By Kevin J. Thornton and Lineka N. Quijano · Edward V. Cattell, Jr. Matthew A. Marion Marc Marling...

Vol. 12, No. 2 � Second Quarter 2014

Joshua S. Force, Editor-in-ChiefRobert J. Zapf, Managing Editor

Inside This Issue

THE SINKING OF THE LADY MARY: TRAGEDY,

U.S. COAST GUARD INVESTIGATION, AND

LESSONS LEARNED

By Kevin J. Thornton, Lineka N. Quijano ........ 35

MANAGING EDITOR’S INTRODUCTORY NOTE

By Robert J. Zapf .............................................. 37

CYBER TERRORISM: A NEW THREAT AGAINST

THE MARITIME INDUSTRY

By Rebekah Tanti-Dougall ................................ 49

A NEW CHAPTER IN DEFINING CLEAN WATER

ACT JURISDICTION

By Ilker Basaran ................................................ 58

WINDOW ON WASHINGTON

IN PURSUIT OF A NATIONAL MARITIME STRATEGY

By Bryant E. Gardner ........................................ 63

RECENT DEVELOPMENTS ................ 69

BOOK REVIEW: THE CONFIDENCE TRAP: A History

of Democracy in Crisis from World War I to

the Present, David Runciman, xxiii and 326

pp. plus Acknowledgements, Notes, Biblio-

graphy and Index; Princeton University

Press, 2013.

By F. L. Wiswall, Jr. ......................................... 80

TABLE OF CASES ................................. 82

BENEDICT’S MARITIME BULLETIN Editorial

Board ......................................................... 84

Contributing Authors to this Issue ........ 86

THE SINKING OF THE LADYMARY: TRAGEDY, U.S. COAST

GUARD INVESTIGATION, AND

LESSONS LEARNED

By Kevin J. Thornton and Lineka N.Quijano

INTRODUCTION

On March 24, 2009, the scallop boat LADY MARYsank 65 nautical miles off the coast of Cape May,New Jersey. Tragically, six of the seven crewmembersdied as a result. This article examines that catastropheand the U.S. Coast Guard’s procedures for the investi-gation of marine casualties as a general matter, and as tothe LADY MARY in particular. The first section willprovide a brief overview of the Coast Guard marinecasualty investigations process, including the processfor creating a Report of Investigation (ROI). Thesecond section will address the August 23, 2013 ROIfor the sinking of the LADY MARY, particularly theROI’s safety recommendations and the Commandant’sactions on those recommendations. Finally, we willreview recent amendments to existing laws, whichincrease safety requirements within the commercialfishing industry.

Any views and opinions expressed in this article arethose of the authors and do not necessarily reflect theofficial policy or position of the U.S Coast Guard or

the U.S. Maritime Law Association.

(Continued on page 38)

Copyright � 2014 LexisNexis Matthew Bender. LexisNexis, the knowledge burst logo, and Michie are trademarks of Reed Elsevier Properties Inc.,used under license. Matthew Bender is a registered trademark of Matthew Bender Properties.

A NOTE ON CITATION:The correct citation form for this publication is:12 BENEDICT’S MAR. BULL. 2 (Second Quarter 2014)

EDITORIAL BOARD

Dr. Frank L. Wiswall, Jr.Robert J. Zapf

Bruce A. KingDr. James C. Kraska

Dr. Norman A. Martinez-Gutierrez

Anthony J. Pruzinsky

REPORTERS/ASSOCIATE EDITORS

Lizabeth L. BurrellEdward V. Cattell, Jr.

Matthew A. MarionMarc Marling

Howard M. McCormackMichael B. McCauleyGraydon S. StaringJoAnne Zawitoski

COLUMNISTS

Bryant E. Gardner

EDITORIAL STAFF

James CodellaPractice Area Director

Cathy SeidenbergLegal Editor

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It isprovided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professionalservice. If legal or other expert assistance is required, the services of a competent professional should be sought.

From the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of

Publishers and Associations.

12 Benedict’s Maritime Bulletin 36 Second Quarter 2014

MANAGING EDITOR’S INTRODUCTORY NOTE

In this edition we report on the sinking of the F/V LADYMARY and resulting unfortunate loss of life.There are lessons to be learned in every casualty – the saddest lesson is realizing that perhaps it couldhave been avoided.

We also report on new developments that could lead to casualties, in the context or maritime cyberterrorism. Hopefully, we can take this threat to heart and put in place safe guards to prevent suchincidents now, while there is time to avoid them.

Jurisdiction under the Clean Water Act and the extent and expansion of it is next up. The authordescribes the recent developments in the area that may lead to interesting jurisprudence down the road.

We follow with our regular Window on Washington, Recent Developments, and finish with a reviewof a book that provides a fascinating look at democracy in crisis. With the current political develop-ments in the world, this is a timely review. As the author (and reviewer) note, Winston’s Churchill’sobservation that ‘‘democracy is the worst form of government except all those other forms that havebeen tried from time to time’’ puts our faith in our own political system to the test. Our reviewer endswith an interesting tie to maritime matters after all.

We hope this edition informs, enlightens, and entertains you. Please consider submitting your ownarticles for the edification of us all.

Robert J. Zapf


THE SINKING OF THE LADY MARY: TRAGEDY, U.S. COAST GUARD

INVESTIGATION, AND LESSONS LEARNED

By Kevin J. Thornton and Lineka N. Quijano(Continued from page 35)

I. THE COAST GUARD MARINE CASUALTY

INVESTIGATIONS PROCESS

The sinking of the LADYMARY is, unfortunately, one ofthousands of reportable marine casualties that occur in theUnited States every year. In 2013, the Coast Guard inves-tigated approximately 5,510 reportable marine casualties.1

Although the Coast Guard investigates these casualties,neither the statute nor the implementing regulationsrequire an ROI for every investigation. Rather, CoastGuard policy guides the level of investigative effort andthe incidents for which an ROI is required. In this section,we will provide a brief overview of the Coast Guard’sauthority to conduct marine casualty investigations, theinvestigative process, and the ROI itself.

A. The Marine Casualty Investigation and the

Levels of Investigative Effort

The Coast Guard’s authority to conduct marine casualtyinvestigations is found in 46 USC Section 6301 (2014),which specifically directs the Coast Guard to investigatethe cause of the casualty. Additionally, the investigationshould determine whether remedial actions are warranted,such as whether the Coast Guard should initiate suspen-sion and revocation proceedings against a licensed orcredentialed mariner for committing acts of misconduct,negligence, or incompetence, or whether acts have beencommitted that would be subject to a civil penalty orreferred for criminal prosecution.2 Lastly, the results ofthe investigation should be used to determine whethernew laws or regulations are needed—or should berepealed or amended—to prevent similar casualties fromoccurring in the future.3 The investigative process itself isfurther defined in regulations and Coast Guard policy.

Generally, the regulations define the kind of casualty tobe investigated and the procedures governing the investi-gation. Coast Guard policy dictates the level ofinvestigative effort that is required for different casualties.The hypothetical set forth below will illustrate how theselaws, regulations, and policy work together in practice.

A Coast Guard Sector Command Center receives a callfrom the Master of a small passenger vessel, stating he ishard aground and is unable to maneuver free.4 Heexplains that the cause was due to a loss of propulsion.He adds that when the vessel grounded, a passengerslipped and fell on the deck and is in extreme pain.Upon receiving this initial report,5 the Coast GuardInvestigating Officer (IO) responds to the scene. Sheinterviews the Master, a deckhand who witnessed thepassenger’s fall, and the injured passenger. She observesthat the passenger cannot move her arm and that it isswollen. The Master states that a company vessel is enroute to take the passenger to shore where an ambulancewill be waiting. The Master explains that he will beleaving with the company vessel, as he has beeninstructed by the company to submit to post-casualtydrug and alcohol testing.6 The IO concludes thisportion of her investigation and returns to her Sector.Several days later, she receives a Report of MarineCasualty Form (CG-2692)7 from the owner of thegrounded vessel, which states that the loss of propulsionwas due to the failure of a fuel pump. She also receives acall from the injured passenger, advising that the fallresulted in a fractured elbow and radius that requiredimmediate surgery followed by a three day hospital stay.

When the IO receives the notice of a marine casualty,Coast Guard policy requires her to conduct a preli-minary investigation to determine a variety of factors,1 A ‘‘marine casualty’’ is defined in 46 CFR § 4.03-1 (2012).

A ‘‘reportable’’ marine casualty, however, is one that requiresnotification to the Coast Guard. Some of these incidentsinclude deaths, injuries that require medical treatmentbeyond first aid and, in the case of a crewmember, rendersthem unfit to perform his or her routine duties, unintendedgroundings or allisions with a bridge, and a loss of mainpropulsion or primary steering. See 46 CFR § 4.05-1 for acomplete list of reportable marine casualties.2 46 USC § 630 (2014).3 See 46 USC § 630 (2014).

4 Assume for purposes of this hypothetical that the incidentoccurs within the navigable waters of the U.S. See 46 CFR§ 4.03-1 and 33 CFR § 2.36 (2012).5 Notice of the marine casualty is required by 46 CFR § 4.05-1(2012).6 See 46 CFR Subpart 4.06 (2012).7 See 46 CFR § 4.05-10 (2012).


including whether the Coast Guard has jurisdiction,whether the report is authentic, and what level of inves-tigative effort is required.8 In the hypothetical above,she concluded that the incident is a reportable marinecasualty, as defined by the regulations, and proceeded toinvestigate.9 Because the injured passenger requiredmedical treatment beyond first aid, she should concludethat the incident is a ‘‘serious marine incident’’ or‘‘SMI.’’10 All SMIs require chemical testing of allpersons involved in the incident.11 As far as the requiredlevel of investigative effort, the IO turns to Coast Guardpolicy for guidance.12 This particular incident requiresan ‘‘informal’’ level of investigation based on theseverity of the passenger’s injuries,13 which meansthat she must document the facts of the incident,conduct a causal analysis, draw conclusions regardingthe cause of the casualty, and determine whether enfor-cement action should be pursued or whether safetyrecommendations should be developed to preventsimilar occurrences in the future.14

Given the facts of this hypothetical, there was no need todo a formal investigation and no ROI would be gener-ated based on the regulations and Coast Guard policy.

B. Formal Investigations and the Marine Board of

Investigation

In the case of the LADY MARY, the loss of six livesrequired the highest level of investigative effort, knownas a ‘‘formal investigation.’’15 Formal investigations areinitiated by the Officer in Charge, Marine Inspection(OCMI) or the District Commander responsible for thearea where the casualty occurred.16 Additionally, theCoast Guard Commandant has the authority to order aMarine Board of Investigation (also referred to as a

‘‘Marine Board’’) to be conducted.17 A Marine Board isusually comprised of three or more officers designated bythe Office of Marine Casualty Investigations & Analysis(CG-INV).18 Once chosen, amessage and a precept will beissued designating the Chair of the Marine Board, alongwith other members who are required to report to theChair.19 The Chair has the responsibility to carry out hisor her duties, such as overseeing the organization of theproceedings, assigning responsibilities amongst the otherMarineBoardmembers, designating parties in interest, anddeveloping an investigative strategy and questions forwitnesses.20 Generally, the formal proceedings include ahearing where the Chair receives documentary evidence,callswitnesses to testify, and provides parties in interest theopportunity to exercise their rights.21 The Chair, as well asthe other Marine Board members, has the authority toadminister oaths, summon witnesses, and require theproduction of documents and other pieces of evidenceduring these proceedings.22 At the close of the hearing,the Chair is responsible for drafting theROI and is requiredto ensure that the ROI conforms to the basic structure, asexplained in policy.23

The Chair is ultimately responsible for developing, fina-lizing, and submitting the ROI for consideration, asoutlined in the regulations and policy.24 The ROI is anarrative document that includes the facts, causalanalysis, and conclusions of the Marine Board.25 TheROI also includes safety recommendations, which are

8 See Marine Safety Manual Vol. V, COMDTINSTM16000.10A (2008) [hereinafter ‘‘MSM’’], pages A5-2 to A5-3.9 See 46 CFR § 4.05-1 (2012).10 46 CFR § 4.03-2(a)(2) (2012).11 See 46 CFR § 4.05-12 (2012). See also 46 CFR § 4.03-4(2012).12 There are three levels of investigative effort beyond thepreliminary investigation: (1) data collection activity, (2)informal investigation, and (3) formal investigation. SeeMSM A5-2 thru A5-3.13 MSM A5-6.14 MSM A5-6.15 MSM A5-8 provides a complete list of when formal inves-tigations are required.16 See 46 CFR Subpart 4.07 (2012).

17 See 46 CFR Subpart 4.07 (2012). See also 46 CFR Subpart4.09-1.18 See MSM A5-8.19 See MSM A5-9.20 See MSM A5-9.21 See MSM A5-16. See 46 USC § 6303 (2014) for rights ofparties in interest.22 See 46 CFR § 4.09-5 (2012).23 See MSMA6-4. The policy requires all ROIs to contain thefollowing sections: executive summary or incident brief,action by the Commandant, District Commander, OCMI/Sector Commander (where appropriate), subject of investiga-tion, findings of fact, causal analysis, human error analysis,conclusions, enforcement referrals and safety alerts (whereappropriate), and safety recommendations. Although the ROImay contain the written report of marine casualty (CG-2692)and photos, diagrams, and tables to help explain complexinformation, no evidence is included in the ROI.24 See 46 CFR § 4.07-10 (2012), and MSM A6-1.25 See MSM A6-1.


meant to correct unsafe conditions through the proposalof specific corrective actions.26 These recommendationsare then forwarded to the Commandant, via the respec-tive chain of command.27 When the Commandantconvenes a Marine Board, he or she will determine thefinal action on the safety recommendations.28 Uponreview, the Commandant may concur29 or non-concurwith the recommendations. These decisions will then benoted in the Commandant’s Final Action, which isusually in the form of a Coast Guard memorandum(known as the ‘‘Final Action Memorandum’’ or‘‘FAM’’). A recommendation will be placed into effectif the Commandant determines it is necessary toimprove and protect the safety of life and property.30

Safety recommendations that are accepted and imple-mented immediately are usually documented in theFAM. For those that must be implemented over aperiod of time, the authority responsible for determiningthe final action retains the ultimate authority to track therecommendations’ progress, as well as documenting thecompletion of the Coast Guard’s actions.31

II. THE LADY MARY REPORT OF

INVESTIGATION32

On March 30, 2009, the Commandant ordered a MarineBoard of Investigation to be conducted into the sinkingof the LADY MARY and he designated a Chair, aMember, and a Recorder. Three public hearings were

Photograph 1: The LADY MARY, with nomenclature labeling. This photo is reproduced from the official USCG ROI,page 6, which is available to the public at the website specified in Footnote 32.

26 See MSMB6-1.Note that safety recommendations can also bedeveloped by other agencies, such as the National TransportationSafety Board, or other temporary groups created to analyze acasualty (task forces, quality action teams, etc.). Members of thepublic may also submit safety recommendations.27 See MSM B6-3, and MSM, p. B6-1.28 See MSM B6-5.29 See MSM B6-4. The Commandant may concur in one oftwo ways: (1) ‘‘concur - acceptable action’’ means theCommandant agrees the safety concern needs to be addressedand will implement the corrective action recommended in theROI; or (2) ‘‘concur - alternate acceptable action’’ meansagrees the safety concern needs to be addressed, but doesnot concur with the recommended course of action and willchoose an alternative action to address the concern.30 46 CFR § 4.09-30 (2012).

31 See MSM B6-4 to B6-6.32 Unless otherwise noted, all facts, findings, analyses,conclusions, and recommendations reported in Section II arefrom the official Coast Guard ROI regarding the LADYMARY. The ROI, entitled ‘‘United States Coast Guard Inves-tigation into the Circumstances Surrounding the Sinking of theF/V LADY MARY 65 [nautical miles] Southeast of CapeMay, New Jersey on March 24, 2009, with Multiple Loss ofLife,’’ available at: https://homeport.uscg.mil/mycg/portal/ep/contentView.do?channelId=-18374&contentId=464411&pro-gramId=21431&programPage=%2Fep%2Fprogram%2Fedi-torial.jsp&pageTypeId=13489&contentType=EDITORIAL&BV_SessionID=@@@@1108498181.1398094006@@@@&BV_EngineID=cccdadfmkkemlmhcfngcfkmdfhfdfgm.0


held in 2009, which involved a total of 20 witnesses andthe receipt of 153 exhibits. The investigation alsoinvolved experts from the National TransportationSafety Board, the Coast Guard Marine Safety Center,the Search and Rescue (SAR) Training Staff at CoastGuard Training Center Yorktown, as well as mechanicalengineers from Old Dominion University. The CoastGuard also relied upon the National Oceanic and Atmo-spheric Administration (NOAA), New Jersey StatePolice Marine Services Bureau, the Coast GuardCutter WILLOW, the Military Sealift Command, anda Navy Mobile Diving and Salvage Unit.

On March 2, 2011, the Chairman of the Marine Boardsubmitted the finalized ROI to the Commandant. The ROIincluded the investigation’s findings of fact, analysis, andconclusions, as well as 45 safety recommendations aimedat preventing similar casualties from occurring in thefuture. On August 23, 2013, the Commandant of theCoast Guard released the Final Action Memorandum,which included comments on the ROI facts, analysis,and conclusions, as well as action on the safety recom-mendations suggested in the ROI. In total, the ROI and theFAM numbered 278 pages.

A. Findings of Fact

1. History of the LADY MARY

The LADYMARY33 was a single deck shrimp boat builtin 1969. The vessel had a registered length of 71.2 feet,breadth of 21.2 feet, and a depth of 12 feet, with anoriginal tonnage measurement of 125 gross register tons(GRT). That same year, the vessel was documented forfishery service. The vessel conducted fishing operationsfor over 30 years until her purchase by Smith & Smith,Inc. (S&S, Inc.) in 2001. S&S, Inc. owned and operatedthe LADYMARY until the day of her sinking in 2009. Atthat time, the vessel was uninsured.

After purchasing the vessel, S&S, Inc. made severalmodifications so that a scallop fishing permit from asmaller vessel could be transferred to the LADYMARY. Transfer of the permit required modificationsto reduce tonnage pursuant to the National Marine Fish-eries Service (NMFS) regulations, known as the 10/10/

20 Rule.34 Once completed, the modifications reducedthe LADY MARY’s GRT from 125 to 105. The permitwas transferred to the LADY MARY in July 2003.

In addition to these initial modifications, S&S, Inc. madenine additional modifications to the vessel over the nextseveral years. They were: a non-watertight scallopshucking house constructed of steel plate, which spannedthe 21.2 foot vessel beam; a new 13 foot wheelhousebuilt on the upper deck above the shucking house;installation of steel plates over the windows of the oldwheelhouse; installation of two drum winches on top ofthe shucking house just aft of the new wheelhouse; theaddition of 20,000 pounds of cement ballast poured intothe midship fuel tank to increase the vessel’s stability;replacement of the original 60 foot outriggers with 29foot outriggers; installation of a 16x6 foot stern rampconstructed of steel plate and a 20 foot section of steelpipe to prevent chaffing; the addition of a second generator;and the installation of four steel plates welded to the maindeck to protect it from the scallop dredge. S&S, Inc. neverconsulted with a naval architect, engineer, or surveyorbefore or after these modifications were made.35

The LADYMARY’s aft main deck had four freeing ports,which aremeant to allowwater on deck to flow overboard.When conducting scallop fishing operations, the crewinserted metal plates into guide rails installed on thefreeing ports to prevent scallops from being washed over-board. The aft main deck also had a hatch leading into thelazarette. The LADY MARY was equipped with a fixedbilge pump,which had suction lines to the lazarette, the fishhold, and the engine room. The vessel also had three inde-pendent bilge pumps, one of which was located inside thelazarette. That bilge pump was plugged into an outletlocated inside the lazarette. Crewmembers were requiredto enter the lazarette to plug the pump in, as it could not bereached through the open hatch.

2. Regulations Applicable to the LADY MARY

The LADY MARY was an uninspected commercialfishing vessel, subject to the requirements in 46 CFR

33 The LADY MARY’s original name was MR CHOPER. Itwas renamed after its purchase in 2001 by S&S, Inc.

34 The 10/10/20 Rule, established by NMFS, allows a fishingpermit to be transferred from one vessel to another, so long asthe vessel to which the permit is transferred is no more than10% greater than the original vessel’s length, and no more than10% greater gross tonnage or net tonnage than the originalvessel’s tonnage, and has no more than 20% greater horse-power than the original vessel.35 The LADY MARY was not required to have a stabilityexamination because she was less than 79 feet in length.


Subchapter C, particularly those regulations in Part 28which are specific to commercial fishing industryvessels. The LADY MARY, however, was not requiredto have a load line under 46 CFR Subchapter E, nor wasshe required to adhere to the subdivision and stabilityrequirements in 46 CFR Subchapter S or the stabilityrequirements of 46 CFR Part 28.

The LADY MARY participated in the voluntaryCommercial Fishing Vessel Safety Examination(CFVSE) program. In July 21, 2008, a Coast GuardExaminer conducted a safety exam and did notuncover any safety deficiencies or hazardous conditions.As a result, a Commercial Fishing Vessel Safety Decalwas issued, which is valid for two years so long as thesafety equipment is kept in a serviceable condition andthe operations conditions are not exceeded.

3. The Crewmembers

All of the crewmembers had experience working in thefishing industry. All but one of the individuals hadsailed on the LADY MARY previously. Whileunderway, the standard working day was 18 hours,with 6 hours of rest. There existed no regulatory limitsfor the LADY MARY crew regarding watch rotations

and work-rest periods. The Captain had full discretion toset work-rest periods. Also, the working language on theLADY MARY was English. Instructions and directionswere communicated in English. Three crewmembers,

including the sole Survivor, spoke English as a secondlanguage and had varying levels of English proficiency.Also, the LADY MARY crew was not subject to pre-employment, periodic, or random drug testing. Subse-quent drug tests performed on deceased crewmembersindicated that marijuana metabolites were present in atleast two individuals.

