Welcome to the summer 2017 edition of Mainbrace. To say we live in interesting times would be a serious understatement. We read headlines on a daily basis that challenge traditionally accepted notions of how governments operate, creating uncertainty as to how they will do so in the future. When you couple that uncertainty with the stiff headwinds faced by the maritime industry in recent years—vessel overcapacity in certain sectors, tight margins, cutbacks in the offshore-service sector, and the promulgation of new and expensive ballast water and air emissions regulatory regimes—the pressure to operate in a fiscally sound, fundamentally safe, and legally responsible manner has never been greater.
Note from the Maritime Industry Team
Mainbrace | June 2017 (No. 3)
A recent state court decision highlights a division among state, district, and circuit courts on the availability of punitive damages for general maritime law claims. In a unanimous opinion, the Washington State Supreme Court in Tabingo v. American Triumph LLV ruled that punitive damages are recoverable by seaman with a claim for unseaworthiness where the employer acts recklessly.1 Plaintiff Allan Tabingo was working as a trainee deckhand on a fishing trawler when he was seriously injured by a hatch cover closing on his hand, resulting in the amputation of two fingers. Tabingo alleged the vessel was unseaworthy because the vessel operator was aware of the faulty control handle for at least two years, but failed to take any measure to repair the handle. He brought suit against the vessel owners and operators, claiming negligence under the Jones Act as well as a general maritime claim of unseaworthiness, for which he requested punitive damages. A unanimous Washington Supreme Court reversed the trial court’s decision to hold that punitive damages are an available remedy in a claim for unseaworthiness.
Despite the continuing turmoil in Washington, D.C., over the Russian investigation into the Trump campaign, Congress is continuing to carry out its regular business of funding the federal government and authorizing agency programs. This article reviews the status of Coast Guard and related legislation, the FY 2017 final budget, and the proposed budget for FY 2018. Movement on Coast Guard, MARAD, and FMC Bills Both the Senate Commerce, Science and Transportation Committee (“Commerce Committee”) and the House Transportation and Infrastructure Committee (“T&I Committee”) have reported out bills to authorize the programs and operations of the U.S. Coast Guard. As of this writing, the bills have to go to their respective floors for final votes and then be reconciled in conference, but we expect a favorable outcome before the August recess. The Senate reported its bill (S. 1129) on May 18, 2017. The “Coast Guard Authorization Act of 2017” reauthorizes the activities of the Coast Guard for fiscal years 2018 and 2019, and contains the following significant provisions: 
Once thought to be a mere concept on the distant horizon, Unmanned Surface Vessels (“USVs”) are garnering increasing attention in the maritime industry as a means to cut costs, increase efficiency, and enhance safety. While some view USVs as more akin to futuristic science fiction, in reality, unmanned vessels are far from a novel concept—Nikola Tesla envisioned maritime drones in his November 8, 1898, patent for “Method of and apparatus for controlling mechanism of moving vessels or vehicles.” More recently, unmanned and autonomous technology has been developed in multiple industries, in particular in the subsea sector.
Question: I have to certify that my subsidiary that owns a vessel is not on the Arab League’s boycott blacklist. Can I do that?
Critical evidence, needed for the resolution of a dispute abroad, may be located in the United States. A key witness may reside in the United States, or important financial or other documentary evidence may be found only in this country. As we have discussed in previous articles,1 section 1782 of the United States Code (“section 1782”) offers a powerful tool for the collection of evidence in the United States for use in foreign legal proceedings. The statute allows either a foreign tribunal or a party to foreign proceedings to apply directly to a U.S. federal court for an order directing that a witness be examined or that evidence be disclosed for purposes of a foreign legal proceeding. The procedure is highly efficient; by taking advantage of section 1782, foreign litigants can often avoid and bypass the unwieldy and time-consuming requirements of letters rogatory or requests for evidence collection under the Hague Convention on the Collection of Evidence Abroad in Civil or Commercial Matters.
Background