Striding the Quarterdeck
Covering the most recent developments in national maritime jurisprudence and regulatory action, with a focus on issues that affect the inland and offshore industries in and around the Gulf of Mexico.
Murky waters swirl in the legal gulf that separates the absence of any “genuine dispute[s] as to any material fact” (in which case summary judgment is appropriate); and the presence of non-speculative “evidence [on which] a reasonable jury could return a verdict for the nonmoving party” (in which case summary judgment is not appropriate and the case must be fully tried to the fact finder). Two recent Fifth Circuit decisions, however, have plumbed these depths and charted a truer course (if only slightly) for navigating maritime summary judgments – although the two decisions resulted in diametrically opposed outcomes. read more…
Of modern standers-of-mast-heads we have but a lifeless set; mere stone, iron, and bronze men; who, though well capable of facing out a stiff gale, are still entirely incompetent to the business of singing out upon discovering any strange sight.
MOBY DICK, Chap. XXXV. “THE MAST-HEAD”
While driverless terrestrial vehicles have been a hot topic in the media (including on Baker Donelson’s Autonomous Vehicle Law blog) – from Tesla autopilot crashes to self-driving freight trucks – there has been an equally (if not more) anticipated and analyzed trend (some would say nascent revolution) in the less popularly publicized international maritime vessel operations: the rise of autonomous vessel technologies on the world’s oceans, rivers, and harbors. The term of art for these autonomous vessels – “maritime autonomous surface ships,” “MASS” for short – is ironically cognate with the very vessel “MASters” that autonomous technology would stand to replace.
The initial forays into the possibilities of autonomous vessel technologies began (more or less) with Rolls-Royce just into the second decade of the 2000s. Since then the concept has been put to numerous actual proofs by Rolls-Royce and others, and it is safe to say that it is now not a matter of if or even when MASS technology enters the market, but rather the extent to which MASS technology will disrupt traditional global shipping and vessel operations. And while the technical advances have been steadily developing in the hands of engineers, regulators have been attempting to keep pace with the legal ramifications of MASS. read more…
Palinurus Asleep at the Helm: USCG Warns of Need for Cyber-Ready Fleets in Wake of Recent Cybersecurity Breach
The slumberous snare
had scarce unbound [Palinurus’s] limbs, when, leaning o’er,
the god upon the waters flung him forth,
hands clutching still the helm and ship-rail torn,
and calling on his comrades, but in vain.!
…Yet were they drawing nigh
the sirens’ island-steep, where oft are seen
white, bleaching bones, and to the distant ear
the rocks roar harshly in perpetual foam.
Then of his drifting fleet and pilot gone
Aeneas was aware, and, taking helm,
steered through the midnight waves, with many a sigh
and, by his comrade’s pitiable death
sore-smitten, cried, “O, thou didst trust too far
fair skies and seas, and liest without a grave,
my Palinurus, in a land unknown!”
Vergil’s Aeneid, Book V, ll. 852 et seq.
These are Aeneas’s eulogizing words for Palinurus, the trusted helmsman of the lead Trojan vessel after the fall of Troy, who dozed off under the spell of the god of Sleep, let go the rudder of the ship, fell into the sea and drowned. This ancient mythic episode of omnipotent gods and fallible men serves as a poignant metaphor for the ultra-modern automated “smart” systems that, despite their power, remain as fallible as the men and women using them. And the maritime setting of Palinurus’s slumbering at the rudder is an ancient analog for the United States Coast Guard’s July 8, 2019 Marine Safety Alert entitled, “Cyber Incident Exposes Potential Vulnerabilities Onboard Commercial Vessels” (Cyber MSA) regarding a February 2019 “significant cyber incident impacting their shipboard network” aboard an ocean-going commercial vessel inbound to the port of New Jersey. read more…
“Yet Now, Federated Along One Keel” – United States Supreme Court Resolves Fifth/Ninth Circuit Split, Unequivocally Rejects Punitive Damages For General Maritime Law Unseaworthiness Claims
Yet now, federated along one keel…
MOBY DICK, HERMAN MELVILLE, Chap. XXVII
In the wake of Justice Thomas’s landmark decision in Atlantic Sounding Co. v. Townsend, American maritime jurisprudence was left with its “keeled hulls split at sea” due to a circuit split between the Fifth and Ninth Circuits over a simple but hugely important question: do seamen have a claim for punitive damages under the general maritime law cause of action for unseaworthiness? This question was the fulcrum for leverage in personal injury claims across the country: after Townsend maritime personal injury plaintiffs – pursuing the “white whale” threat of exponentially large exemplary/punitive damage awards – routinely began to include punitive damage claims in their petitions/complaints, usually linked to an unseaworthiness or GML negligence claim, ostensibly as a bargaining chip in settlement/case-valuation negotiations. read more…
ALERT: Supreme Court Rejects Seamen’s Claims for Punitive Damages Under General Maritime Law, Resolving Fifth and Ninth Circuit Split
The Supreme Court of the United States, on writ of certiorari in Dutra Group v. Christopher Batterton, 588 U.S. ___ (2019), has resolved a circuit split between the Fifth and Ninth Circuits regarding whether a seaman can recover punitive damages for unseaworthiness claims under general maritime law (see previous blog post discussing the split here). The Supreme Court held that a seaman cannot recover punitive damages for unseaworthiness claims, as this would provide “novel” remedies inconsistent with congressional policy as iterated in the Jones Act (as explained in Miles v. Apex Marine Corp., 498 U.S. 19 (1990)), would frustrate uniformity under the Jones Act and general maritime law, and would be inconsistent with the Supreme Court’s prior decision in Miles. read more…
