2009

Well, it was last week, but who is counting. 

Two years ago, following the very successful model of my partner Robert Thomas, I decided to become a blogger.  Nearly 300 posts later, with topics ranging from Somali piracy, SONAR and whales, to Antarctic whaling and forum non conveniens, I still consider myself learning about…

The Supreme Court is considering whether to hear an appeal fo the Ninth Circuit's decision in Kawasaki Kisen Kaisha v. Regal Beloit Corporation and Union Pacific Railroad Company v. Regal-Beloit Corporation.  The issue before the court is to what extent do statutory rules governing shipments by rail or motor carrier apply to a shipment of…

Admiralty practitioners note:  Winter Storm has been overturned. A panel of the 2nd Circuit Court of Appeals issued this noteworthy decision today, with the consent of all active judges for that circuit.  Decision here. Everyone else can stop reading now. 

This issue relates to Rule B attachment under the Federal Rules of Civil Procedure and New York state law regarding the definition of “property.”  In Winter Storm Shipping Ltd. v. TPI, 310 F.3d 263 (2nd Cir. 2002), the court of appeals found that electronic funds transfers between two parties outside of New York, but which funds transferred through “intermediary banks” in New York, were subject to prejudgment attachment in New York. 

The intermediary bank is how foreign banks will exchange currency for dollars by way of Electronic Funds Transfer or ETF.  The court uses this example:

To more concretely illustrate the circumstances of the instant case, consider the following example: ABC Shipping wants to transfer $100 to XYZ overseas. ABC has an account at India National Bank, and XYZ has an account at Bank of Thailand. India National Bank and Bank of Thailand do not belong to the same consortium, but each has an account at New York Bank. To begin the transfer, ABC instructs India National Bank to transfer $100 to XYZ’s account at Bank of Thailand. India National Bank then debits ABC’s account and forwards the instruction to New York Bank. New York Bank then debits India National’s account and credits Bank of Thailand’s account. Bank of Thailand then credits XYZ’s account, thereby completing the transfer.

The New York banks were certainly not happy with Winter Storm.  According to this opinion (citing amicus brief):

from October 1, 2008 to January 31, 2009 alone “maritime plaintiffs filed 962 lawsuits seeking to attach a total of $1.35 billion. These lawsuits constituted 33% of all lawsuits filed in the Southern District, and the resulting maritime writs only add to the burden of 800 to 900 writs already served daily on the District’s banks

ETF’s are not property subject to Rule B attachment in New York any longer.  I’ll try to get the briefs to post later.

This afternoon, the Interagency Ocean Policy Task Force will hold a regional meeting in Honolulu at 1:30.  I will attend and will live-tweet at twitter.com/hawaiioceanlaw.

Per the Council of Environmental Quality, the Task Force's purpose is:

To engage the public in and take public comment on the work of the Ocean Policy Task Force. On June 12th, President Obama charged the Task Force with developing a recommended national policy that ensures protection, maintenance, and restoration of oceans, our coasts, and the Great Lakes as well as a recommend framework for improved stewardship, within 90 days. On September 17th, the Task Force released its interim report on this phase of its work and released it 30-days of public comment. Comments may be posted at www.whitehouse.gov/oceans.

The President also asked the Task Force to develop a framework for effective coastal and marine spatial planning within the next 90 days. As the Task Force is now focusing its work on marine and coastal spatial planning and it would especially benefit from comments relating to that issue.

TASK FORCE MEMBERS EXPECTED TO ATTEND:

Chair Nancy Sutley, White House Council on Environmental Quality (via satellite) 

Dr. Jane Lubchenco, Administrator, National Oceanic and Atmospheric Administration 

Adm. Thad Allen, U.S. Coast Guard Commandant (via satellite)

Dr. Wendy Wiltse, Pacific Island Office, EPA Region 9

Rear Adm. Manson Brown, Commander, Coast Guard Fourteenth District

Ms. Eileen Sobeck, Deputy Assistant Secretary for Fish, Wildlife and Parks (via satellite)

Rear Admiral Michael A. Giorgione, Civil Engineer Corps, United States Navy Commander, Naval Facilities Engineering Command Pacific and Pacific Fleet Civil Engineer

PRELIMINARY AGENDA:

  • Chair Nancy Sutley, White House Council on Environmental Quality
  • Welcome from Local Representative (TBD)
  • Background of Interagency Ocean Policy Task Force, Agenda for Public Meeting, Introduction of Task Force Members (10 minutes)
  • Task Force members

EXPERT PANELS (45 minutes)

  • Indigenous Perspectives on Science and Conservation: Kahu M. Kalani Souza, Executive Director, Olohana Foundation
  • Partnerships and Governance: Lelei Peau, Deputy Director, American Samoa Dept. of Commerce
  • Water Quality and Marine Debris: Marvin Heskett, Director, TestAmerica; former co-chair, Surfrider Foundation
  • Preservation and Conservation of Marine Resources: Dr. Charles Birkeland, Adjunct Associate Professor, Department of Zoology, University of Hawaii
  • Transportation and Tourism: Glenn Hong, CEO, Young Brothers Barges
  • Sustainable Fisheries and Aquaculture: Randy Cates, President/CEO, Cates International
  • Climate and Hazard Resilience: Dr. Katherine Courtney, Tetra Tech EMI
  • Research and Environmental Biology: Dr. Jo-Ann Leong, Director, Hawaii Institute of Marine Biology

PUBLIC COMMENT (2 hours)

  • Sam Pooley, Director, NOAA Pacific Islands Fisheries Science Center Director, will moderate

Members of the public can access the meeting in three ways: by attending in person at one of the sites listed below; by calling into the listen only phone line (888-324-8128/International: 630-395-0060; participant code: 5752428); or via live webstream at http://www.tipg.net/noaa/.

The task force interim policy is available here.

Please excuse a departure from my regular blog topics for this post. 

Last February, I was fortunate to attend a private screening of an upcoming film entitled, Barbarian Princess.  The movie was so well done, I feel compelled to publish my praise for the cinematic achievement.

My general comments:  this movie is a rare treat. …

The Ocean Policy Task Force will hold a meeting in Honolulu on September 29, 2009.  The Coast Guard flyer has specifics.

Obama Administration officials will hold an Ocean Policy Task Force PublicMeeting in the Pacific Islands on Tuesday, September 29, 2009.

The Interagency Ocean Policy Task Force, led by White House Council on Environmental Quality Chair Nancy Sutley, consists of senior-level officials from Administration agencies, departments, and offices. The Task Force, established by President Obama via presidential memorandum on June 12, is charged with developing a recommendation for a national policy that ensures protection, maintenance, and restoration of oceans, our coasts and the Great Lakes. It will also recommend a framework for improved stewardship, and effective coastal and marine spatial planning. The meeting in the Pacific Islands will be the fourth regional public meeting held since the Task Force was created. The public is encouraged to attend and an opportunity for public comment will be provided.

Members of the public can access the meeting in three ways: by attending in person at one of the sites listed below; by calling into the listen only phone line (888-324-8128/International: 630-395-0060; participant code: 5752428); or via live webstream at http://www.tipg.net/noaa/.

The task force interim policy is available here.