Bryant’s Maritime Blog – 14 August 2009

Headlines: DOJ – operator of Cosco Busan pleads guilty; Gulf of Aden – pirate attack foiled by combined action; Malta – update re disappearance of MV Arctic Sea; State court exclusive jurisdiction clause waives removal right; Limitation of liability and prejudgment interest; DRBOSAC meeting; FMC meeting; San Juan – oily water waste removed from derelict tug; IMO – agreements on SAR regions in Baltic Sea; Hong Kong – sea parade; and Australia – answers in WWII loss of HMAS Sydney.

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DOJ – operator of Cosco Busan pleads guilty

The US Department of Justice issued a news release stating that the operator of the container ship Cosco Busan pleaded guilty in federal court to criminal violation of the Oil Pollution Act of 1990, obstruction of justice, and falsifying documents in connection with the ship’s November 2007 allision with a tower of the San Francisco-Oakland Bay Bridge. The ship’s bunker tanks were holed in the incident, resulting in the spilling of approximately 53,000 gallons of fuel oil into the Bay. The company has agreed to pay $10 million in fines and penalties, but the judge will make the final determination on December 11. (8/13/09).

Gulf of Aden – pirate attack foiled by combined action

The European Union (EU) Maritime Security Centre – Horn of Africa (MSC-HOA) issued a press release stating that its forces combined with NATO forces to foil a piratical attack on a Turkish cargo ship in the Gulf of Aden. The pirates were forced to break off the attack when warning shots were fired from the helicopter of an EU warship. Boarding of the skiff of the suspected pirates was performed by a team from a NATO warship. (8/14/09).

Malta – update re disappearance of MV Arctic Sea

The Malta Maritime Authority issued an update summarizing the little that it officially knows regarding the disappearance of the MV Arctic Sea on a voyage from Finland to Algeria with a cargo of timber. The ship has a crew of 15, all of Russian nationality. (8/12/09).

State court exclusive jurisdiction clause waives removal right

The US Court of Appeals for the Fifth Circuit ruled that a contract that includes a provision for exclusive jurisdiction in a state court constitutes a waiver of the right to remove an action brought under that contract to federal court. In the instant case, plaintiff owned an offshore oil rig and insured that rig with defendant insurers. The rig was severely damaged when, during Hurricane Katrina, it fell to the sea floor near a platform owned by another company. The insurers paid for the constructive total loss of the rig, but contended that the policy did not cover removal of the debris. Plaintiff brought suit in state court in Dallas. Defendants removed the case to federal court, which then granted plaintiff’s motion to remand the case back to state court. Defendants appealed. The insurance policy provided, in pertinent part, that any disputes arising under the policy “shall be subject to the exclusive jurisdiction of the Courts of Dallas County, Texas.” Defendants argued that this provision was overridden by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to which the United States is party. In upholding the order remanding the case to state court, the appellate court ruled that a party may waive its removal rights under the Convention by entering into a contract that clearly establishes an exclusive venue. The decision included concurring and dissenting opinions. ENSCO International, Inc. v. Certain Underwriters at Lloyd’s, No. 08-10451 (5th Cir., August 12, 2009).

Limitation of liability and prejudgment interest

The US Court of Appeals for the Fifth Circuit ruled that the owner of two vessels that broke free of their moorings during Hurricane Katrina and damaged a highway bridge is entitled to limitation of liability, but that the state highway department is entitled to an award of prejudgment interest. In the instant case, the vessel owner was aware of the approach of the hurricane and took steps to bolster the moorings of the vessels. Nevertheless, the vessels broke free and allided with a highway bridge over four miles away, severely damaging the bridge. The vessel owner petitioned for exoneration from and limitation of liability. The petition was opposed by the state highway department. The court ruled that the vessel owner was not entitled to exoneration from liability because the effects of the hurricane were reasonably foreseeable. The vessel owner, though, was entitled to limit its liability because, under the facts as found by the trial court, it lacked privity or knowledge that the vessels were not properly moored. Finally, the court held that in maritime cases, the award of prejudgment interest is the rule, rather than the exception. Because the trial court found no peculiar circumstance that would make such an award inequitable, it was an abuse of discretion for the court to fail to make such an award. In re Signal International, LLC, No. 08-60696 (5th Cir., August 12, 2009).

