Thomas H. Belknap, Jr. and Douglas J. Shoemaker
When parties negotiate and draft maritime contracts, they inevitably consider whether, and if so, how, to define the process for dispute resolution. While arbitration is practically universal in “blue-water” charterparties, it is also common in other maritime agreements, such as vessel sale, construction and repair, supplies, commodity sale, towing, stevedoring, and terminal agreements, among many others. Even though some parties and lawyers generally oppose arbitration, the “pros” often outweigh the “cons,” and most specific concerns can be resolved by careful drafting of the arbitration provision. As stated by the U.S. Supreme Court, arbitration “is a matter of consent, not coercion.” Stolt–Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 681 (2010). Parties may structure their arbitration agreements as they see fit.
Efficiency and Flexibility
Perhaps the most important consideration for any commercial party is that an arbitration is (or should be) more efficient than litigation. Arbitrations tend to be quicker and less costly. While it is true that the parties must pay for the arbitrators’ time, this is offset by the streamlined and more flexible process. Unlike some of the broader international arbitration organizations (such as the International Chamber of Commerce and American Arbitration Association), the established maritime arbitration organizations (e.g., the Society of Maritime Arbitrators (“SMA”) of New York and the Houston Maritime Arbitration Association (“HMAA”)) do not impose administrative fees. Continue reading “Arbitrating Maritime Disputes”
David G. Meyer
Whether a particular contract is “maritime” is a legal question that can often arise in disputes subject to potential adjudication in the U.S. court system. There can be several reasons for this. One concerns determining whether a civil action can be heard in federal court versus state court. If a maritime contract is at issue, a case might be litigated in federal instead of state courts, and/or a plaintiff might have the ability to file an action in federal court for a pre-judgment arrest or attachment of a vessel or other property of a defendant.
While a seemingly simple question, courts and litigants have long struggled with assessing whether or not a particular contract is a maritime one. In 2004, in an effort to provide clarity and guidance on the issue, the U.S. Supreme Court issued its decision in Norfolk v. Kirby in which it held:
“To ascertain whether a contract is a maritime one, we cannot look to whether a ship or other vessel was involved in the dispute, as we would in a putative maritime tort case. Nor can we simply look to the place of the contract’s formation or performance. Instead, the answer depends upon … the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions.1”
The Fifth Circuit Court of Appeals’ Test for Assessing Whether a Contract Is Maritime
The U.S. Fifth Circuit Court of Appeals’ jurisdiction includes the states that generate the majority of oil and gas drilling, exploration, and production activities in the United States’ inshore and offshore waters off the Gulf of Mexico (Texas, Louisiana, and, to a lesser extent, Mississippi and Alabama). It is common practice in that industry for service contracts to contain provisions assigning defense, indemnity, and additional insured obligations between the contracting parties for casualties that occur in the course of work under the contract. Continue reading “Gulf Coast Update: Applying Doiron for Assessing Maritime Contracts Outside the Oilfield Services Arena”
Thomas H. Belknap, Jr.
When we speak of maritime arbitral awards in the United States, we could mean one of three kinds: 1) “domestic” awards, 2) “nondomestic” awards, or 3) “foreign” awards. This distinction is important, because it controls what law applies to matters of recognition and enforcement. To understand the source and importance of these distinctions, we must start with the Federal Arbitration Act (“FAA”).
The FAA and the New York Convention
The FAA is in three chapters. Chapter 1 is titled “General Provisions,” and it applies generally except where there is a conflict with a provision of one of the other applicable chapters. Chapter 2 is titled “Convention on the Recognition and Enforcement of Foreign Arbitral Awards” and is the implementing legislation for the international treaty of the same name (also called the “New York Convention”), to which the United States is a party.
