT League stated as much during her remarks to the Maritime Law Association of the United States during their debate and subsequent vote of support on May 1.  According to the article:

“The development of compatible worldwide standards applicable to the loss and damage of maritime cargoes is long overdue,” said Mark Maleski, NITL chairman and supply chain logistics director for retailer J. C. Penney.

Uniformity and consistency are notably lacking in the liability rules governing maritime shipping today, said Peter Gatti, executive vice president of the NITL, which represents some 700 U.S. companies involved in domestic and international transport.

Also, the current U.S. law, the Carriage of Goods at Sea Act, hark back to a time when cargo was shipped in boxes, crates and bags, rather than on pallets or in containers.

COGSA is the U.S. law enacting the “Hague Rules,” an international convention dating to 1924. “We all know the world has changed significantly since that time,” Gatti said.

“The Rotterdam Rules will reflect current shipping practices, contain significant improvements over existing cargo liability conventions, promote harmonization among trading partners, reduce legal obstacles and will allow shippers, carriers and third parties to customize their contracts to meet their commercial needs,” he said.

A push for congressional action will be forthcoming and the major question will be whether action takes the form of a submission of the Convention by President Obama for the advice and consent of the Senate or whether domestic legislation is introduced as a means of adopting the rules.  The case for the former suggests that the principles of international uniformity are so important that the US should adopt the Rules as drafted.  The latter would provide opportunity for various trade groups and lobbyists to push for changes to the international rules, the result of which may be better for some special interests but certainly worse for the furtherance of the principle of uniformity providing certainty to shippers, consignees and carriers the world over. 

We will continue to track developments and have established a separate category for tagging these posts.  I hope this site can develop a significant discussion of the Rotterdam Rules, so please let me hear from you. 

MLA - A Week in Review

I am just back from Maritime Law Association of the United States meetings in Washington DC last Tuesday and New York, Wednesday through Friday.  A couple of general observations and then a few specifics:

1. Almost every committee meeting seemed to include piracy on its agenda.  I did not attend the Fisheries Committee meeting but would not be supprised if they did likewise!  The Website and Technology Committee discussed some of the technologies used to combat pirates.  (Kevin O'Donovan, please send me the link to the information you presented so I can link to it here).

2. The main focus of the General Meeting on Friday morning was to debate the MLA's position on the final version of the so-called Rotterdam Rules.  For the uniformed, The Rotterdam Rules is the common name for the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, which does not have a good acronym.  These rules are designed to bring the law current with commercial practice and to help restore the concept of international comity with regard to maritime transportation.  The meeting began at 9am but debate on the Rules did not begin until after 11 so the crowd was really thinning out by the time the final votes on questions came up.

3.  I will be assuming the chair of the Website and Technology Committee and want to bring in new speakers and discussion topics.  Your thoguhts and suggestions are always welcome.

4. In an effort to gauge the technological savvy of maritime practitioners, I inquired of many members as to whether they use Twitter - most of them looked at me like I was a twit.  Check out this post from Carolyn Elefant as to whether lawyers should using Twitter and how.  In the meanwhile, I am searching out maritime related tweets and will post a list of maritime sources on Twitter later this week. 

EPA's Most Wanted List

The Environmental Protection Agency has created a "Most Wanted" list on its website listing what whom it describes as: defendants charged with environmental crimes or violations of the U.S. Federal Criminal Code who have fled the court’s jurisdiction and/or the USA rather than face prosecution or to serve a sentence. When these circumstances occur, the defendants become fugitives from justice.  (Note to Dick Wolf - get Steve Zirnkilton to voice the foregoing and add on "These are their stories ..." {BOMP BOMP} and I think you have an new installment for the Law and Order franchise!) 

Included on the list are five mariners charged with false entries into Oil Record Books. Another fugitive is a mariner charged with dumping oil contaminated grain from a vessel into the ocean. 5 other defendants on the list are charged with illegal dumping of pollutants into the navigable waterways of the US.  