4. Sinking of the LADY MARY and the Coast Guard

SAR Efforts

On March 18, 2009, the LADY MARY departed CapeMay, New Jersey, heading for the Elephant Trunk SeaScallop Access Area, located 65 nautical miles south-southeast of Cape May. On board were seven indivi-duals: the master and six crewmembers. The vesselconducted several days of scallop fishing operations.When she sank, there were approximately 10,500pounds of scallops on board.

The Survivor36 indicated that he went to bed in theforward bunk room around midnight on the morningof March 24. Around 5:00 AM, the Survivor wasawakened in his bunk by one of the deckhands anddid not recall hearing a vessel alarm. The Survivor and

Photograph 2: The general arrangement of the LADY MARY. This photo is reproduced from the official USCG ROI,page 51, which is available to the public at the website specified in Footnote 32.

36 The name of the survivor was redacted from the ROI. Inorder to mirror the terminology used in the ROI, we will referto the sole survivor of the casualty as the ‘‘Survivor’’ as well.


the deckhand left the bunk room and went to the maindeck. They failed to take their cold water survival suitswith them. As they passed through the main deck passa-geway, the Survivor noted that there was water justbelow their knees. At that time, seas were 10 to 12feet with winds up to 35 knots. The Survivor noticedthat the vessel was listing to port. On the main deck, hesaw the Captain and another crewman in the wheel-house. They appeared to be arguing. The Survivoralso saw another deckhand, who appeared to be inshock or panicking. The Survivor eventually foundand donned a cold water survival suit. He saw thepanicked deckhand holding a survival suit, but the deck-hand was having trouble putting it on.

By that time, water had risen to the vessel’s starboardwinch. The Survivor found a life ring and gave it to thepanicked deckhand. Soon after, the lights and the powerwent out and the Survivor jumped into the water. TheSurvivor had received survival suit training and, recal-ling it, rolled onto his back and swam approximately 25feet away. Before jumping overboard, the Survivor sawthe Captain and a deckhand wearing survival suits. Heeventually found an 8 foot board floating on the surfaceand grabbed onto it. He also saw the life raft, whichhad been launched, but could not swim to it due tothe weather and seas. Around 5:14 AM, someone onthe LADY MARY transmitted a frantic Mayday,but the transmission lasted less than one second andwas distorted. The LADY MARY sank at approxi-mately 5:15 AM.

The LADY MARY’s Emergency Position IndicatingRadio Beacon (EPIRB) sent a distress signal. TheEPIRB has a Unique Indentifying Number (UIN),which identifies the vessel and provides contact infor-mation. The UIN is manually entered into the nationaldatabase to retrieve and send information when acti-vated. The LADY MARY’s UIN, however, wasincorrectly transcribed. As a result, the transmissionwas recorded as unregistered. Another satellite pickedup a transmission and sent it 6:56 AM. Eventually, atapproximately 7:07 AM, the USCG Rescue Coordina-tion Center (RCC) received an alarm and text messagefrom the LADYMARY’s EPIRB. The EPIRB transmis-sion message, however, did not contain any locationinformation, therefore, none of the LADY MARY’semergency contact information was available to theRCC. The SAR satellite aided tracking (SARSAT)computer generated two probable positions of the

EPIRB. Solution ‘‘A’’ had a 56% probability at 65nautical miles SE of Cape May, New Jersey.

At 7:15 AM, the RCC received a second message from adifferent satellite, which confirmed Solution ‘‘A’’ ascorrect, but the EPIRB registration data was still notavailable. At 7:20 AM, the decision was made tolaunch a Coast Guard helicopter to conduct SAR. At7:45 AM, the Coast Guard launched a helicopter fromCG Air Station Atlantic City, New Jersey. The heli-copter arrived on-scene approximately 8:20 AM. Thehelicopter recovered the Survivor and two other crew-members. The latter were unresponsive and without apulse. Both deceased crewmembers were wearingsurvival suits, but they were donned improperly andhad seawater intrusion. The rescue helicopter saw atleast 15 commercial fishing boats in the area as wellas one commercial tank ship. Eventually, the bodies ofthree more crewmembers were recovered. To date, onecrewmember remains missing and is presumed dead.

B. Analysis of the Sinking and Conclusions

The ROI’s analysis concluded that the LADY MARYsank due to flooding, which is described as flooding dueto a hull breach, or from downflooding, which is causedfrom entry of seawater into the hull causing the ultimatesubmergence of the vessel. Furthermore, the cumulativeeffects of the modifications reduced the vessel’s free-board, which had a negative effect on its stability. TheROI noted that, had the LADY MARY been required tocomply with the stability regulations in 46 CFR Part 28,she would not have been in compliance. Had the regula-tions applied to the vessel, S&S, Inc. would have beenresponsible for hiring a qualified individual to develop aset of stability instructions, or be required to complywith additional requirements in 46 CFR Part 28,Subpart E.

The analysis concluded that an unknown event necessi-tated the opening of the lazarette hatch by crew, who hadrigged the space for dewatering. Subsequently, seawaterrushing onto the deck—either from weather, aft freeingports, or a list due to shifting cargo—permitted water toenter the open lazarette hatch. Once the lazaretteflooded, the automatic bilge pump that was pluggedinto a plug located within the lazarette, would havebeen disabled, thus contributing to faster downflooding.Along with the blocked freeing ports that prohibitedwater from shedding off the main deck, the main deckbecame submerged. Together, these factors caused a


port list, thereby allowing water to enter through theshucking house door and into the deck house. Due toa lack of watertight integrity and ineffective internalsubdivision, the engine room, and eventually the otherwatertight compartments below flooded.

The ROI determined that the crewmembers did notattempt to communicate with other vessels over aperiod of time, although they had time to shoot a flare,broadcast a coherent Mayday via VHF radio, or initiate adistress signal. The ROI also determined that theSurvivor and two other crewmembers had donnedsurvival suits, but did not do so properly, whichallowed 41 F water to enter the suits. The Survivormanaged to avoid rapid heat loss by climbing onto aboard. For the two crewmembers, improper donningof the suits significantly decreased their chances ofsurvival. For the other crewmembers, not being able todon a survival suit reduced the chances of survival tonearly zero.

The ROI also concluded that the Captain and crewmem-bers were untrained for emergency situations and did nothave the knowledge or experience to take lifesavingactions when needed. Language barriers may havelessened the effectiveness of training or the ability tounderstand instructions or directions during thesinking. It was also likely that the Captain and thecrew suffered from fatigue. Lastly, it was concludedthat the LADY MARY did not have a medium orhigh-range frequency radio, which would haveallowed it to receive radio broadcasts.

Ultimately, the ROI concluded that all crewmemberscould have survived the sinking because the vesselwas fully equipped with operable lifesaving equipment,in addition to having time to broadcast a Mayday,launch flares, or press an alert button. Also the ROIconcluded that any one of the unsafe conditions aloneprobably would not have caused the vessel to sink,however the combination of several conditions andunsafe decisions contributed to the loss of life and thesinking of the LADY MARY.

C. ROI Recommendations and the Commandant’s

Action on Recommendations

The ROI concluded with 45 safety recommendations.On August 23, 2013, the Commandant issued theFinal Action Memorandum addressing those 45 safetyrecommendations. The 45th and final recommendationsimply dealt with the closing of the investigation.

The 44 other recommendations dealt with varioussafety and operational issues. In an effort to summarizethese recommendations, five categories have been iden-tified by the authors and we will discuss thoserecommendations.37

1. Watertight and Weathertight Intergrity and Hull

Subdivisions (Recommendations 1, 2, 3, 4, 5, 6, 7, 8,

and 9)

The ROI identified water intrusion as one of the maincauses of the sinking and recommended that theCommandant expand the watertight and weathertightintegrity requirements in 46 CFR Section 28.560 tocover all documented commercial fishing industryvessels operating beyond three nautical miles, includingthose that are less than 79 feet in length like the LADYMARY. The Commandant concurred with the intentnoting that the implementation of such recommenda-tions would ‘‘. . . likely help prevent the occurrence offlooding, capsizing, and sinking of these vessels. . . .’’ Itwas noted that the Coast Guard Authorization Act of2010 (CGAA) requires the establishment of an AlternateSafety Compliance Program (ASCP) for existing vessels50 feet or greater in length that are 25 years or older, orthat are substantially altered after July 1, 2012.38 Thisprogram is currently being evaluated in consultationwith the Commercial Fishing Safety AdvisoryCommittee (CFSAC), and the Coast Guard willdevelop this program with the aim of including stability,subdivision, watertight and weathertight integrityrequirements into the program when possible. Underthe CGAA, this program must be developed by 2017and fully implemented by 2020.

The Commandant also concurred with recommenda-tions to amend 46 CFR Part 28 to add weathertightenclosures and blocked freeing ports to the list of hazar-dous conditions that can lead to the vessel’s voyagebeing terminated by a Coast Guard boarding officer ifthose conditions are not corrected. Also, the Comman-dant concurred with the recommendation to broaden theapplicability of freeing port regulations to commercialfishing vessels under 79 feet, and to collaborate withCFSAC to improve freeing port design concepts. TheCommandant also concurred with the development of

37 Recommendations 20, 31, 32, 41, 44, and 45 did not neces-sarily fall into one of the five categories identified by theauthors. As such, they are not addressed in this section.38 The Coast Guard and Maritime Transportation Act of 2012,Pub. L. 112-213, amended the effective date to be July 1, 2013.


subdivision standards for all documented commercialfishing vessels operating beyond three nautical miles,noting that the CGAA requires new vessels over 50feet to meet survey and classification society rules,and vessels over 79 feet to be assigned a load line. Healso noted that, under the CGAA, new vessels less than50 feet and built after January 1, 2010, must meetconstruction standards required for recreational vessels.Lastly, the Commandant concurred that CommercialFishing Vessel Safety Examiners (CFVSE) shouldverify the operability of watertight and weathertightclosures as part of the dockside examination.

2. Training and Licensing of Captains and Crew

(Recommendations 10, 11, 12, 13, 14, 15, 16, 23, 24,

29, 40, and 43)

As a general matter, the ROI addressed the importanceof training to ensure that individuals in charge of acommercial fishing vessel are experienced and compe-tent. The Commandant agreed, noting that the CGAArequires the development of an approved trainingprogram whose instruction focuses on seamanship,stability, navigation, damage control, personal survival,emergency drills and communications, and weather andthat the rulemaking project to implement this program iscurrently underway. The Commandant also agreed thatindividuals in charge maintain a record of safety orien-tations, drills, and instructions, which is also a provisionrequired under the CGAA. Until such regulations can bepromulgated, the Commandant ordered the Coast GuardOffice of Commercial Vessel Compliance (CG-CVC) toensure that all CFVSEs emphasize and support the useof existing safety training programs to individuals incharge of commercial fishing vessels, and encouragebasic safety training for all crewmembers.

The Commandant also concurred that CFVSEs shouldeducate owners and individuals in charge about thelimited scope of safety exams. Educating these indivi-duals, particularly with regard to hull integrity and theoverall condition of the vessel, would prevent a falsesense of security and remove the perception that nofurther safety actions are needed once a safety decalhas been issued.

Lastly, the Commandant concurred with the recommen-dation to seek authority to mandate a licensing programfor individuals in charge of all documented commercialfishing vessels that operate beyond three nautical milesfrom the baseline. The Coast Guard has recommended

that Congress provide it with the authority to implementthese licensing requirements. In doing so, these indivi-duals would be subject to at least one drug test and haveminimum competency standards. The Commandant alsoagreed to consider drug testing requirements forcommercial fishing vessel crewmembers. Lastly, theCommandant concurred with the recommendation thatemergency instructions should be written and posted ina language that is understood by all crewmembers andstated that this issue will be addressed in a futurerulemaking.

3. Vessel Identification, Ship-to-Shore Communi-

cations, and Emergency Notification Systems

(Recommendations 17, 18, 19, 25, 26, 27, 28, 30, 35,

and 37)

The Commandant concurred with recommendations toreinforce existing policies and to improve boardings andexaminations. The Commandant agreed to remindboarding officers and dockside safety examiners toverify a vessel’s EPIRB UIN matches that in theNational Beacon Database (NBD) in order to ensureemergency contact information is immediately retrie-vable. Examiners would also be reminded to verify theoperability of VHF radios, and inform the industry thatDigital Select Calling (DSC) will not send a distresssignal if the Maritime Mobile Service Identity numberis not programmed into the radio.

The Commandant also agreed to work with, or provideinformation to, other agencies to improve emergencycommunications and location-finding capabilities. TheCommandant agreed to contact the Federal Communi-cations Commission recommending that GPScapabilities be added to the performance and technicalstandards for specific EPIRBs. The Coast Guard willalso forward a copy of the ROI to NOAA to considermodifications to improve transcription of UINs into theNBD. The Commandant also agreed to work withNMFS to establish an agreement that would allowUrgent Marine Information Broadcasts to be madeover the Vessel Monitoring System, if capable.

The Commandant approved recommendations toincrease education and awareness of communicationsissues with the commercial fishing industry. The CoastGuard will recommend the use of DSC capable radio-telephones with GPS capability, or the use of a distressalert-capable satellite terminal, rather than radiotele-phone receivers without DSC, GPS, or distress-alertcapabilities. The Commandant also concurred with


educating the commercial fishing industry on the bene-fits of installing AIS transceivers, noting that arulemaking project currently underway proposes themandated use of AIS in all U.S. navigable waters. TheCoast Guard will also educate owners on the use ofselecting a VMS unit equipped with a panic button.The Coast Guard agreed to post an informational flieron a website promoting the use of AIS transceivers andVMS units equipped with a panic button.

Lastly, the Commandant agreed to issue a ‘‘LessonsLearned’’ to Coast Guard Area, District, and Sectorcommands re-emphasizing the importance of followinginternal policies, particularly with regards to the inclu-sion of specific information in the UMIBs, such aslatitude and longitude and a geographic description ofthe location where the distress signal originated. TheCommandant will consider amending Coast Guardregulations to include other more reliable means ofdistress communications technology.

4. Modifications, Stability, and Third Party Surveys

(Recommendations 21, 33, 36, 38, and 39)

The Commandant concurred with the recommendationto establish stability requirements for all documentedcommercial fishing vessels operating beyond threenautical miles, which had also been suggested by theCFSAC. The Commandant noted that the CGAA willrequire new vessels 50 feet and greater in length to meetsurvey and classification rules, and vessels 79 feet orgreater in length must be assigned a load line. ASCPswill also be developed for existing vessels that are 25years or older and over 50 feet in length, or that aresubstantially altered after July 1, 2012.39 TheseASCPs, according to the statute, must be developedby 2017 and implemented by 2020. The Commandantagreed to continue to stress the Coast Guard’s concernsregarding stability during dockside examinations andwill continue to support and conduct safety trainingprograms covering stability.

It was further recommended that dockside SafetyExaminers educate owners and individuals in chargeof the hazards associated with vessel modifications,particularly those that are done without conducting astability analysis. The Commandant agreed, anddirected CG-CVC to ensure that examiners discussstability with fishing vessel owners during dockside

safety examinations, as well as assess whether atonnage remeasurement may be required if the examinernotices that modifications have been made.

Lastly, the Commandant agreed to submit a letter to theCVSAC, suggesting the creation of incentives or bene-fits for commercial fishing industry vessels thatvoluntarily undergo third party surveys to addresswatertight integrity, internal subdivision, and loadconditions, including the cumulative effect of modifica-tions, consumables, and catch.

5. Crew Endurance Management and Safety

(Recommendations: 22, 34, and 42)

The ROI considered improvements to work-rest sche-dules, and recommended several courses of action. TheCommandant agreed that consideration of fatigue inmarine casualties and the implementation of crew endur-ance management principles could improve vesselsafety. He directed CG-CVC to develop an action planregarding crew endurance management principles andpromote the implementation of its use within thecommercial fishing industry.

The Commandant also agreed to forward the ROI to theNational Institute for Occupational Safety and Health(NIOSH) for consideration of additional analysesrelated to longer rest periods, and agreed to collaboratewith NIOSH to implement a Scientific Safety Assess-ment Process for individual fisheries and use thatinformation in the development of ASCPs, which aremandated by the CGAA.

III. THE RECENT CHANGES TO THE

COMMERCIAL FISHING VESSEL LAWS AND

REGULATIONS

Subsequent to the sinking of the LADY MARY,Congress passed the CGAA40 and, later, the CoastGuard Maritime Transportation Act of 2012(CGMTA).41 Together both acts made significantchanges to commercial fishing vessel laws, which effec-tively expanded the applicability of existing laws tocommercial fishing vessels that were previously excludedor exempted from safety requirements. The acts alsocreated new safety requirements and standards. Interest-ingly, many of these new requirements involvedcategories of safety that were identified in the ROI asareas in need of significant safety improvements,

39 The Coast Guard and Maritime Transportation Act of 2012,Pub. L. 112-213, amended the effective date to be July 1, 2013.

40 See Pub. L. 111-281, § 604.41 See Pub. L. 112-213, §§ 303, 305.


including stability, watertight integrity, and training, toname a few. In this section, we will briefly review theamendments made by the CGAA and CGMTA.

� Vessel Parity: Prior to the CGAA, commercialfishing vessel laws applied only to documentedvessels. The CGAA removed the word ‘‘docu-mented’’ from 46 USC Section 4502(b)(1),making existing commercial fishing vessel lawsapplicable to undocumented vessels as well. Thischange means that state-numbered vessels willnow have to comply with the same laws as thoseapplicable to documented commercial fishingvessels operating within the same waters.

� Substituting ‘‘Baseline’’ for ‘‘Boundary Line’’:Prior to the CGAA, the commercial fishing vessellaws applied to vessels that were operating three (3)nautical miles from the Boundary Line. The CGAAamended 46USCSection 4502(b)(1)(A), which nowmakes these laws applicable to vessels operatingwithin ‘‘3 nautical miles from the baseline fromwhich the territorial sea of the United States ismeasured or three nautical miles from the coastlineof the Great Lakes.’’

� Survival craft: Vessels identified in 46 USCSection 4502(b)(1)42 are now required to carrysurvival craft, which ensures that ‘‘no part of anindividual is immersed in water.’’ Lifeboats andlife rafts, which were previously required, are nolonger acceptable.

� Requirements for Individuals in Charge of VesselsIdentified in 46 Section USC 4502(b)(1)

� Training: Operators of these vessels will berequired to enroll in a training program andwill be issued a certificate once successfullycompleted. This training program will providecredit to operatorswhohave recent experience infishingvessel operations, andwill ensure that theoperator has the professional knowledge andskills ‘‘through sea service and hands-ontraining’’ in ‘‘seamanship, stability, collision

prevention, navigation, firefighting and preven-tion, damage control, personal survival,emergency medical care, emergency drills, andweather.’’ Additionally, operators will berequired to demonstrate his or her ability tocommunicate in emergency situations andunderstand navigation publications. Theseoperators will also be required to completerefresher training every five years in order tomaintain their certificate. Lastly, the CoastGuard will create an electronic databasecontaining the names of individuals that havesuccessfully completed this training program.

� Records: Operators of these vessels are alsorequired to keep records that track equipmentmaintenance, required instruction, and drills.

� Dockside Examinations and Certificates ofCompliance: Dockside examinations are nowrequired for all vessels identified in 46 USCSection 4502(b)(1) at least once every five (5)years. Vessels meeting the requirements of 46 USCSection Chapter 45 will be issued a certificate ofcompliance. These vessels must complete a docksideexamination no later than October 15, 2015.

� Recreational Vessel Standards Now Applicable toCertain Commercial Fishing Vessels: Vesselsidentified in 46 USC Section 4502(b)(1) that areless than 50 feet overall in length and are built afterJanuary 1, 2010, must now be constructed in a‘‘manner that provides a level of safety equivalentto the minimum safety standards the Secretary mayestablish for recreational vessels under section4302 [46 USC § 4302].’’

� Load Lines: Load lines assignments are nowrequired for all fishing vessels, both documentedand undocumented, that are built after July 1,2013, and are greater than 79 feet. Also, vesselsthat are built on or before July 1, 2013, thatundergo a substantial change after that date mustcomply with an alternate load line complianceprogram that is developed in cooperation withthe commercial fishing industry and promulgatedby the Coast Guard.

� Classification: Vessels identified in 46 USCSection 4502(b)(1) that are at least 50 feet inoverall length and are built after July 1, 2013,are now required to be surveyed, classed and

42 These vessels include uninspected fishing vessels, fishprocessing vessels, or fish tender vessels that ‘‘operatebeyond 3 nautical miles from the baseline from which theterritorial sea of the United States is measured or beyond 3nautical miles from the coastline of the Great Lakes,’’ ‘‘operatewith more than 16 individuals on board,’’ or are fish tendervessels that engage in the Aleutian trade.


issued a certificate by a qualified classificationsociety that is recognized by the Coast Guard.Additionally, after January 1, 2020, vessels iden-tified in 46 USC Section 4502(b)(1) that are atleast 50 feet overall in length, built before July 1,2013, and are 25 years or older, must comply withan ASCP that is developed in cooperation with thecommercial fishing industry and promulgated bythe Coast Guard. This ASCP must be promulgatedby January 1, 2017.

IV. CONCLUSION

The ROI makes it clear that the sinking of the LADYMARY and the subsequent deaths of six individualswere both tragic and almost certainly avoidable. Thecomprehensive ROI is a testament to the CoastGuard’s experience, knowledge, thoroughness, anddedication to duty. The ROI identified the mistakesmade, and the opportunities lost, by the LADYMARY’s owners, Captain and crewmembers. Consis-tent with the objectives of the USCG’s casualtyinvestigation responsibilities, the ROI highlighted theneed for additional safety requirements and possibleimprovements for the commercial fishing vesselindustry.

