Category: Mainbrace | November 2019 (No. 3)

Note from the Editor

 

Thomas H. Belknap Jr.

As another year comes to a close, it is a perfect opportunity to evaluate the challenges and opportunities that we faced—and hopefully, embraced and overcame—as well as the goals we will set for the year ahead. Whether in the personal or professional realm, in the maritime industry or beyond, a good team is always greater than the sum of its parts.

In this final Mainbrace edition for 2019, we take a look at progressive topics involving the ever-developing legal, regulatory, and financial landscape for autonomous vessels, as well as current developments regarding climate change and renewable energy in the maritime industry.

We also revisit key discussions involving insolvency-related judgments under chapter 15; exercising maritime liens against cargo and sub-freights; effectively utilizing personal jurisdiction matters; and the reach and limitations of U.S. forfeiture law. All of these timely articles remind us that the maritime industry continues to evolve, grow, and change—sometimes slower than we’d like, and other times at lightning speed—and we must therefore continue to work together to understand and safely adapt to important shipping developments as they occur.

We also highlight some of the recent accomplishments, recognitions, and newsworthy developments both within our Maritime group and our Firm as a whole. We are incredibly proud of our Blank Rome family of attorneys and professionals for working diligently every day to ensure that our clients, colleagues, and communities are valued and appreciated, and we are humbled and honored to receive recognition from our clients, peers, and the legal industry in doing so.

May the final weeks of 2019 bring peace and prosperity to you and yours during the holiday season and new year celebrations. We look forward to continuing our quarterly Mainbrace editions in the year ahead and working with you in 2020 and beyond.

EDITOR, Mainbrace
THOMAS H. BELKNAP JR.
Partner
212.885.5270
tbelknap@blankrome.com

Exercising Maritime Liens against Cargo and Sub-Freights

Thomas H. Belknap Jr.

Vessel owners rarely carry cargo for their own account. More commonly by far, a vessel owner will charter its vessel to another party to carry their (or their sub-charterer’s) cargo. The contracts can vary widely—from voyage charters or contracts of affreightment to time charters and negotiable bills of lading (not to mention the more complex arrangements that one often sees for container cargos). But in most instances, vessel owners are in the business of transporting cargo on behalf of others and, all going well, of being paid to do so. This article is about one mechanism the vessel owner may use to ensure that it gets paid: the maritime lien against cargo.

The Impracticalities of Settled U.S. Maritime Law

It has been settled for over a century under U.S. maritime law that a shipowner has a maritime lien against cargo for charges incurred during the course of its carriage. As the Supreme Court stated in its 1866 decision in Bird of Paridise,1 “Ship-owners, unquestionably, as a general rule, have a lien upon the cargo for the freight, and consequently may retain the goods after the arrival of the ship at port of destination until the payment is made.” Traditionally, a maritime lien against cargo for freight and demurrage was considered a “possessory” lien, meaning that the lien is lost upon the delivery of the cargo to the consignee. To exercise its maritime lien, in other words, the vessel owner was expected to retain possession and control of the cargo until payment; if no payment was received, it needed to enforce its lien by maritime arrest while the cargo remained in its possession. Continue reading “Exercising Maritime Liens against Cargo and Sub-Freights”

Enforcement of an Insolvency-Related Judgment Does Not Require Recognition under Chapter 15

Michael B. Schaedle and Evan Jason Zucker

In EMA GARP Fund v. Banro Corporation1 (the “U.S. Action”), the U.S. District Court for the Southern District of New York dismissed a lawsuit filed by shareholders of an insolvent Canadian company, Banro Corporation (“Banro”), and its former CEO, finding that, under the principles of comity, an approved Canadian plan of reorganization released all claims against the defendants. In so ruling, the court summarily rejected a longstanding principle that recognition of a foreign bankruptcy proceeding under chapter 15 of the U.S. Bankruptcy Code is a prerequisite to the enforcement by a U.S. court of a judgment entered in a foreign bankruptcy proceeding.

