Bryant’s Maritime Blog – 19 October 2009

Headlines: EFTs are not subject to attachment under Rule B; COAC meeting; PHMSA meeting re transport of dangerous goods; NOAA – extension of comment period re killer whales; USCG – reporting loss of main propulsion; Strait of Juan de Fuca – maritime security exercises; UK – master sentenced to confinement for being drunk; UK – investigation of allision with quay; EC – progress on integrated maritime policy; EPA – Diesel Emissions Reduction Program; USCG - lessons learned re small fire in engine room; and DHS OIG – USCG identification of high interest vessels.

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EFTs are not subject to attachment under Rule B

In a mini-en banc decision, a panel of the US Court of Appeal for the Second Circuit has overruled the court’s 2002 Winter Storm decision and determined that an electronic fund transfer (EFT) is not subject to attachment under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture of the Federal Rules of Civil Procedure. The court noted that the Winter Storm decision has been heavily criticized from its date of issuance. The Rule B attachment process, following that decision, has caused severe disruption within banks operating in Manhattan. One of the major decisions relied upon by the court in deciding Winter Storm had, in the opinion of this panel, been misconstrued. New York State law provides that an EFT is not the property of any particular party to a dispute until it is deposited into that party’s account. For all of these reasons, the court held that an EFT in the temporary possession of an intermediary bank is not the property of either the originator or the beneficiary and cannot be subject to attachment under Rule B. Shipping Corporation of India v. Jaldhi Overseas PTE, No. 08-3477-cv(L), (2nd Cir., October 16, 2009). Note: The big cheer that you heard was from the Manhattan banks, which were being served with over 700 new and supplemental attachment orders daily, and from clerks in the US District Court for the Southern District of New York, who were issuing those attachment orders. The big groan was from members of the maritime bar in New York, who have suddenly had many litigation matters mooted.

COAC – meeting

The Advisory Committee on Commercial Operations of Customs and Border Protection, sponsored by the US Customs and Border Protection (CBP), will meet in Washington, DC on November 4. Topics on the agenda include importer security filing (“10+2”), automation, and trade facilitation. 74 Fed. Reg. 53511 (October 19, 2009).

PHMSA – meeting re transport of dangerous goods

The Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice stating that it will conduct a public meeting in Washington, DC on November 10 in preparation for the upcoming session of the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods. Topics on the agenda include explosives; listing, classification, and packing; and electronic data interchange (EDI) for documentation purposes. 74 Fed. Reg. 53579 (October 19, 2009).

NOAA – extension of comment period re killer whales

The National Oceanic and Atmospheric Administration (NOAA) has extended, through January 15, 2010, the period within which to submit comments on its proposed regulations for protection of killer whales in the Northwest region. 74 Fed. Reg. 53454 (October 19, 2009).

USCG – reporting loss of main propulsion

US Coast Guard Sector New Orleans issued a Marine Safety Information Bulletin reminding masters of the requirement to report the loss of main propulsion and other primary control systems immediately after addressing the resultant safety concerns. In addition, a written report must be submitted within five days. (10/16/09).

Strait of Juan de Fuca – maritime security exercises

The US Coast Guard issued a news release stating that Canadian and US naval forces will be conducting joint maritime security exercises in waters of the Strait of Juan de Fuca and off the Washington coast during the period October 18-24. (10/19/09).

UK – master sentenced to confinement for being drunk

The UK Maritime and Coastguard Agency (MCA) issued a press notice stating that the master of a general cargo vessel was sentenced to two months custodial sentence after pleading guilty to being drunk on duty. The vessel was berthed in the port of Immingham. A pilot boarded the vessel which was due to depart shortly. The engines were running, but no crewmembers were aboard. When the master came aboard about an hour later, it was apparent to the pilot that the master was in no fit state to move the vessel. He called the police, who breathalysed and arrested the master. (10/16/09).

UK – investigation of allision with quay

The UK Marine Accident Investigation Branch (MAIB) issued a summary of its preliminary examination of an incident in the port of Montrose involving a merchant ship alliding with the quay at which it intended to dock. The ship did not pick up the pilot as it entered port because the pilot was delayed on another ship. The master approached the berth at a larger angle and a higher speed than was normal. The allision ensued, even though the master applied full astern propulsion. (10/16/09).

EC – progress on integrated maritime policy

The European Commission (EC) issued a press release outlining recent achievements of its Integrated Maritime Policy and expectations for the future. Maritime surveillance and integrated spatial planning were particularly emphasized it the report. (10/16/09).

EPA – Diesel Emissions Reduction Program

The Environmental Protection Agency (EPA) issued its Report to Congress providing highlights of the Diesel Emissions Reduction Program. Re-engineering and replacement of diesel engines on trucks, locomotives, and other equipment used in US ports feature prominently in the report. (10/16/09).

USCG – lessons learned re small fire in engine room

The US Coast Guard issued a bulletin summarizing lessons learned while investigating a small fire that occurred in the engine room of a passenger ferry. (10/16/09).

DHS OIG – USCG identification of high interest vessels

The Department of Homeland Security (DHS) Office of Inspector General (OIG) issued its report on the Coast Guard’s program for identifying high interest vessels (those vessels that might pose a security risk). It found that personnel in the field were not consistently applying the scoring matrix and that the agency was not consistently archiving its scoring data. OIG-09-107 (10/16/09).

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 – October 2009

Redistribution permitted with attribution