While the loss of the LADYMARYmay be regarded bysome as constituting a one off, ‘‘perfect storm’’ ofmanagement, operational, safety, and training deficien-cies or omissions, it should be emphasized that anysingle cause could still prove disastrous to any commer-cial fishing vessel if certain defenses are not in place. Asnoted in the Commandant’s Final Action Memorandum,regulations are currently underway to incorporate provi-sions of the CGAA and CGMTA. With regard to theASCPs, their implementation is still years in the future.Until that time, it is important that the commercialfishing industry remain vigilant and strive to participatein voluntary programs and safety examinations. Wesupport the Commandant’s efforts to educate fishermenand encourage the industry to consider voluntary adher-ence to regulations that may not yet be applicable totheir vessels. There are no prohibitions against makingefforts to improve safety. Additionally, commercial

fishing vessel owners, operators, and persons incharge should stay abreast of safety updates and infor-mation. For example, after the LADY MARY sinking,the Coast Guard issued Marine Safety Alert 04-09 onJuly 13, 2009 reminding the industry to ensure that theirEPIRBs and Personal Locator Beacons were properlyregistered with NOAA. Monitoring and followingsafety updates is just another way to help improvesafety and, hopefully, save lives.

All must be constantly mindful that Coast Guard safetyregulations and dockside and at-sea inspections areimportant, but they are only the beginning. The vesselowner, shore manager, captain and crew are in the bestposition, and have the highest responsibility, to achieveand maintain a safe and seaworthy vessel. After all, it isthe men and women who go to sea that risk their lives.While the loss of life and vessels may be inevitable,various safety measures can be taken to prevent thesetragedies from happening with disturbing frequencythroughout the commercial fishing industry. Themistakes of the past must be used to set the course fora safer future.

*****

Kevin J. Thornton is a partner in the law firm of Cooper

Levenson, P.A., practicing maritime law and commer-

cial litigation in the firm’s Atlantic City office. Kevin is

the immediate past chairman of the Fisheries

Committee of the Maritime Law Association of the

United States. Since 1990, Kevin has served as the

pro bono counsel for the Garden State Seafood Asso-

ciation, whose members own and operate more than

100 commercial fishing vessels.

Lineka N. Quijano is a Lieutenant Commander and

attorney in the U.S. Coast Guard. She is the Coast

Guard liaison to the Fisheries Committee of the Mari-

time Law Association of the United States. Lineka is

currently assigned to the Prevention Law Division of

the Office of Maritime and International Law at

Coast Guard Headquarters in Washington, D.C. Prior

to her current assignment, she served as an Investi-

gating Officer at Sector New York, located in Staten

Island, NY.


CYBER TERRORISM: A NEW THREAT AGAINST THE MARITIME INDUSTRY1

By Rebekah Tanti-DougallI. Introduction

Maritime security is of utmost importance and theindustry is constantly updating its security measures toensure the safety and security of vessels and port facil-ities. However, the maritime industry is not prepared totackle new issues that concern maritime security.Amongst these issues is the new threat of cyber terrorism,which poses a great risk as a result of the increased depen-dency upon information technology by the maritimeindustry. As a result, terrorists have the opportunity toresort to such measures, and such a threat has beenreferred to as a ‘cyber-Pearl Harbor.’2 Furthermore, theawareness of the maritime industry to the threat of cyberterrorism has been deemed to be ‘low to non-existent.’3

Therefore, since various maritime activities rely signifi-cantly on the effectiveness and accuracy of informationtechnology and computer data, any disruption thereof orany interference therewith may lead to disastrous conse-quences. Consequently, there is an imminent need for themaritime industry to ensure that potential cyber attacks areprevented4 and that an adequate legal framework is inplace to ensure the criminalization of any acts by cyberterrorists.

In this regard, it is important to note that although the IMOhas not yet established a legal framework to combat cyberterrorism, it has recognized the threat in its approachadopted in the ‘IMO Reservation and Guidelines forImplementation of the Athens Convention,’ where thepossibility of a cyber attack against a vessel is directlyreferred to as a defence for insurance companies.

One must distinguish between the acts of ‘cyber crime,’‘cyber terrorism’ and ‘hacktivism.’ Hacktivism is concep-tually distinct from cyber terrorism; although it refers toacts of unauthorized digital intrusion to express a politicalagenda, such acts do not intend to create intimidation orfear as is intended in cyber terrorism and are non-violentin nature.5 On the other hand, cyber crime has beendescribed as ‘computer related crime’, referring tocrimes committed through a computer.6 From the differ-ences elicited, one may therefore conclude that hacktivismand computer crime do not require the specific intent as ispresent in the act of cyber terrorism. Also, the end result incyber terrorism is more serious and damaging than inhacktivism and cyber crime.7

A widely accepted definition of cyber terrorism isprovided by Professor Dorothy E. Denning,8 whodefines it as an ‘unlawful attack’ against computernetworks, to cause violence against persons or property,and as a result, to coerce a government. In addition, itmust be carried out against an essential and critical infra-structure, which would result in a great impact; attacksthat would merely disrupt non-essential services wouldtherefore not be referred to as an act of cyber terrorism.With the increase in the use and dependency upon infor-mation technology, cyber terrorism may be the nextmethod of attack adopted by a terrorist.

Moreover, it is important to consider that whenanalyzing the modus operandi of cyber terrorism, it

1 This article has been adapted from a dissertation entitled ALegal Analysis of the Threat of Cyber Terrorism in the Mari-time Industry which the author submitted in part fulfillment ofthe requirements for the award of the Degree of Master ofLaws (LL.M.) in International Maritime Law at the IMO Inter-national Maritime Law Institute (IMLI).2 This was stated by Defense Secretary Leon E. Panetta.Bumiller, Elisabeth and Shanker, Thom, The New YorkTimes, ‘‘Panetta Warns of Dire Threat of Cyberattack onU.S.,’’ 11 October 2012, available at http://www.nytimes.com/2012/10/12/world/panetta-warns-of-dire-threat-of-cyberattack.html?pagewanted=all&_r=0 (last visited April 22, 2014).3 European Network and Information Security Agency(ENISA); Analysis of Cyber Security Aspects in the MaritimeSector, November 2011.4 Id. at p. 8.

5 Einar Himma, Kenneth, ‘‘Internet Security: Hacking, Counter-hacking, and Society,’’ Jones and Bartlett, Sudbury, 2007, p. 87.6 Abeyratne, Ruwantissa, ‘‘Cyberterrorism and Aviation—National and International Responses,’’ International CivilAviation Organization (ICAO) (Abeyratne, Ruwantissa),Montreal, QC, Canada, Springer, 31 May 2011, p. 2.7 As an example, one may refer to a non-politically motivatedcomputer crime such as the hacking of one hundred USdefense systems in 1994 by a 16 year old, which was not anact of cyber terrorism since it did not have the essential ingre-dients necessary. Sam, Berner, ‘‘Cyber-Terrorism: Reality orParanoia?,’’ South African Journal of Information Manage-ment, March 2003, available at http://www.samberner.com/documents/KM/cyber.pdf (last visited April 22, 2014).8 Yunos, Zahri, ‘‘Putting Cyberterrorism into Context,’’ TheUnited States Federal Bureau of Investigation (FBI), availableat http://www.cybersecurity.my/data/content_files/13/526.pdf(last visited April 22, 2014).


has various advantages over traditional terrorism.Primarily, the physical presence of the terrorist is notrequired9 and a terrorist may perform the act in thecomfort of his own house.10 This is because ‘nomatter where they physically reside, the internetprovides an inexpensive tool for destruction.’11 Theonly things required are ‘a good computer and hackingskills that exceed his opponent’s.’12

Cyber terrorism also provides the cyber terrorist withanonymity, as it would be very difficult for securityagencies to identify the terrorists’ real identity.13

Furthermore, the number of targets is unlimited,14 andmay include governments and public utilities, such astransport systems, without the need to overcomephysical security barriers and security personnel. More-over, since there exist several vulnerabilities in thesoftware system, these could easily be exploited bycyber terrorists.

II. Consequences of Cyber Terrorism within the

Maritime Industry

Information technology may be used as a ‘directweapon’15 against the maritime industry since, throughthe alteration or manipulation of information on avessel’s computer system, a cyber terrorist may createdevastating results for the sole purpose of creating fearor intimidation to coerce a government. Although therehaven’t been any incidents of cyber terrorism reportedwithin the maritime industry, there have been reportsof individuals having by-passed secured informa-tion systems, including the Pentagon and the National

Aeronautics and Space Administration (NASA).16

Moreover, in the research findings of two experts,Sergei Skorobogatov and Chris Woods,17 a ‘backdoor’ was found in a computer chip used in nuclearpower plants, aerospace, aviation and public transport,which could lead to the chip being reprogrammed by acyber terrorist. This is clear evidence of the existingvulnerabilities of computer technology that may beabused by cyber terrorists, even against the maritimeindustry. Therefore, through any such ‘back door’ thatmay be found in the software, a cyber terrorist maymanipulate the navigational control data of a vessel todirect it to a particular destination and use the vessel as aweapon of mass destruction. The cyber terrorist maydirect a vessel into a commercial port to cause disasterand financial loss, as well as direct it to collide withanother vessel, causing not only loss of life, but lossof cargo, loss of a vessel, as well as undermining thesafety and security of the maritime industry as a whole.The same circumstances may also be achieved by the‘spoofing’18 of the Global Positioning System (GPS),which would, as a result thereof, send manipulatedsignals to the vessel, providing false readings as tospeed, direction and location, whether of that vessel orof another vessel in the vicinity. This would create aperil to both vessels especially in cases of fog orstormy weather out at sea.

9 United States Institute of Peace, Special Report 119, ‘‘Cyberterrorism: How Real is the Threat?’’, December 2004, p. 6.10 Id.11 McNicholas, Michael, ‘‘Maritime Security an Introduc-tion,’’ Elsevier, Oxford, 2008, p. 374.12 Cohen, Aviv, ‘‘Cyberterrorism: Are We Legally Ready?’’(Cohen, Aviv), The Journal of International Business & Law,2010, p. 9.13 Abeyratne, Ruwantissa, p. 2.14 Whiteman, H. H., ‘‘The Civil Aviation Analogy, Part II:Cyberterrorism and Civil Aviation’’ (Whiteman), in Sofaer,Abraham et al. (Ed.); The Transnational Dimension of CyberCrime and Terrorism, Hoover Institution Press, StanfordUniversity, Stanford, California, 2001, p. 73, at 75.15 Cohen, Aviv, p. 6.

16 One may refer to the case of Ehud Tenenbaum, an 18 yearold Israeli hacker, known as the ‘‘Analyzer,’’ who in 1998penetrated the computer systems of the Pentagon, NASA,and other highly protected computer systems in the USA. AUnited Nations Defense Department official referred to it asthe ‘most organized and systematic attack the Pentagon hadseen to date.’ CNN, ‘Master hacker ‘‘Analyzer’’ held in Israel,’March 18, 1998, available at http://www.cnn.com/TECH/computing/9803/18/analyzer/index.html (last visited April22, 2014).17 Skorobogatov, Sergei and Woods, Christopher, ‘‘Break-through Silicon Scanning Discovers Backdoor in MilitaryChip’’ (Draft of 05 March 2012), available at http://www.cl.cam.ac.uk/~sps32/Silicon_scan_draft.pdf (last visitedApril 22, 2014).18 This is when an attack takes the form of automatic depen-dent surveillance broadcast (ADS-B) data packets, creatingsham signals. This was already put forward in aviation, refer-ring to a ‘ghost aircraft injection,’ where the attack takes theformat of ADS-B data packets creating sham aircraft signals,whether on the ground controller’s screen or on the pilot’stracking display. Marks, Paul; Air Traffic System Vulnerableto Cyber Attack, Issue 2829, 12 September 2011, available athttp://www.newscientist.com/article/mg21128295.600-air-traffic-system-vulnerable-to-cyber-attack.html (last visitedApril 22, 2014).


In addition, a cyber terrorist may create a ‘Ghost vessel,’resulting in the actual vessel being ‘spoofed’ by the‘injection’ of data into a vessel’s software to show thata non-existent vessel would be approaching.19 Thismay be dangerous if it results in the vessel altering itscourse in the belief of an oncoming vessel. Likewise, itstems from this possibility that just as cyber terroristsmay create the existence of a ghost vessel, cyber terror-ists may also ‘spoof’ the navigation system in order tonegate the existence of an approaching vessel. Bothscenarios are extremely dangerous, and could havedisastrous consequences including confusion, vesselgroundings, as well as collisions.20

A cyber terrorist may further disengage or tamperwith information communicated between ships whichmay result in devastating effects in situations wherethe navigation of ships would depend on such informa-tion or may affect the scheduled time-table as tothe availability of berths for the loading and unloadingof cargo, as well as the scheduled time-table withregard to the entry and exit schedules of ports. As aresult, this would create chaos and may result invarious incidents.

Moreover, a cyber terrorist may also deactivate theship security alarm system, as required by the Interna-tional Ship and Port Facility Security Code (ISPSCode), which would render the vessel defenseless incircumstances of attacks, including piracy, armedrobbery, and terrorism. He may likewise interfere withthe Maritime Safety Information (MSI), the GlobalMaritime Distress and Safety System (GMDSS), theShip Security Alert System (SSAS); the AutomaticIdentification System (AIS), the Maritime MobileService Identities (MMSI), the Vessel Traffic Services(VST), as well as the Long Range Identification andTracking System (LRIT) to jeopardize the safety ofvessels at sea.

Furthermore, a cyber terrorist may exploit the vulner-ability of the vessel’s computer software during itsmanufacturing.21 Cyber terrorists could target industriesinvolved in the construction thereof and ‘manipulate[e],in the design phase, software or hardware which willeventually come to be used in critical environments.’22

This may refer to the creation of a ‘back door’ asmentioned above, as well as the insertion of a ‘TrojanHorse’23 that will eventually lead to the destruction orserious damage to the software, and may therefore resultin a peril at sea.

III. The Criminalization of Cyber Terrorism under

International Maritime Security Conventions

The international maritime community has enactedvarious laws to combat unlawful acts against thesafety and security of the maritime industry. However,it is important to appreciate whether such instrumentsmay be referred to as providing the legal framework tocriminalize acts of cyber terrorism.

(i) The United Nations Convention on the Law of

the Sea, 1982

The principal offence contemplated in the UnitedNations Convention on the Law of the Sea, 1982(UNCLOS)24 which may be said to bear similaritieswith terrorism is the offence of piracy. However, thedefinition of piracy provided therein would be verydifficult to be interpreted to refer to cyber terrorism. Infact, cyber terrorism may not be committed for privateends, as is the case in piracy, as this would fall outside ofthe ambit of the intention required. Moreover, the requi-site that it must be carried out on the high seas is indeeda further limitation, as an act of cyber terrorism mayoccur whilst the vessel is in the territorial sea or internalwaters of a State. Therefore, the offence of piracyprovided therein is very narrow indeed in scope. As aresult, it may be held that UNCLOS has become

19 The notion has been introduced in the field of internationalcivil aviation; however, it may be similarly applied to interna-tional maritime security. Costin, Andrei; ‘Ghost in theAir(Traffic): On Insecurity of ADS-B Protocol and PracticalAttacks on ADS-B Devices,’ Aurelien Francillon, Networkand Security Department, EURECOM, available at http://media.blackhat.com/bh-us-12/Briefings/Costin/BH_US_12_Costin_Ghosts_In_Air_WP.pdf (last visited April 22, 2014).20 Paul, Marks, ‘‘Air Traffic System Vulnerable to CyberAttack,’’ Issue 2829, 12 September 2011.

21 Whiteman, p. 79.22 Mele, Stefano, ‘‘Cyber Warfare and its Damaging Effectson Citizens,’’ September 2010, available at https://www.infosecisland.com/download/index/id/30.html (last visited April22, 2014).23 A ‘Trojan Horse’ may be said to be a destructiveprogramme that impersonates a benign application. There arevarious types, such as the Destructive Trojan, designed todestroy and delete files, and the Remote Access Trojan,designed to provide the attacker with complete control of thevictim’s system.24 Concluded on 10 December 1982, Montego Bay.


outdated, as it does not relate to the threat of terrorism25

or cyber terrorism, as the drafters of the Conventionhave merely set out its legal framework in such amanner that it limits itself to the legal regime ofpiracy, to the exclusion of other unlawful acts carriedout for political reasons. Therefore, it may be said thatUNCLOS provides ‘insufficient protection for the mari-time transportation system from the security threats ofthe 21st century.’26

(ii) The Convention for the Suppression of

Unlawful Acts against the Safety of Maritime

Navigation, 1988

As a response to the lacunae evident in UNCLOSwith regard to unlawful acts, the Convention for theSuppression of Unlawful Acts against the Safety ofMaritime Navigation, 1988 (SUA Convention) wasdrafted.

The SUA Convention is primarily concerned withthe suppression of terrorist acts against the safety andsecurity of international maritime navigation whichjeopardize the safety of persons and property, seriouslyaffect the operation of maritime services, and whichundermine the confidence of the peoples of the worldin the safety of maritime navigation.27

An innovative aspect thereof is that the SUA Conven-tion does not limit these crimes to any particular locationof a State,28 resulting in more crimes being covered. TheSUA Convention attempts to broaden the scope ofUNCLOS by including any unlawful act against a shipor her crew or passengers, without regard to the juridical

nature of the waters in which the ship is located orfrom where the attack is launched.29

The SUA Convention provides for various offenceswhich must be analyzed in order to understandwhether they may be deemed to refer to acts of cyberterrorism.

The first offence contemplated therein is that a person isdeemed to have committed an offence if he unlawfullyand intentionally seizes or exercises control over a shipby force or threat thereof or any other form ofintimidation.30 The offence mentioned here may beapplicable in the case of a cyber terrorist attack. Thisis because the reference to the ‘seizure’ or the exercise of‘control’ over a ship may refer to the acts of a cyberterrorist who would take control over the navigationaloperation of the vessel through information technologyand direct it to a specific location and use it as a weaponof mass destruction, by directing it towards a port oranother ship. In addition, the reference to the elementof ‘force’ may refer to the willful misconduct of thecyber terrorist in carrying out such act. The referenceto ‘threat’ and ‘intimidation’ may also refer to acts ofmoral violence, where through the use of emails, a cyberterrorist could exert moral violence upon the master ofthe ship, coercing him to carry out particular orders.Therefore, it may be said that this offence may be inter-preted as being applicable to the criminalization of actsof cyber terrorists.

Another offence provided for is that of a person whounlawfully and intentionally performs an act of violenceagainst a person on board a ship if that act is likely toendanger the safe navigation of that ship.31 This offence

25 Mejia, Maximo Q. (Editor), ‘‘Contemporary Issues in Mari-time Security—A Selection of Papers and Presentations fromthe Workshop-Symposium on the Practical Implementationand Critical Evaluation of the ISPS Code,’’ 11-15 August2003 and the International Symposium on ContemporaryIssues in Maritime Security 30 August to 1 September 2004,WMU Publications, Sweden, 2005, p. 1.26 Bragdon, Clifford R, ‘‘Transportation Security’’ (Bragdon),Butterworth-Heinemann, Oxford, 2008, p. 160.27 Convention for the Suppression of Unlawful Acts againstthe Safety of Maritime Navigation, 1988 (SUA Convention),preamble.28 Bragdon, p. 160.

29 SUA Convention, Article 4:

1. This Convention applies if the ship isnavigating or is scheduled to navigateinto, through or from waters beyond theouter limit of the territorial sea of a singleState, or the lateral limits of its territorialsea with adjacent States.

2. In cases where the Convention doesnot apply pursuant to paragraph 1, itnevertheless applies when the offenderor the alleged offender is found in theterritory of a State Party other than theState referred to in paragraph 1.

30 SUA Convention, Article 3(1)(a).31 SUA Convention, Article 3(1)(b).


may also be interpreted as referring to acts of cyberterrorism because it may likewise refer to an act ofmoral violence exerted by a cyber terrorist on a personon board a ship, and as a result of the coercion throughthe means of information technology, a particular actor omission by a person on board a vessel would leadto the likelihood of endangering the safe navigationof the ship.

The third offence mentioned in the SUA Conventionrefers to a situation where a person would destroy aship or cause damage to the ship or to its cargo whichis likely to endanger the safe navigation of that ship.32

This may refer to a situation where a cyber terroristwould interfere with the navigational system of thevessel through information technology, and the resultof which would lead to the destruction of or damageto the vessel. Consequently, any damage to the shipand its computer system would endanger the safe navi-gation of the ship.

Another offence contemplated therein is the placingon a ship, by any means whatsoever, of a device orsubstance which is likely to destroy that ship, or causedamage thereto or to its cargo, which endangers or islikely to endanger the safe navigation of that ship.33 Thismay be interpreted widely so as to refer to the placingof a device, such as a ‘Trojan Horse’34 by the cyberterrorist within the navigational operational system ofthe vessel. Consequently, the activation of such devicemay destroy the ship, or cause damage thereto, as thedevice may delete or manipulate the data of the naviga-tional system. There is also the possibility of the cyberterrorist taking control over the navigation of the vesselthrough such alteration and manipulation of data.Furthermore, the reference to the placing of the device‘by any means whatsoever’ may be interpreted broadlyso as to refer to a situation where such device could beplaced through information technology.

Likewise, the act of destroying or seriously damagingmaritime navigational facilities or seriously interfering

with their operation, is also considered as an offenceunder the SUA Convention, if any such act is likely toendanger the safe navigation of a ship.35 This may besaid to be the most important offence in view of cyberterrorism against the maritime industry as it may refer toany act that a cyber terrorist carries out against the navi-gational facilities of the vessel. Primarily, a cyberterrorist may destroy or seriously damage the maritimenavigational facilities by interfering with their operation,and manipulating them by the cyber terrorist to be ableto take control over the ship or cause the ship to becomea weapon of mass destruction. Such acts are indeedlikely to endanger the safe navigation of the ship, asthe safe navigation of the ship would be compromisedthrough the actions of the cyber terrorist.

Another important offence is if one communicates infor-mation which he knows to be false, thereby endangeringthe safe navigation of a ship.36 This may also find appli-cation in cyber terrorism, as a cyber terrorist may sendmanipulated information which he knows to be false tothe vessel’s navigational facilities, endangering thesafety of the vessel.

