Monday, June 15, 2009

Bryant’s Maritime Blog – 15 June 2009

Headlines: Piracy – updates; Prestige decision vacated and remanded; New York court can enforce turn-over order affecting out-of-state property; GAO – USCG ALJ program comparable to those of other agencies; Further sanctions against North Korea; National Oceans Policy; LORAN-C PEIS; Maritime bills introduced in Congress;

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EU MSC(HOA) – cargo vessel hijacked off Oman

clip_image004 The European Union – Maritime Security Centre (Horn of Africa) [EU MSC(HOA)] issued a press release stating that a small cargo vessel has been hijacked by pirates in the eastern portion of the Gulf of Aden off the coast of Oman. The cargo vessel was not registered with the naval patrols. (6/12/09). Note: This is the first reported instance of pirates operating in Omani waters.

Australia – counter-piracy advice

clip_image006 The Australian Maritime Safety Authority (AMSA) issued a notice providing updated advice to owners, operators, and masters on how to minimize the threats posed by piracy and armed robbery against ships in the Somali Basin and the Western Indian Ocean. Ships should implement preventive measures recommended by the IMO and should coordinate transits with the naval patrols in the area. Marine Notice 10/2009 (6/11/09).

Second Circuit vacates and remands Prestige decision

clip_image008 The US Court of Appeals for the Second Circuit weighed into the Prestige case by vacating the decisions of the US District Court for the Southern District of New York on both issues that had been appealed. Plaintiff Kingdom of Spain appealed a decision by the lower court granting summary judgment to defendant American Bureau of Shipping (ABS) on the ABS motion that the federal court did not have jurisdiction because the International Convention on Civil Liability for Oil Pollution Damage (CLC Convention) conferred jurisdiction solely to courts in Spain. The appellate court pointed out that a convention to which the United States is not party cannot control the jurisdiction of a US court. The appellate court noted that the lower court could review the issue anew under the doctrine of forum non conveniens, but that this would require careful examination of the amenability of the defendant to Spanish jurisdiction, among other things. Separately, defendant ABS had appealed the lower court’s ruling that its counterclaims for indemnity and contribution were barred by the Foreign Sovereign Immunity Act. The appellate court held that the counterclaims, if not unduly speculative, were sufficiently related to the claims presented by the Kingdom of Spain to allow such claims to be joined in one proceeding. Reino de Espana v. ABSG Consulting, No. 08-0579-cv(L), 2nd Cir., June 12, 2009).

New York court can enforce turn-over order affecting out-of-state property

clip_image010 Over a vigorous dissent, the New York State Court of Appeals ruled that a court in New York has authority to order a bank over which it has personal jurisdiction to deliver assets owned by a judgment debtor to a judgment creditor even though those assets are located outside the state. In the instant case, plaintiff obtained in Maryland a default judgment his former business partner, a resident of Bermuda. The default judgment was registered with the US District Court for the Southern District of New York. The former business partner had no assets in the United States, but had pledged certain shares of stock with the Bank of Bermuda in the bank’s office in Bermuda. Plaintiff filed a petition against the bank in the federal court in New York seeking payment or delivery of the property of the judgment debtor held by the bank. The federal court issued a turnover order directing the bank to deliver the stock certificates to the plaintiff. The dispute eventually got to the US Court of Appeals for the Second Circuit, which observed that New York law did not make sufficiently clear whether a court could issue the requested order. The question was then certified to the New York State Court of Appeals (the highest court in New York). The Court of Appeals ruled that, because this action was in personam and because the court had personal jurisdiction over the bank (or at least over the New York branch of the bank), the court had authority to require the bank to bring the out-of-state assets into the state. The dissent argued that the procedure approved by the majority probably violates the Due Process Clause of the US Constitution. Koehler v. Bank of Bermuda Ltd, No. 82 (NY, June 4, 2009). Note: This non-maritime decision, if adopted by Second Circuit, has the potential to significantly change the status quo regarding enforcement of judgments. Virtually every major bank in the world has a branch in New York.

GAO – USCG ALJ program comparable to those of other agencies

clip_image012 The US Government Accountability Office (GAO) issued the report of its examination of the US Coast Guard’s Administrative Law Judge (ALJ) program. It found that the program contains elements designed to foster judges’ independence. The program also follows procedures to afford mariner protections accorded by law. The report also found that the Coast Guard’s program is comparable to the programs of other agencies. GAO-09-489 (6/12/09).

UNSC – further sanctions against North Korea

clip_image014 clip_image016 The United Nations Security Council issued a news release stating that it has adopted a resolution condemning recent nuclear tests conducted by the Democratic People’s Republic of Korea (North Korea). Among other things, the resolution authorizes member States to inspect cargo on ships when the cargo is suspected to include banned items related to the North Korean nuclear and ballistic missile activities. Official text of the resolution is not yet available. (6/12/09).