Society of Maritime Arbitrators Speech

Last week I spoke at the monthly luncheon of the Society of Maritime Arbitrators ("SMA") about the use (orlack thereof) of SMA arbitration clauses in shipping service contracts  filed with the Federal Maritime Commission.  My point was that most service contracting is controlled by cargo interests.  Rather than utilizing carrier drafted boilerplate, more often lately the cargo interest has its own prepared boilerplate from which the parties can negotiate.  In my experience, this cargo drafted boilerplate typically includes a choice of law provision for the state law of the cargo interests home state (where Federal Law is silent) and calls for either the local Federal or State courts of cargo's headquarters or else AAAarbitration.  On only a couple of occasions have I seen use of SMA arbitration clauses in cargo inspired boilerplate.  I suggested to the membership of the SMA that they have a good opportunity to develop new work and educate a constituency which is wholly unfamiliar with such an arbitration forum.

If anyone has a different experience, I would love to hear from you.

Monitoring Email Usage

I have been terribly delinquent in posting and I am trying to be better but there never seems to be the time - I am therefore renewing my offer to anyone who wishes to post on maritime law and technology - please let me know as I would be pleased to offer up some space here for guest bloggers.

A few weeks ago, I was speaking with my friend Irene Zanetos regarding my blog, and she sent me a link to an interesting article in Information Week magazine.  It surrounds the well known and often ignored fact that as we all type more and more emails, the amount of documentary evidence in any particular matter grows and grows.  The article discusses good document retention policies and tools/software for managing, archiving and locating email, plus the need to think before committing something in writing - something not enough of us do.

Thanks Irene for the heads-up and I will try to be better about posting more often!

Technology finds monster waves beyond estimates of computer models

Researchers aboard the RRS DISCOVERY experienced waves of up to 95 feet in height - the biggest waves ever recorded.  The scientists believe these waves are created by resonance where a storm builds energy into waves over the hours rather than by strong winds which are traditionally thought of the source for large waves.  You can read more about the findings of British National Oceanographic Center researchers aboard the RRS DISCOVERY here.

From an industry perspective, design of vessels able to withstand large waves may need to be reconsidered in the future   As a final note, waves of up to 95 feet give new meaning to so called heavy weather or force majure defenses.  It will be interesting to see the impact of this data on the maritime industry.

What happened to Equasis?

Update to post below: Equasis is back on line.  According to the US Coast Guard, Equasis was having a dispute with its hosting company.  It appears to be resolved and most importantly, Equasis is back online.  I also learned that the popularity of the service is growing all of the time.  I will try to get some statistics on this to report back.

What happened to Equasis, the online database of more that 7500 vessels around the world?  That is the question on the mind of many and I note the comments posted to my orignal entry on Equasis back in May, 2005.  That post is here. 

So far, I haven't been able to find out.  As many of you know, the website is down and they are not answering the telephone in the Equasis head office in Paris - I have called numerous times. 

I am trying to get an update from the US Coast Guard, one of the sponsors of the Equasis project and I will update all of you as soon as I have more information.

For those interested Equasis was an acronym for the European Quality Shipping Information System - I didn't know that until today!

Until more information is available,  if anyone knows of an alternate source of that great data available previously available on Equasis.org, please post a comment here. 

Decision in the TRICOLOR Case

The US District Court for the Southern District of New York has issued an opinion as to the cause of the collision between the M/V KARIBA, a container vessel and the  M/V TRICOLOR, a car carrier which resulted in the sinking (with no loss of life) of the TRICOLOR in English Channel in December 2002.  In short, the Court found that the cause of the collision was solely the sudden turn of the KARIBA to starboard  in the close quarters of  a traffic separation scheme, to avoid a potential collision with the M/V CLARY which was tracking to be crossed by both the TRICOLOR and the KARIBA.

The opinion contains numerous references to the technological tools available to the Masters of the three vessels involved including ARPA, radio communications and fog signals,   Yet, despite all of the technology available, and perhaps because of the  misuse or non-use of those tools, human error raised its ugly head and this incident occurred.

Thanks  to Dennis Bryant and his Haight's Maritime Items for pointing out the issuance of this decision.

New Mediation Blog

I saw my former partner Bobby Glenn, of Hunter Maclean at the Welcome Reception for the Maritime Law Association of the United States fall meeting in Scottsdale, Arizona.  He advised that he had started An Advocate for Mediation, a blog devoted to mediation and other forms of alternative dispute resolution.

Bobby is well suited to be blogging on this topic.  He has been heavily involved in the development of ADR usage and has served as the Chairman of the ADR committees of the State Bar of Georgia and the MLA.  He is often called upon to mediate complex cases and has developed an excellent reputation for getting the parties to resolution. 

I highly recommend checking out An Advocate for Mediation.