The SUA Convention provides other offences;37

however, in relation to cyber terrorism, the relevantoffence refers to a situation where the purpose of theact, by its nature or context, is to intimidate a population,or to compel a government or an international organiza-tion to do or to abstain from doing any act38 when theperpetrator unlawfully and intentionally uses a ship in amanner that causes death or serious injury or damage;39

or threatens to commit such offence.40 This offence isvery broad and it may refer to an act of a cyber terroristwho uses the ship as a direct weapon to cause a collision,for example, and causes death or serious injury to crewand passengers, as well as to damage one or more

32 SUA Convention, Article 3(1)(c).33 SUA Convention, Article 3(1)(d).34 A ‘Trojan Horse’ may be said to be a destructive programthat impersonates a benign application. There are varioustypes: (i) Destructive Trojan, designed to destroy and deletefiles; and (ii) Remote Access Trojan, designed to provide theattacker with complete control of the victim’s system. Seehttp://www.webopedia.com/TERM/T/Trojan_horse.html (lastvisited April 22, 2014).

35 SUA Convention, Article 3(1)(e).36 SUA Convention, Article 3(1)(f).37 In this regard, the offences in the 1988 SUA Conventionwere further expanded by the 2005 Protocol thereto.38 SUA Convention, Article 3bis 1(a).39 SUA Convention, Article 3bis (1)(a)(iii). Article 1 holdsthat ‘serious injury or damage’ means: (i) serious bodilyinjury; or (ii) extensive destruction of a place of public use,State or government facility, infrastructure facility, or publictransportation system, resulting in major economic loss; or (iii)substantial damage to the environment, including air, soil,water, fauna, or flora.40 SUA Convention, Article 3bis (1)(a)(iv).


vessels, ports or fixed platforms41 with the purpose ofintimidating a government or international organization.Therefore, one may say that the offence mentionedtherein is an ‘umbrella’ provision where acts of acyber terrorist may be identified. This is furtherevidenced since the article does not mention themeans through which such act may be carried out.

Worth mentioning also is that the SUA Convention setsout further offences where a person unlawfully andintentionally injures or kills any person in connectionwith the commission of any of the above offences;42

attempts to commit such offences;43 participates as anaccomplice therein;44 organizes or directs others tocommit such;45 or contributes to the commission ofone or more offences.46 These offences may also beinterpreted to refer to cyber terrorism.

Although the SUA Convention may be interpretedwidely so as to apply to the criminalization of acts ofcyber terrorism against the maritime industry, the SUAConvention may be criticized on the basis that furtheramendments are needed to develop the offences thereinto incorporate the new and emerging threat of cyberterrorism in a more direct and comprehensive manner.

In this respect, it is important to note that the SUAConvention has greatly followed the field of aviation,in that it has mirrored the provisions found in theConvention on Offences and Certain Other ActsCommitted on Board Aircraft, 1963 (the TokyoConvention),47 the Convention for the Suppression ofUnlawful Seizure of Aircraft, 1970 (the HagueConvention),48 as well as the Convention for theSuppression of Unlawful Acts Against the Safety ofCivil Aviation, 1971 (the Montreal Convention).49

However, there has been a recent development withinthe aviation industry, namely the Convention on theSuppression of Unlawful Acts Relating to InternationalCivil Aviation, 2010 (the Beijing Convention) and theSupplementary Protocol to the 1970 Hague Conventionfor the Suppression of Unlawful Seizure of Aircraft,2010 (the Beijing Protocol) which recognize the emer-gence of new threats to the civil aviation industry, inparticular cyber threats; therefore, it would be in thebest interest of the maritime industry to follow suit.

IV. The Criminalization of Cyber Terrorism under

International Terrorism and Cybercrime

Conventions

The international community has worked at achieving alegal framework on the criminalization of cybercrime.However, since cyber terrorism is a new and emergingthreat, at present, there is no convention on cyberterrorism and one must analyze whether currentterrorism and cybercrime Conventions apply to cyberterrorism within the field of maritime security. This isimportant to ensure that should in the future there be acyber terrorist attack, there is sufficient legislation tocriminalize the act, over and above Conventions suchas the SUA Convention and its 2005 Protocol.

(i) The Convention for the Suppression of Terrorist

Bombings, 1997

The offences under Article 2(1) of the Terrorist Bomb-ings Convention refer to the act of unlawfully andintentionally delivering, placing, discharging or deto-nating an explosive or other lethal device in, into oragainst a place of public use, a State or governmentfacility or a public transportation system with theintent to cause death or serious bodily injury; or withthe intent to cause extensive destruction of such a place,facility or system. This article may find applicationin the maritime industry as it makes reference to the‘public transportation system.’ However, it seems tocreate a lacuna with regard to the private maritimetransport industry.

It is not clear whether it relates to cyber terrorism, as theArticle requires that the perpetrator ‘delivers, places,discharges or detonates an explosive or other lethaldevice.’ Therefore, its application to a cyber terrorismattack depends on the meaning given by the TerroristBombings Convention to the phrase ‘explosive or otherlethal device.’ Such interpretation is provided in Article1(3), which states that this may be interpreted in twoways, the relevant interpretation being ‘an explosive or

41 ‘Fixed Platform’ is defined in Article 1(3) of the Protocolfor the Suppression of Unlawful Acts against the Safety ofFixed Platforms Located on the Continental Shelf, 2005, as‘an artificial island, installation or structure permanentlyattached to the sea-bed for the purpose of exploration orexploitation of resources or for other economic purposes.’42 SUA Convention, Article 3 quarter (a).43 SUA Convention, Article 3 quarter (b).44 SUA Convention, Article 3 quarter (c).45 SUA Convention, Article 3 quarter (d).46 SUA Convention, Article 3 quarter (e).47 Concluded in Tokyo on 14 September 1963.48 Approved at The Hague on 16 December 1970.49 Upheld at Montreal on 23 September 1971.


incendiary weapon or device that is designed, or hasthat capability, to cause death, serious bodily injury orsubstantial material damage.’

If it were to be given a wide interpretation, it may be saidto refer to cyber terrorism since the word ‘device’ mayrefer to a Trojan Horse, having the capability of causing‘substantial material damage.’ Therefore, a ‘TrojanHorse’ may be ‘placed’ into the computer system of avessel and would allow for the control of the naviga-tional operation thereof by the cyber terrorist, resultingin the possible substantial material damage that thisArticle contemplates as a result.

Therefore, through a wide interpretation, the offences inthe Terrorist Bombings Convention may be said toinclude cyber terrorism in the maritime industry.However, its scope is limited to vessels used in publictransportation and therefore does not offer a comprehen-sive framework.

(ii) The Council of Europe Convention on

Cybercrime, 2001

The Council of Europe Convention on Cybercrime(Cybercrime Convention) has the objective of creat-ing a common criminal policy to protect againstcybercrime50 as a result of the globalization of computernetworks and their use for the commission of criminaloffences.51

The Cybercrime Convention deals with various provi-sions relating to cybercrime which may be applicable tocyber terrorism in the maritime industry. One suchexample is the offence of ‘Illegal Access’52 where it isa criminal offence if one intentionally accesses thewhole or any part of a computer system without right.The requisite of having ‘access to the whole or any partof a computer system’ is very broad in nature, and mayrelate to acts of a cyber terrorist who accesses thecomputer network of the vessel. Moreover, the perpe-trator must do so ‘without right.’ This entails anunlawful act, and therefore, access to the computersystem would be considered as a breach of the law.Worth mentioning is that such reference to ‘withoutright’ refers to individuals who do not have normaland daily access to such network.

Another important article in the Cybercrime Conventionwith regard to cyber terrorism, which can be used in themaritime industry, is ‘Illegal Interception’, found inArticle 3 thereof. It holds that it shall be a criminaloffence when there is ‘the interception without right,made by technical means, of non-public transmissionsof computer data to, from or within a computer system,including electromagnetic emissions from a computersystem carrying such computer data’ when committedintentionally. In this offence, it may be said that theword ‘interception’ is more forceful that the mere‘access’ as referred to in the previous offence as ‘inter-ception’ incorporates access and goes further to includethe act of doing something with such information,such as the alteration or deletion thereof. Also, itrefers to the use of ‘technical means’ which is broadand is inclusive of all computer software. Worthnoting is that such ‘means’ are not referred to in theprevious offence.

The same article also refers to the interception of ‘non-public transmissions of computer data to, from or withina computer system.’ The information must therefore notbe readily accessible by the public and must be intendedsolely for private use. The reference to ‘transmission’ ofcomputer data also has a bearing on cyber terrorism inthe maritime industry as it may refer to the transmissionof computer data from one vessel to another, as well asany data transferred between the master of a vessel andthe Company Security Officer, the Ship SecurityOfficer, as well as the Port Facility Officer. Therefore,this article may also have a significant application in thefield of cyber terrorism in the maritime industry.

Another offence contemplated therein is ‘DataInterference’. It holds that the ‘damaging, deletion, dete-rioration, alteration or suppression of computer datawithout right’ would be considered as a criminaloffence. This offence may therefore be applicable tocyber terrorism within the maritime industry sincesuch actions contemplate the giving of false informationby deleting or changing important information that isrequired to ensure the safety of the vessel. This mayhappen, for example, by altering information sent tothe vessel, or altering the navigational information ofthe vessel itself.

The Cybercrime Convention also criminalizes ‘SystemInterference’53 and establishes as a criminal offence ‘the50 Cybercrime Convention, preamble.

51 Cybercrime Convention, preamble.52 Cybercrime Convention, Article 2. 53 Cybercrime Convention, Article 5.


serious hindering without right of the functioning ofa computer system by inputting, transmitting, damaging,deleting, deteriorating, altering or suppressing computerdata.’ This contemplates a more complicated scenarioas it may refer to the ceasing of the operations of thevessel by seriously hindering its computer system. Thismay result in serious chaos and complete vulnerabilityof the vessel.

The Cybercrime Convention has also recognizedcomputer related forgery where it is a criminal offenceif one intentionally and without right, inputs, alters,deletes, or suppresses computer data, resulting in thecreation of unauthentic data with the intent that it beconsidered readable and intelligible.54 This offencemay refer to the ‘injection’ of false information, suchas the creation of a ‘ghost vessel,’ which would be detri-mental to the safety and security of a vessel.

Whilst the previous Articles have been interpretedwidely so as to include acts of cyber terrorism in themaritime industry, it is to be noted that under the ‘Juris-diction’ clause in the Convention, there is an expressreference to the Jurisdiction of a State over anyoffence within this Convention when committed ‘onboard a ship flying the flag of that Party.’55 Therefore,such Jurisdiction clause sustains and further enhancesthe understanding that this Convention may relate tocircumstances of cyber terrorism in the maritimeindustry.

V. The Prevention of Cyber Terrorism: The ISPS

Code

The ISPS Code has the objective of assessing securitythreats and provides preventive measures againstsecurity incidents affecting ships or port facilities usedin international trade.56 It may be argued that shouldcertain provisions therein be given a wide interpretation,they may be deemed applicable to the prevention ofcyber terrorism.

A security measure found therein is controlling access57

to the ship as well as monitoring restricted areas toensure that only authorized persons would haveaccess. If one were to analyze these two securitymeasures in view of cyber terrorism, the ‘access’ to

the ship may not only refer to the physical accessthereto. It may also relate to such unauthorized accessthat a cyber terrorist may have through computernetworks. Moreover, the reference to the monitoringof ‘restricted areas’ to ensure that only authorizedpersons would have access may also refer to thecomputer network that is only accessible by certainauthorized personnel and must therefore be monitoredto prevent the intrusion of cyber terrorists. Therefore,such preventive measures must be taken so as toensure that the software programs of the vessel aresecured and protected, and not tampered with by cyberterrorists. Therefore, it may be said that the ISPS Coderelates to the prevention of cyber terrorism in thisrespect.

The ISPS Code further provides for a Ship SecurityAssessment (SSA) which has the objective of identi-fying possible threats to the key shipboard operationsand the likelihood of their occurrence, in order to estab-lish and prioritize security measures and identificationof weaknesses.58 In this regard, it may be argued thatthis section may indeed apply to cyber terrorism as aSSA must take into account ‘possible threats’ as well asthe ‘identification of weaknesses,’ which includes cyberterrorism. Likewise, the ISPS Code provides for a PortFacility Security Assessment59 (PFSA) which must alsotake account of changing threats in the port facility.

As a result of the SSA, the Ship Security Plan (SSP)60

addresses certain measures to prevent the presenceof weapons, dangerous substances and devices onboard the vessel. This is important as it may refer to‘devices’ such as a ‘Trojan Horse’ which may beresorted to by the cyber terrorist. Therefore, the SSPmust detail the organizational structure of security forthe ship, including software security.

The ISPS Code also contemplates procedures forresponding to security threats or breaches of security.This may apply to cyber terrorism in the case wherethere is a breach in the software and awareness israised that the vessel’s navigational operation has beenmanipulated. Therefore, procedures for responding tosecurity threats must take such threat of cyber terrorisminto consideration.

54 Cybercrime Convention, Article 7.55 Cybercrime Convention, Article 22(1)(b).56 ISPS Code Section A/1.2.1.57 ISPS Code Section A/7.

58 ISPS Code Section A/8.59 ISPS Code Section A/15.60 ISPS Code Section A/9.


On the same note, whilst the ISPS Code provides forprocedures to ensure the inspection, testing, calibrationand maintenance of the security equipment provided onboard, this may find application in preventing cyberterrorism as one must ensure consistent maintenanceof security programs with regard to the software,ensuring that there is constant monitoring of theprograms to prevent security measures being breached.

Moreover, the ISPS Code also provides that the planmay be kept in an electronic format, and in such case,it shall be protected by procedures aimed at preventingits unauthorized deletion, destruction or amendment.61

This may be relevant in the case of cyber terrorism, asthe security measures taken in this regard would bemeasures to prevent the cyber terrorist from havingaccess thereto in order to manipulate the data foundthereon.

Therefore, the ISPS Code may be considered as animportant tool for the prevention of cyber terrorism, asalthough prima facie it provides for the physical securityof vessels and ports, it may be interpreted widely so asto be applicable to the software security thereof.

VI.Conclusion

The increase in dependency of maritime transport onInformation Communication and Technology62 has ledthe maritime sector to consider cyber security as a‘logical next step’ in the global protection effort ofICT infrastructure.63 With cyber terrorism as a newthreat, it is therefore important to acknowledge thatalthough there isn’t a specific convention dealing withthe criminalization and prevention of cyber terrorismwithin the maritime industry, this may be provided forthrough a broad interpretation of certain legal instru-ments, such as the SUA Convention, the CybercrimeConvention as well as the ISPS Code.

However, one major lacuna that may arise with regard tocyber terrorism is the issue of jurisdiction. The problem

arises as to where the offence takes place. As a solutionthereto, and to eliminate any lacunae in this regard, itwould be appropriate to establish an InternationalTribunal for Cyber Terrorism offences and assignsuch jurisdiction thereto.

Moreover, it is important to highlight that the securitylegislative framework created by the international mari-time community may be deemed to have given rise tothe ‘Titanic Effect,’ where in order for legislation to beimplemented, unfortunately, a devastating event mustfirst occur. This has been seen with regard to theAchille Lauro, as well as with the 9/11 attacks in thefield of aviation. In this regard, it is imperative thatthe maritime field anticipates future threats, so thatnot only would there be a preventative approach as tothe security measures to be taken, but also that suchperpetrators would be successfully prosecuted.

In conclusion, although the current maritime andcybercrime legislative frameworks may be interpretedwidely to encompass acts of cyber terrorism within themaritime industry, there is an insufficient considerationof cyber security in maritime regulation.64 It wouldtherefore be beneficial for the international maritimecommunity to create a uniform international legal instru-ment that would deal specifically with this concern, inorder to address the lacunae found in the current legalframework and to fully achieve a comprehensive andproactive cyber-security legislative approach. Thiswould be essential as it would enable the internationalcommunity to have a direct legal basis on which toprosecute cyber terrorists.

*****

Rebekah Tanti-Dougall, LL.B., LL.M. (IMLI), LL.D

[[email protected]] is an Associate at Advocates,

Tanti-Dougall & Associates, based in Valletta, Malta

[www.tdlegal.com].

61 ISPS Code Section A/ 9.6.62 ICT is increasingly used to enable essential maritime opera-tions, form navigation to propulsion, from freight managementto traffic control communications. ENISA, Analysis of CyberSecurity Aspects in the Maritime Sector; loc. cit.63 Ibid.

64 ENISA, Analysis of Cyber Security Aspects in the Mari-time Sector; loc. cit.


A NEW CHAPTER IN DEFINING CLEAN WATER ACT JURISDICTION

By Ilker BasaranIntroduction

Since the creation of Clean Water Act (CWA) byCongress in 1972, there has been long-standing uncer-tainty over the CWA Jurisdiction.1

On September 17, 2013, the United States Environ-mental Protection Agency (EPA) and the United StatesArmy Corps of Engineers (USACE) sent a proposeddraft rule (‘‘draft rule’’) on CWA jurisdiction to theOffice of Management and Budget (OMB) for intera-gency review that ‘‘takes into consideration the currentstate-of-the-art peer reviewed draft science’’ reporttitled: ‘‘Connectivity of Streams andWetlands to Down-streamWaters: A Review and Synthesis of the ScientificEvidence (Synthesis Report).’’2 With the Septemberrelease of the Synthesis Report and the draft rule, theEPA and USACE opened a new chapter on ‘‘waters ofthe United States’’ and the CWA Jurisdiction issues.

Background

The CWA’s legislative history makes it clear thatCongress intended jurisdiction to extend to waters nottraditionally thought to be navigable.3 According to theHouse Report, ‘‘the Committee fully intended that theterm ‘navigable waters’4 be given the broadest possibleconstitutional interpretation, unencumbered by agency

determinations which have been made or may bemade for administrative purposes.’’5 The Senate PublicWorks Committee explained that the broad jurisdic-tional scope was necessary because ‘‘water moves inhydrologic cycles and it is essential that discharge ofpollutants be controlled at the source.’’6 By tying thejurisdiction of the CWA to the constitutional breadthof the statute,7 the 1972 Amendments guaranteed thatfederal courts would be forced to play a continuing role,alongside EPA and the USACE, in defining jurisdic-tional waters.8

The Supreme Court in U.S. v. Riverside Bayview

Homes9 (Riverside) upheld the regulation that CWArestricts discharges into non-navigable ‘‘wetlands’’ adja-cent to an open body of navigable water. Riverside

further concluded that USACE could reasonably read‘‘navigable waters’’ to include non-navigable wetlandsadjacent to and connected with navigable in-factwaterways.10 The Court also highlighted the fact thatCongress originally intended the term ‘‘navigablewaters’’ to be interpreted broadly.11

1 Clean Water Act Jurisdiction is notoriously unclear. SeeSackett v. EPA, 132 S. Ct. 1369, 1375 (2012) (Alito, J.,concurring). Justice Alito states in his concurring opinionthat, ‘‘the words themselves are hopelessly indeterminate,and since the CWA was enacted in 1972 Congress has donenothing to resolve this critical ambiguity.’’2 See Connectivity of Streams and Wetlands to DownstreamWaters: A Review and Synthesis of the Scientific Evidence(External Review Draft) available at http://yosemite.epa.gov/sab/sabproduct.nsf/ fedrgstr_activites/7724357376745F48852579E60043E88C/$File/WOUS_ERD2_Sep2013.pdf (lastvisited on April 21, 2014).3 Downing, Donna M.; ‘‘Scope of ‘‘The Waters of the UnitedStates’’ Protected by the Clean Water Act, in the Clean WaterAct Handbook’’ at 12 (3d ed. 2012).4 33 USC § 2701(21). Navigable waters are the waters of theUnited States including territorial seas. ‘‘Territorial seas’’ isdefined as the belt of the sea measured from the line ofordinary low water along that portion of the coast which indirect contact with the open sea and line marking the seawardlimit of inland waters, and extending seaward a distance ofthree miles. 33 USC § 2702(35).

5 H.R. Rep. No. 92-911, at 131 (1972), reprinted in 1 Legis-lative History of the Water Pollution Control Act Amendmentsof 1972, at 818 (1973).6 S. Rep. No. 92-414, at 77 (Oct. 28, 1971), reprinted in 1972U.S.C.C.A.N. 3668, 3742-3743 (quoted in United States v.Riverside Bayview Homes, 474 U.S. 121 (1985)).7 See Craig, Robin Kundis; ‘‘The Clean Water Act and theConstitution’’ 118 (2d ed. 2009) (‘‘Given this legislativehistory, the federal courts soon achieved broad consensusthat the Act extended to the limit of Congress’s CommerceClause powers.’’).8 See Downing, Donna M.; ‘‘Scope of ‘‘The Waters of theUnited States’’ Protected by the Clean Water Act, in theClean Water Act Handbook’’ at 12 (3d ed. 2012).9 U.S. v. Riverside Bayview Homes, 474 U.S. 121 (1985).10 Riverside, 474 U.S. 121, 131 (1985). Streams or lakes arereferred to as ‘‘navigable in fact’’ when they are used in theirordinary condition as highways for commerce. In order toqualify as navigable in fact, a waterway must provide practicalutility to the public. It must serve as a means of transportation.Rivers that are navigable in fact are considered public navig-able rivers. And they are navigable in fact when they are used,or are susceptible of being used, in their ordinary condition, ashighways for commerce, over which trade and travel are ormay be conducted in the customary modes of trade and travelon water. See The Daniel Ball, 77 U.S. 557, 563 (1871).11 Riverside, 474 U.S. 121, 135-136 (1985).


In Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers12 (SWANCC),the Court held that the USACE’s regulation defining‘‘waters of the United States’’ exceeded the scope ofthe USACE’s regulatory power under the CWA asapplied to petitioner’s land under a regulation knownas the ‘‘Migratory Bird Rule.’’13

The Court in SWANCC agreed with the Riverside

decision that navigable in-fact waters and their adjacentwetlands qualified as ‘‘navigable waters’’ and refused tointerpret the CWA as extending the EPA’s regulatorypower to the limits of the Commerce.14 The court distin-guished Riverside on the grounds that the wetlands inquestions there were adjacent to a body of open waterthat was actually navigable.15

According to the Riverside and SWANCC, there is aconsistency on the issue that body of water is subject toa regulation under the CWA if the body of water is actu-ally navigable or is adjacent to an open body of navigablewater.16 But the status of non-navigable tributaries andtheir adjacent wetlands remained in doubt17 and courts aredivided on the status of these non-navigable waters.18

Following SWANCC, the government asserted thatSWANCC was limited to isolated waters, and that if awater ‘‘connected’’ to navigable waters, it was not anisolated water and could therefore be regulated as anavigable water under the CWA.19 The government’s‘‘any connection’’ theory essentially reached all wetareas, including ditches, drains, desert washes, andephemeral waters that flow infrequently and are farremoved from traditional navigable waters.

