Volume 39, Issue 2

Public Company Jones Act Citizenship
Constantine G. Papavizas | Article

U.S. cabotage laws, popularly and generally referred to as the Jones Act, limit access to the U.S. domestic maritime trade to U.S.-flag vessels owned and operated by qualified U.S. citizens. One of the citizenship requirements is the maintenance of at least 75% U.S. citizen beneficial ownership of the ultimate parent and intervening subsidiaries of the vessel-owning company. The law is apparently unyielding, for there is no de minimis exception and compliance in principle must be continuous. Public companies can find it difficult to qualify as Jones Act citizens and maintain that citizenship. Most publicly traded securities are held in “street name” where the securities issuer does not have access to the identity of the ultimate owners, and publicly listed securities institutions have come up with mechanisms that ameliorate the difficulty. Read More…

OPA 90: Twenty-Five Years of Judicial Interpretation
David H. Sump | Article

The Oil Pollution Act of 1990 (Act) was signed into law on August 18, 1990, and with it began a new paradigm in oil pollution prevention, response, and liability. This statute has been in force for nearly twenty-five years and endured regulatory implementation, statutory amendments, executive branch interpretation, and ultimately judicial branch interpretation.Read More…

Recent Developments In Admiralty and Maritime Law At The National Level And In The Fifth And Eleventh Circuits
David W. Robertson; Michael F. Surley | Recent Development

This is the fourteenth article in a series of annual reports on U.S. admiralty and maritime law and practice. In these articles we try to call attention to the principal national-level developments that bear on the work of admiralty judges, lawyers, and scholars, and we look more closely at the relevant work of the United States Courts of Appeals for the Fifth and Eleventh Circuits. We do not warrant full coverage, although with respect to the Fifth and Eleventh Circuits we try to be fairly thorough. Read More…

International Recent Developments: Australia
Kate Lewins; Ashwin Nair | Recent Development

This Article focuses on the significant decisions relating to commercial maritime law that have emanated from Australian courts over the past year. It aims to provide readers with an insight into Australian maritime law and its development over this period.Read More…

International Recent Developments: United Kingdom
Theodora Nikaki | Recent Development

This Article provides an overview of some of the most significant cases concerning charterparties and carriage of goods by sea decided in the United Kingdom during 2014. There is a concise discussion of selected cases with references in the footnotes to additional cases decided in 2014, which, due to spatial constraints, could not be given a fuller treatment.Read More…

Do Charterparty Arbitration Clauses Bind Brokers?–From a Perspective of Chinese Law
Beiping Chu | OST Colloquium: Intermediaries in Shipping

It is a very common practice in the international shipping market to negotiate and to conclude charterparties via brokers. Therefore, a commission clause is usually contained in the charterparty. In cases where a party delays or refuses to perform its contractual responsibility to remit the commission and where the charterparty does not contain a broker agreement or arbitration clause that expressly references commission-related disputes, two fundamental question arise. First, are the brokers able to refer their grievances against liable parties to omission under the arbitration clause in the charterparty? Read More…

The EU Directive on Self-Employed Commercial Agents–Applicability and Mandatory Scope
Ellen Eftestøl-Wilhelmsson | OST Colloquium: Intermediaries in Shipping

The aim of this Article is to present recent developments in European Union (EU) agency law concerning the applicability and mandatory scope of the Directive on the Coordination of the Laws of the Member States Relating to Self-Employed Commercial Agents (Directive). Read More…

Ebola Virus: Considerations for Vessel Owners and Charterers
Andrei Kharachanka | OST Colloquium: Intermediaries in Shipping

More than 10,000 people have died in West Africa following the current outbreak of Ebola, which began in March 2014. Guinea, Sierra Leone, Liberia, and Nigeria are the worst-affected countries. Although until now no port on the West African coast was closed, local authorities have started to restrict entrance of vessels that previously called on neighboring countries affected by the outbreak. Additionally, there are examples of crews refusing to enter ports in countries where outbreak of the disease has been reported. The disease caused hysteria not only in West Africa, but also far away from the actual epicenter. Read More…

The Role of Insurance Brokers at the Formation Stage of Marine Insurance Contracts in China
Jinlei Zhang | OST Colloquium: Intermediaries in Shipping

During the formation of marine insurance contracts in China, a broker acting as an intermediary between assured and insurer plays an important role. This Article will focus mainly on legal issues about the legal statutes, duties, and rights of brokers. Due to the profound impacts brought by marine insurance law in the United Kingdom and the well-known practice of formation of insurance contracts in Lloyd’s, in order to make a comparable study of legal and practical issues regarding the role that an insurance broker plays during the formation stage in China and the United Kingdom, reference will be made to the U.K. practice and regulations. Read More…

Brokers and Buyers Beware: Underwriters are Nickel-and-Dimed By Strict Interpretation of Language in Excess and Umbrella Policies of Offshore Energy Companies
L. Taylor Coley | Note

