1. On the Sea, But Not A Seaman: When Maritime Workers can Claim in the United States
2 .P&I Renewals
3. Brexit News
4. New Standards for Drones
5. Notes On A Shipwreck
6. People and Places
FOB Network News
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Note to Readers
This publication comes to you from an unseasonbly sunny Isle of Wight after a prolonged absence caused entirely by the medical indisposition of your editor who was confined to bed with a bad infection for the best part of two months. The condition has cleared, thanks to the care of Mrs Ignarski, the Isle of Wight NHS and a certain recuperative propensity in the undersigned. Apologies for being away for so long. Thanks to those of you who wrote in. We hope you will welcome us back!
1. On the Sea, But Not A Seaman: When Maritime Workers can Claim in the United States
Jason P. Minkin, Jonathan A. Cipriani, and Melissa A. Sereda of the Chicago firm of BatesCarey write:-
The Jones Act and general maritime law provide maritime workers with specific remedies after an injury. However, not all maritime employees are entitled to these remedies. In a recent case, Ross v. W&T Offshore, Inc., 2018 WL 6494762 (E.D. La. Dec. 10, 2018) (slip copy), the U.S. District Court for the Eastern District of Louisiana found that in order for a maritime worker to avail her or himself of the Jones Act or general maritime law remedies, the injury must involve a “vessel.” In so holding, the court rejected the contention that an employee injured on an oil platform permanently affixed to the sea floor can seek recovery under either the Jones Act or general maritime law.
On July 21, 2016, the plaintiff, Alton Ross slipped, fell, and injured himself while working as a galley-hand and cook. At the time, Mr. Ross was working on W&T Offshore, Inc.’s Ship Shoal 349-A, an oil platform permanently affixed to the sea floor in the Gulf of Mexico, off the coast of Louisiana. Mr. Ross filed suit against W&T seeking to recover for his injuries, asserting claims under the Jones Act, under general maritime law for negligence and for the alleged unseaworthiness of the SS 349-A, and under Louisiana law, also for negligence. In support of his Jones Act and general maritime law claims, Mr. Ross asserted that the SS 349-A was a “vessel” and that he qualified as a “seaman.”
W&T filed a motion for partial summary judgment on the Jones Act and general maritime law claims, arguing that the SS 349-A did not qualify as a vessel, as required to sustain a Jones Act and general maritime law claim, and accordingly, Mr. Ross could not qualify as a Jones Act seaman. Mr. Ross argued that he qualified as a seaman based on his employment on the SS 349-A and his prior employment on three other vessels.
Ultimately, the court found in favor of W&T, holding that in order to maintain a cause of action under the Jones Act and general maritime law, an injury must relate to work on a vessel.
Looking to U.S. Supreme Court decisions for guidance, the court noted that only a “seaman” can recover under the Jones Act. A seaman is an “an employee whose duties ‘contribute[e] to the function of the vessel or to the accomplishment of its mission’ and who has ‘a connection to a ‘vessel’ in navigation . . . that is substantial in terms of both its duration and nature.'” The court found that a “vessel” is a watercraft capable of maritime transportation, “regardless of its primary purpose or state of transit at a particular moment.” However, the court qualified this definition, noting that a watercraft does not qualify as a “vessel” where it “is not ‘capable of being used’ for maritime transport in any meaningful sense” i.e., if it has been permanently moored or otherwise rendered practically incapable of transportation or movement. Following precedent from the U.S. Court of Appeals for the Fifth Circuit, the court found that the SS 349-A was both practically and theoretically incapable of movement as it was permanently affixed to the sea floor, had not moved in two decades, had never been used as a form of transportation, was physically incapable of movement, and had no propulsion system or other means of moving itself from one location to another. Accordingly, the SS 349-A did not qualify as a “vessel” and Mr. Ross did not qualify as a seaman under the Jones Act.
The court also rejected Mr. Ross’ argument that he qualified as a seaman due to hours worked on vessels prior to being assigned to the SS 349-A. Again, looking to the U.S. Supreme Court and Fifth Circuit for guidance, the court held that in order to qualify as a seaman a worker must have a substantial connection, in time and duration, to a vessel in navigation at the time of the injury. Finding that a worker’s status as a seaman can change based on their assignment, the court found that Mr. Ross did not qualify as a seaman when the injury occurred. Notwithstanding that he may have previously worked on vessels, because he sustained his injury on the SS 349-A, which was not a vessel, he was not a seaman entitled to assert a Jones Act claim.
