Utilizing the Changing Landscape of Personal Jurisdiction

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”

Perspectives: Celebrating Diversity and Inclusion in Practice

Welcome to the October 2019 edition of Perspectives, Blank Rome’s diversity and inclusion newsletter that keeps you informed on our latest diversity and inclusion news and provides insight on current diversity and inclusion issues in the legal industry and beyond.

Featured in this edition:

  • Insightful conversation with Human Rights Campaign President and former Blank Rome Attorney Alphonso David
  • Update on Mansfield Rule 2.0 and Mansfield Rule 3.0 participation
  • Inside look at Blank Rome’s inaugural series of Women’s Forum Bootcamps
  • Celebratory highlights from Heritage History Months
  • Initiatives aimed at advancing women in law and promoting LGBTQ+ equality
  • Overview of recent diversity and inclusion headlines, accolades, and events

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To learn more about Blank Rome’s diversity and inclusion initiatives, please visit blankrome.com/diversity-inclusion.

Autonomous Vessels: Legal, Regulatory, and Insurance Issues

 

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”

Severe Weather Emergency Recovery Team

Blank Rome’s Severe Weather Emergency Recovery Team (“SWERT”) helps those impacted by natural disasters like recent powerful hurricanes in the Atlantic Ocean, Caribbean Sea, and Gulf of Mexico, and by wildfires and mudslides in California and Colorado. We are an interdisciplinary group with decades of experience helping companies and individuals recover from severe weather events. Our team includes insurance recovery, labor and employment, government contracts, environmental, and energy attorneys, as well as government relations professionals with extensive experience in disaster recovery.

Learn more:
blankrome.com/SWERT

Risk Management Tools for Maritime Companies

COMPLIANCE AUDIT PROGRAM

Blank Rome Maritime has developed a flexible, fixed-fee Compliance Audit Program to help maritime companies mitigate the escalating risks in the maritime regulatory environment. The program provides concrete, practical guidance tailored to your operations to strengthen your regulatory compliance systems and minimize the risk of your company becoming an enforcement statistic. To learn how the Compliance Audit Program can help your company, please visit blankrome.com/complianceauditprogram.


MARITIME CYBERSECURITY REVIEW PROGRAM

Blank Rome provides a comprehensive solution for protecting your company’s property and reputation from the unprecedented cybersecurity challenges present in today’s global digital economy. Our multidisciplinary team of leading cybersecurity and data privacy professionals advises clients on the potential consequences of cybersecurity threats and how to implement comprehensive measures for mitigating cyber risks, prepare customized strategy and action plans, and provide ongoing support and maintenance to promote cybersecurity and cyber risk management awareness. Blank Rome’s maritime cyber risk management team has the capability to address cybersecurity issues associated with both land-based systems and systems onboard ships, including the implementation of the Guidelines on Cyber Security Onboard Ships and the IMO Guidelines on Maritime Cyber Risk Management in Safety Management Systems. To learn how Blank Rome’s Maritime Cyber Risk Management Program can help your company, please visit blankrome.com/cybersecurity.


TRADE SANCTIONS AND EXPORT COMPLIANCE REVIEW PROGRAM

Blank Rome’s Trade Sanctions and Export Compliance Review Program ensures that companies in the maritime, transportation, offshore, and commodities fields do not fall afoul of U.S. trade law requirements. U.S. requirements for trading with Iran, Cuba, Russia, Syria, and other hotspots change rapidly, and U.S. limits on banking and financial services, and restrictions on exports of U.S. goods, software, and technology, impact our shipping and energy clients daily. Our team will review and update our clients’ internal policies and procedures for complying with these rules on a fixed-fee basis. When needed, our trade team brings extensive experience in compliance audits and planning, investigations and enforcement matters, and government relations, tailored to provide practical and businesslike solutions for shipping, trading, and energy clients worldwide. To learn how the Trade Sanctions and Export Compliance Review Program can help your company, please visit blankrome.com/services/cross-border-international/international-trade or contact Matthew J. Thomas (mthomas@blankrome.com, 202.772.5971).

Blank Rome’s Maritime Industry Team

Our maritime industry team is composed of practice-focused subcommittees from across many of our Firm’s offices, with attorneys who have extensive capabilities and experience in the maritime industry and beyond, effectively complementing Blank Rome Maritime’s client cases and transactions.

Maritime Emergency Response Team (“MERT”)
We are on call 24 / 7 / 365
In the event of an incident, please contact any of our MERT members listed in red below.

William R. Bennett III – NYC
CHAIR, BLANK ROME MARITIME

Jeanne M. Grasso – WAS
VICE CHAIR, BLANK ROME MARITIME

Keith B. Letourneau – HOU
CHAIR, BLANK ROME MARITIME

Thomas H. Belknap, Jr. – NYC
CO-CHAIR, MARITIME INDUSTRY TEAM

Jeremy A. Herschaft – HOU
CO-CHAIR, MARITIME INDUSTRY TEAM

Matthew J. Thomas – WAS
CO-CHAIR, MARITIME INDUSTRY TEAM Continue reading “Blank Rome’s Maritime Industry Team”

New Visa Guidance for Crews Working on Offshore Wind Projects

Jonathan K. Waldron and Stefanos N. Roulakis

The U.S. State Department published new guidance on visas issued to crewmembers who will work aboard vessels engaged in offshore wind farm operations. Vessel owners and project managers in the offshore wind sector should examine these changes and implement internal procedures to facilitate future wind farm projects.

New Development

The State Department has updated its policy guidance in the Foreign Affairs Manual of the United States (the “FAM”) to include a visa category for offshore wind projects. Blank Rome coordinated this effort along with the relevant agencies in the U.S. government. This new guidance solves a regulatory hurdle that had been causing logistical problems for the industry by clarifying the correct type of visa that will be issued by U.S. embassies to crewmembers working on vessels on offshore wind projects.

Background

The traditional method of obtaining visas for crewmembers engaged on energy projects located on the U.S. Outer Continental Shelf (“OCS”) is to obtain a B-1 visa with an OCS annotation. Crewmembers are issued such a visa on the basis of a letter of non-applicability, which is issued by the U.S. Coast Guard (the “Coast Guard” or “USCG”) when it is determined that a vessel is owned or controlled more than 50 percent by foreign interests so that foreign citizens can crew a vessel engaged in OCS energy projects. The authority to regulate offshore wind farm energy projects was authorized pursuant to Section 388 of the Energy Policy Act of 2005, which amended the Outer Continental Shelf Lands Act. 43 U.S.C. § 1337(p)(1)(c). Nevertheless, the Coast Guard takes the position that it lacks statutory authority to regulate wind farms located on the OCS. As a result, the Coast Guard will not issue letters of non-applicability, which refusal rendered the State Department unable to issue B-1 (OCS) visas for offshore wind projects.

This has created confusion in industry as to the type of visa that an embassy will issue because crews could no longer obtain a B-1 (OCS) visa. A normal C-1/D crewman visa is not a viable option as it is only valid for 29 days. This type of visa would have provided an inadequate amount of time for the crew to conduct wind farm-related operations offshore. Such an issue could have proven to be a large impediment to the development of the nascent offshore wind sector in the United States.

Please click here for the full client alert.