The United States Court of Appeals for the Sixth Circuitin the consolidated cases of Rapanos v. United States20

and Carabell v. USACE21 (Rapanos), as a response to achallenge to this governmental approach of jurisdiction,adopted a broad understanding of federal authority bynarrowly interpreting the SWANCC decision.

The Supreme Court in a divided opinion reversed andremanded both the Rapanos and Carabell cases,22

Justice Scalia writing for the plurality and JusticeKennedy in a lone concurrence provided some clarityto the matter.

Justice Scalia rejected the argument that the term‘‘waters of the United States’’ is limited to only thosewaters that are navigable in the traditional sense andtheir abutting wetlands.23 However, in plurality heconcluded that the agencies’24 regulatory authorityshould extend only to ‘‘relatively permanent, standingor continuously flowing bodies of water’’ connected totraditional navigable waters, and to ‘‘wetlands with acontinuous surface connection to’’ such relativelypermanent waters.25

12 Solid Waste Agency of Northern Cook County v. UnitedStates Army Corps of Engineers, 531 U.S. 159, 121 S. Ct. 675,148 L. Ed 2d 576 (2001).13 See SWANCC, 121 S. Ct. 675, 678 (2001) (quoting 33 CFR§ 328.3(a)(3)). The ‘‘Migratory Bird Rule’’ states that theCWA covers any interstates water which could be used bymigrating birds that cross state lines or which could be usedto irrigate the corps sold in interstate commerce. See 15 FedReg. 41217.14 SWANCC, 121 S. Ct. 675, 684 (2001).15 SWANCC, 121 S. Ct. 675, 682-683 (2001).16 See SWANCC, 121 S. Ct. 675, 680 (2001). (‘‘In order torule for respondents here, we would have to hold that thejurisdiction of the Corps extends to ponds that are not adjacentto open water. But we conclude that the text of the statute willnot allow this.’’)17 See Verchick, Robert R.M., ‘‘Toward Normative Rules forAgency Interpretation: Defining Jurisdiction Under the CleanWater Act,’’ 55 Ala. L. Rev. 846 (2004).18 There are different interpretations. The United States Courtof Appeals for the Fifth Circuit interpreted SWANCC aslimiting ‘‘navigable waters’’ to navigable-in-fact waterwaysand their immediately adjacent wetlands and tributaries. See Inre Needham, 354 F.3d 340, 344–445 (5th Cir. 2001) (inter-preting the reach of the Oil Pollution Act, which is co-extensive with the CWA). Most circuits adopted a hydrologicalconnection test, allowing the Corps to regulate any part of thetributary system of navigable-in-fact waters. See, e.g., UnitedStates v. Gerke Excavating, Inc., 412 F.3d 804 (7th Cir.2005); United States v. Deaton, 332 F.3d 698 (4th Cir. 2003).

19 See, e.g., Brief for the United States at 31, Rapanos v.United States (No. 04-1034); Rapanos v. United States, 126S. Ct. 2208, 2248 (2006) (Kennedy, J., concurring) (‘‘TheCorps’ theory of jurisdiction in these consolidated cases—adjacency to tributaries, however remote and insubstantial—raises concerns. . . .’’).20 Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004).21 Carabell v. USACE, 391 F.3d 704 (6th Cir. 2004).22 Rapanos v. United States, 126 S. Ct. 2208 (2006).23 Rapanos, 126 S. Ct. 2208, 2220 (2006).24 Rapanos, 126 S. Ct. 2208, 2220 (2006). ‘‘Agencies’’ refersto Environmental Protection Agency (EPA) and Army Corpsof Engineers. (CORPS).25 Rapanos, 126 S. Ct. 2208, 2225-2227 (2006) (excludingchannels containing ‘‘merely intermittent or ephemeral flow’’and wetlands that do not have a ‘‘continuous surface connec-tion’’ to ‘‘waters of the United States’’).


Justice Kennedy, on the other hand, did not join theplurality’s opinion.26 He stated that wetlands are‘‘waters of the United States’’ ‘‘if the wetlands, eitheralone or in combination with similarly situated landsin the region, significantly affect the chemical, physical,and biological integrity of other covered waters morereadily understood as ‘navigable.’ When, in contrast,wetlands’ effects on water quality are speculative orinsubstantial, they fall outside the zone fairly encom-passed by the statutory term ‘navigable waters.’ ’’27

As a result, the Rapanos Court failed to produce amajority opinion and federal courts have been strugglingto divine guidance from the splintered opinions.28

Instead, the decision put an end to the view that anyhydrological connection to a traditional navigablewater, no matter how remote, was enough to sustainCWA jurisdiction.29

On December 2, 2008, EPA and the USACE issued aguidance in the wake of the Rapanos.30 Agenciesannounced that they would find CWA jurisdictionwhere there was any continuous surface connection totraditionally navigable waters, under the Scalia test, orwhere any ‘‘significant nexus’’ existed under theKennedy test.

The EPA and the USACE issued a new draft guidancein May 2011 as a replacement of earlier guidance31 inorder to provide clearer, more predictable guidelines todetermine which water bodies are protected underCWA. But this guideline caused political firestormand was never finalized.32

Analysis of the draft rule

EPA has used the Synthesis Report to prepare the draftrule on CWA jurisdiction; therefore, the report andEPA’s reliance on the report are critically important.33

The draft rule makes the following findings:

All streams, regardless of their size or howfrequently they flow, are connected to andhave important effects on downstream

26 Rapanos, 126 S. Ct. 2208, 2236-2252 (2006). While JusticeKennedy concurred in the Court’s decision to vacate andremand the cases to the Sixth Circuit, his basis for remandwas limited to the question of ‘‘whether the specific wetlandsat issue possess a significant nexus with navigable waters.’’Rapanos, 126 S. Ct. 2208, 2252. In contrast, the pluralityremanded the cases to determine both ‘‘whether the ditchesand drains near each wetland are ‘waters,’ ’’ and ‘‘whetherthe wetlands in question are ‘adjacent’ to these ‘waters’ inthe sense of possessing a continuous surface connection. . . .’’Rapanos, 126 S. Ct. 2208, 2235.27 Rapanos, 126 S. Ct. 2208, 2248.28 The First, Third and Eighth Circuits have held that jurisdic-tion is established under either the plurality’s ‘‘continuoussurface connection test’’ or Justice Kennedy’s articulation ofthe ‘‘significant nexus’’ test. (See United States v. Johnson,467 F.3d 56 (1st Cir. 2006); United States v. Donovan, 661F.3d 174 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791(8th Cir. 2009). The Seventh, Ninth and Eleventh Circuits haveconcluded that Justice Kennedy’s test is the narrowest and,under Marks v. United States, 430 U.S. 188 (1977) shouldcontrol. (See United States v. Gerke Excavating, Inc., 464F.3d 723 (7th Cir. 2006); N. Cal. River Watch v. City ofHealdsberg, 457 F.3d 1023, 1029 (9th Cir. 2006); UnitedStates v. Robison, 505 F.3d 1208 (11th Cir. 2007)). EPAand the Corps, for their part, have ‘‘blended’’ the tests devel-oped by the plurality and Justice Kennedy. (See Craig, RobinK.; ‘‘The Clean Water Act and the Constitution 118, 139 (2nded. 2009).29 Gardner, Bryant E., ‘‘Window on Washington: ObamaAdministration Issues New Guidance Expanding CleanWater Act Jurisdiction,’’ 9 Benedict’s Mar. Bull. 64(Second/Third Quarter 2011).

30 EPA & USACE, Clean Water Act Jurisdiction Followingthe U.S. Supreme Court’s Decision in Rapanos v. UnitedStates & Carabell v. United States (Dec. 2, 2008), availableat http://www.epa.gov/osweroe1/docs/oil/spcc/guidance/H_2008_Memo_CWA_Jurisdiction_WetlandsRapanos.pdf(last visited on April 21, 2014). The agencies had also engagedin prior attempts to clarify the boundaries of CWA jurisdiction.The 2008 guidance followed attempts in 2003 and 2007 toclarify the application of CWA jurisdiction.31 EPA & USACE, Draft Guidance on Identifying WatersProtected by the Clean Water Act at 3, available at http://www.epa.gov/tribal/pdf/wous_guidance_4-2011.pdf (lastvisited on April 21, 2014) (hereinafter, ‘‘Draft Guidance’’).32 The bill (H.R. 4965) was introduced by CommitteeChairman John Mica (R-FL) on April 27, 2012 (112thCongress, 2011–2013) and drew significant opposition fromstate and local governments, farmers, homebuilders, andmanufacturers. The House Transportation and InfrastructureCommittee marked up legislation as restrictive and denied itsprocess. See H.R. 4965 (112th): ‘‘To preserve existing rightsand responsibilities with respect to waters of the United States,and for other purposes’’ available at https://www.govtrack.us/congress/bills/112/hr4965 (last visited on April 21, 2014).33 According to the EPA, ‘‘This report provides the scientificbasis needed to clarify CWA jurisdiction, including a descrip-tion of the factors that influence connectivity of streams andthe mechanisms by which connected waters affect downstreamwaters.’’ See United States Environmental Agency, CleanWater Act Definition of ‘‘Waters of the U.S.’’ (Feb. 21,2014) available at http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm (last visited on April 21, 2014).


waters. Streams supply most of the water inrivers, transport sediment and organic matter,provide habitat for species, and take up orchange nutrients that could otherwiseimpair downstream waters.

Wetlands and open-waters in floodplainsand riparian areas (transition areasbetween terrestrial and aquatic ecosystems)are integrated with streams and rivers. Theystrongly influence downstream waters byaffecting the flow of water, trapping andreducing non-point source pollution, andexchanging biological species.

Wetlands in landscape settings that lacktwo-way hydrologic exchanges with down-stream waters (such as many prairiepotholes, vernal pools and playa lakes)provide numerous functions that canbenefit downstream water quality and in-tegrity. However, there is insufficientinformation to generalize about the connec-tivity of these types of wetlands todownstream waters, although individua-lized evaluations could be possible on acase-by-case basis.34

Intermitted or ephemeral flows are considered underCWA jurisdiction.

According to the draft rule, it is clear that all streamsregardless of their size and frequency will be covered bythe CWA jurisdiction. This also means that the contro-versy created post Rapanos that whether tributaries withonly intermittent or ephemeral flows are subject to theCWA has come to an end.

Human alteration to streams and creeks will beconsidered under CWA jurisdiction.

The Synthesis Report includes a broad definition of‘‘stream’’ and discusses ditches as connecting wetlandsand open waters with downstream waters, thereby,allowing readers to infer that ditches might be consid-ered a component of the stream network.35

Industry groups such as agriculture, homebuilding, andoil and gas are greatly distressed with this new definitionof tributary because its broad definition would includemany ditches and other water conveyances with limitedexception. This consequently means that they will besubjected to higher water quality standards and permit-ting requirements. In opposition, it is suggested byenvironmental groups that most of the country’swaters have been altered in order to accommodateroads and neighborhoods. Therefore, it is not feasibleto exempt the majority of the streams from CWAjurisdiction.36

The definition of ‘‘adjacent’’ is expanded.

The new rules would substantially broaden the definitionof ‘‘adjacent’’ to encompass all waters located within afloodplain or riparian area of, or that have a surface orshallow subsurface hydrologic connection to, a jurisdic-tional water body such as a river or lake.37 This revisionwould essentially eliminate the jurisdictional restrictionunder the agencies’ 2008 guidance interpreting Rapanos

that an ‘‘adjacent’’ water must be in reasonably closephysical proximity to the river or lake.38

Isolated waters are subject to case by case evaluation.

As discussed above, following the Rapanos decision,identifying which waters have a ‘‘significant nexus’’ iscritical to determining CWA jurisdiction. Even for smallisolated waters that have no hydrological connection to ajurisdictional water body and are not located within afloodplain or riparian area, the new regulations wouldallow for the assertion of permitting authority on a case-by-case basis. In particular, the EPA and USACE wouldhave the power to regulate these isolated waters if theycan point to a ‘‘significant nexus’’ to a jurisdictionalwater body such as a river or lake. And this significantnexus can be shown if the isolated water, in combinationwith other similar waters in the same watershed, hasanything more than a ‘‘speculative or insubstantial

34 Id.35 See Water Advocacy Coalition, ‘‘Comments on the U.S.EPA Draft Report’’ p. 10 (Nov. 6, 2013) available at http://www.nasda.org/File.aspx?id=22907 (last visited on April 21,2014). The Synthesis Report’s broad definition of stream couldbe read to include many linear features, such as ditches, canals,and other industrialized features.

36 See Snider, Annie, ‘‘Purported leak of draft Clean WaterAct rule riles Hill,’’ Environmental & Energy Publishing LLC(Nove.r 13, 2013) available at http://www.eenews.net/stories/1059990396 (last visited on April 21, 2014).37 Washburn, Edgar B. & Bruner, Marc R., ‘‘Client Update:Draft Regulations Would Dramatically Expand Clean WaterAct Jurisdiction’’ Environment, Energy & Resources, CaliforniaEnvironmental, Energy, Researches & Land Use (Dec. 19,2013) available at http://www.perkinscoie.com/files/upload/12_19_2013_EER_Update.PDF (last visited on April 21, 2014).38 Id.


effect’’ on the chemical, physical or biological integrityof the river or lake.39

Case by case evaluation is also perceived differently bythe industry and environmental groups. The draft ruleembraces ‘‘aggregation’’ which, in this case, is theevaluation of the impact of a set of water futures in alandscape. This evaluation is important because it is theonly way to examine an individual water resource ondownstream waterways to find Kennedy’s ‘‘significantnexus’’ connection. According to industry representa-tives, the ‘‘aggregation method’’ is key to establishingjurisdiction over areas of seemingly isolated wetlands,and the Synthesis Report fails to provide a concretemethod to calculate significance of connectivity, andits potential effect on downstream waters.40 Environ-mental groups, on the other hand, state that thisapproach is important because waters are part of thesame ecosystem.41 One prairie pothole may not lookimportant on its own, they say, but if it thaws in thespring before other potholes, it may provide crucialhabitat to ducks and other species.42

Conclusion

The EPA states that the draft rule is prepared to clarifythe definition of ‘‘waters of the United States’’ andprovide an efficient CWA permitting process with trans-parency, predictability, and consistency.43 Increasedclarity in the definition means less litigation, but thedraft rule looks far from what it promises.

The Synthesis Report’s scientific findings providegrounds for the draft rule to draw a new and wide‘‘significant nexus’’ interpretation. Based on thecurrent status of the draft rule, it is apparent that EPAand USACE are expanding their CWA jurisdictionsignificantly.44 As we discussed above, almost allwetlands, regardless of flow rate and proximity to thefloodplain or riparian area, are subject to CWA jurisdic-tion. It is almost certain that if finalized as it is, the newdraft rule will be challenged in court.

*****

Ilker Basaran is a Long Term Research Scholar at the

University of Texas Law School. He has an M.Jur.

degree from the IMO-International Maritime Law Insti-

tute, Malta, an M.S. degree from S.U.N.Y. Maritime

College, Fort Schuyler, New York; an LLM degree

from Temple University School of Law, Philadelphia,

Pennsylvania; and an LLB degree from Istanbul Bilgi

University School of Law, Istanbul, Turkey. He is

currently pursuing a Ph.D. degree. He can be

reached at [email protected].

39 Id.40 See Snider, Annie, ‘‘Purported leak of draft Clean WaterAct rule riles Hill,’’ Environmental & Energy Publishing LLC(Nov. 13, 2013) available at http://www.eenews.net/stories/1059990396 (last visited on April 21, 2014) (industry groupssay aggregation is sleight of hand aimed at boosting the impor-tance of negligible resources).41 Id.42 Id.

43 EPA & USACE, Draft Guidance on Identifying WatersProtected by the Clean Water Act at 3, available at http://www.epa.gov/tribal/pdf/wous_guidance_4-2011.pdf (lastvisited on April 21, 2014) (hereinafter, ‘‘Draft Guidance’’).44 Id. House Science, Space and Technology Chairman LamarSmith (R-Texas) states that ‘‘if the draft rule is approved, itwould allow the EPA to regulate virtually every body of waterin United States, including private and public lakes, ponds andstreams.’’


WINDOW ON WASHINGTON

IN PURSUIT OF A NATIONAL MARITIME STRATEGY

By Bryant E. Gardner

The U.S. Merchant Marine forms the backbone of ournational defense sealift capability, and is the foundationof our nation’s ability to project power and sustainessential trade across the oceans. This proud corps ofmariners has served in a public-private partnership withthe Federal government since the birth of the Republic,but there is widespread agreement that it is at greater risktoday than at any time in the last century. The domesticJones Act fleet, sheltered within the brown waters ofcabotage, remains stable and in some sectors thriving.1

In contrast, the deep water, internationally trading fleetstands at the precipice, having reached a critical pointfollowing a long, slow period of decline in face ofunequal and unfair competition with open registries.

For years, maybe decades, Washington maritimeindustry insiders have watched our international fleetatrophy with varying degrees of alarm, shaking their

heads and blaming the U.S. Maritime Administration(‘‘MARAD’’), the Office of Management and Budget(‘‘OMB’’), the loss of the House Merchant MarineCommittee, the passing of great maritime championsin Congress such as the late Senator Daniel Inouye(D-HI), foreign flag subsidies, or even sometimes them-selves. But, for the most part, little has changedfollowing the last Alamo establishment of the MaritimeSecurity Program of 1996, as amended in 2003,to include 60 core military sealift vessels under theU.S. flag.

New leadership at MARAD, Acting U.S. MaritimeAdministrator Paul N. ‘‘Chip’’ Jaenichen has announcedhis intention to reverse this decline. During Senateconfirmation hearings in November 2013, Jaenichenstated:

First, I plan to continue to work withindustry stakeholders and Congress toidentify ways to revitalize the U.S.Merchant Marine. The U.S.-flag fleet notonly provides safe, reliable and environ-mentally responsible transport of cargo tosupport economic activity, both domesti-cally and internationally, but also supportsDepartment of Defense (DOD) sustain-ment sealift capacity requirements in

1 The Jones Act and complementary cabotage laws are codi-fied at 46 USC Ch. 551. For discussion regarding recentcontroversies surrounding the Jones Act, see Bryant E.Gardner, Waiving the Flag, WINDOW ONWASHINGTON, 10 BENE-

DICT’S MAR. BULL. 98 (Second/Third Quarter 2012); C.Kilgannon and M. Santora, 40,000 Tons of New Jersey Salt,Stuck in Maine, N.Y. TIMES, Feb. 18, 2014, available at http://www.nytimes.com/2014/02/19/nyregion/rock-salt-bound-for-new-jersey-is-held-up-by-decades-old-maritime-law.html (lastvisited April 22, 2014).


times of armed conflict or national emer-gencies. The U.S. Merchant Marineengaged in international trade has steadilydeclined since World War II and currentlycarries less than 2 percent of our Nation’soverseas trade. We need a strategy that

will result in a significantly higher

portion of U.S. overseas trade being

carried on U.S. flag vessels.2

Subsequently, MARAD issued a Federal Register noticeannouncing a ‘‘National Maritime Strategy Sympo-sium’’ to be held January 14-16, 2014.3 The noticestated ‘‘The purpose of this initial public meeting isto generate ideas that will improve, strengthen, andsustain the cargo opportunities and sealift capacityof the U.S.-flagged fleet engaged in internationalcommercial trade.’’4 MARAD also opened a docket,No. MARAD-2013-0101,5 and solicited commentsfrom concerned stakeholders, to precede further stake-holder input at the symposium itself.

Appropriately, Acting Administrator Jaenichen kicked-off the Symposium by refocusing the discussion onexisting statutory maritime policy as set forth in theMerchant Marine Act:

It is necessary for the national defense anddevelopment of its foreign and domesticcommerce that the United States shallhave a Merchant Marine

(a) Sufficient to carry its domestic water-borne commerce and a substantialportion of the water-borne exportand import foreign commerce of theUnited States and to provide shippingservice essential for maintaining theflow of such domestic and foreignwaterborne commerce at all times,

(b) Capable of serving as a naval andmilitary auxiliary in time of war ornational emergency,

(c) Owned and operated under the UnitedStates flag by citizens of the UnitedStates, insofar as may be practicable,

(d) Composed of the best-equipped,safest, and most suitable types ofvessels, constructed in the UnitedStates, and manned with a trainedand efficient citizen personnel, and

(e) Supplemented by efficient facilitiesfor shipbuilding and ship repair. It isdeclared to be the policy of the UnitedStates to foster the development andencourage the maintenance of such amerchant marine.6

Thus, U.S. maritime policy requires the development andpromotion of an internationally trading U.S. MerchantMarine for national security firstly by supporting U.S.commerce, and secondly by providing sealift capacityfor use in war and in civil emergencies such as HurricaneKatrina or the Haiti earthquake.7 As observed by theSenate Commerce Committee during its 1970 considera-tion of amendments to the Merchant Marine Act:

TheMerchantMarine has been appropriatelytermedour fourth armof national defense.Topermit our security and economy to becometotally dependent upon foreign vessels, oper-ated by foreign crews, subject to the wishesof foreign governments would be to run anunacceptable risk. The presence of a viableU.S. merchant fleet is necessary to providesomeassurance that this nation’s security andforeign policy objectives will not be subjectto the dictates of other nations, and that theability of our export shippers to competein world markets and the delivered price ofour import commodities will not be uni-laterally determined by foreign competitors.8

However, as highlighted by Administrator Jaenichenat the opening of the Symposium, today the U.S.Merchant Marine carries only a very small percentage

2 Testimony of Paul N. Jaenichen before the SenateCommerce, Science, and Transportation Committee (Nov.21, 2013) (emphasis added).3 78 Fed. Reg. 79,071 (Dec. 27, 2013).4 Id.5 The docket is accessible at http://www.regulations.gov/#!documentDetail;D=MARAD-2013-101-0064 (last visitedApril 22, 2014).

