The United States Coast Guard (USCG) Marine Safety and Security Council issued the winter issue of its quarterly magazine Proceedings: Journal of Safety and Security at Sea in February, providing insights to the long and short-term outlook regarding the regulatory environment on the United States Outer Continental Shelf (OCS).  In particular, the USCG noted the rapid technological advances that have advanced OCS capabilities into deeper and deeper offshore waters, outstripping the scope and content of existing regulations.  This issue of the Proceedings journal is an informative read for anyone with operations on the OCS, but a few of the more prominent regulatory issues and/or new regulatory initiatives are highlighted below: (more…)

In a Summary Order dated March 13, 2014, the United States Court of Appeals for Second Circuit affirmed a summary judgment of the Southern District of New York, which ruled in favor of a vessel owner based on data of the ship’s Simplified Voyage Data Recorder (“SVDR”) in a lawsuit by the owner of a submarine cable damaged by the ship’s anchor. Optical Communications Group v. MV Ambassador, No. 13-1544 (2nd Cir., March 13, 2014). (more…)

As detailed in numerous prior posts (most recently regarding the Coronel decision), a series of decisions allowing removal of general maritime law (GML) claims by seamen, even when combined with otherwise statutorily non-removable Jones Act claims, has been developing among the district courts within the Fifth Circuit.  While Coronelprovided the first backlash against this historic, albeit nascent, shift in admiralty practice, the Coronel analysis was rather complex and esoteric. (more…)

As reported in two prior posts (The Removal of the Ancient Mariner – The Developing Jurisprudence Allowing Removal of General Maritime Law Claims under the Recent Amendments to 28 U.S.C. §1441(b) and The Removal of the Ancient Mariner – Reprising a Sea-Change in Admiralty Law) district courts within the Fifth Circuit have virtually unanimously adopted the reasoning of Judge Gray Miller’s decision in Ryan v. Hercules Offshore, Inc., 2013 WL 1967315 (S.D. Tex. May 13, 2013), which overturned the half-century-old, formerly hornbook rule that general maritime law (GML) claims are non-removable and allowed removal of such claims under the recent amendments to 28 U.S.C. §1441.  As the rule of Hercules continues to gain a broader foothold on the Gulf of Mexico, however, a sister court in the Pacific Northwest has rejected the sea change. (more…)

In a ruling that will likely send shockwaves through the maritime industry and be considered a landmark decision in years to come, a divided panel of the Fifth Circuit in Naquin v. Elevating Boats, L.L.C., — F.3d —,No. 12-31258 (5th Cir. Mar. 10, 2014) (Davis and Milazzo, J.; Jones, J. dissenting) upheld a jury’s determination that a vessel repair supervisor at a shipyard in Houma, Louisiana qualified as a Jones Act seaman and was entitled to recover money damages under the Jones Act, to the exclusion of the compensation regime under the Longshore Harbor Workers Compensation Act (“LHWCA”). This decision may have an enormous impact on shipyards, the operators whose vessels they service, and the insurers covering them. (more…)

After making a splash in October of 2013 with a landmark ruling in McBride v. Estis Well Service, L.L.C., 731 F.3d 505, 517 (5th Cir. 2013) “that punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness” – which departed from the Fifth Circuit’s prior en banc opinion in Guevara v. Mar. Overseas Corp., 59 F.3d 1496, (5th Cir. 1995) – the Fifth Circuit has decided to revisit en banc the issue of punitive damages for unseaworthiness.  The panel decision in Estis, following the analytical path of the United States Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2007) (an equally historic opinion that abrogated Guevara, and least in part, and validated a seaman’s punitive damage claim for an employer’s willful failure to pay maintenance and cure), charted the history of punitive damages (or their rough analog) in maritime jurisprudence, and held that such damages are available for the seaman’s ancient general maritime law remedy for breach of the warranty of unseaworthiness.  In particular, the Estis court held that punitive damages forgeneral maritime law unseaworthiness are available notwithstanding that punitive damages are expressly barred in the context of a seaman’s closely related – but technically distinct – statutory remedy for negligence under the Jones Act and/or the Death on the High Seas Act (DOHSA). (more…)

Full fathom five thy father lies,
Of his bones are coral made,
Those are pearls that were his eyes,
Nothing of him that doth fade,
But doth suffer a sea-change,
into something rich and strange,
Sea-nymphs hourly ring his knell,
Ding-dong.
Hark! now I hear them, ding-dong, bell.

William Shakespeare, The Tempest

As originally discussed in a recent post on Striding the Quarterdeck (December 9, 2013), amendments to 28 U.S.C. §1441 have effected a sea-change in admiralty procedure by ostensibly allowing removal of general maritime law (GML) claims on a federal question basis, notwithstanding the Savings to Suitors Clause and the long line of jurisprudence under Romero espousing the proposition that GML claims do not “arise under” the Constitution or law of the United States.  The jurisprudential trend affirming removal of GML claims under the revised version of §1441, which began with Judge Gray Miller’s decision in Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D. Tex. 2013), has continued, suggesting that this sea-change may in fact ring the knell of the old Romero non-removability rule. (more…)

In a marine builder’s risk policy coverage dispute decided under Washington state law, the United States Court of Appeals for the Ninth Circuit reversed and remanded a grant of summary judgment for Underwriters. Alaska Village Electric Cooperative, Inc. v. Zurich American Insurance Company, et al, 2014 WL 185778 (Jan. 17, 2014) (unpublished).  Lead Underwriter Zurich American Insurance Company and four other subscribing underwriters (“Underwriters”) jointly issued the builder’s risk policy in connection with the construction of two barges. The policy is a standard form American Institute of Marine Underwriters (“AIMU”) policy but in this case did not include Addendum No. 2, a standard addendum that expressly excludes coverage for the cost to repair faulty workmanship. (more…)

On September 10th of this year, the President and CEO of the American Waterways Operators (AWO) appeared before the House Subcommittee on Coast Guard and Maritime Transportation and called for finalization by late 2013 or early 2014 of the long-languishing Subchapter M regulations relating to inspection of uninspected towing vessels (UTVs). http://transportation.house.gov/sites/republicans.transportation.house.gov/files/documents/2013-09-10-Allegretti.pdf. Thus, after more than a decade of regulatory delays and industry uncertainty, it appears that UTV operators can now bank (very literally) on the reality of mandatory Subchapter M compliance in the very near future. (more…)

In a 106-page Notice of Proposed Rulemaking issued Monday, January 13, 2014, the United States Coast Guard (USCG) has undertaken a wide-ranging overhaul of the standards for fire protection, detection and extinguishment equipment aboard inspected and uninspected vessels, mobile offshore drilling units (MODUs), deepwater ports, and Outer Continental Shelf (OCS) facilities. This comprehensive and expansive overhaul is intended to “harmonize [USCG] regulations with appropriate national and international consensus standards; address advances in fire protection technologies and standards; update [USCG] approval processes for fire detection and alarm systems; and revise [USCG] regulations for other types of equipment or components.” 79 Fed. Reg. 2254, 2254 (Jan. 13, 2014). The proposed regulations span several chapters and subparts of two different C.F.R. titles – namely Title 46 (covering the USCG’s more historic shipping purview with respect to vessels) and Title 33 (covering the USCG’s hybrid/share authority over certain units/facilities/vessels engaged in operations on the OCS). (more…)