White House – National Oceans Policy

clip_image018 The White House released a Memorandum from President Obama establishing the national policy for the oceans, coasts, and the Great Lakes. Among other things, the memorandum establishes an Interagency Ocean Policy Task Force to develop a clear national policy, including a comprehensive, ecosystem-based framework for the long-term conservation and use of national resources. Accompanying the memorandum is a Proclamation designating June 2009 as National Oceans Month. (6/12/09).


clip_image020 The US Coast Guard posted the Programmatic Environmental Impact Statement (PEIS) on the future of the Long Range Aids to Navigation (LORAN-C) program. The PEIS analyses five alternatives: (1) No action; (2) Decommission the program and terminate the LORAN-C signal; (3) Automate, secure, and unstaff the LORAN-C stations; (4) Automate, secure, and unstaff the LORAN-C stations and transfer the program to another government agency; and (5) Automate, secure, and unstaff the LORAN-C stations and transfer the program to another government agency to deploy an enhanced LORAN [eLORAN]. (6/12/09). Note: I award the bureaucrats extra points for developing and employing the term “unstaff”. I further recommend its adoption by GM and Chrysler.

Bill introduced to exempt vessel operators on Lake Texoma

clip_image022 Senator Inhofe (R-OK) introduced a bill (S. 1205) to exempt guides for hire and other operators of uninspected vessels on Lake Texoma from Coast Guard and other regulations, and for other purposes. (6/8/09).

Bill introduced re seabed mineral extraction

clip_image024 Delegate Faleomavaega (D-AS) introduced a bill (H.R. 2834) to direct the Administrator of the National Oceanic and Atmospheric Administration to conduct a technological capability assessment, survey, and economic feasibility study regarding recovery of minerals, other than oil and natural gas, from the shallow and deep seabed of the United States. Official text of the bill is not yet available. (6/11/09).

Bill introduced re hydrographic services in the Arctic

clip_image024[1] Representative Young (R-AK) introduced a bill (H.R. 2864) to amend the Hydrographic Services Improvement Act of 1998 to authorize funds to acquire hydrographic data and provide hydrographic services specific to the Arctic for safe navigation, delineating the United States extended continental shelf, and the monitoring and description of coastal changes. Official text of the bill is not yet available. (6/13/09).

Bill introduced re marine shipping in the Arctic

clip_image024[2] Representative Young (R-AK) introduced a bill (H.R. 2865) to ensure safe, secure, and reliable marine shipping in the Arctic including the availability of aids to navigation, vessel escorts, spill response capability, and maritime search and rescue in the Arctic, and for other purposes. Official text of the bill is not yet available. (6/13/09).

Charleston – Asian gypsy moth found on arriving ship

clip_image026 The US Customs and Border Protection (CBP) issued a news release stating that to egg masses of Asian gypsy moth were found on the superstructure and mast of a vessel in Charleston. (6/12/09).

Long Island – RNA proposed

clip_image020[1] The US Coast Guard proposes to establish a regulated navigation area (RNA) extending from the entrance of East Rockaway Inlet to the Atlantic Beach Bridge, Nassau County, New York on Long Island. This proposal would require commercial vessels carrying petroleum products in excess of 250 barrels to plan all transits of the RNA so that they maintain a minimum of two feet under-keel clearance at all times. Additionally, they would not be able to transit the RNA if a small craft advisory or more severe weather warning has been issued. Comments on the proposal should be submitted by August 14. 74 Fed. Reg. 28199 (June 15, 2009).

USN – ships available for donation

clip_image028 The US Navy issued a notice stating that three obsolete ships are available for donation to qualified entities. The ships are the aircraft carrier ex-Ranger (CV 61); the destroyer ex-Forrest Sherman (DD 931); and the patrol combatant ex-Canon (PG 90). For those interested in starting their own navy, a Letter of Intent and Executive Summary must be submitted within 60 days. 74 Fed. Reg. 28222 (June 15, 2009).

Australia – meeting of heads of Asia-Pacific maritime safety agencies

clip_image006[1] The Australian Maritime Safety Authority (AMSA) issued a media release stating that it hosted the 10th Asia-Pacific Heads of Maritime Safety Agencies (APHoMSA) Forum in Sydney on 31 May through 3 June. (6/12/09).

New Zealand – reducing shipboard garbage

clip_image030 Maritime New Zealand issued a notice stating that it is seeking public comment on managing shipboard garbage, particularly with regard to fishing vessels. (6/12/09).

UK – provisional port statistics

clip_image032 The UK Department for Transport issued provisional port statistics through the first quarter of 2009. For the four quarters ending Q1 2009, total port traffic was down 5%. Total traffic for the first quarter of 2009 was down 9% compared to the same quarter in 2008. (6/12/09).

UK – lift of final section of MSC Napoli has commenced

clip_image033 The UK Maritime and Coastguard Agency (MCA) issued a press notice stating that the operation to lift the final section of the wreck of the MSC Napoli has commenced. (6/11/09).

In memoriam – fire on passenger vessel General Slocum

On June 15, 1904, the passenger vessel General Slocum caught fire while operating on the East River in New York City. More than 1,000 passengers and crew lost their lives.

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

Dennis L. Bryant

Bryant’s Maritime Consulting

4845 SW 91st Way
Gainesville, FL 32608-8135



© Dennis L. Bryant – June 2009

clip_image035 Redistribution permitted with attribution

1 comment:

  1. With regard to the Koehler case, you may have overstated the breathe of the decision. If the Bank, as in your example, is operating in New York through a separately created subsidiary which it respects as a separate entity, as most do, then the bank is probably safe and the Koehler decision will not impact it. Otherwise, the decision may very well reach that far.