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. (more…)
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. (more…)
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. (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. (more…)
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.” (more…)