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.
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”
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 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
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.
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.
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.
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.
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”