The court also considered W&T’s argument that Mr. Ross could not succeed on his claims under the general maritime law. Addressing the unseaworthiness claim, the court found that in order to assert a claim for unseaworthiness, a vessel must be involved, which in this case, it was not. Addressing the negligence claim, the court noted that a negligence claim under the general maritime law requires that a tort occur on navigable water (or an injury on land caused by a vessel on navigable water); the incident had a “potentially disruptive effect on maritime commerce;” and the activity giving rise to the incident had a “substantial relationship to traditional maritime activity.” The court found that the negligence claim failed at least the third requirement, as the activity-cooking on a fixed platform-bore no “significant relation to traditional maritime activity.”
The decision in Ross reinforces the threshold requirements necessary for seeking relief under the Jones Act and general maritime law. While the Jones Act and general maritime law provide injured maritime workers with remedies, these remedies, as reflected in Ross and the precedents it follows, are not available to every maritime worker who sustains an injury on the water.
2. P&I Renewals
Back in the day, once the renewals were safely gathered in, the big beasts in each club tended to phone their favourite insurance journalist for an off-the-record-conversation. Strictly confidential and hush hush, you understand. Sometimes pride and braggadocio got the upper hand and the results would be a little bit exaggerated. This led to a somewhat upbeat picture of the p&i market which is invariably saturated with suppliers and thoroughly overfished. Observers would note how the gains announced by the individual clubs exceeded the tonnage available for acquisition by some margin.
These days the results tend to trickle in from pr flacks. But some habits are slow to die. Many club seem this year to have acquired gains of as much as 5 per cent of their total mutual tonnage; the releases,remind editors also that the club concerned is in the “top tier” or that it enjoys “leading” status.
The year is laden with portents. The clubs have plump free reserves but the boards are not that minded to hand any back or to ask for more. All bar the West of England eschewed a general increase. The signs are that the consolations of a benign insurance cycle are no longer there to enjoy. a good old competitive slug fest is in prospect. For 2019 a certain calm prevails– not much churn, few attention grabbing fleet transfers. But outside the Clubs, capital for marine insurance grows scarcer as markets are hit by waves of large natural disaster claims.
3. Brexit News
The Port of Dover has the resilience to cope with moderate disruption arising from Brexit and there is latent short sea capacity to absorb significant overflow at the port in the event of capacity constraints, according to an independent study by our good friends at Drewry.
Among the political arguments about Brexit and its consequences, there has been a surprising lack of objective and quantitative analysis of the implications for the future of the vital short sea trade between the UK and the EU, particularly for the key port of Dover, and how traffic might be routed in future if Dover faced capacity constraints.
Drewry sought to fill this information gap by carrying out an assessment of the capacity of the port, looking at its key elements and undertaking sensitivity analysis to determine under what circumstances they could become bottlenecks. The study also looked at the availability of alternative routes for freight traffic.
“Handling half of all the freight traffic moved to and from EU, Dover is by far the UK’s largest RoRo port,” said Tim Power, head of Drewry Maritime Advisors. “Given its importance, we were keen to assess the potential effects of Brexit on Dover capacity.”
The Drewry study concluded the following:
* Dover port capacity: Dover has the Border Control, check-in, embarkation area and berth capacity to cope with existing demand with some margin and could cope with a 50% increase in process times in key areas, although traffic peaks (a characteristic of the cross Channel RoRo trade) would need to be managed;
*Alternative routes and modes: If Dover were capacity constrained following Brexit, some cargo that did not require high frequency short transit services could be accommodated on unaccompanied trailer and short sea container services; supply chains would need to be redesigned. Studies carried out for the Port of Dover suggest that not more than 20% of existing traffic would be suitable for re-routing;
*New customs processes: New Customs processes are designed to keep traffic flowing through Dover but have not been widely tested. If they work successfully, the new processes will avoid Customs becoming a bottleneck;
*Check-in: Dover Port throughput capacity would be constrained in the event of a doubling of check-in time from the present 2 minute to 4 minutes;
*Vessel capacity: Vessel capacity is highly utilised; any significant delay to vessels, for example a doubling of port time in France, would lead to a reduction in service frequency and cause a bottleneck.
A copy of the study findings is available to download from the Drewry website at:-
4. New Standards for Drones
WEF 21 November 2018 the first ever worldwide Standards for the drone industry have been released by the International Standards Organisation (ISO)*.
