Category: Mainbrace | November 2019 (No. 3)

David J. Oberly

For years, the scope of personal jurisdiction over corporate defendants has expanded significantly through the reliance on tenuous corporate contacts or business conducted by a defendant in a particular forum. Recently, however, that all changed when the United States Supreme Court issued its decisions in Daimler AG v. Bauman, 564 U.S. 915 (2014), BNSF Railway Co. v. Tyrrell, 137 S.Ct. 1549 (2017), and Bristol-Myers Squibb v. Superior Court of California, 137 S.Ct. 1773 (2017), which significantly strengthened the requirements for exercising personal jurisdiction over corporate defendants. Combined, these three decisions are critical for corporate entities that find themselves embroiled in maritime litigation, as these cases have significantly limited where plaintiffs can bring claims and, in turn, have substantially curtailed the practice of litigation tourism and forum shopping as a result of the limitations that have been placed on a forum state’s exercise of personal jurisdiction.

The Big Three: Daimler, Tyrrell, and Bristol-Myers Squibb

There are two types of personal jurisdiction. The first, known as specific jurisdiction, encompasses cases in which the suit arises out of or relates to the defendant’s contacts with the forum. For specific jurisdiction to exist, a plaintiff’s action must arise out of a defendant’s forum-related activities. The second, general jurisdiction, is exercisable when a foreign corporation’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.”

For years, courts and litigants have operated under the general rule that a court may exercise personal jurisdiction over a corporate defendant in any state where the company maintains “continuous and systematic” business contacts. As a result, businesses have been long subjected to being sued in any state across the country, regardless of strength of the business’s connection to the forum. The expansive scope of personal jurisdiction resulted in significant, egregious litigation tourism and forum shopping by plaintiffs’ attorneys in maritime actions, as plaintiffs took advantage of the significant leeway they had in filing large numbers of lawsuits in a select few extremely plaintiff-friendly courts, many of which are commonly known as some of the worst “judicial hellholes” for litigating these types of complex lawsuits. Continue reading “Utilizing the Changing Landscape of Personal Jurisdiction”

Alan M. Weigel and Thomas H. Belknap Jr.

The maritime industry is currently experiencing a technological sea change resulting from the development of advanced automation on unmanned surface vessels. Once thought to be decades away from incorporation into the maritime transportation network, advanced automation is already emerging as a viable alternative for some segments of the industry as a way to reduce operational costs, improve safety, and increase efficiency. This new and disruptive technology, however, brings with it unique legal, regulatory, and insurance questions—the answers to which have been elusive.

The Legal Landscape

Over the past five years, many jurisdictions in the United States have implemented regulations governing the use of unmanned aircraft and drones. As a result, there have been more than 50 cases in the United States involving unmanned aircraft operations. During the same period, however, except for cases involving unmanned barges, there have been no cases in the United States referring to unmanned surface/subsurface ships or vehicles.

Because U.S. regulators and the courts have not considered issues involving unmanned and autonomous surface or subsurface vehicles, there is no clear legal guidance for their operation. The cases involving manned vessels and even unmanned barges provide imperfect analogies. Thus, clear operating regulations and legal guidelines remain to be developed.

What Are Unmanned Autonomous Vessels?

One of the challenges in addressing new operating regulations for automated or unmanned vessels is nomenclature. There is no universally accepted name for unmanned maritime systems. Various designations have been proposed, such as Unmanned Surface Vessels, Maritime Autonomous Surface Ships, Autonomous Surface Vehicles, and Unmanned Maritime Vehicles. Such systems also have become commonly referred to as maritime “drones” or even “smart ships.”

The level of autonomy utilized in the vessel’s operating systems is one useful classification method. Lloyd’s Register, for example, has set out guidance for marine autonomous operations. The guidance describes autonomy levels ranging from “AL 1,” which uses autonomous systems to assist on board crew with decision support, through to “AL 6,” which denotes a fully autonomous ship with no access and no on-board supervision required during a mission. What is clear, however, is that in many cases, autonomous does not always equal unmanned. Continue reading “Autonomous Vessels: Legal, Regulatory, and Insurance Issues”