Return to the Tidelands – Supreme Court Upholds Application of Federal Law on the Outer Continental Shelf in the Face of Parallel State Law
In a rare decision applying the Outer Continental Shelf Lands Act (43 U.S.C. §1331 et seq.(“OCSLA”), the United States Supreme Court has clarified, re-affirmed and perhaps (given the breadth of its opinion) expanded the exclusive application of federal law on the OCS. This decision comes in the midst of a flurry of maritime/maritime-related writ grants in the current term (Newton, Batterton, Thacker, Devries, and ATHOS I) all of which we will be tracking here on Striding the Quarterdeck. This decision may upend decades of jurisprudence in the Fifth Circuit regarding contractual indemnity. read more…
Despite perennial complaints from lower and appellate courts that the Limitation of Liability Act (“LLA,” 46 U.S.C. §§30501 et seq.) is “now hopelessly anachronistic” (Cont’l Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1376 (5th Cir. 1983) and that “such a law no longer makes sense” Delta Country Ventures, Inc. v. Magana, 986 F.2d 1260, 1266–67 (9th Cir. 1993), the LLA continues to be a powerful procedural and (when successfully invoked) substantive tool for shipowners. This is despite the fact that virtually every high profile maritime casualty (at least as to limitable personal injury/property claims, as opposed to non-limitable pollution issues) raises public controversy and calls for legislative repeal/restrictions of the century-and-a-half old “relic of the clipper ship era in which it was launched” – from the sinking of the TITANIC all the way to the DEEPWATER HORIZON disaster (which prompted an eventually abandoned bill to repeal the LLA), the tragic loss of the EL FARO and the recent catastrophic duckboat incident in Missouri that killed 17. read more…
Dippin’ Dots, Quilt Museums and the Intricacies of Maritime Federal Venue – Southern District of Texas Considers Forum Selection Clauses under FELA and the Jones Act
Many folks across this great country might not be familiar with Paducah, Kentucky. As a public service, the Court provides some basic background information about this relatively small community first settled as Perkin in 1821 and renamed Paducah in 1827 by William Clark (of the famed Lewis & Clark expedition). Paducah is located in the far western part of Kentucky at the confluence of the Tennessee and Ohio rivers, halfway between St. Louis and Nashville. Approximately 25,000 men, women, and children reside in Paducah. Designated by UNESCO as a Creative City of Crafts and Folk Art, the city is home of the National Quilt Museum and, as the local convention and visitor’s bureau likes to boast, “a haven for creative thinkers and doers who find inspiration here.” There is a laundry list of famous people who grew up in Paducah, including Alben W. Barkley (the 35th Vice President of the United States during the presidency of Harry S. Truman), John Scopes (the teacher accused for teaching the theory of evolution in the legendary Scopes trial) and PGA golfer Kenny Perry. Saving the best for last, Paducah is also the corporate headquarters for Dippin’ Dots, a favorite treat of this judge and his family.
With this opening paean to Paducah, the U.S. District Court for the Southern District of Texas addressed an intriguing legal question in In the matter of Complaint of Marquette Transportation Company Gulf-Inland LLC: can a limitation of liability action in federal court, filed in response to a Jones Act claim in state court, be transferred to a different venue than the pending state court action under a contractually bargained for forum-selection clause? See 2018 WL 4443141, 3:18-cv-00074 (S.D. Tex. 2018). read more…
Unsmooth “Operator” – Fifth Circuit Holds Tug Owner Liable Under OPA as “Operator” of Non-Owned “Dumb” Oil Barge
In an important decision of first impression construing the Oil Pollution Act of 1990 (“OPA,” 33 U.S.C. §§2701 et seq.), the Fifth Circuit has held the owner and operator (“Nature’s Way”) of a “dominant mind” tugboat liable under OPA as the “responsible party” for a spill emanating from a non-self-propelled “dumb” tank barge in its tow, even though the barge was owned by a third party (Third Coast Towing, “TCT”). Specifically, the Fifth Circuit conducted a res nova interpretation and application of 33 U.S.C. §2702(a), which provides that a designated “responsible party” shall be strictly liable, in the first instance and even without fault, for cleanup/removal costs and damages resulting from an oil spill; and further defines “responsible party” with respect to a “vessel” as “any person owning, operating or demise chartering the vessel.” read more…
Come Well or High-Water – Fifth Circuit Confirms Maritime Contract Law Applies to Decommissioning of Platforms in Navigable Waters
With the eddies still spinning in the wheelwash of its landmark en banc opinion in In Re Larry Doiron, Inc., the Fifth Circuit in In re Crescent Energy Servs., L.L.C., 2018 WL 3420665 (5th Cir. July 13, 2018), — F.3d —, has quickly answered one of the application-specific questions left open by Doiron, as noted previously on Striding the Quarterdeck’s discussion of Doiron: is a contract to decommission an offshore platform a maritime contract or a contract governed by state law? Specifically, under the newly launched Doiron analysis, courts must consider two factors in determining whether a contract is maritime: (1) whether “the contract [is] one to provide services to facilitate the drilling or production of oil and gas on navigable waters”; and if so, (2) whether it “provide[s] or [whether] the parties expect that a vessel will play a substantial role in the completion of the contract.” Under the first factor, the issue of whether deconstructing a well/platform can be deemed “services to facilitate the drilling or production” of the well remained to be decided after Doiron. read more…