Mainbrace

U.S. DOJ and FMC Increase Focus on Antitrust Enforcement

William E. Lawler III and Kierstan L. Carlson

The Biden administration recently announced a renewed enforcement focus on consolidation and alliances in the maritime industry that may hinder competition and increase prices. While federal agencies historically have worked together to target anti-competitive conduct and shipping companies have been targeted in cases alleging cartel activity (e.g., price fixing, market allocation, and bid rigging), companies should heed the recent warnings and must be vigilant in ensuring compliance with competition laws now more than ever.

Regulation of Competition within the Maritime Industry

The Federal Maritime Commission (“FMC”) and the U.S. Department of Justice’s (“DOJ”) Antitrust Division (the “Division”) share enforcement duties over the maritime transport market.

The FMC monitors the effects of ocean carrier alliances on competition. Under U.S. law, international carriers enjoy a limited exception to some antitrust laws, as they are permitted to meet to discuss and agree on voluntary rate guidelines and can file agreements with the FMC establishing such guidelines. However, the FMC is not required to approve such agreements and can bring civil actions in court to enjoin any agreements likely to reduce competition such that it leads to unreasonable price increases or service reductions, or to substantially lessen competition in purchasing covered services. The FMC also has a Bureau of Enforcement, which investigates potential violations and can impose civil penalties or engage in formal proceedings.

Developing Issues with Maritime Autonomous Surface Ships

Alan M. Weigel

The development of large autonomous merchant vessels, also known as Maritime Autonomous Surface Ships (“MASS”), has progressed at a significant pace with new vessels entering operation every year. Almost every maritime nation is engaged in developing autonomous vessel technologies, and several countries have designated parts of their national waters as test sites for MASS.

In Norway, the YARA BIRKELAND recently began a two-year testing period of the technology that will certify the vessel as an autonomous, all-electric container ship. In Japan, the first tests of the fully autonomous container ships MIKAGE and SUZAKU took place recently in coastal waters of the Sea of Japan and Tokyo Bay. The unmanned ships transited between ports using a system of radar and lidar sensors, cameras, and a satellite compass to navigate and pulled themselves into berths at the end of their journeys.

Carriage of Cargo on Deck: Carriers Be Aware

Noe S. Hamra

Carriage of cargo on deck has always been problematic for vessel owners and operators. In addition to the typical risks associated with carrying cargo on deck, such as exposure to the elements and lashing and stability issues, carriers are also exposed to uncertainties regarding their potential liability for damages to such cargo. In fact, many carriers believe that cargo carried on deck is carried at the shipper’s risk and that the carrier is not liable for damage to deck cargo, as long as cargo owners agreed to on deck carriage and the bill of lading states this on the front.

Complicating Legal Factors

A complicating factor is that neither the Hague Rules nor the United States Carriage of Goods by Sea Act (hereinafter referred to as “COGSA” or the “Statute”) apply to deck cargo. As for the latter, COGSA expressly defines “goods” as to exclude “cargo which by the contract of carriage is stated as being carried on deck and is so carried.”

EPA Ramps-Up VGP Inspections and Enforcement

Jeanne M. Grasso and Kierstan L. Carlson

We are just over one year into the Biden administration and environmental enforcement is on the rise. Although enforcement dropped dramatically under the Trump administration, the current administration has been clear about its intent to use environmental enforcement tools to “encourage and incentivize compliance by private sector entities,” quoting Assistant Attorney General Todd Kim, head of the Environment and Natural Resources Division of the Department of Justice. This focus has borne out in several ways, including what seems to be an increase in inspections and enforcement of the U.S. Environmental Protection Agency’s (“EPA”) Vessel General Permit (“VGP”) in several EPA regions around the country. The risk of getting caught in the EPA’s crosshairs for a VGP violation is real and should be front-of-mind for companies across the shipping sector.

History of the VGP and Implementation of the Vessel Incidental Discharge Act

The VGP originated from a lawsuit challenging the EPA’s exemption of discharges “incidental to the normal operation of a vessel” from permitting requirements under the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System (“NPDES”), an exemption that had been in place for about 30 years. In 2005, a federal court found that the EPA’s vessel exemption was illegal and required the agency to develop a permitting program for incidental discharges. From there the VGP was born.

Boffo Offshore Wind Sale Moves Biden Closer to Goal—But Tough Currents Remain

Joan M. Bondareff

This article summarizes the latest developments in the U.S. offshore wind market and then reviews some of the troubling waters ahead.

New Developments

On February 25, 2022, the Bureau of Ocean Energy Management (“BOEM”) announced the results of its mega offshore wind sale of six leases totaling over 488,000 acres in the New York Bight—the first sale in the Biden-Harris administration, which is committed to 30GW of offshore wind by 2030. The results from the auction lasting over three days were over four billion dollars. The provisional winners are:

1. 1. OCS-A-0537 – Ocean Winds East, LLC – $765M;
  2. OCS-A-0538 – Attentive Energy, LLC – $795M;
  3. OCS-A-0539 – Bight Wind Holdings, LLC – $1.1B;
  4. OCS-A-0541 – Atlantic Shores Offshore Wind Bight, LLC – $780M;
  5. OCS-A-0542 – Invenergy Wind Offshore LLC – $645M; and
  6. OCS-A-0544 – Mid-Atlantic Offshore Wind LLC – $285M.

This sale represents the very serious interest that developers—and states—are taking in offshore wind, gambling that the permitting process will go smoothly.

What Is the Insured’s Duty under a Marine Insurance Policy? It Depends…

Thomas H. Belknap, Jr.