DRBOSAC – meeting

The Delaware River and Bay Oil Spill Advisory Committee (DRBOSAC), sponsored by the US Coast Guard, will meet in Lewes, Delaware on September 9. 74 Fed. Reg. 41145 (August 14, 2009).

FMC – meeting

The Federal Maritime Commission (FMC) issued an official notice stating that the Commission will meet in its office in Washington, DC on August 19. In its open session the Commission will consider a request for extension of time in Docket No. 08-04: Tienshan, Inc. v. Tianjin Hua Feng Transportation Agency. 74 Fed. Reg. 41132 (August 14, 2009). .

San Juan – oily water waste removed from derelict tug

The US Coast Guard issued a news release stating that it and the Puerto Rico Ports Authority are removing more than 20,000 gallons of oily water waste from a derelict tug in San Juan Harbor. Once the pollutants are removed, the Ports Authority will dispose of the tug. (8/13/09).

IMO – Sweden & Poland agree on SAR regions

The IMO issued a circular forwarding an agreement between the Kingdom of Sweden and the Republic of Poland on Search and Rescue (SAR) Regions and coordination of SAR services. SAR.6/Circ.33 (6/19/09).

IMO – Sweden & Latvia agree on SAR regions

The IMO issued a circular forwarding an agreement between the Kingdom of Sweden and the Republic of Latvia on Search and Rescue (SAR) Regions and coordination of SAR services. SAR.6/Circ.34 (6/19/09).

IMO – Sweden & Lithuania agree on SAR regions

The IMO issued a circular forwarding an agreement between the Kingdom of Sweden and the Republic of Lithuania on Search and Rescue (SAR) Regions and coordination of SAR services. SAR.6/Circ.35 (6/19/09).

IMO – Sweden & Norway agree on SAR regions

The IMO issued a circular forwarding an agreement between the Kingdom of Sweden and the Kingdom of Norway on Search and Rescue (SAR) Regions and coordination of SAR services. SAR.6/Circ.36 (6/19/09).

IMO – Sweden & Estonia agree on SAR regions

The IMO issued a circular forwarding an agreement between the Kingdom of Sweden and the Republic of Estonia on Search and Rescue (SAR) Regions and coordination of SAR services. SAR.6/Circ.37 (6/19/09).

IMO – Sweden & Denmark agree on SAR regions

The IMO issued a circular forwarding an agreement between the Kingdom of Sweden and the Kingdom of Denmark on Search and Rescue (SAR) Regions and coordination of SAR services. SAR.6/Circ.38 (6/19/09). Note: These agreements are welcomed, but wouldn’t a regional agreement between all the participating Baltic States have been more efficient and saved a lot of forests?

Hong Kong – sea parade

The Hong Kong Marine Department issued a notice stating that between 1600 and 1630 hours on Saturday, 29 August, a sea parade will be conducted in the Central Harbour between the Kowloon Public Pier and the Hong Kong Convention and Exhibition Centre. Mariners should exercise caution if operating in the vicinity of this event. (8/13/09).

Australia – answers in WWII loss of HMAS Sydney

The Australian Ministry of Defence released the report of its investigation into the loss of the HMAS Sydney off the coast of Western Australia on November 19, 1941. The cruiser sank rapidly, with the loss of all 645 crew, as a result of its engagement with the German raider HSK Kormoran. The Kormoran was operating as a Q-ship, disguised to resemble a Dutch merchant ship. Interviews of the surviving German sailors revealed that when the cruiser was close off its beam, the raider raised the German Navy ensign and opened fire. The first shot struck the bridge of the Sydney, apparently killing the captain and most of the senior officers, as well as disabling much of the ship’s internal communications and control capability. The battle lasted less than an hour with the loss of both vessels. The wrecks of the two warships were finally located in March 2008, leading to a reopening of the investigation into the worst naval disaster in Australian history. (8/12/09). Note: This item has been repeated from yesterday’s newsletter because of numerous comments received from long-suffering readers that the link to the report was inoperative. We will hope for better luck with the Internet gods today.

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 – August 2009

Redistribution permitted with attribution