Hurricane Ike swept through the Gulf of Mexico in September 2008, leaving behind more than $150 million in damage to more than 150 offshore platforms in which W&T Offshore (W&T) had a commercial interest. In preparation for just such a storm, W&T purchased three types of insurance: (1) a commercial general liability policy (the “primary liability” policy), (2) five energy package policies (energy packages), and (3) four umbrella/excess liability policies. Whereas the energy packages covered claims regarding property damage, operators’ extra expenses (OEE), and removal of debris (ROD) expenses, the umbrella policies only allowed recovery for ROD expenses.Read More…

The Ninth Circuit Writes an Obituary for Section 903(c) of the LWCA in Kealoha v. Director, Office of Workers Compensation Programs
Matthew T. Drenan | Note

William Kealoha’s life changed forever when he fell twenty-five to fifty feet from a barge onto a dry dock, the first of several tragic events over a two-year crescendo that would ultimately leave Kealoha mentally and physically crippled. Kealoha’s fall occurred while employed as a ship laborer fro Leeward Marine Inc. (Leeward) and resulted in blunt trauma to the head, chest, and abdomen, a fractured rib and scapula, and knee and back pain. Subsequently, just two years later, Kealoha attempted suicide, shooting himself in the head, and unsurprisingly causing severe cranial-facial injuries. Following Kealoha’s failed suicide attempt, he sought compensation under the Longshore and Harbor Workers’ Compensation Act (LHWCA or Act), undergoing three levels of appeal through the Department of Labor’s administrative review process. Read More…

Adrift at Sea in Search of the Proper Scope of the Penhallow Rule: D’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd.
Michael Gaines | Notes

Bulk carrier and panama operator D’Amico Dry Limited brought suit in the United States District Court for the Southern District of New York to enforce an English court’s judgment awarding D’Amico over $1.7 million on a contract claim against Primera Maritime (Hellas) Limited. Primera had failed to pay on a freight forwarding agreement (FFA) between the two parties. Because FFAs are not maritime contracts under English law, the underlying suit was heard in the commercial court of the Queen’s Bench Division, rather than the admiralty court.Read More…

Change Is in The Air (And at Sea): The Fifth Circuit Redraws the Lines of Federal Authority Over Investigation of Maritime Disasters in United States v. Transocean Deepwater Drilling, Inc.
Claire Galley | Note

United States v. Transocean Deepwater Drilling, Inc., came in the aftermath of one of the watershed maritime events of this quarter century. On April 20, 2010, Transocean’s DEEPWATER HORIZON, a mobile offshore drilling unit (MODU), was drilling the Macondo oil well in the Gulf of Mexico when a blowout, explosion, and fire occurred. Eleven people lost their lives, and significant amounts of hazardous substances entered the surrounding water and air. The United States Chemical Safety and Hazard Investigation Board (CSB) was one of several government agencies to respond and investigate the incident. In the process of the investigation, the CSB issued five administrative subpoenas to Transocean seeking relevant records production and answers to interrogatories.Read More…

The Rise of the Exoneration Clause: The Second Circuit Holds a Downstream Covenant Not to Sue Enforceable in Sompo Japan Insurance Co. of America v. Norfolk Southern Railway Co.
Alana Riksheim | Notes

In the spring of 2006, a train carrying a range of manufactured good from East Asia, including tractors, automotive parts, and copy machines, derailed outside of Dallas, Texas. Much of the cargo was destroyed. Assigning liability in the wake of the derailment required untangling the web of intermodal carriage contracts governing the damaged shipments. Two cargo owners contracted with Nippon Express U.S.A. (Nippon Express), a non-vessel-operating common carrier, or NVOCC, to arrange the transportation of their products from Japan to Georgia.Read More…

ITLOST? The International Tribunal for the Law of the Sea Sounds the Charge to Expand Coastal State Jurisdiction
Clayton Vignocchi | Note

Amid bunkering fishing vessels authorized to operate in Guinea-Bissau’s Exclusive Economic Zone (EEZ), the M/V Virginia G, a Panamanian-flagged oil tanker, was arrested for “the repeated practice of fishing related activities in the form of [the] unauthorized sale of fuel to ships fishing in [Guinea-Bissau’s] EEZ.” The VIRGINIA G was contracted by Empresa Balmar Pesquerias de Atlantico (Balmar) on August 7, 2009, to provide gas oil to Mauritania-flagged fishing vessels operating in Guinea-Bissau’s EEZ. Balmar’s agent in Guinea-Bissau, on behalf of the Mauritania-flagged fishing vessels and in accordance with state law, requested and subsequently received authorization from the National Fisheries Inspection and Control Service (Serviço Nacional de Fiscalização e Controlo das Actividades de Pesca) (FISCAP) for those vessels to receive fuel from the VIRGINIA G. After refueling two of the contracted fishing vessels, the VIRGINIA G, while in route to a third contracted vessel and nearly sixty miles off the coast, was approached by speedboats and boarded by agents of Guinea-Bissau. Read More…