Bryant’s Maritime Blog – 23 March 2010

Headlines: ONI & MARAD – terrorist advisory re Red Sea and Gulf of Aden; Somali Basin – ship evades pirate attack; Bahrain – Maritime Center of Excellence; Malaysia – attempted robbery of anchored ship at night; Savannah – river closed temporarily following oil spill; USCG – implementation of STCW amendments; MACOSH meeting; OSHA – nominations sought for MACOSH; FMC – investigation of vessel and equipment capacity; Court – certiorari denied in EFT case; and Court – penalty for violation of fishermen’s wage agreement law.

Bryant’s Maritime Consulting - 4845 SW 91^st Way - Gainesville, FL 32608-8135 - USA

Tel: 1-352-692-5493 – Email: dennis.l.bryant@gmail.com – Internet: http://brymar-consulting.com

Note: This blog is one section of the Bryant’s Maritime Consulting website. Visit the site for more extensive maritime regulatory information. Individual concerns may be addressed by retaining Dennis Bryant directly. Much of the highlighted text in this newsletter constitutes links to Internet sites providing more detailed information. Links on this page may be in PDF format, requiring use of Adobe Acrobat Reader. Comments on these postings are encouraged and may be made by clicking the envelope that appears at the end of each posting. Be aware that the daily blog entry is a single posting, even though it contains a number of individual items. An above-average newsletter.

ONI & MARAD – terrorist advisory re Red Sea and Gulf of Aden

The Office of Naval Intelligence (ONI) issued a special advisory repeating a recent advisory from the Maritime Administration (MARAD) cautioning that ships in the Red Sea, Bab-al-Mandeb Strait, and the Gulf of Aden along the coast of Yemen are at risk maritime attack from al-Qaida interests. Vessels transiting these waters are urged to operate at a heightened state of readiness, maintain strict 24-hour visual and radar watches, and regularly report their position, course, and speed to the UKMTO. (3/10/10). Note: This advisory relates to the potential for a terrorist attack, not a piratical attack, although the recommended precautions are similar.

Somali Basin – ship evades pirate attack

The US Navy issued a news release stating that a merchant ship was attacked by pirates while transiting the Somali Basin 135 miles northwest of Madagascar. The pirates, in two skiffs, fired rocket-propelled grenades (RPGs) and small arms at the ship, which incurred minor damage. The ship maintained high speed and engaged in defensive maneuvers in order to evade the pirates. (3/21/10).

Bahrain – Maritime Center of Excellence

The US Navy issued a news release stating that the Maritime Center of Excellence in Manama, Bahrain is hosting the Commander’s Operational Planning Course on March 21-April 1. The course focuses on maritime security and operational planning so as to defeat terrorism, prevent piracy, reduce illegal trafficking of people and drugs, and promote the marine environment. (3/22/10).

Malaysia – attempted robbery of anchored ship at night

The ReCAAP Information Sharing Centre issued an Incident Alert stating that a tanker anchored at night off the southeast tip of Malaysia was boarded by five robbers armed with knives. The robbers departed when the alarm was sounded and the crew mustered. Nothing was stolen. (3/20/10). Note: This is the third such incident to occur in this vicinity in the past six weeks. Vessels might want to consider not anchoring there at night.

Savannah – river closed temporarily following oil spill

The US Coast Guard issued a news release stating that the Savannah River near the Ocean Terminal has been closed to navigation while clean-up personnel respond to an oil spill. A ro-ro vessel departing the facility incurred a puncture to its hull in way of its fuel tanks. An estimated 7,000 gallons of red-dye diesel fuel has been released. A temporary soft patch has been applied. The incident is under investigation. (3/21/10). A second news release states that a unified command has been established to oversee the response effort. A third news release states that the river has been reopened to navigation. Vessels operating between Elba Island and the Ocean Terminal are required to maintain minimum safe speed while the response effort continues. (3/22/10).

USCG – implementation of STCW amendments

The US Coast Guard issued a notice stating that, based on feedback received to its earlier Notice of Proposed Rulemaking (NPRM) relating to implementation of the 1995 amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW Convention) and the expected adoption of additional amendments during 2010, the agency is considering publishing a Supplemental NPRM describing additional proposed changes and seeking comments thereon. 75 Fed. Reg. 13715 (March 23, 2010). Note: This development is a clear indication that “notice and comment” rulemaking works. The Coast Guard heard the comments submitted by the regulated community and is reacting appropriately. At the same time, it must be noted that the earlier NPRM was merely trying to implement the 1995 amendments to the STCW Convention, to which the United States is a party. Those 1995 amendments were fully vetted throughout the US maritime community prior to US adoption thereof. The maritime community should have examined the amendments while they were still in draft form, so that unintended adverse impacts could have been avoided. The US Government, particularly the US Coast Guard, devotes much time and effort to seeking advice and recommendations from the public and the regulated community while policies, regulations, and international commitments are under development. The burden is on the regulated community to avail itself of that opportunity before things get too far down the road.

MACOSH – meeting

The Maritime Advisory Committee for Occupational Safety and Health (MACOSH) and its workgroups, sponsored by the Occupational Safety and Health Administration (OSHA), will meet in Newport, Rhode Island on April 29 and April 27 respectively. 75 Fed. Reg. 13783 (March 23, 2010).

OSHA – nominations sought for MACOSH

The Occupational Safety and Health Administration (OSHA) is seeking nominations for membership on the Maritime Advisory Committee for Occupational Safety and Health (MACOSH). Nominations should be submitted by May 7. 75 Fed. Reg. 13785 (March 23, 2010).

FMC – investigation of vessel and equipment capacity

The Federal Maritime Commission (FMC) published the official copy of its Order of Investigation for a non-adjudicatory investigation into current conditions and practices in the US liner trades and into potential impediments to the flow of ocean-borne import and export trades. 75 Fed. Reg. 13761 (March 23, 2010).

Court – certiorari denied in EFT case

The Supreme Court of the United States issued an order denying certiorari in the case of Shipping Corporation of India v. Jaldhi Overseas PTE. (3/22/10). In a mini-en banc decision in October 2009, a panel of the US Court of Appeal for the Second Circuit had 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: This item was brought to my attention by my good friend Keith Heard of Burke & Parsons.

Court – penalty for violation of fishermen’s wage agreement law

The US Court of Appeals for the First Circuit ruled that plaintiffs were not entitled to compensatory and punitive damages for violation of the fishermen’s wage agreement law due to lack of evidence. In the instant case, plaintiff fishermen were employed to work on defendant fishing vessel. While they were paid lay-shares (a portion of the net proceeds; the gross proceeds after expenses were deducted) at the end of the voyage, the employment arrangements were all verbal. Plaintiffs sued for violation of the fishermen’s wage agreement law, seeking compensatory and punitive damages. Federal law requires that fishermen’s wage agreements be in writing. The law also provides that, if there is no written agreement, the seaman is entitled to recover the highest rate of wages at the port or the amount agreed to be given the seaman when engaged, whichever is higher. The district court had awarded one of the three plaintiffs a full lay-share, but no additional monies to the other two plaintiffs, who had already received full law-shares. Plaintiffs appealed, seeking additional compensatory and punitive damages. The appellate court denied further relief because plaintiffs had agreed to an abbreviated trial procedure and the record contained insufficient evidence on which to base any additional damage award. Borkowski v. F/V Madison Kate, No. 09-1311 (1st Cir., March 19, 2010).

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 – March 2010

Redistribution permitted with attribution