6 Opening Remarks of Acting Administrator Jaenichen (Jan.14, 2014) (quoting § 101 of the Merchant Marine Act of 1936).7 See also National Security Directive 28 (Oct. 5, 1989)(‘‘Sealift is essential to executing this country’s forwarddefense strategy and to maintaining a wartime economy.’’)(emphasis added).8 S. Rep. No. 91-1080, 1970 USCC.A.N. 4188, 4190.


of the U.S.-foreign trade, having fallen from its peaknumber of vessels in 1951 to less than 200 today, orfrom its peak of 13.6 million gross tons in 1988 to 6.9million tons at the end of 2013.9 Put another way, thepercentage of U.S. waterborne foreign trade carried inU.S. bottoms dropped from approximately 10% in the1960s, then to 4% in the 1990s, and stood at 3% in 2003,the last year for which MARAD has data.10 Many inCongress and the Administration have openly chal-lenged whether these numbers constitute ‘‘a substantialportion of the water-borne export and import foreigncommerce,’’ as required by statute.

The January Symposium was, for the most part, alistening session for MARAD. Industry participantsprovided various ideas for revitalization of the U.S.Merchant Marine, both through written docket submis-sions and in person during the various break-out andplenary sessions in mid-January. Participants includedship owners and operators, maritime unions, shipperinterests such as large manufacturers, shipbuilders, andGovernment facilitators collecting ideas. The ideas putforward fall into roughly four groups: (1) protectexisting programs; (2) expand cargo reservationprograms; (3) level the playing field between U.S. andforeign registries with respect to costs and regulatoryburdens; and (4) obtain new cargoes through shipperincentive programs.

Protect Existing Programs

Stakeholders were in near universal agreement that theyneed to protect the programs that currently sustain whatremains of the Merchant Marine, i.e., the MaritimeSecurity Program (‘‘MSP’’), which provides reservationpayments to 60 militarily useful vessels as determinedby MARAD and the U.S. Transportation Command,and cargo preference which requires the shipment ofsome Federal government impelled cargoes in U.S.bottoms. Although the complementary operation ofthese two programs is indisputably key to maintainingthe existing blue water fleet, they have not been enoughto stem the decline of the fleet. The objective of theSymposium, and the MARAD effort in general, is togrow and restore the Merchant Marine, and it is hardto see how doing more of the same will reverse thedecline. This is particularly the case since preference

cargo volumes are in jeopardy given the draw-downsin Iraq and Afghanistan for military cargo, and theObama administration’s persistent attempts to eliminateour nation’s flagship food aid programs, such as Foodfor Peace, which have historically provided the bulk ofpeacetime cargoes to the fleet.

Some comments submitted to the MARAD docket,however, focused upon a nagging concern: MARAD’sperceived failure to adequately enforce the cargo pre-ference laws as they stand. Anecdotes continuallycirculate through the U.S.-flag community regardingshipper agencies circumventing or ignoring cargopreference requirements. And although these concernsled to the establishment of new enforcement powers forMARAD in 2008, the agency has taken the position thatit cannot exercise these powers until it promulgatesimplementing rules, yet for six years has failed to doso. In a February 12, 2014, interview with Maritime TV,Acting Administrator Jaenichen reported that the agencydecided to go back to the drawing board with its regula-tion after running into ‘‘red lines’’ with other agenciesduring the interagency process, and to come back with aregulation that avoids those tripwires in order to put‘‘real teeth’’ into the enforcement regulation andincrease cargo opportunities for the U.S. flag.11

MSP, too, has faced challenges in recent years, withsequestration dangers posing a threat to funding for theexisting 60 slots, and fears that the Department of Defensemay no longer require the full number of slots followingSecretary Gates’s downsizing of the Department andreorientation toward nimbler, lighter forces. MSP alsosuffers under several programmatic flaws, most particu-larly its permanent grandfathering of slots to thesuccessors of the U.S.-flag liner companies which wereacquired by foreign interests in the 1990s and remain sotoday to the exclusion of U.S.-owned ‘‘Section 2’’ citizenoperators with newer, more militarily useful vessels thanmany enjoying grandfathered status.

Turning around the fate of the U.S.-flag is going totake something more than just doing more of thesame. It is going to take new ideas and bold leadershipto get the cargo needed to sustain the fleet.

9 Opening Remarks of Acting Administrator Jaenichen(Jan. 14, 2014).10 Id.

11 Maritime TV, Interview with Acting Maritime Adminis-trator C. Jaenichen, Feb. 12, 2014, available at http://www.maritimetv.com/Events/jaenicheninterviews/TabId/1025/VideoId/601/Maritime-TV-InDepth-Interview-With-Acting-Maritime-Administrator-Paul-Chip-Jaenichen.aspx (last visitedApril 22, 2014).


Expand Cargo Reservation Programs

Many commenters also expressed support for an expan-sion of cargo preference, or cargo reservationopportunities, and Acting Administrator Jaenichen hassubsequently indicated his conclusion that revitalizationof the fleet requires new cargoes, not just enforcement ofexisting cargo preference laws.12 With respect to cargopreference, i.e., government-impelled cargo, thereseems little room for expansion to new cargoes.Military13 and Export-Import Bank14 cargoes arealready reserved to 100% U.S.-flag, and only food aidremains for expansion of government impelled cargoesto U.S.-flag, since it is currently exempted to only 50%cargo preference.15 However, hydrocarbon-basedenergy exports, arising primarily because of new on-shore drilling capabilities in the Bakken formation andelsewhere, have been discussed as a potential source ofcargoes which may be reserved to U.S.-flag carriers in atleast a small part.16

Bootstrapping U.S.-flag requirements onto oil and gasexports is not without its challenges. First, the existinglegal prohibitions upon LNG export are scant, despitethe oversized attention they have attracted. Thereforehitching a U.S.-flag requirement to them will requirethe development of new legislation which mayencounter significant resistance from potential expor-ters, although potentially allies consist of U.S.-basedmanufacturers and others looking to capture these newenergy sources for domestic enterprises. Moreover, inFebruary 2014, John Garamendi (D-CA), rankingmember of the Coast Guard and Maritime Transporta-tion Subcommittee and one of the U.S. flag’s greatsupporters, offered an amendment to the 2014 CoastGuard Authorization Bill, H.R. 4005, which wouldhave tied LNG exports to U.S.-flag carriers, but hesubsequently withdrew the amendment. In its place,the manager’s amendment included a reporting provi-sion requiring exploration of U.S. flag opportunities inLNG export, and that provision remains in the version ofthe bill passed by the House on April 1. In contrast,

crude oil exports are currently hindered by a widearray of energy crisis era prohibitions, and thereforeU.S. flag interests might be able to hitch onto legislationintroduced to loosen these restrictions as part of anyfinal grand bargain.

Some U.S.-flag operators advocated during the sympo-sium for U.S.-flag requirements applicable at leastpartially to crude exports, but knock-on support fromthe unions and associations was silent, and even theMARAD presentation focused upon the possibility ofLNG cargo reservation to the exclusion of crudeexports. Why is that? G. Allen Brooks suggests in therecent January/February 2014 Maritime Executive thatJones Act carriers operating in the domestic trades arecurrently benefitting enormously from the imbalancebetween available crude in one part of the country andavailable refining capacity in another part of thecountry.17 Since refined products are largely free ofexport restrictions, unlike crude, and existing pipelinecapacity does not match these new requirements forhydrocarbon flows, energy interests have little choicebut to employ Jones Act carriers and get their productsto market in the U.S. or abroad. Upsetting this applecart,and overcoming U.S. refiners who want to keep U.S.crude captive in the U.S. will be a tall order, and one thatis going to be filled by energy producers if it is going tohappen.

Leveling the Playing Field With Foreign Flag

Operators

U.S. flag operators cannot price competitively withforeign carriers in most trades because the cost structurefor U.S. operators is substantially higher. The call toeliminate cost disparities between U.S. and foreignflag operators has been frequent and popular.18 Manysuch changes are politically easy insofar as the blamefalls upon cut-rate foreign registries, foreign subsidies,or bureaucratic red tape here at home, and many of thechanges are relatively costless from an appropriationsand budgeting standpoint. Among the changes proposed

12 Id.13 Military Cargo Preference Act of 1904, 10 USC § 2631.14 Public Resolution 17, 73rd Congress, 46 USC § 55304.15 46 USC § 55305.16 For further discussion regarding crude oil and LNG possi-bilities, see Bryant E. Gardner, WINDOW ON WASHINGTON, 11BENEDICT’S MAR. BULL. 141 (Third/Fourth Quarter 2013).

17 G. Allen Brooks, Should the U.S. Allow Oil Exports? 20,MARITIME EXECUTIVE (January/February 2014). See also,Comments of Crowley Maritime Corp. at 2 (Docket No.MARAD-2013-0101) (‘‘Dramatic growth and change in theAmerican energy business has led to corresponding growthand change in the domestic maritime industry.’’).18 See generally, U.S. Maritime Administration, Comparisonof U.S. and Foreign-Flag Operating Costs (September 2011).


under this heading are the elimination or reduction ofoperator or U.S. mariner income taxes, expansion of theU.S. tonnage tax to include ancillary or related inlandservices, reforming seamen’s protection laws toconform with international standards or with on-shoreU.S. workers’ compensation schemes, eliminating U.S.Coast Guard and other inspections in lieu of classifica-tion society requirements, establishment of a bareboatcharter registry under the U.S. flag, and eliminating the50% ad valorem duty on repairs to U.S. flag vesselsperformed outside of the United States.

However, these cost equality proposals are not withouttheir challenges. The largest of the equalizationmeasures, income tax relief, will require a ‘‘pay-for’’or budget off-set, and therefore will have to clear asignificant hurdle, the size of which will depend uponhow it is ultimately scored by the Congressional BudgetOffice. The reform of seamen’s protection laws,including the Jones Act personal injury law (as distin-guished from the Jones Act cabotage law), engenderedquick opposition from maritime labor during sympo-sium break-out groups, and therefore is sure toencounter headwinds moving forward. One commenteradvocated the establishment of a bareboat charterregistry, permitting ships to enter and leave the U.S.flag at will. This proposal will likely meet stiff opposi-tion from owners who invested in much more costlytonnage under the existing U.S.-build regime applicableto the cabotage and civilian cargo preference trades.However, MARAD’s reflag permission process couldsurely benefit from some streamlining.19 The elimina-tion of the 50% ad valorem duty seems sensible, but inthe first instance it will likely trigger resistance from theU.S. shipbuilding industry it was designed to protect,and U.S. carriers now benefit from so many free tradeagreement exceptions to the tax for repairs in Singapore,Korea, and elsewhere, that they are unlikely to pushheavily for its repeal nor is it likely to have a substantialimpact on cost equalization.

Cost equalization measures are politically and techni-cally available, and they ought to be pursued as part ofany strategy to revitalize the Merchant Marine.However, it is unlikely that any of the measures on the

table can bring U.S.-flag costs in line with open registrycost profiles. This is because the political backbone ofthe U.S. Merchant Marine is in the mariners themselvesand in the maritime unions representing them, and thegreatest single cost disparity between U.S. and foreignflag carriers lies in the crewing costs. According to a2011 MARAD report, average daily operating costs are$7,454 for foreign-flag operators, but $20,053 for U.S.flag operators, or a difference of $12,599 per day.20

The vast majority of this cost differential arises out ofcrew costs, which MARAD reported as $2,590 perday for foreign flag operators, but $13,665 per day forU.S.-flag operators, or a difference of $11,075 per day.If crew costs were equalized, the difference falls to only$1,524 per day, about half of which is due to highermaintenance and repair costs (likely related to the ad

valorem tax and requirement to use more expensiveU.S. yards), and $365 of the remainder due to higherinsurance costs, primarily P&I costs attributed to U.S.personal injury laws.21 Since the U.S. mariner is theheart and soul of the U.S.-flag and the foundation ofits political support, it is difficult to see how thevarious cost equality proposals can do more than eataround the edges of the disparity.

Shipper Incentives

Symposium attendees appeared to agree that shipperincentives hold out promise for increased cargoes tosustain the U.S. flag international fleet. Such incentivescould work to supplement cargoes obtained throughcargo preference or reservation schemes, by providingtax credits or deductions, or reduced export or importfees for the use of U.S. flag vessels. As with the incometax equalization proposal discussed above, such incen-tives immediately run into PAYGO problems underbudget law, and therefore require the targeting ofanother program which is sure to have its ownentrenched constituency. One solution may be todevelop incentives which do not require PAYGO,such as providing priority loading and discharging forU.S.-flag vessels. To the extent that such preferentialtreatment triggers fair trade complaints, justificationsbased upon pre-screening or other rational baseswould need to be put forth.

19 See, e.g., Bryant E. Gardner, MARAD AnnouncesGuidance on Vessel Reflaggings, Maritime FedWatch, June28, 2011, http://www.winston.com/en/maritime-fedwatch/marad-announces-guidance-on-vessel-reflaggings.html (lastvisited April 22, 2014).

20 Id.21 Id. Exempting mariner incomes from income taxes wouldgo part of the way towards eliminating the crew cost disparity.


Next Steps

At the conclusion of the Symposium, Acting MaritimeAdministrator Jaenichen indicated that the Symposiumwas a success insofar as it gathered ideas and stake-holders together to get MARAD the input it needs togo forward with the development of a National MaritimeStrategy for the blue water U.S. Merchant Marine.22

And in consonance with his constituents at the Sympo-sium, he appears to have come away from the exercisewith the conclusion that the key driving force is cargo:Fill the ships, and the Merchant Marine will thrive.23

Looking at current alternatives, the best chances for thisappear to be the expansion of cargo preference to coverall civilian cargoes, the establishment of some kind ofU.S. flag requirement on LNG, LPG, or crude oilexports, and the development of shipper incentives.Although the maritime industry is looking to Jaenichen

to see what their agency’s dynamic new leader will donext, ultimately each of these changes is going to requiresome political sacrifice, and some political muscle thatmust come from industry, its congressional champions,and from the highest levels of the Administration. If theU.S. flag can activate its champions, cultivate a few newones, and help MARAD break out of the neglect andindifference shown by the Obama Administration untilrecently, there just might be a chance to restore thenational treasure that is the blue water U.S. MerchantMarine.

*****

Bryant E. Gardner is a Partner at Winston & Strawn,

LLP, Washington, D.C. B.A., summa cum laude 1996,

Tulane University of Louisiana; J.D., cum laude 2000,

Tulane Law School.

22 Maritime TV, Interview with Acting Maritime AdministratorC. Jaenichen, Feb. 12, 2014, available at http://www.maritimetv.com/Events/jaenicheninterviews/TabId/1025/VideoId/601/Maritime-TV-InDepth-Interview-With-Acting-Maritime-Administrator-Paul-Chip-Jaenichen.aspx (last visitedApril 22, 2014).23 Id.


RECENT DEVELOPMENTS

Admiralty Jurisdiction

Flame S.A. v Indus. Carriers, Inc., 2014 U.S. Dist.LEXIS 3312 (E.D. Va. Jan. 10, 2014).

Plaintiff, Flame SA, obtained a judgment in the HighCourt of England for breach of certain Forward Freight(Swap) Agreements. This suit was filed in the EasternDistrict of Virginia, which action included a Rule Battachment. The defendant, Freight Bulk Pte. Ltd.,moved to vacate the order of attachment and to havethe matter dismissed for lack of subject matter jurisdic-tion. Under English law the underlying contracts wouldnot give rise to admiralty jurisdiction. The contracts,however, would give rise to maritime jurisdiction underU.S. federal law. The issue before the court, therefore,was whether to apply U.S. federal law or British law indetermining whether the court had admiralty jurisdiction.The court held that to apply English law would subject thedetermination of the court’s admiralty jurisdiction to theuncertainties of foreign law which could negativelyimpact the need for uniformity in admiralty cases. Thecourt therefore applied U.S. federal law and held that itdid have admiralty jurisdiction.

Submitted by BJM

Hayes v. County of Nassau, No. 13-1074, 2014 U.S.App. LEXIS 2315 (2d Cir. Feb. 7, 2014).

Plaintiff, a Nassau County Police Officer assigned tooperate a vessel, was allegedly injured when he wasboarding the vessel and slipped and fell on a steel transi-tion plate, which was at the bottom of the gangway andattached the gangway to the floating dock. Plaintiffbrought suit alleging Jones Act negligence, unseaworthi-ness and claimed maintenance and cure against thedefendant county. The defendant county brought a thirdparty complaint against the defendant town, which ownedthe gangway and dock. The defendant county and defen-dant town made cross motions for summary judgmentalleging that if plaintiff proved liability and proximatecause, the other should be held liable as a matter of law.

The district court found that there was no general mari-time tort jurisdiction because the locus of the plaintiff’sinjury was not on navigable waters. Relying uponSecond Circuit precedent, the Court reasoned that aramp leading from land to a floating dock is an exten-sion of land and not navigable waters.

The district court also held that there was no federalquestion jurisdiction under the Jones Act because theSecond Circuit as a matter of law has held that ‘‘aseaman cannot recover against his employer for injuriescaused by conditions beyond the ship’s gangplank,where those conditions were out of the employer’scontrol. . . .’’ As a result, the court dismissed plaintiff’sclaims against the defendant county with prejudice, anddeclining to exercise pendent jurisdiction over plaintiff’sclaims against the defendant town, dismissed thoseclaims without prejudice.

Plaintiff appealed to the Second Circuit by arguing thathe was not on notice that he had to come forward withall of his evidence regarding dispositive issues withrespect to his claims.

The Second Circuit upheld the district court’s decisionthat federal admiralty jurisdiction did not extend toplaintiff’s unseaworthiness claim. Specifically, thecourt discounted plaintiff’s argument that his injurywas caused by the vessel’s failure to have saltonboard, and held that plaintiff’s injuries were causedby snow and ice on the transition plate and not by thealleged failure to cure the condition with salt.

The Second Circuit, however, agreed with the plaintiffand held that the district court erred in dismissing hisJones Act claim because a seaman’s employer has anon-delegable duty to ensure a safe means of ingress/egress to a vessel and plaintiff had proffered sufficientevidence for a reasonable jury to find that he was actingwithin the scope of his employment at the time of hisinjury. In concluding that the dismissal of the Jones Actclaim was in error, the Second Circuit also vacated theportion of the judgment declining to exercise supple-mental jurisdiction over plaintiff’s state law claims.

Submitted by SPB


Venable v. Louisiana Workers Compensation Corp.,740 F.3d 937 (5th Cir. 2013).

Plaintiff suffered a heart attack while working on a bargein state waters. He received LHWCA benefits from thedefendant and then sued the owner of the barge. Thatclaim settled, and the LHWCA insurer expressed that itwould consent to the settlement. The insurer laterrefused to sign the form consenting to the settlementbecause of the potential exposure to significant futuremedical expenses. Plaintiffs then joined the insurer asa party to attempt enforcement of the settlement. Thedistrict court granted summary judgment for the insurerand dismissed the complaint holding that the refusal tosettle was within the insurer’s discretion. The courtrefused to hold that it lacked subject matter jurisdiction.Plaintiff appealed the dismissal of his claim, while theinsurer appealed the court’s refusal to dismiss for lackof subject matter jurisdiction.

The Fifth Circuit found that the district court lackedfederal question jurisdiction. The court found that theLHWCA provision requiring the consent of the insurerto a settlement of third-party claims does not allow aprivate right of action. The court found that state lawgoverned whether the insurer had waived the writtenconsent requirement of the LHWCA and that invocationof the statute was the insurer’s defense, not a cause ofaction. Thus, the court found there was no well pledfederal cause of action.

The Fifth Circuit further concluded that it did not havesupplemental jurisdiction over the insurer because theclaims against the insurer did not arise out of the sameset of facts as the negligence claim against the bargeowner. Further, the court found that there was no admir-alty jurisdiction because the claims for withdrawal ofconsent to the settlement did not satisfy the localitytest. Finally, the court found that it did not havesubject matter jurisdiction under its power to enforce asettlement agreement because there was no settlementagreement with the insurer for the court to enforce.

Submitted by KMM

COGSA

OOO ‘‘Garant-S’’ v. Empire United Lines, Co., CivilAction No. 13-1685, 2014 US. App. LEXIS 5461 (2dCir. Feb. 5, 2014).

Plaintiff and defendant had a long time business rela-tionship. The companies had long operated using ahouse bill of lading, which invoked the Carriage ofGoods by Sea Act from place of receipt of the cargoto the place of delivery. In or about November of 2010,two of plaintiff’s vehicles were stored at defendant’sfacility in Elizabeth, New Jersey. Prior to the time thatthe defendant customarily issued the bill of lading forthe shipment of the two cars, however, thieves brokeinto defendant’s facility and stole the vehicles.

Invoking breach of contract and tort claims under NewJersey state law, plaintiff sued defendant as a result ofthe theft of plaintiff’s automobiles. Defendant arguedthat COGSA applied to the shipment by contractbecause of the parties’ prior course of dealing and thestandard bills of lading issued between the parties As aresult of COGSA’s $500.00 package limitation, thedefendant argued that its liability to plaintiff was statu-torily limited to $1,000.00.

The district court and the Second Circuit agreed with thedefendant and held that the parties are bound by thestandard terms contained in the bills of lading the defen-dant would have issued to the plaintiff upon the loadingof vehicles onto an ocean carrier.

Submitted by SPB

Jones Act - Seamen

Catanzaro v. Northeast Remsco Construction, Inc.,Civil Action No. 11-cv-4903(RRM)(VVP), 2014 U.S.Dist. LEXIS 40405 (E.D.N.Y. March 26, 2014).

Plaintiff brought an action against defendant allegingnegligence under the Jones Act, negligence under theLHWCA, unseaworthiness and claiming maintenanceand cure. The parties brought cross-motions for partialsummary judgment on plaintiff’s status as a seaman andon his unseaworthiness claim.

