Bryant’s Maritime Blog – 26 June 2009

Headlines: USCG Port Security Advisories re self-defense, etc.; USCG guidance re MSDS requirement; Supreme Court punts on issue of maintenance and cure punitive damages; Robbery attempt in Straits of Malacca and Singapore foiled; Nine suspected pirates transferred to Kenya; Gulf of Aden Group Transit movie available (to some); USCG recruiting civilian marine inspectors; Paris MOU 2008 annual report; and Eco-voyage through the Arctic.

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USCG – Port Security Advisories re self-defense, etc.

The US Coast Guard issued three closely-related Port Security Advisories. The first, PSA 3-09, provides guidance on self-defense or defense of others by US-flag commercial vessels operating in high risk waters. The second, PSA 4-09, addresses compliance with the US International Traffic in Arms Regulations (ITAR) when placing weapons on board US-flag commercial vessels intending to operate outside the United States. The third, PSA 5-09, establishes minimum guidelines for contracted security services on US-flag commercial vessels operating in high risk waters. Note: These documents provide important and valuable information regarding protection of the crew and vessel from piratical attacks and from armed robbery against ships. The documents also provide a good explanation of the US common law of self-defense and defense of others. An area not covered by the documents is the law of self-defense and defense of others in foreign jurisdictions. Under international law, piracy can only occur on the high seas (e.g., more than 12 nautical miles offshore). Unlawful attacks against a ship occurring within the territorial sea or internal waters of a country are generally defined as armed robbery, and local law applies. It should be remembered that the Coast Guard definition of high risk waters is not limited to the high seas. What self-defense standards would be applied in a court in Somalia, Yemen, Indonesia, Nigeria, or elsewhere if a US master or crewmember is arrested there for shooting a local citizen? In addition, what local laws apply to having weapons on board a ship calling in a port of that country or even transiting the territorial sea? Finally, there are numerous contractual issues involving owners, operators, charterers, unions, insurers, and cargo interests that will need to be considered. This is a complex issue for which there are no easy answers. The US Coast Guard has provided useful information on some important issues, but a variety of others must be resolved as the industry works through this difficult problem. (6/25/09).

USCG – guidance re MSDS requirement

The US Coast Guard issued a notice providing the industry with guidance regarding the IMO’s recently-adopted provisions relating to carriage of material data safety sheets (MSDSs) for ships subject to the Safety of Life at Sea (SOLAS) Convention that have on board oil as defined by the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) either as liquid cargo in bulk or as fuel. The IMO recently amended its recommendation on the content and format of the MSDS, with an effective date of 1 July 2009. The SOLAS Convention was also tentatively amended (such to the tacit approval requirement) to require carriage of the MSDS. This carriage requirement is expected to come into effect on 1 January 2011. As of that date and subject to formal approval of the SOLAS Convention, the US Coast Guard will commence enforcement of the MSDS carriage requirement. A future notice will provide detailed enforcement guidance. 74 Fed. Reg. 30612 (June 26, 2009). The agency also issued a news release announcing the guidance.

Supreme Court punts on issue of maintenance and cure punitive damages

In a sharply divided 5-4 decision, the US Supreme Court declined to issue a definitive ruling on the availability of punitive damages with regard to actions for maintenance and cure. In the instant case, a seaman’s claim for maintenance and cure was denied by his maritime employer. He brought suit, seeking not only compensatory damages, but also punitive damages for the denial of his initial claim. Both the trial court and the appellate court denied the employer’s motion to dismiss the claim for punitive damages. In this appeal, the Court acknowledged there was no statute addressing the issue and that there was a split between the various circuits as to whether punitive damages were available in such suits. In affirming the ruling allowing the claim for punitive damages to proceed, the majority lamely stated: “The laudable quest for uniformity in admiralty does not require narrowing available damages to the lowest common denominator approved by Congress.” The dissent correctly pointed out that admiralty law is different from other legal principles in the United States in that much more of it is fashioned by the courts. The dissent carefully explains why it believes that punitive damages should not be available in maintenance and cure actions. Note: One of the missions of the Supreme Court, particularly with regard to admiralty law, is to establish a fair degree of uniformity, so that the potential recovery of plaintiffs and the potential liability of defendants are not dependent upon in which judicial circuit the cause of action arose. It is of less importance whether punitive damages are available for wrongly withholding maintenance and cure in the instant case than it is that their availability vel non be nationally uniform. Atlantic Sounding Co. v. Townsend, No. 08-214 (June 25, 2009).