Chapter 1 of the FAA expressly defines “maritime transactions” to mean “charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies, furnished vessels or repairs to vessels, collisions, or any other matters in foreign commerce which, if the subject of controversy, would be embraced within admiralty jurisdiction.” Section 2 of the FAA states that a “written” arbitration agreement “in any maritime transaction or a contract evidencing a transaction involving commerce…shall be valid, irrevocable, and enforceable” on the same basis as any other contract term. Continue reading “Enforcing and Challenging Maritime Arbitral Awards in the United States”
Noe S. Hamra
In the United States, state and federal courts operate on a dual track, with the difference that state courts are courts of “general jurisdiction” (i.e., hearing all cases not specifically reserved to federal courts), while federal courts are courts of “limited jurisdiction” (i.e., hearing cases involving “diversity of citizenship” or raising a “federal question”). In some cases, however, a defendant found in state court can transfer the case to federal court (also known as “removal”).
Until recently, it was well established that general maritime claims could not be removed from state court based solely on the federal court’s admiralty jurisdiction under 28 U.S.C. § 1333. Section 1333(1), also known as the saving-to-suitors clause, provides “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled….” Continue reading “Removal of Maritime Claims: Is There Still a Conflict?”
Mainbrace | March 2018 (No.1)
W. Cameron Beard and Lauren B. Wilgus
As discussed in prior issues of Mainbrace, parties to foreign legal proceedings can collect evidence in the United States for use abroad by invoking a U.S. statute, 28 U.S.C. § 1782 (“section 1782”). Section 1782 is a powerful tool, and allows either foreign courts or foreign litigants to seek orders directly from U.S. federal district courts for the taking of testimony or the disclosure of documents in this country. Notably, litigants can often obtain section 1782 relief quickly and without undue burden or delay, because the statute can be invoked independently of, and does not require prior resort to, the Hague Evidence Convention.
Various disputes regarding the proper scope of section 1782 have arisen over the years. Some of the major disputes have been conclusively resolved. For example, in 2004 the U.S. Supreme Court resolved a significant conflict among the lower federal courts, and ruled that under section 1782 a foreign party may obtain broad discovery of the kind generally available in U.S. litigation, even if such discovery would not be allowed under the laws of the foreign forum where litigation is pending. Other vexing issues, however, remain unresolved. For example, the question of whether section 1782 may be used for the collection of evidence for purely private arbitrations remains unsettled. We have discussed these and other issues previously. Continue reading “A Bump in the Road for the Collection of Evidence for Use in Foreign Legal Proceedings”
Mainbrace | March 2018 (No.1)
Rick Antonoff, Michael B. Schaedle, Bryan J. Hall, and Matthew E. Kaslow
In a pair of recent opinions from the U.S. Bankruptcy Court for the Southern District of New York, two judges took varying approaches to the issues of 1) their ability to assert personal jurisdiction over foreign defendants, and 2) application of U.S. laws to transactions that occur, at least in part, outside of the United States.
The first opinion, from Judge Sean H. Lane, denied the defendants’ motion to dismiss a lawsuit seeking to avoid and recover money initially transferred to correspondent bank accounts in New York designated by the defendants, before being further transferred outside of the United States to complete transactions under investment agreement executed outside of the United States and governed by foreign law. On remand after a district judge ruled that the defendants’ use of correspondent banks in the United States was sufficient for the bankruptcy court to have personal jurisdiction over them, Judge Lane held that the doctrine of international comity and the presumption against extraterritoriality did not prevent application of U.S. law to avoid transfers under the Bankruptcy Code. The second opinion, from Judge James L. Garrity, Jr., dismissed a bankruptcy trustee’s claims to avoid and recover transfers under U.S. bankruptcy law that occurred entirely outside the territory of the United States. Continue reading “NY Bankruptcy Courts Grapple with Territorial Limits”
On December 18, 2017, the U.S. Court of Appeals for the Fifth Circuit dismissed the U.S. government’s appeal regarding a Bureau of Safety and Environmental Enforcement (“BSEE”) Notification of Incident of Noncompliance (“INC”) civil penalty issued against an oilfield contractor. This development brings closure to the long-standing question of whether BSEE has authority to enforce civil and criminal penalties against offshore contractors.
Continue reading “The Courts Strike Down Oilfield Contractor Penalty Liabilities”