The parties’ dispute centered around the second prong ofthe Chandris test, or whether plaintiff’s connection to atransport barge was substantial in nature. Defendantclaimed that plaintiff’s connection to the transportbarge was insubstantial in nature because, although hedid occasionally perform the work of a deckhand, heprimarily loaded and unloaded materials and neverworked as a seaman, held seaman’s papers or slept


aboard the barge. Plaintiff argued that his connectionto the barge was substantial in nature because in additionto loading and unloading materials, he also handledlines, acted as a lookout and occasionally provided navi-gational directions to the tugboat captain.

The court denied the cross motions for summary judg-ment and held that because there was conflictingevidence on the record material issues of fact existedfor the jury to decide in connection with the plaintiff’sstatus.

Defendant also argued that it is entitled to summaryjudgment on plaintiff’s unseaworthiness claim becausethe warranty of seaworthiness does not apply becausethe allegedly defective pallet was part of the cargoand the injury occurred during the loading process.The court denied defendant’s motion for summary judg-ment, and held that while, as a general matter, thewarranty of seaworthiness does not apply to cargo, itdoes apply to the method of loading or stowing cargoemployed by the vessel.

Submitted by SPB

Chenevert v. Travelers Indemnity Co., 2014 U.S. App.LEXIS 4337 (5th Cir. Miss. Mar. 7, 2014).

Plaintiff was employed as a crane operator when he wasinjured while working on a barge with a crane. Hisemployer’s longshore carrier voluntarily paid benefitsunder the LHWCA, but its policy excluded coveragefor injury to the member of a crew of a vessel. Plaintiffsubsequently sued his employer alleging that he was aseaman at the time of his accident, and the insurerstopped making payments. The employer then filed anotice of lien in the lawsuit claiming that it had a rightto recover any amounts paid by the insurer under theLHWCA. Plaintiff advised the insurer that it woulddispute the lien, and Travelers moved to intervene inthe lawsuit. After the plaintiff and his employer settledtheir claims, part of the settlement was deposited inthe registry of the court pending resolution of themotion to intervene. The court later denied the requestto intervene holding there was no right of subrogationto the settlement proceeds. The insurer appealed.

The Fifth Circuit noted that it had previously held that,where a party was both employer and vessel owner, itcould not settle around the lien in the subsequentpersonal injury suit. Applying that logic, the courtstated it could discern no difference why an insurer’s

right of reimbursement was different against a JonesAct recovery than against a recovery under 33 USCSection 905(b). Thus, the court held ‘‘that an insurerwho makes voluntary LHWCA payments to an injuredemployee on behalf of the employer acquires a subroga-tion lien on any recovery by the employee in a JonesAct suit against the employer based on the injuries forwhich the insurer has already compensated him.’’

Submitted by KMM

Cracchiolo v. Eastern Fisheries, Inc., 740 F.3d 64(1st Cir. 2014).

A commercial fisherman was intoxicated and returningto his fishing vessel when he apparently lost his footing,fell into the water and drowned. The administratrix ofhis estate filed suit against his employer alleging JonesAct negligence, unseaworthiness and seeking mainte-nance and cure. The administratrix also filed suitalleging state wrongful death claims against the ownerand lessor of a fish processing center, where the vesselwould tie up in port. All defendants moved for summaryjudgment. The defendant employer was deniedsummary judgment, but then subsequently settled allclaims with the plaintiff. The defendants, propertyowner and lessor, were granted summary judgment asthe Court found that the property owner and lessor couldnot have foreseen that the decedent would have tried togain access to the vessel the way he did on the night ofthe incident. Because the route chosen by the decedentwas unforeseeable, the Court held that the remainingdefendants owed no duty of care to the decedent to‘‘insure that in his impaired state he would not beharmed by his improvident choice of the unconventionaland clearly perilous route along the retaining wall onto’’the vessel.

On appeal, the First Circuit reversed the holding ofthe district court, and held that, while the question wasclose, the case could not be resolved on summaryjudgment because the record contained too manydisputes of fact and too many disputed inferences,including that the factfinder could possibly infer thatthe landowners knew or should have known that agap in the fence existed and was used, and that noobstacle, other than self-restraint, prevented the crewfrom taking the risky route to the vessel elected by theplaintiff.

Submitted by SPB


Groton Pacific Carriers, Inc. v. Jackson, 2014 Ala.LEXIS 20 (Ala. Feb. 14, 2014).

Plaintiff, Purdue, and decedent Williams were workingas line handlers for Mo-Bay Shipping Services on theMobile River retrieving mooring lines from vessels andsecuring them to shore-side bollards or offshoredolphins. Occasionally, this work required the men touse a small boat to retrieve the mooring line and movethe line to the bollard or dolphin. During one suchassignment, they were dispatched by vessel to retrievea mooring line from a ship. Once the line was attached tothe vessel, the workers signaled the ship to put moreslack in the line. As a result of either a mechanicalmalfunction on the ship or a mistake by its crew, themooring line was reeled in and pulled the small vesselout of the water. The vessel broke free of the line and fellback into the water. Purdue was injured, and Williamsdrowned.

Purdue and Williams’ representative filed suit under theJones Act and general maritime law against Mo-Bay andthe ship’s owners. In addition to their claims of seamanstatus, both men alternatively pled that they were long-shoremen. Mo-Bay moved for summary judgment onthe issue of seaman status, which was denied. Mo-Bayand its compensation insurer then reached a settlementwith Purdue and Williams’ representative for paymentof workers compensation benefits under the Longshoreand Harbor Workers Compensation Act. The settlementagreement was approved by the ALJ and requireddismissal of the Jones Act claim against Mo-Bay. Mo-Bay’s insurer also was granted a lien on any recoveryfrom the vessel owners.

Before trial in the personal injury case, all parties filedmotions regarding the workers’ status to determine thetypes of damages available. The vessel owners wantedthe workers classified as seamen to restrict recovery ofnon-pecuniary damages, whereas the workers wished tobe classified as harbor workers to permit recovery ofnon-pecuniary damages. They argued to the trial courtruled that the men were harbor workers and declinedto submit the issue of seaman status to the jury. Thematter was tried to a jury, which found in favor of theplaintiffs and awarded damages that included punitivedamages and non-pecuniary damages. The vessel ownerappealed.

The Alabama Supreme Court rejected the argument thatthe settlement agreement before the Department ofLabor was binding on the trial court’s determination

of status. The court noted that the vessel owners werenot parties to the settlement agreement and could notbe bound by the determinations of status in that agree-ment. The court considered it a ‘‘gross violation’’ of thevessel owner’s due process rights if the plaintiffs wererelieved of the burden of proving their status based on aprivate agreement to which they were not parties.

The court then considered the issue of seaman statusfocusing on the second prong of the Chandris test.The court noted substantial evidence of the workers’sea-based job activities, including the operation of theline-handling vessel. The evidence showed that theworkers spent about 45% of their work as line handlerworking on the small vessel. On the other hand, Mo-Bay’s president testified that their work was short-termand land-based. The court concluded that there wereissues of material fact as to whether the workers wereseaman. Thus, the court vacated the jury’s verdict andremanded the case for a new trial, including a trial onthe type of damages available.

Submitted by KMM

Naquin v. Elevating Boats, L.L.C., 744 F.3d 927(5th Cir. 2014).

Plaintiff was employed by EBI as a vessel repair super-visor at its shipyard in Houma, Louisiana. He wasinvolved in repair of his employer’s fleet of lift-boatvessels and would work aboard the boats while theywere moored, jacked up, or docked in the canal. Hespent about 70% of his time working aboard thevessels and would occasionally work on the boatswhile they were moved. The rest of plaintiff’s workwas spent working in a fabrication shop or operating aland-based crane.

The crane was designed and constructed by EBI. Whiletrying to relocate a test block, the crane failed, and thecrane separated from its pedestal. Plaintiff jumped fromthe crane house and sustained two broken feet and anabdominal hernia. His cousin’s husband, another EBIemployee, was working in the building on to whichthe crane fell and was killed when the crane crashedthrough the building.

Plaintiff underwent several surgeries but could notreturn to physical work. He declined EBI’s offer of adesk job, claiming that he was too emotionally upset toreturn to work. He maintained that he could not returnto work due to chronic pain and depression.


Plaintiff then filed suit under the Jones Act allegingnegligence in the construction or maintenance of thecrane. The jury found that plaintiff was a seaman andawarded $2.4 million for physical and mental pain andsuffering and lost wages. EBI appealed the verdict.

On the issue of Jones Act status, the Fifth Circuit foundthat plaintiff had the requisite degree of a connection tovessels because his primary duties were performeddoing work on vessels docked or at anchor in navigablewaters and was exposed to the perils of the sea.

The Fifth Circuit also upheld the jury’s finding of negli-gence. The court noted that EBI was responsible forthe design of the crane and the welding of the crane to thepedestal. The court found sufficient circumstantialevidence to find EBI negligent even though there wasno evidence of the exact reason the weld failed. Oncethe plaintiff established that the weld was defective,the court found there to be sufficient evidence ofnegligence.

EBI also appealed evidence of the effect of the deathof plaintiff’s cousin’s husband on the plaintiff. The courtfound that plaintiff was not entitled to seek recovery foremotional damages caused by physical damage toanother person. The court found that the plaintiffcould only recover for fear of damage to himself. Thecourt found that the jury’s awards for emotionalsuffering and lost wages were tied to the improperlyadmitted evidence. Ultimately, the court determinedthat the entire damages award should be vacated andthe case remanded for another trial on damages. Thejury’s findings on liability were affirmed.

One judge dissented from the majority’s ruling, findingthat the court had erred in affirming plaintiff’s status as aseaman. The dissenting judge found that the court’s rulingpermitted land-based workers to recover under the JonesAct and that plaintiff was not exposed to the perils of thesea because he spent his time working dockside.

Submitted by KMM

Jones Act – Cabotage

Furie Operating Alaska, LLC v. U.S. Department of

Homeland Security, 2014 U.S. Dist. LEXIS 40916 (D.Alaska March 27, 2014).

The United States District Court for the District ofAlaska denied Plaintiff’s motion to dismiss the U.S.Government parties’ counterclaim which alleged viola-tion of the Jones Act. Plaintiff argued that it did notviolate the Jones Act because its transport of a rigfrom the Gulf of Mexico to Alaska was not subject tothe Jones Act. The Government asserted that Plaintiff’suse of a foreign vessel to transport the rig implicated theJones Act, specifically 46 USC Section 55102(b), whichprovides that no ‘‘merchandise’’ can be transported bywater between points in the United States to which thecoastwise laws apply, either directly or via a foreignport, unless the vessel transporting the merchandise isone that is built in, documented under the laws of, andowned by the citizens of the United States. The penaltyfor violation of this provision is forfeiture of themerchandise or a sanction in an amount equal to thevalue of the merchandise or the cost of its transportation,whichever is greater.

U.S. Customs and Border Protection (CBP) assessed apenalty of $15 million, the value of the rig, againstPlaintiff. Plaintiff argued that the penalty should notbe enforced because the rig ‘‘was not merchandisewhose coastwise movement would be governed by theJones Act, but instead was a vessel whose movementwas governed by the Coastwise Towing Statute, 46 USCSection 55111.’’ The Government argued that the rigwas considered merchandise within the meaning of theJones Act, and its movement was governed by the JonesAct and not the Towing Statute because it was hauled onanother vessel instead of being towed in the water byanother vessel. The CBP construed the term ‘‘merchan-dise’’ broadly to include all goods. The court held that avessel can constitute ‘‘merchandise’’ under the JonesAct and declined to dismiss the counterclaim based onthe argument that CBP had improperly broadened theterm. The Court also considered whether CBP’s appli-cation of the Jones Act instead of the Towing Statute todry-towing situations was entitled to deference anddetermined that given CBP’s consistency in applyingthe Jones Act in such situations, and the supportprovided by the Subtitle II of Article 46 definition of‘‘towing vessel’’ as one which engages in ‘‘wet-towing,’’CBP’s understanding and application of the Jones Actand the Towing Statute was sufficiently persuasive tobe upheld.

Submitted by JAM


LHWCA

Pipia v. Turner Constr. Co., 114 A.D.3d 424, 980N.Y.S.2d 392 (N.Y. App. 1st Dep’t 2014).

Plaintiff, a plumber, was injured when he fell on a floatstage. At the time of the incident, plaintiff was standingon the float stage, which was located underneath thepier, installing insulation around piping supportedfrom the bottom of the pier, when a wave caused himto lose his balance and fall, causing his injury.

Plaintiff alleged that the defendants were negligent andthat they had a duty to provide him with a safe workingenvironment under New York Labor Law Sections 220,240 and 241(6). Plaintiff moved for summary judgmentagainst certain defendants, and those defendants cross-moved for summary judgment. The lower court deniedthe plaintiff’s motion for summary judgment andgranted the defendants’ motion for summary judgment.

Plaintiff made a motion to for re-argument, wherein hecontended that the court erroneously referred to the floatstage as a barge and misapplied the Longshore andHarbor Workers Compensation Act (‘‘LHWCA’’),which permits claims against non-employer tortfeasorsunder federal law and under New York’s Labor Laws.Specifically, plaintiff argued that construction workerswho received LHWCA benefits injured whileconstructing land based structures, while working onfloating stages, are entitled to bring Labor Law claimsagainst property owners and general contractors.

The court held that, regardless of whether the float stagecould be classified as a barge, it could surely be classi-fied as a vessel pursuant to Section 902(3) of theLHWCA and the U.S. Supreme Court’s holding inStewart v. Dutra, 543 U.S. 481 (2005) because thefloat stage was a watercraft capable of being used as ameans of transportation. The court held that it did notmatter that the float stage was not being used primarilyfor transportation or in motion, it was a vessel becauseplaintiff ‘‘was on the float stage, in navigable waters,while installing insulation.’’

The court concluded that because the float stage can beclassified as a vessel, the action could only be broughtwithin the confines of the LHWCA, and not under NewYork’s Labor Laws.

The appellate court upheld the lower court’s finding thatplaintiff was covered by the LHWCA, and held that he

was precluded from suing his employer. The appellatecourt also held that the plaintiff was barred fromasserting any claims other than New York Labor LawSection 220 and common law negligence claims againstthe vessel owner because the float stage was a vessel asdefined by the LHWCA. The appellate court noted thatthe float stage consisted of wooden planks boltedtogether, which could only move short distances andwas typically tied to land structures. The appellatecourt also noted, however, that the float stage was some-times untied to move short distances, was regularly usedto carry workers and materials around the water, andnavigated short distances by manipulating its anchorsand cables. For these reasons, citing Stewart andLozman, the court found that the float stage was avessel as a reasonable observer would, looking at thefloat stage’s physical characteristics, consider it to bedesigned to a practical degree for carrying people orthings on water.

The appellate court further found that the LHWCAand general maritime law did not preempt the plaintiff’sstate Labor Law claims against the project owner andgeneral contractor as the state Labor Laws are not incon-sistent with federal maritime law and involved anincident which was essentially local in character. Theproject owner and general contractor failed to refuteplaintiff’s expert professional engineer’s affidavitsetting forth numerous devices that could have providedadditional protection against falling off the float stageand for this reason the court stated that plaintiff wasentitled to summary judgment on his Labor LawSection 240(1) claims.

Lastly, the vessel owner showed it was entitled todismissal of the worker’s claims under Labor LawSection 200 because plaintiff did not show that it exer-cised the requisite supervisory control.

Submitted by SPB

Limitation of Liability

In re Colombia Leasing, L.L.C., 2014 U.S. Dist. LEXIS22083 (E.D. Va. Feb. 20, 2014).

John and Karen Mullen (‘‘The Mullens’’) brought apersonal injury claim in state court against CeresMarine Terminal, Inc. and Ceres Marine Terminal,Incorporated (‘‘Ceres’’). The vessel owners (‘‘Limitation


Plaintiffs’’) filed a petition seeking exoneration from orLimitation of liability; an injunction issued stayingactivity in state court.

The Mullens subsequently filed an Answer in theLimitation proceeding and asserted their personalinjury claim. Ceres filed an Answer and Claim in theLimitation proceedings seeking contribution and theindemnity from the vessel owners for any liability itmay incur to the Mullens. The Mullens amended theirAnswer and asserted a maritime personal injury Cross-claim against Ceres in the Limitation proceeding, butexpressed their desire to preserve their rights under theSaving to Suitors Clause of 28 USC Section 1333(1).

The Limitation Plaintiffs filed a summary judgmentmotion and the court ruled in their favor, exoneratingthem from liability. The Mullens’ claim against themwas therefore dismissed, together with Ceres’ contribu-tion claim. The sole remaining claim in the Limitationproceedings, therefore, was the Mullens’ Cross-claimagainst Ceres. The Mullens filed a motion to voluntarilydismiss their Cross-claim against Ceres in the Limitationproceeding in order to allow them to pursue their savingto suitors remedies in state court. Ceres objected to thedismissal, pointing to the significant amount of time andattorneys’ fees invested in the federal proceedings.

The issue before the court was whether to dismiss theMullens’ claim against Ceres, allowing them to proceedin state court. In deciding the motion, the court evalu-ated numerous factors, including Ceres’ efforts andexpense in preparing for trial, the diligence and delayby the Mullens, among others issues. On balance thecourt determined that the Mullens should be allowedto proceed with their claim in state court. The courttherefore granted the motion for voluntary dismissal ofthe Mullens’ Cross-claim, without prejudice.

Submitted by BJM

In re Bell, 2014 U.S. Dist. LEXIS 4077 (W.D. Wash.Jan. 13, 2014).

The United States District Court for the Western Districtof Washington considered cross-motions for summaryjudgment over whether a vessel owner should be heldliable for damages. A fire of unknown cause began onthe vessel owner’s 45 foot Bayliner motor cruiser whileit was moored, causing it to sink and leaving it with novalue. The vessel owner sought to limit its liability underthe Limitation of Liability Act (the ‘‘Act’’) which

‘‘limits shipowner liability arising from the unseaworthi-ness of the shipowner’s vessel or the negligence ofthe vessel’s crew unless the condition of unseaworthi-ness or the act of negligence was within the shipowner’s‘privity or knowledge.’ ’’ In re Anderson, 847 F. Supp.2d 1263, 1271 (W.D. Wash. 2012) (citing In re M/V

Bowfin, 339 F. 3d 1137, 1137 (9th Cir. 2003)).

Claimants argued that the vessel owners should be heldliable for damages that resulted from the fire. Under theAct, there are two steps to determine whether liabilityshould be limited: (1) Liability: The claimant bears theburden of establishing that a negligent or unseaworthycondition was the ‘‘causative agent’’ of the allegedharm, and (2) Knowledge or Privity: If the claimantmeets the burden on liability, the burden shifts to theshipowner to demonstrate a lack of knowledge or privityof the negligence or unseaworthiness that caused theaccident. In re Anderson, 847 F. Supp. 1263, 1271–1272. Claimants asserted that the vessel owner wasnegligent because they either hired questionablecontractors to do their heater wiring or they causedcombustibles to fall onto the heater. The Court rejectedthese theories because they were based on pure specula-tion. The Court assumed unseaworthiness for thepurpose of analyzing the second step, knowledge orprivity. The vessel owner presented ample evidencethat it had no actual or constructive knowledge of anyunseaworthy conditions because they took care of theirboat, by making regular visits to inspect and maintainit. As such, the Court granted summary judgment infavor of the vessel owners with respect to limitation ofliability.

Submitted by JAM

Practice and Procedure

Green v. Ross Island Sand & Gravel Co., 2014 U.S.Dist. LEXIS 9194 (N.D. Cal. Jan. 23, 2014).

The United States District Court for the NorthernDistrict of California granted Plaintiff’s motion toremand his case asserting a Jones Act claim to statecourt and denied Plaintiff’s motion for attorney’s feesin relation to the motion to remand. The court found thatno Ninth Circuit cases direct district courts to conduct asummary judgment-like procedure and look beyond theplaintiff’s pleadings to make its determination on amotion to remand a Jones Act claim. As the question


of Plaintiff’s seaman status, which was contestedby Defendant, is a fact-intensive question generallyleft to juries, the Court found it inappropriate to decidein a remand motion. Plaintiff’s allegations in hiscomplaint were that defendants ‘‘employed Plaintiffas a seaman’’ within the meaning of the Jones Act andthat while he was employed as a seaman, he was injureddue to the ‘‘gross negligence, willful, wanton, andreckless indifference’’ of defendants. The Court foundthat such allegations sufficed to state a Jones Act claim.As Plaintiff properly pled a Jones Act claim on theface of his complaint, the case was not removableto federal court.

The Court also rejected Defendant’s argument thatremoval was proper under 28 USC Section 1441(a)because the district court had original jurisdiction overthe other maritime claims asserted by Plaintiff in hiscomplaint. The Court held that Plaintiff’s maritimeclaims were duplicative of his Jones Act claim, theywere not separate and independent claims that couldbe removed. Furthermore, even if a Jones Act claim isjoined with a separate and independent claim, it mustbe severed and remanded to state court pursuant to 28USC Section 1441(c)(2) which requires a district courtto remand any claims that have been made non-remo-vable by statute. Finally, in response to Defendant’sargument that removal was proper under diversity ofcitizenship, the Court ruled that even in the event ofdiversity of the parties, a Jones Act claim cannot beremoved to federal court. As the Defendant had anobjectively reasonable basis for seeking removal anddid so in good faith, the Court denied Plaintiff’smotion for fees.

Submitted by JAM

Wu Tien Li-Shou v United States, 2014 U.S. Dist.LEXIS 11970 (D. Md. Jan. 31, 2014).

The captain of a fishing vessel held hostage by Somalipirates was killed by fire from the U.S.S. Steven W.Groves, a United States naval vessel. The widow ofthe deceased captain brought suit against the UnitedStates seeking damages for the wrongful death of herhusband. The United States filed a motion to dismiss,asserting that the court lacked subject matter jurisdictionpursuant to the ‘‘political question doctrine.’’ The courtgranted the motion. In so holding, the court noted thatthe incident leading up to the death of Captain Wu waspart of a NATO-led counter-piracy operation. The court

held that the conduct of a belligerent operation is consti-tutionally entrusted to the executive branch ofgovernment, subject to the review by the legislativebranch. The court therefore held that the case presentedan issue governed by the ‘‘political question doctrine’’,making it nonjusticiable.