The new, long awaited Standards have been developed after several years of global collaboration between standards institutions from across the world and are expected to trigger rapid acceleration of growth within the drone industry as organisations throughout the world are galvanised to adopt drone technology against a new background of reassurance on safety and security. The new Standards will play an essential role in guiding how drones are used safely and effectively in a framework of regulatory compliance.
Today’s announcement by ISO is the first important step in the standardisation of the global drone industry, encompassing applications for all environments – Surface, Underwater, Air and Space. The first drone Standard, are particularly significant for the general public and Government, in that they address Operational Requirements of the more recognised and prevalent aerial drones, including protocols on Safety, Security and overall ‘Etiquette’ for the use of drones, which will shape regulation and legislation going forward. They are the first in a four part series for aerial drones, with the next three addressing General Specifications, Manufacturing Quality and Unmanned Traffic Management (UTM).
A prime characteristic of the ISO Standards announced today, is their focus on air safety, which is at the forefront of public attention in connection with airports and other sensitive locations. The new Standards act as a new ‘etiquette’ for drones which promote and reinforce compliance regarding no-fly zones, local regulation, flight log protocols, maintenance, training and flight planning documentation. Social responsibility is also at the heart of the Standards, strengthening the responsible use of a technology that aims to improve and not obstruct everyday life. The effectiveness of the Standards in improving air safety will be further strengthened by the rapid development of geo-fencing and of counter-drone technology, providing frontline protection against ‘rogue’ drone use.
Privacy and data protection
The Standards are also set to address public concerns surrounding privacy and data protection, demanding that operators must have appropriate systems to handle data alongside communications and control planning when flying. The hardware and software of all related operating equipment must also be kept up to date. Significantly, the fail-safe of human intervention is required for all drone flights, including autonomous operations, ensuring that drone operators are accountable.
The exciting future for drones
Empowered by Standards, drones are set to provide the key to some of the most pressing economic, transport, security, environmental and productivity challenges faced by governments and industry throughout the world, reducing road traffic, easing congestion, saving lives through a reduction in accidents and reducing pollution in our cities. As well as speeding up the delivery of large-scale infrastructure projects, drones are expected to reduce the need for some major transport projects altogether.
New exciting applications for drones are being developed daily. In particular revolutionary approaches are emerging for freight and passenger transportation, with drones providing a cost-effective and environmentally responsible alternative to traditional methods, relieving the burden on our already stretched road traffic system. Further applications in the agricultural, maritime, construction and energy sectors, among others, are already transforming businesses, with all industries and business sectors set to benefit from the Standards-led adoption of drone technology.
The impact on UK Plc
Excitement surrounding the growth potential of the drone industry worldwide has been fermented through attempts to forecast its economic impact. For instance, PWC recently predicted that the UK aerial drone industry will contribute £42 billion and 628,000 jobs to the UK economy by 2030, while Goldman Sachs estimate that drones worldwide are evolving into a $100 billion market by 2020. But these predictions only address aerial drones, and it is therefore clear that the economic benefits offered by drone technology are vast, and set to grow further, particularly when Surface, Underwater, Air and Space applications are taken into account in their entirety.
Commenting on today’s announcement, Robert Garbet, Convenor of the ISO Working Group responsible for global drone operational Standards, Chairman of the BSI Committee for UK Drone Standards and Founder of Drone Major Group, the world’s first global drone consultancy, said: “I am delighted that we have now reached the point where the first ever Standards for the global drone industry have been readied for public consultation after 3 years of hard work and international cooperation between ISO, BSI and Standard’s bodies across the world, with final adoption expected in 2019. These Standards will undoubtedly lead to a new confidence in safety, security and compliance within this dynamic industry, resulting in a massive expansion in the availability and use of drone technology in the years to come.”
“Drones represent a global phenomenon and an unprecedented economic opportunity for any country which embraces the technology. It’s very encouraging that the UK Government is a world leader in recognising the importance of this vital business sector. Informed by the first drone Standards, it is expected that the forthcoming UK Drone Bill, due in early 2019 will create a regulatory framework that allows the industry to flourish in an environment that is both safe and responsible. My conversations with drone buyers, manufacturers, users and the wider public indicate that these Standards are warmly and enthusiastically welcomed by all. I would encourage all those with an interest in drones to engage with the consultation process so that no stone has been left unturned in our quest for the creation and adoption of best-practice drone Standards.”
