A Note from the Chair

Mainbrace | March 2018 (No.1)

John D. Kimball

As CMA Shipping 2018 convenes, we are more than a year into the Trump administra­tion and it is fair to say that the U.S. regulatory framework for the shipping industry has seen some changes. In this issue of Mainbrace, we drill down on relevant developments in “Trump and the Maritime Industry: A Look Back and Forward.” Additionally, we offer an update on the Jones Act, an important subject that continues to be a focal point for our industry, as well as offer a report on developments concerning the vexing topic of ballast water management.

In our law practice, we have continued our long-term focus on maritime environmental matters and regularly advise our clients on compliance measures. Avoiding problems is a sure way to achieve profits and value, which is the key theme of this year’s CMA conference. Along those lines, this issue of Mainbrace includes suggested tools to strengthen environmental compliance. We also continue to encounter distressing mat­ters involving cybersecurity, and offer a cautionary tale for the shipping industry that we hope our readers will take time to consider, as well as provide a thoughtful analysis on recent varying decisions and approaches from New York bankruptcy courts regarding territorial limits of U.S. Bankruptcy Code avoidance powers.

Lastly, technology continues to develop in the shipping industry and we provide a look ahead to developments in the areas of Smart Ships, drones, and innovative collabora­tion. I expect we will be focusing on these topics for some years to come.

We hope you enjoy this issue of Mainbrace and always welcome your feedback and sug­gestions for future articles.

Ballast Water Management: The Conundrum Continues

Mainbrace | March 2018 (No.1)

Jeanne M. Grasso and Sean T. Pribyl

It has been about 15 months since the U.S. Coast Guard (“USCG”) type-approved the first three ballast water man­agement systems (“BWMSs”) in December 2016; three more BWMSs have been type approved since. Yet, ballast water management remains one of the most challenging and frustrating regulatory issues of the past decade because of inconsistencies in the international and domestic regimes. This is largely because the United States is not party to the International Maritime Organization’s Convention on the Control and Management of Ships’ Ballast Water and Sediments (the “Convention”). Rather, the United States regulates ballast water unilaterally under the National Invasive Species Act, which differs in certain ways from the Convention, especially when it comes to approving equip­ment to meet the standards set forth in the Convention and the USCG’s implementing regulations. As such, ballast water compliance challenges remain far from resolved. In some cases, for example, especially with respect to USCG compli­ance date extensions, the policies continue to evolve on an ad hoc basis, often causing confusion. Continue reading “Ballast Water Management: The Conundrum Continues”

After Flurry of Hurricane Waivers, Calls for Coastwise Changes Recede

Mainbrace | March 2018 (No.1)

Matthew J. Thomas, Jonathan K. Waldron, and Jeanne M. Grasso




In September 2017, in response to Hurricanes Harvey, Irma, and Maria, the Department of Homeland Security (“DHS”) issued a series of widely publicized waivers allowing carriage of cargo by non-coastwise qualified vessels in the Gulf region and to and from Puerto Rico. Public interest in the Jones Act spiked in mid-September, and some members of Congress introduced legislation for longer-term relief, particularly for Puerto Rico. Although controversial, the waivers for the most part seemed to achieve their intended goal, allowing for additional capacity to be available to move certain critical cargoes, particularly in the energy and other bulk sectors. As discussed in more detail below, the way the waivers were granted was rel­atively unique in the context of hurricanes, and some con­troversy arose with regard to the Puerto Rico waiver. The waivers, however, expired as planned with no significant fanfare or controversy, and broader political and public interest in the Jones Act sub­sided after a flurry of activity. Continue reading “After Flurry of Hurricane Waivers, Calls for Coastwise Changes Recede”

Blank Rome Maritime Attorney Spotlights

Mainbrace | March 2018 (No.1)

Jon Waldron Named Law360 2017 Transportation MVP

Blank Rome LLP is pleased to announce that Partner Jonathan K. Waldron was recognized as a Law360 2017 Transportation MVP.

In Jon’s MVP profile, Law360 praises his noteworthy accomplishments of helping to turn back a proposed regulation that would have banned most international vessels from serving U.S. offshore energy projects in the Gulf of Mexico; advising a shipyard faced with financial ruin in its effort to secure a Jones Act waiver; and representing developers of an offshore wind farm expected to be the largest in the United States upon completion.

During his MVP interview with Law360, Jon discusses his biggest case of the year, reflects on what brought him to maritime law and what he loves about his practice, and offers advice to young attorneys.

For more information on Jon’s Law360 2017 Transportation MVP profile and interview, please click here.