The Banro Insolvency Proceeding

Banro was a public corporation headquartered in Canada and incorporated under Canadian law. Banro was involved in the exploration, development, and mining of gold in the Democratic Republic of the Congo. Banro faced liquidity challenges in 2017, eventually becoming insolvent and in need of additional liquidity to fund operations. On December 22, 2017, under the Canadian Companies’ Creditors Arrangement Act (“CCAA”), Canada’s equivalent to chapter 11 of the U.S. Bankruptcy Code, Banro initiated a restructuring proceeding (the “CCAA Proceeding”) in the Ontario Superior Court of Justice (Commercial List) (the “Canadian Court”). On that same date, trading in Banro’s securities on the New York Stock Exchange was suspended. Continue reading “Enforcement of an Insolvency-Related Judgment Does Not Require Recognition under Chapter 15”

Blank Rome Named to Forbes List of America’s Top Trusted Corporate Law Firms

Blank Rome was named to Forbes’ inaugural America’s Top Trusted Corporate Law Firms list. In particular, Forbes recognized our Firm’s work in Banking & Financial Services as our “most recommended practice area.” Blank Rome is proud to join this select group of leading law firms ranked in this year’s list.

According to Forbes, the magazine partnered with Statista, a market research company, to create its first-ever list of 243 top U.S. corporate law firms, ranging from firms well known in the corporate and legal worlds to boutique firms that focus on very specific branches of the law.

For more information, please visit Blank Rome Named to Forbes List of America’s Top Trusted Corporate Law Firms.

Blank Rome Highly Ranked in U.S. News–Best Lawyers® 2020 “Best Law Firms”

Blank Rome’s Maritime practice was ranked in the top national and regional tiers for Admiralty & Maritime Law in the 2020 “Best Law Firms” survey by U.S. News & World Report–Best Lawyers.® Overall, the Firm was nationally ranked in 30 practice areas and regionally ranked in 82 practice areas.

Blank Rome’s highly ranked services and industries in this year’s survey include:

SERVICES

INDUSTRIES

For more information, please visit Blank Rome Highly Ranked in U.S. News–Best Lawyers® 2020 “Best Law Firms.”

 

Blank Rome Highly Ranked in The American Lawyer’s 2019 Midlevel Associates Survey and Summer Associates Survey

2019 MIDLEVEL ASSOCIATES SURVEY

Blank Rome was notably ranked as one of the top five firms for midlevel associate satisfaction in The American Lawyer’s national 2019 Midlevel Associates Survey, and in the top 10 regionally for Los Angeles (#1), Philadelphia (#2), New York (#2), and Washington, D.C. (#8).

The annual survey asked third-, fourth-, and fifth-year associates to examine several aspects of job satisfaction, including compensation and benefits; training and guidance; relations with partners and other associates; interest in and satisfaction level with the work; the firm’s policy on billable hours; and management’s openness about firm strategies and partnership chances.

For more information, please visit Blank Rome Ranked Top 5 in The American Lawyer’s 2019 Midlevel Associates Survey.

2019 SUMMER ASSOCIATES SURVEY

Blank Rome was recognized as one of the top 10 law firms for summer associate satisfaction in The American Lawyer’s national 2019 Summer Associates Survey, and notably ranked regionally for Washington, D.C. (#1), Philadelphia (#4), and New York (#25).

The annual survey asked summer associates employed by the nation’s largest law firms to examine several aspects of job satisfaction, including quality of work, training and guidance, partner and associate interaction, and overall rating as a workplace.

For more information, please visit Blank Rome Highly Ranked in The American Lawyer’s 2019 Summer Associates Survey.

Blank Rome Wins Lloyd’s List 2019 Excellence in Maritime Law Award

Blank Rome was named the Excellence in Maritime Law award winner at the 2019 Lloyd’s List Americas Awards, held on September 25, 2019, in Houston, Texas. The coveted award recognizes “exemplary expertise and commitment to the shipping industry as well as innovation through which lawyers have played a crucial role in notable cases, restructuring, or dispute resolution.”

The Lloyd’s List Americas Awards, which this year was combined with a unique content forum focused on Future Fuels, are part of the global Excellence in Shipping Awards, the industry’s flagship awards program that recognizes and rewards excellence across all sectors of maritime.

Keith B. Letourneau and Jeanne M. Grasso, co-chair and vice-chair, respectively, of Blank Rome’s Maritime practice group, accepted the award together on behalf of Blank Rome Maritime.