Submitted by BJM

Prejudgment Interest

In re Moran Towing Corp., Civil Action No. 10-4844,2013 U.S. Dist. LEXIS 161482 (E.D.N.Y. Nov. 12,2013).

Ricardo Young was a deckhand, who was crushedto death when he became entrapped in the capstan ofa Moran Towing Corporation tug. Though there wereno witnesses, apparently, during the line tighteningprocedure, he became caught between the starboardtow line and the capstan, which caused him to becrushed to death. Two actions were tried to the Court,the petition for exoneration filed by Moran, and aJones Act and general maritime law action for negli-gence filed on behalf of the decedent’s estate andminor son (‘‘claimant’’). Judgment was entered infavor of the claimant against Moran in the amount of$2,183,478.00.

The judgment calculated prejudgment interestfrom December 27, 2009 (the date of decedent’sdeath), until December 3, 2013 (the date the judgmentwas entered), including adding interest on future losses.Moran moved to amend the judgment to correct thepart of the judgment which awarded prejudgmentinterest on future losses. The court agreed and notedthat under New York law, courts have shown concernwith applying prejudgment interest on future losses.In this case, the court also noted that the discount rateis roughly .13%, and that even if the claimant’s futuredamages were discounted to the date of the incident,the prejudgment rate would be almost seventy timesgreater, which would allow claimant to receive a‘‘double recovery.’’ As a result, Moran’s motion wasgranted and the court amended the judgment toprovide that pre-judgment interest was only to beapplied to past damages, and not future damages.

Submitted by SPB


Punitive Damages

McBride v. Estis Well Serv., L.L.C., 731 F.3d 505 (5thCir. 2013).

Although punitive damages are not recoverable underthe Jones Act or under the Death on the High Seas Act,they have long been available under general maritimelaw. Seamen have traditionally been treated withsympathy as ‘‘wards of the court,’’ like orphans andwidows. Punitive damages from early on were allowedin egregious failures to provide seamen with maintenanceand cure. The Jones Act deals only with negligence, and itpreserves a seaman’s right to elect to stay with generalmaritime law remedies. Atlantic Soundings v. Townsend,557 U.S. 404 (2009).

Therefore, the 5th Circuit has ruled that ‘‘punitivedamages remain available to seamen as a remedy forthe general maritime law cause of unseaworthiness.’’

Submitted by MED

Seamen

Barlow v. Liberty Maritime Corp., Docket No. 13-0254-cv, 2014 U.S. App. LEXIS 4070 (2d Cir. N.Y.Mar. 4, 2014).

Plaintiff was a third mate aboard a cargo vessel ownedby defendants. While the vessel was tied up alongsidea floating grain barge terminal, two lines parted. Thesecond mate on watch instructed plaintiff to donothing. Plaintiff, however, believing that other lineswere in danger of parting, ‘‘bumped’’ the brake handleto loosen the brake’s grip on the winch without firstengaging the motor in order to slacken a tensionedline. As a result, the line paid out uncontrollably andwhipped around the winch injuring the plaintiff.

Plaintiff asserted claims for negligence and unsea-worthiness. In response to defendant’s claims thatplaintiff’s action contributed to his own injuries, plain-tiff submitted proposed jury instructions adopting theFourth Circuit’s ‘‘maritime rescue doctrine,’’ whichholds that in emergency situations where the seamanis attempting to rescue the crew or the vessel, aseaman must engage in wanton and reckless conductbefore apportioning him any fault for his injuries. Thedistrict court declined to apply the maritime rescue

doctrine and applied the reasonable person standard.The jury found 90% comparative fault on the part ofthe plaintiff, and found that the vessel was not unsea-worthy because of broken mooring lines. The courtdenied plaintiff’s post-trial motion for judgment as amatter of law on his unseaworthiness claim.

On appeal, the Second Circuit declined to adopt themaritime rescue doctrine. The Second Circuit reasonedthat the maritime rescue doctrine arose at a time whencontributory negligence was an absolute bar to recoveryin maritime personal injury claims. Under current mari-time law, there is no such absolute bar as comparativefault is employed to resolve competing claims of negli-gence between the injured and the alleged tortfeasor.For this reason, the Second Circuit held that the prin-ciple justification for the maritime rescue doctrine hasdisappeared and that in maritime injury cases, the properstandard of care is that of a reasonable mariner underthe circumstances.

The Second Circuit also held that plaintiff was notentitled to judgment as a matter of law on his unsea-worthiness claim. Plaintiff argued that where a vesselbreaks free from its moorings, a presumption arisesthat it is unseaworthy. While it is true that the SecondCircuit has applied a presumption of unseaworthinessagainst owners where a vessel or her mooring lineshave broken free, that has only occurred where theforces encountered could be expected. In this case,there was evidence of the unexpected, and as such itwould not be appropriate to employ such a presumption.

Submitted by SPB

Rysz v. Norwalk Marine Contractors, Inc., Civil ActionNo. FBTCV096004382S, 2014 Conn. Super. LEXIS207 (Conn. Super. Ct. Jan. 29, 2014).

Plaintiff’s decedent, a member of the Carpenter’s Union,was the acting foreman on an anchored barge. There wasa captain and crane operator aboard the barge. The bargewas to be moved to its mooring facility by a pushboatowned by one of the defendants.

In order to move the barge to Norwalk, certain spuds,used to anchor the barge in the water, had to be removed.Through the use of a crane, a spud was raised by thecrane operator. Plaintiff’s decedent decided to secure thespud in the raised position. During this time, the captainwas in the wheelhouse. While the plaintiff’s decedentwas securing the spud in the raised position, the captain


ordered the crane operator to drop the raised spudbecause he noticed the barge drifting towards thedock. As a result, the steel pin being used to securethe spud kicked back, striking plaintiff’s decedent onthe right side of his face and neck, and causing theplaintiff to fall to the deck and into the water. Plaintiff’sdecedent died as a result of his injuries three days later.

Plaintiff asserted claims under the Jones Act againstplaintiff’s decedent’s employer and the owner of thepushboat. Both defendants’ moved for summary judg-ment arguing that plaintiff’s decedent was not a seamanunder the Jones Act and that any claims against theemployer were barred by the Connecticut Workers’Compensation Act. Defendants also argued that the push-boat owner owed no duty to the plaintiff’s decedent.

Analyzing the Chandris test, the Court found there wasa genuine issue of fact concerning the plaintiff’s dece-dent’s connection with the vessel or vessels owned orused by defendants. Regarding this issue, the Courtstated that the rule of thumb that a worker who spendsless than thirty (30) percent of his time in the service of avessel in navigation should not qualify as a seamanidentified by the Chandris Court was only a ‘‘guideline’’and not a ‘‘Draconian rule.’’

Submitted by SPB

Statute of Limitations

Head v. Kommandit-Gesellschaft MS San Alvaro Offen

Reederei GmbH & Co., 2014 U.S. Dist. LEXIS 22417(W.D. Wash. Feb. 21, 2014).

The United States District Court for the Western Districtof Washington granted Defendant’s Motion forSummary Judgment in relation to Plaintiff’s personalinjury claim stemming from an injury he sustainedwhile employed as a longshoreman. Defendant vesseloperator, RCPO, argued that Plaintiff failed to pro-perly serve RCPO within the three-year statutoryperiod because (1) tolling the statute of limitations wasinapplicable considering Plaintiff improperly named

other defendants to the action and (2) one of the otherdefendants Plaintiff served was not RCPO’s agent andwas therefore not capable of receiving service of processon its behalf. Revised Code of Washington Section4.16.170 provides that an action is commenced forpurposes of tolling the statute of limitations only if theplaintiff serves process upon ‘‘one or more of the defen-dants’’ within 90 days of the date of filing the complaint.Wash. Rev. Code Section 4.16.170 (2014). The Courtheld that while Section 4.16.170 tolls the statute oflimitation for an unspecified period, that period is notinfinite because plaintiffs must proceed with their casesin a timely manner as required by court rules, and mustserve each defendant in order to proceed with the actionagainst that defendant. Furthermore, to qualify for suchtolling, at least one of the served defendants must beproperly named in the lawsuit. The Court held thatPlaintiff had no valid basis to sue the other two defen-dants in the action and concluded that such defendantswere served with process in order to improperly toll thestatute of limitations to acquire extra time to serveprocess upon RCPO in Germany.

In regard to service of process on an agent of a party,Wash. Rev. Code Section 4.28.080(13) provides that aplaintiff may serve a steamship company by serviceupon ‘‘any agent authorized . . . to solicit cargo orpassengers for transportation to or from ports in thestate of Washington.’’ The court found that RCPOmanaged the vessel M/V Cap Preston and continuouslybareboat chartered and time chartered the vessel to otherentities. Based on RCPO’s evidence, and despite the factthat the Ballast Water Reporting Form listed the otherdefendant under ‘‘agent,’’ the Court held that the otherdefendant was not RCPO’s agent. Even if it wassomehow RCPO’s agent, the Court found that theother defendant was not authorized by RCPO to solicitcargo or passengers for transportation to or from ports inthe state of Washington as required for service ofprocess under Wash. Rev. Code Section 4.28.080(13).The Court ultimately found that Plaintiff’s failure toserve RCPO within the statutory period was fatal tohis claim.

Submitted by JAM


Contributors

MED M. E. [email protected]

SPB Samuel P. Blatchley, Esq.Pierce Atwood [email protected]

KMM Sher, Garner, Cahill, Richter,Klein, & [email protected]

BJM Brian J. Miles, Esq.D’Luge, Miles, Miles & Cameron [email protected]


BOOK REVIEW: THE CONFIDENCE TRAP: A History of Democracy in Crisisfrom World War I to the Present, David Runciman, xxiii and 326 pp.plus Acknowledgements, Notes, Bibliography and Index; Princeton

University Press, 2013.

By F. L. Wiswall, Jr.This departs from the self-imposed tradition of keepingto books dealing directly with maritime matters in someform; the excuse is that occasionally a book appearshaving such fundamental importance it would besimply wrong not to share information about it in apublished review.

The Confidence Trap is oddly a ‘page-turner’ – a fasci-nating work one hesitates to put down. This bookchallenges almost universally accepted thoughtsconcerning democracy and history, and once read itmay change how one thinks about future developmentof the western world. Though principally concernedwith the period of the First World War to the presentand worldwide in scope, it is largely focused uponAmerican democracy. So it begins with Alexis deTocqueville coming in 1831 from France to the UnitedStates in order to study its prisons, but becoming soquickly entrapped by the then-unique American politicalsystem that his quest ultimately resulted in the two-volume work Democracy in America.

What struck Tocqueville was not only the wholeheartedcommitment of the populace to democracy, but theconviction that it led to unstoppable progress. In oneexample he visited some steamboat builders, havingbeen appalled by the fragility of these boats and nearlydrowning in one holed on the Ohio River. When heasked why the builders did not make stronger boats,the answer was that they would last too long, becausethe art in the trade was making daily progress; this,Tocqueville concluded, was the result of democratic‘fate’ – Americans were ‘‘impatient as well as patient,active as well as passive.’’ Moreover, citizens of democ-racies can and do make fundamental changes in theirsocieties, and Tocqueville astutely saw this as bothgood and bad. The objective of this book is to showhow and whether this is positive or negative in neteffect.

The first chapter of Runciman’s analysis begins in 1918,at the end of the First World War. Was the ‘‘Great War’’a triumph for democracy? For Britain and the United

States, and probably for France, the answer must beyes. Definitely not for Russia, where the situation wasripe for the end of a repressive Tsardom and the institu-tion of something far worse by Lenin and Stalin. ForGermany as the chief loser, Thomas Mann wasdismayed at the ‘‘Americanization’’ of his country, butof course the actions of the Allies in attempting to demi-litarize the ‘‘Hun’’ gave rise in a remarkably short timeto National Socialism and Hitler and likewise Fascismfilled the post-war gap in Mussolini’s Italy.

Here is found a key – in part quoting Tocqueville theauthor observes ‘‘nondemocratic regimes are good atachieving their short-term goals, but then they getstuck. They also get stuck with their leaders, whichcan be disastrous when things go wrong.’’ In 1933Hitler and Mussolini saw that democracy seemedbroadly in retreat, and planned to make the worldtheirs. By 1945 the democracies had changed, anddespite the braveness of the Soviets it was Americaand the British Empire who pivotally crushed theNazis, the Fascists, their European supporters and theEmpire of Japan.

In 1946 Winston Churchill declared in his WestminsterCollege speech that ‘‘From Stettin in the Baltic to Triestein the Adriatic, an iron curtain has descended across theContinent.’’ In 1947 he told the House of Commons‘‘democracy is the worst form of government exceptall those other forms that have been tried from time totime.’’ In 1946 and 1947 Churchill was right – for 33years the West and the Soviets struggled in the ‘ColdWar’ and it was the changes that democracy made whichled to the conclusion.

Runciman’s analysis of the 1962 Cuban missile crisisand contemporary events is very interesting, and itwould be a mistake to unveil it here. At the sameperiod the 1950’s Adenauer-French relationship blos-somed into the beginnings of the European Union; in2013 is the EU real democracy or not? By 1974 Amer-ica’s nightmare of the Vietnam War came to an end thatcan only be described as the culmination of what had


become a mistake of democracy; yet it was democracythat made restoration from this possible. In 1989 the endof the Cold War resembled the end of WWI – itsurprised the victors and offered both threats and oppor-tunities to democracy. In 2008 a new threat began, theemergence of a financial meltdown that moved acrossall boundaries. Could democracy deal effectively withthe war of economics? We do not know the answer yet.

The last chapter and an epilogue titled ‘‘The ConfidenceTrap’’ cements the case – democracy is messy beyondbelief. Terrible mistakes are made, but democracies canlearn from them and make both successful and unsuc-cessful barriers to repeats. It is in the volatile nature ofdemocracy that ways out of problems are found thatwould be impossible for absolutist regimes.

This is a difficult book to review because it is so unlikeanything one has ever read. It sounds terribly complexand there are many facts and more importantlyconflicting opinions laid out, but the work begins tomake sense fairly quickly and it then becomes enthral-ling. It is a fundamentally thought-changing experience.

Finally, there is after all a maritime connection to thisreview. Though nowhere hinted at in the book, theauthor is a direct descendant of Walter Runciman,who ran away to sea in 1858, became a master

mariner at 21, wrote several books based mainly onhis voyages, helped to found the Moor Line, Ltd.,became a Member of Parliament and ultimately aPeer of the Realm. Lord Walter Runciman helpedmaterially in bringing regional shipowner ‘‘clubs’’together into a central organization, which is today theUnited Kingdom Chamber of Shipping. It is also ofinterest to note that the author is a great nephew ofthe late Sir Steven Runciman, who was a foremostmedieval historian at Cambridge and author of the3-volume History of the Crusades – an expositionthat present times might make it worth referring toonce more.

The Hon. David Walter Runciman is in fact heir to thefamily’s Viscountcy, ‘‘Runciman of Doxford’’. All thatis surely of no matter to this Professor of PoliticalTheory at Cambridge. He has done in The Confidence

Trap a work of immense value, which every personcontemplating the future of democracy should read.

*****

F. L. Wiswall, Jr., J.D. (Cornell); Ph.D.jur.

(Cambridge); Fellow of the Royal Historical Society

and contributor to the Oxford Encyclopedia of Mari-

time History; Professor at the IMO Institute of

International Maritime Law.


TABLE OF CASES

Atlantic Soundings v. Townsend, 557 U.S. 404

(2009) ................................................................. 77

Barlow v. Liberty Maritime Corp., Docket No. 13-0254-

cv, 2014 U.S. App. LEXIS 4070 (2d Cir. N.Y. Mar. 4,

2014). .................................................................. 77

Carabell v. USACE, 391 F.3d 704 (6th Cir. 2004) 59

Catanzaro v. Northeast Remsco Construction, Inc.,

Civil Action No. 11-cv-4903(RRM)(VVP), 2014

U.S. Dist. LEXIS 40405 (E.D.N.Y. March 26,

2014). .................................................................. 70

Chenevert v. Travelers Indemnity Co., 2014 U.S. App.

LEXIS 4337 (5th Cir. Miss. Mar. 7, 2014). ....... 71

Cracchiolo v. Eastern Fisheries, Inc., 740 F.3d 64 (1st

Cir. 2014). .......................................................... 71

Flame S.A. v Indus. Carriers, Inc., 2014 U.S. Dist.

LEXIS 3312 (E.D. Va. Jan. 10, 2014). .............. 69

Furie Operating Alaska, LLC v. U.S. Department of

Homeland Security, 2014 U.S. Dist. LEXIS 40916

(D. Alaska March 27, 2014). ............................. 73

Green v. Ross Island Sand & Gravel Co., 2014 U.S.

Dist. LEXIS 9194 (N.D. Cal. Jan. 23, 2014). .... 75

Groton Pacific Carriers, Inc. v. Jackson, 2014 Ala.

LEXIS 20 (Ala. Feb. 14, 2014). ......................... 72

Hayes v. County of Nassau, No. 13-1074, 2014 U.S.

App. LEXIS 2315 (2d Cir. Feb. 7, 2014). ......... 69

Head v. Kommandit-Gesellschaft MS San Alvaro Offen

Reederei GmbH & Co., 2014 U.S. Dist. LEXIS 22417

(W.D. Wash. Feb. 21, 2014). ............................. 78

In re Bell, 2014 U.S. Dist. LEXIS 4077 (W.D. Wash.

Jan. 13, 2014). .................................................... 75

In re Colombia Leasing, L.L.C., 2014 U.S. Dist. LEXIS

22083 (E.D. Va. Feb. 20, 2014). ....................... 74

In re Moran Towing Corp., Civil Action No. 10-4844,

2013 U.S. Dist. LEXIS 161482 (E.D.N.Y. Nov. 12,

2013). .................................................................. 76

Marks v. United States, 430 U.S. 188 (1977) ........ 60

McBride v. Estis Well Serv., L.L.C., 731 F.3d 505 (5th

Cir. 2013). .......................................................... 77

N. Cal. River Watch v. City of Healdsberg, 457 F.3d

1023, 1029 (9th Cir. 2006) ................................ 60

Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th

Cir. 2014). .......................................................... 72

OOO ‘‘Garant-S’’ v. Empire United Lines, Co., Civil

Action No. 13-1685, 2014 US. App. LEXIS 5461 (2d

Cir. Feb. 5, 2014). .............................................. 70

Pipia v. Turner Constr. Co., 114 A.D.3d 424, 980

N.Y.S.2d 392 (N.Y. App. 1st Dep’t 2014). ......... 74

Rapanos v. United States & Carabell v. United States

(Dec. 2, 2008) ..................................................... 59

Rysz v. Norwalk Marine Contractors, Inc., Civil Action

No. FBTCV096004382S, 2014 Conn. Super. LEXIS

207 (Conn. Super. Ct. Jan. 29, 2014). ............... 77

Sackett v. EPA, 132 S. Ct. 1369, 1375 (2012) ...... 58

Solid Waste Agency of Northern Cook County v. United

States Army Corps of Engineers, 531 U.S. 159, 121 S.

Ct. 675, 148 L. Ed 2d 576 (2001) ...................... 59

U.S. v. Riverside Bayview Homes, 474 U.S. 121

(1985) ................................................................. 58

United States v. Bailey, 571 F.3d 791 (8th Cir.

2009) ................................................................... 60

United States v. Deaton, 332 F.3d 698 (4th Cir.

2003) ................................................................... 59

United States v. Donovan, 661 F.3d 174 (3d Cir.

2011) ................................................................... 60

United States v. Gerke Excavating, Inc., 412 F.3d 804

(7th Cir. 2005) .............................................. 59, 60


United States v. Johnson, 467 F.3d 56 (1st Cir.

2006) ................................................................... 60

United States v. Riverside Bayview Homes, 474 U.S.

121 (1985) .......................................................... 58

United States v. Robison, 505 F.3d 1208 (11th Cir.

2007) ................................................................... 60

Venable v. Louisiana Workers Compensation Corp.,

740 F.3d 937 (5th Cir. 2013). ........................... 70

Wu Tien Li-Shou v United States, 2014 U.S. Dist. LEXIS

11970 (D. Md. Jan. 31, 2014). .......................... 76


Benedict’s Maritime Bulletin Editorial BoardContact Information

Joshua S. Force(Editor-in-Chief)

Sher Garner Cahill Richter Klein & Hilbert, L.L.C.New Orleans, LA

[email protected]

Robert J. Zapf(Managing Editor)Duane Morris, LLPLos Angeles, CA

[email protected]

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Dr. James C. Kraska(Maritime Security; Legal Regime of the Arctic)Duke University Marine Laboratory135 Duke Marine Lab RoadBeaufort, NC [email protected]

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Reporters/Associate EditorsContact Information

Lizabeth L. Burrell(MLA Affairs, Uniformity)Curtis, Mallet-Prevost, Colt & Mosle LLPNew York, [email protected]

Edward V. Cattell, Jr.(Rivers and Towage, Pilotage and Limitation)Hollstein Keating Cattell Johnson & Goldstein, P.C.Philadelphia, [email protected]

Matthew A. Marion(Environmental)Marion PartnersRowayton, CT

Marc Marling(Technology)Williams MullenNorfolk, VA

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Michael B. McCauley(Recreational Boating)Palmer Biezup & Henderson, LLP,Philadelphia, PA

JoAnne Zawitoski(Stevedoring, Terminals and Ports)Semmes Bowen & SemmesBaltimore, [email protected]

Graydon S. Staring(Editor Emeritus, American Maritime Cases)Past President, Maritime Law Association ofthe United StatesRetired from Lillick and Charles LLP andNixon Peabody LLP, San [email protected]

ColumnistsContact Information

Window on Washington

Bryant E. GardnerWinston & Strawn LLPWashington, [email protected]


Contributing Authors to this IssueContact Information

Kevin J. Thornton

Cooper Levenson, P.A., Atlantic City, NJ

Lineka N. Quijano

Prevention Law Division of the Office of

Maritime and International Law at Coast

Guard Headquarters in Washington, D.C.

Rebekah Tanti-Dougall

Advocates, Tanti-Dougall & Associates,

Valletta, Malta

Ilker Basaran

Long Term Research Scholar at the University

of Texas Law School


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