Issue 1
Flagging the Floating Turbine Unit: Navigating Towards a Registerable, First-Ranking Security Interest in Floating Wind Turbines
Alexander Severance and Martin Sandgren | Article
Defending Arctic Drilling Operations Against Environmentalist Pirates
James C. Winton and Justin T. Scott | Article
This Article addresses the rights of a vessel owner/operator and an oil company engaged in exploration activities in remote Arctic ocean regions to protect its operations against those who would interfere with the vessels being used. It first addresses the scope of duties owed to those who are on board a vessel with the express or implied permission of the owner/operator, stowaways, and those aboard for purposes adverse to the interests of the owner/operator. It then discusses the traditional rights and remedies available to vessel owners/operators and to the lease operator oil companies to protect drilling operations from environmental activists who threaten to disrupt operations in the Arctic seas. Finally, based on recent case law, we suggest new theories and methodologies to protect operations, utilizing 200-year-old doctrines and procedures to stop such interference before it occurs. Read more…
The CMI and the Panacea of Uniformity – An Elusive Dream?
Stuart Hetherington | Essay
This Article aims to explain the history that led to the formation of the (Comité Maritime International) CMI and to describe the work of the CMI–from which you can draw your own conclusions as to whether it has achieved its founders’ objectives. It will also refer to some of the work in which the CMI is currently engaged, as well as identify areas of possible further involvement by the CMI. Read more…
PRC Shipbuilding Disputes in London Arbitration: The Threat of Parallel Proceedings in China and the Consequences and Possible Alternatives
Peter Murray and Lin Jiang | Essay
Much is written about the legal system in China and how on the one hand it is biased in favour of local parties and on the other hand it is no more than a tool of the state. Recent cases in the maritime courts in China may give some support to the first view. This Article will review how those cases have arisen and explore the reasons why they have come about. However, this review is only half the story because very recent developments suggest that the court system is self-regulating to prevent this occurrence. This Article will also consider whether the self-regulation is a welcome move and indeed whether it might be considered as an example of the legal system being a tool of the state. Read more…
Regal-Beloit Revisited in the Reverse
Yaakov U. Adler | Essay
In its landmark 2010 decision in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., the United States Supreme Court held that the Carriage of Goods by Sea Act (COGSA or Act), and not the Carmack Amendment (Carmack or Amendment), governed the inland rail segment of an inbound (overseas import) multimodal shipment under a through bill of lading. In the opinion drafted by Justice Kennedy, the Court expressly declined (parenthetically) to answer the question of what happens in the reverse context, that is, where cargo is lost or damaged on the inland rail segment of an outbound (overseas export) multimodal shipment under a through bill of lading. Read more…
Taxation of Marine Shipping Income: A Critique of U.S. Tax Laws in the Energy Transport Industry
Albert D. Farr | Comment
As a converted World War II Liberty freighter, the METHANE PIONEER, with her balsa wood supports and plywood insulation, made a courageous transatlantic voyage in 1959 from Lake Charles, Louisiana, to Canvey Island, United Kingdom, to deliver the world’s first shipment of liquefied natural gas (LNG). This successful crossing helped the maritime practice strengthen its image in the oil and natural gas industry and reassured the global marketplace that LNG tankers would play a vital role in the commodity’s international transportation. Fifty years later, innovative natural gas extraction methods in the U.S. Barnett, Eagle Ford, and Marcellus shale fields have revolutionized the production process and created an oversupply of the commodity. Read more…
The Potential Application of 18 U.S.C. § 1115 to Offshore Drilling Disasters: A Requiem for the Seaman’s Manslaughter Act?