5. Notes On A Shipwreck
Courtesy of the Browser we read with real appreciation this piece by Davide Enia in| Longreads which is an “elegantly written diary of a visit to the Italian island of Lampedusa, where tens of thousands of refugees and migrants from Africa and the Middle East have arrived on rafts in recent years hoping for a new life in Europe, and thousands more have died at sea. For those on the receiving end, the challenges are overwhelming. “If you’re face-to-face with three people going under and twenty-five feet further on a mother is drowning with her child, what do you do? Where do you head? Who do you save first? The three guys who are closer to you, or the mother and her newborn who are further away?” ”
6. People and Places
W K Webster has announced appointments for 2019:-
Joining the Corporate Board are Mark Allison, Alan Munro and Tim Champkins. Mark will also be returning to the Singapore Office reflecting the importance of ASIA to the Group, whilst Alan will take up the role of CIO in keeping with the Group’s forward thinking IT strategy. Tim joins as CFO from a global digital agency to fill the role that is being vacated by John Martin.
Further reflecting the widening scope of WKW, Michael Hird re-joins from Lodestar in a cross disciplinary Admiralty role.
The Commissioners of Irish Lights (CIL) have iissued a press release stating that the General Lighthouse Authorities (GLA) of the UK and Ireland are conducting their regular review of marine aids to navigation (ATON) services. All users of marine ATON are requested to submit comments by 30 July 2019.
[Source: Dennis Bryant]
Lux Mediation has won the award for the Mediation Expert of the Year in England as part of the 2019 Global Law Experts Annual Awards.
The Avo Archive
The website of this newsletter contains all the editorial material since the inception of the Maritime Advocate as a print based quarterly in 1997 under the founding aegis of John Guy, Chris Hewer and Manfred Arnold. Readers can go to the site and search the database on the home page in its entirety. If you are looking for an old case, an old controversy or you would just like to see how many times you and your firm have featured in our annals feel free to access the archive. It is like this e-zine, free to Readers and we always appreciate the support of advertisers and sponsors.
Work is underway to lodge the Archive within a new site for this publication.
God grant me the senility to forget the people I never liked anyway, the good fortune to run into the ones I do, and the eyesight to tell the difference. Now that I’m ‘older’ but refuse to grow up, here’s what I’ve discovered:
1. I started out with nothing and I still have most of it.
2. My wild oats have turned into prunes and All Bran.
3. I finally got my head together, now my body is falling apart.
4. Funny, I don’t remember being absent minded.
5. If all is not lost, where is it?
6. It is easier to get older than it is to get wiser.
7. The only time the world beats a path to your door is when you’re in the bathroom.
8. If God wanted me to touch my toes, He’d have put them on my knees.
9. It’s not hard to meet expenses, they’re everywhere.
10 These days I spend a lot of time thinking about the hereafter…I go somewhere to get something and then…wonder what I’m hereafter
Now I think you’re supposed to send this to 5 or 6 , or maybe 10.
Send it to a bunch of your friends if you can remember who they are. Then something is supposed to happen, I think. Maybe you get your memory back. Even worse, you may get mine.
Did I send this to you already?
Some “Senior” personal ads seen in Florida and Arizona newspapers. Who says seniors don’t have a sense of humor?
Foxy Lady: Sexy, fashion-conscious blue-haired beauty, 80’s slim, 5′ 4″ (used to be 5′ 6″), searching for sharp-looking, sharp-dressing companion. Matching white shoes and belt a plus.
Long-Term Commitment: Recent widow who has just buried fourth husband looking for someone to round out a six-unit plot. Dizziness, fainting, shortness of breath not a problem.
Serenity Now: I am into solitude, long walks, sunrises, the ocean, yoga and meditation. If you are the silent type, let’s get together, take our hearing aids out and enjoy quiet times.
Winning Smile: Active grandmother with original teeth seeking a dedicated flosser to share rare steaks, corn on the cob and caramel candy.
Beatles Or Stones?: I still like to rock, still like to cruise in my Camaro on Saturday nights and still like to play the guitar. If you were a groovy chick, or are now a groovy hen, let’s get together and listen to my eight-track tapes.
Mint Condition: Male, 1922, high mileage, good condition, some hair, many new parts including hip, knee, cornea, valves. Isn’t in running condition, but walks well.
Memories: I can usually remember Monday through Thursday. If you can remember Friday, Saturday and Sunday, let’s put our two heads together.
Thanks for Reading the Maritime Advocate online
Maritime Advocate Online is a weekly digest of news and views on the maritime industries, with particular reference to legal issues and dispute resolution. It is published to over 21 000 individual subscribers each week and republished within firms and organisations all over the maritime world. It is the largest publication of its kind. We estimate it goes to around 60 000 Readers in over 120 countries.