Straits of Malacca and Singapore – robbery attempt foiled

The ReCAAP Information Sharing Centre issued an Incident Alert stating that robbers armed with automatic rifle and handguns boarded a tug boat off the Nipa Transit Anchorage in the Straits of Malacca and Singapore. The crew of the tug locked themselves in the accommodation areas and sounded the alarm. After about ten minutes, the robbers departed in their small wooden boat. This is the third reported incident in this area in the last 18 months. (6/22/09).

EU MSC(HOA) – nine suspected pirates transferred to Kenya for prosecution

The European Union – Maritime Security Centre (Horn of Africa) [EU MSC(HOA)] issued a press release stating that, in accordance with an agreement between the EU and Kenya, nine suspected pirates have been transferred to the jurisdiction of Kenya for prosecution. (6/25/09).

EU MSC(HOA) – Group Transit movie available to some

The European Union – Maritime Security Centre (Horn of Africa) [EU MSC(HOA)] issued a press release stating that it has made available to registered users a video explaining its Group Transit program. A Group Transit in not exactly a convoy, but seems to be an effort to get merchant ships to operate in close proximity, providing a modest level of mutual protection and making the naval patrols more efficient, while hopefully deterring some piratical attacks. I don’t know for sure because I am not a registered user. For those of you who are, break out the popcorn and enjoy the show. (6/25/09).

USCG – recruiting civilian marine inspectors

The US Coast Guard has commenced its formal process of recruiting civilian marine inspectors. An announcement has been released regarding openings at its five new National Centers of Expertise. Another announcement discusses openings for civilian marine inspectors generally. (6/24/09).

Paris MOU – 2008 annual report

The Paris MOU issued its 2008 Annual Report on port state control. The report notes that the average detention percentage appears to have stabilized at about 5%. During the period 1 September through 30 November, Paris MOU members conducted a Concentrated Inspection Campaign (CIC) on compliance with SOLAS Chapter V – Safety of Navigation. 81 inspections (1.39% of the total CIC inspections conducted) found detainable deficiencies. The most common detainable deficiencies were related to charts, nautical publications, and the voyage data recorder. (6/25/09).

NOAA – members sought for HSRP

The National Oceanic and Atmospheric Administration (NOAA) is soliciting nominations for membership on the Hydrographic Services Review Panel (HSRP). Applications should be received by July 24. 74 Fed. Reg. 30529 (June 26, 2009).

Lake Pontchartrain – tug sinking under investigation

The US Coast Guard issued a news release stating that it is investigating the sinking of a tug boat on Lake Pontchartrain. The two-person crew is safe. (6/25/09).

Honolulu – oil spill response training

The US Coast Guard issued a news release stating that it and a local oil spill recovery organization (OSRO) conducted oil spill response training in waters off Oahu. The training included deployment of the vessel of opportunity skimming system (VOSS). (6/24/09).

Eco-voyage through the Arctic

The Open Passage Expedition has commenced a planned voyage from the Pacific to the Atlantic through the Northwest Passage. The voyage is being undertaken by a crew of four on the 40-foot cutter-rig sailboat Silent Sound. The website allows readers to track the voyage in near-real time and to participate in the blog. (6/25/09).

If you have questions regarding the above items, please contact the editor:

Dennis L. Bryant

Bryant’s Maritime Consulting

4845 SW 91^st Way
Gainesville, FL 32608-8135

USA

1-352-692-5493
dennis.l.bryant@gmail.com

http://brymar-consulting.com

© Dennis L. Bryant – June 2009

Redistribution permitted with attribution