Keith Letourneau Named Co-Chair of Blank Rome’s Maritime and International Trade Practice Group

Blank Rome Partner Keith B. Letourneau was appointed to serve as co-chair of the Firm’s Maritime & International Trade practice group, effective January 1, 2018. Keith will collaborate with Partner John D. Kimball, Chair, and Partner Jeanne M. Grasso, Vice Chair, to lead the group.

The maritime group would also like to thank Jonathan K. Waldron for his recent role as practice co-chair, which concluded on December 31.

Blank Rome’s success is a direct reflection of the commitment, dedication, and hard work of our talented group of attorneys and professionals. We thank them for their ongoing contributions and service to the Firm.

Maritime Cybersecurity: Business E-Mail Compromise, a Cautionary Tale

Mainbrace | March 2018 (No.1)

Kate B. Belmont

Once upon a time, a shipping com­pany in a land far, far away fell victim to a sophisticated, yet common, e-mail scam that resulted in the loss of more than a million dollars. Due to a slight manipulation to a legitimate e-mail address, in the stroke of a key this company transferred millions of dollars into the account of a cyber-criminal. The story you are about to read is true, and should serve as a cautionary tale to all players in the maritime industry who rely on e-mail communications to conduct business and transfer funds on a regular basis.

A Cyber-Criminal Strikes Again

One day, in the not-so-distant past, a shipping company received an e-mail communication in the regular course of business from what appeared to be their counterparty, requesting the payment of an invoice. Continue reading “Maritime Cybersecurity: Business E-Mail Compromise, a Cautionary Tale”

Blank Rome Proudly Sponsors WISTA USA 2018 Annual General Meeting, Conference, and 20th Anniversary Gala

Mainbrace | March 2018 (No.1)

Blank Rome LLP is pleased to announce that the Firm is a sponsor of the WISTA USA 2018 Annual General Meeting, Conference, and 20th Anniversary Gala, taking place April 26–27, 2018, at the Parker New York hotel in New York City. “The Women Who Move The World” is the theme of this year’s conference, which will recognize the significant contributions of women in the maritime industry.

Kate B. Belmont, a senior associate in the Firm’s maritime group who serves as WISTA USA NY/NJ Chapter President, looks forward to welcoming attendees to this annual event, which is being hosted by the WISTA USA NY/NJ Chapter. Continue reading “Blank Rome Proudly Sponsors WISTA USA 2018 Annual General Meeting, Conference, and 20th Anniversary Gala”

Chambers Global 2018 Highly Ranks Blank Rome Shipping

Mainbrace | March 2018 (No.1)

Chambers Global 2018 recognized both Blank Rome LLP and John D. Kimball, Partner and Co-Chair of the Firm’s Maritime & International Trade practice group, as leaders in Shipping: Litigation—Global-wide. Continue readingChambers Global 2018 Highly Ranks Blank Rome Shipping”

Blank Rome Maritime Practice Ranked in U.S. News and World Report—Best Lawyers® 2018 “Best Law Firms”

Mainbrace | March 2018 (No.1)

Blank Rome LLP is pleased to announce that the Firm’s maritime practice was highly ranked both nationally and regionally in the U.S. News & World Report—Best Lawyers® 2018 “Best Law Firms” survey.

Blank Rome’s industries and services recognized in this year’s survey include: Continue reading “Blank Rome Maritime Practice Ranked in U.S. News and World Report—Best Lawyers® 2018 “Best Law Firms””

Three Technological Developments for the Maritime Industry to Watch in 2018

Mainbrace | March 2018 (No.1)

Sean T. Pribyl

Emerging technologies continue to permeate various sectors of the maritime industry. As with the advent of steam power, electrical energy, and computerized automation in prior industrial revolutions, the maritime industry is experiencing advances in cyber-physical systems and digitaliza­tion in this “fourth industrial

revolution.” Innovative technologies are transforming indus­tries across the globe, and in 2018, these three technological developments are worth watching: Smart Ships, drones, and innovative collabora­tion. Each will continue to impact maritime operations.

Smart Ships

In 2018, expect the marine sector to continue the trend towards advanced automation in so-called Smart Ships. We pre­viously outlined (see Mainbrace: June 2017, No. 3) the benefits, practical uses, and chal­lenges of Unmanned Surface Vessels (“USV”) or Maritime Autonomous Surface Ships (“MASS”) (hereafter “Smart Ships”), and how evolving ship intelligence will impact future vessels, shipyards, vendors, and design and engineering firms. Continue reading “Three Technological Developments for the Maritime Industry to Watch in 2018”

A Bump in the Road for the Collection of Evidence for Use in Foreign Legal Proceedings

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”

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