Allison Fish | Comment
Section 1115 of United States Code Title 18, colloquially referred to as the Seaman’s Manslaughter Act, provides, “Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed . . . shall be fined under this title or imprisoned not more than ten years, or both.” Although a seemingly straightforward statute, significant changes in the maritime industry since its inception have rendered modern application of the statute a considerably difficult task. Read more…
A Court for Icarus: Defining Maritime Tort Jurisdiction in Aircraft Crash Cases
David A. Freedman | Comment
When aircraft crash into navigable waters, a myriad of legal issues arise. Before any can be adjudicated, an admiralty court must first ascertain whether it has jurisdiction. Practitioners should be aware of the procedural and substantive rules inherent in admiralty before choosing where to bring suit. These rules can be quite different from their state or common law counterparts. For example, while the United States Constitution guarantees the right to a trial by jury under certain circumstances, there is no corresponding right in admiralty. Prejudgment interest, which is often recoverable in admiralty, may not be recoverable if the claim is brought under federal question jurisdiction. Different statutes of limitations may apply. This nonexhaustive list highlights the significance in the choice of where to bring suit. Read more…
Widening Gyre: The Seaman’s Expanding Right to Unearned Wages
Bryan J. Kitz | Comment
Seafarers who become ill or injured during their service of a vessel have long been entitled to maintenance and cure. This ancient remedy, however, does not obligate employers to provide seamen with only maintenance and cure. Ill or injured seafarers are also entitled to unearned wages, which have developed into a fundamental component of the maintenance and cure remedy. Read more…
The Safe-Berth Warranty and Its Critics
David R. Maass | Comment
This Comment defends the safe-berth warranty from its critics and argues that the Fifth Circuit should reverse course and adopt the safe-berth warranty. Part II provides an overview of the safe-berth warranty, unpacking the definition of a safe port and cataloging the defenses and mitigating doctrines that may allow the charterer to escape liability. Part III discusses how courts in England and the United States have applied the safe-berth warranty in a variety of situations that highlight different aspects of the warranty. Part IV surveys criticisms of the safe-berth warranty and explains why the Fifth Circuit rejected the warranty. Finally, Part V argues that the criticisms leveled against the safe-berth warranty fail and urges the Fifth Circuit to restore uniformity by adopting the safe-berth warranty. Read more…
The Problem’s in the Proof: How Public Companies Can Prove Compliance with the Jones Act Vessel Citizenship Requirements for Eligibility in U.S. Coastwise Trade
Katherine Wiarda | Comment
In order to engage in U.S. coastwise trade, a vessel must, among other things, be owned by a U.S. citizen. The Jones Act sets forth the requirements that must be satisfied in order for a person or entity to be deemed a “citizen” of the United States. While the statute deals with several categories of citizens, of particular importance for coastwise trade are corporations. Under the Jones Act, a corporation is deemed a “citizen” of the United States, and therefore eligible to engage in coastwise trade, if (1) “it is incorporated under the laws of the United States,” (2) the chairman of the board of directors and CEO are U.S. citizens, (3) no more than a minority of the number of directors necessary to constitute a quorum are noncitizens, and (4) at least 75% of the shares of the corporation are owned by U.S. citizens. In addition, where title to a vessel is held, in whole or in part, by other entities, each entity contributing to the ownership interest must itself be eligible to document vessels with a coastwise endorsement. Although the first three of these requirements are fairly straightforward, fulfilling the final obligation–the 75% ownership interest requirement–has become an increasing source of concern for publicly traded corporations. Over the years, establishing how publicly traded corporations can comply with the Jones Act requirements to own and operate a vessel in coastwise trade has become an increasing source of debate. Read more…
The “Perils of the Sea”-man Status Question: The Fifth Circuit Falls Behind FELA’s Advancements in Remedies in Favor of the Continued Confusion Surrounding the Seaman Definition
L. Taylor Coley | Note
Larry Naquin worked four years for Elevating Boats, L.L.C. (EBI), as a vessel repair supervisor on a fleet of lifeboat vessels, spending 70% of his time inspecting, cleaning, painting, performing engine repairs, and replacing damaged parts. These vessels were usually jacked up, docked, or moored, but two or three days a week, he would do his work while the boats were moving to a different part of the canal. Occasionally, Naquin was dispatched to work on vessels in open water. He spent the other 30% of his employment working in the shipyard’s fabrication shop or operating its land-based crane. On November 17, 2009, the shipyard crane he was operating suddenly failed, causing the crane to topple onto a nearby building. Naquin was able to jump from the free-falling crane house but sustained a broken left foot, a crushed right foot, and a lower abdominal hernia. His cousin’s husband, another EBI employee, was crushed to death by the crane. In November 2010, Naquin filed a Jones Act suit, alleging that EBI was negligent in its construction and/or maintenance of the shipyard crane. Read more…
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…