Pictured left to right: Eli Ginsberg, (Lloyd’s List Intelligence), Jeanne Grasso, and Keith Letourneau.

For more information, please visit Blank Rome Wins Lloyd’s List 2019 Excellence in Maritime Law Award.

Blank Rome Maritime Attorneys Recognized by Who’s Who Legal 2019

Who’s Who Legal 2019 has recognized five Blank Rome Maritime attorneys as “Global Leaders” in Shipping. In addition, 13 of Blank Rome’s attorneys were recognized as “Thought Leaders” and/or “Global Leaders” in five practice areas across the Firm.

GLOBAL LEADERS IN SHIPPING

Per Who’s Who Legal, “nominees were selected based upon comprehensive, independent survey work with both general counsel and private practice lawyers worldwide. Only specialists who have met independent international research criteria are listed.”

For more information, please visit Blank Rome Attorneys Recognized by Who’s Who Legal 2019.

Climate Change and Renewable Energy in the Maritime Industry

Frederick M. Lowther

There are few industries—indeed, few activities of any kind—that are not impacted by the increasingly intense debate on climate change. Whether by force of law or by voluntary action, all major sectors of the world economy must adapt to changing perceptions of how to reduce adverse impacts to our climate. The maritime industry is no exception. As the industry transitions to cleaner fossil fuels for vessel propulsion, there remains the question as to how the industry can best move toward greater use of emission-free renewable energy.

Dating Back

The maritime connection to renewable energy dates back thousands of years, with the transition from oars to sails likely occurring more than 5,000 years ago. Indeed, wind propulsion of large vessels was the norm until the mid-1700s, when the evolution of the steam engine resulted in the gradual transition to motive power. While commercial vessel propulsion will never revert to wind, the use of renewable energy sources in other (shore-based) aspects of the industry is clearly possible. Any shore-based activity that uses electric power has the ability to source that power—directly, indirectly, or “virtually” —from renewable energy generation. Continue reading “Climate Change and Renewable Energy in the Maritime Industry”

The Broad Reach and Limitations of U.S. Forfeiture Law

Matthew J. Thomas, Jed M. Silversmith, and Dana S. Merkel

In August of this year, the world watched closely to learn what would become of the Grace 1 and the more than two million barrels of Iranian crude oil that she carried. The tanker was boarded in the British Overseas Territory of Gibraltar by the British Royal Navy on July 4 as it passed through Gibraltar’s territorial waters. It was detained on suspicion that it was delivering Iranian oil to Syria in violation of European Union sanctions.

Gibraltar released the Grace 1 on August 15, in spite of a request by the United States to seize the vessel. Gibraltar’s chief minister stated that Iran had provided assurance that the vessel would not deliver the oil to Syria when released, and there were no longer grounds for detention. Although Gibraltar denied the United States’ request, the U.S. government filed a civil forfeiture complaint (the “Complaint”) in a U.S. federal court seeking authority to seize the ship, the oil, and funds held in a U.S. bank account belonging to Paradise Global, an alleged front company used to help launder funds to assist the operation.

According to the Complaint, the Grace 1 was managed by a company registered in Singapore, which was part of a network of companies operating throughout the world. These companies allegedly purchased insurance in the United States on behalf of the Grace 1, which, because it was to help an Iranian business interest, violated the U.S. sanctions regime. The Complaint also explained how these non-U.S. companies transferred funds in dollar-denominated transactions to other non-U.S. companies. These international transfers violated the U.S. sanctions regime because, by simply engaging in dollar-denominated transactions to support trade with Iran, U.S. law was violated.

The Unites States’ attempt to seize the Grace 1 echoes the U.S. seizure of the North Korean bulk carrier Wise Honest. The Wise Honest had been detained in April 2018 by Indonesia for multiple violations of international law and sanctions. Similar to the Grace 1, a civil forfeiture complaint outlined transactions in U.S. dollars in support of the Wise Honest, which was used to deliver North Korean coal and bring equipment into North Korea. Indonesia turned the vessel over to the United States and it was eventually listed for sale by the U.S. Marshal Service. Continue reading “The Broad Reach and Limitations of U.S. Forfeiture Law”