The law governing marine insurance in the United States has long been a source of considerable confusion. And if there was once a clear set of principles applicable in such cases, the Supreme Court long ago muddied the waters with their infamous ruling in Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955). That case, involving a fire on a houseboat on an inland man-made lake on the Texas-Oklahoma border, established the “litmus test” for when maritime law should govern and when the courts should instead look to state law in interpreting marine insurance contracts.

Faced with the question of whether an insured’s policy should be voided for breach of policy warranties when the insured has made misrepresentations in the application that bear no relationship to the actual risk or claimed loss, the Supreme Court in Wilburn Boat concluded that “[w]hatever the origin of the ‘literal performance’ rule may be, we think it plain that it has not been judicially established as part of the body of federal admiralty law in this country.” Because there was no “established federal admiralty rule” governing such warranties, the Supreme Court ruled that it should instead look to state law, which, as it happens, contained a provision that protected the insured from such “immaterial” breaches of warranty.

Sensor Ships: Managing Big Data Generated in the Maritime World

Vanessa C. DiDomenico, Karen H. Shin, and Sharon R. Klein

Big data is not a “trend” or fad; big data is a concept of gathering, deciphering, and analyzing massive quantities of information to ultimately reveal patterns and associations, and it’s here to stay. Companies have proven how useful it can be to interpret performance trends to expose areas of vulnerability or underperformance within a company. Big data can be used to make strategic decisions within a company’s operating profile. In particular, the maritime industry is using big data to revolutionize the way engine performance and maintenance is carried out aboard vessels. Understanding how to effectively capture data—and the risks involved—will enable users to apply big data in ways never considered before.

The Value of Big Data

The maritime industry has progressed at a moderately stable speed with various innovations to proven mechanical systems, such as energy reducing pumps and updated models of equipment; however, compared to other industries it is decades behind digitally. To capitalize on the benefits of big-data technology, maritime companies must define the goals they will achieve, such as reducing fuel consumption. By clearly defining a goal, systems can be constructed to deliver the required data points.

Once the goals are defined, sensors and instruments can be installed onboard to capture new data points that, when spliced with existing readings already extracted from the vessel’s automation, such as weather patterns and engine load signals, create interconnected data ecosystems that can be used to examine performance.

Must Foreign Debtors Have U.S. Property to be Eligible for Relief under Chapter 15?

Rick Antonoff and Evan Jason Zucker

Chapter 15 of the U.S. Bankruptcy Code provides a streamlined process for recognition (a form of comity) of a foreign insolvency proceeding. However, courts are divided as to whether a foreign debtor must satisfy the general definition of “debtor” as that term is used in section 109(a) of the Bankruptcy Code, which requires a debtor seeking bankruptcy relief to reside or have a domicile, a place of business, or property in the United States.

On February 28, 2022, the U.S. District Court for the Middle District of Florida (the “Florida District Court”) ruled that section 109(a) does not apply in chapter 15 cases. Talas Qais Abulmunem Al Zawawi v. Diss, et al. (In re Talas Qais Abdulmunem Al Zawawi), Case No. 21-894-GAP (M.D. Fla. Feb. 28, 2022). The court relied on a straightforward interpretation of section 1517(a)’s mandatory criteria, finding that chapter 15 “provides the sole requirements for recognition” and that recognition is not premised upon a foreign debtor meeting section 109(a) requirements for eligibility. The Florida District Court’s opinion conflicts with an opinion rendered in 2013 by the U.S. Court of Appeals for the Second Circuit (the “Second Circuit”) in the case Drawbridge Special Opportunities Fund L.P. v. Barnet (In re Barnet), 737 F.3d 238 (2d Cir 2013), which held that section 109(a) is applicable in chapter 15. Al Zawawi is the latest in a string of judicial opinions and scholarly articles, disagreeing with the Second Circuit’s decision in Barnet. See In re Bemarmara Consulting a.s., Case No. 13-13037 (Bankr. D. Del. Dec. 17, 2013); Daniel M. Glosband and Jay Lawrence Westbrook, Chapter 15 Recognition in the United States: Is a Debtor “Presence” Required?, 24 Int’l Insolv. Rev. 28 (2015). See also, Douglas G. Baird, Revisions to Chapter 15 of the Bankruptcy Code, at 4–7 (letter from National Bankruptcy Conference to Congress proposing Bankruptcy Code revision to clarify that section 109(a) does not apply in chapter 15 cases).

Chambers Global 2022 Ranks Blank Rome Attorneys and Shipping and Energy Practices

Chambers Global 2022 recognized the following partners for their industry knowledge and leading practices, as well as Blank Rome LLP as a global leader in Shipping: Litigation and USA leader in Energy: Oil & Gas (Regulatory & Litigation).

Blank Rome Earns Perfect Score in 2022 Corporate Equality

Firm Receives 100 Percent for the Seventh Year in a Row on Human Rights Campaign Foundation’s Annual Scorecard on LGBTQ+ Workplace Equality

Blank Rome LLP is proud to announce that our firm has received a perfect score of 100 percent on the 2022 Corporate Equality Index (“CEI”), the nation’s foremost benchmarking survey and report measuring corporate policies and practices related to LGBTQ+ workplace equality, administered by the Human Rights Campaign (“HRC”) Foundation. With this score, Blank Rome has been designated for the seventh year in a row as a “Best Place to Work for LGBTQ+ Equality” by the HRC, and joins the ranks of major U.S. businesses that also earned top marks this year.

To learn more about this honor, visit our website.

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