National Security Adviser James Jones has distributed guidance on the National Security Council's processes in a memorandum entitled, "The 21st Century Interagency Process." It can be downloaded here (hat tip to foreignpolicy.com).
As we all know, the 21st Century announces itself as one in which there are great challenges to the symmetric world of the
Last year, the environmental group, Center for Biological Diversity (Center), brought suit against the U.S. Coast Guard for violations of the Endangered Species Act (ESA) relating to the execution of Coast Guard missions off the coast of California, (post here). Specifically, at issue were the Coast Guard’s Traffic Separation Schemes (TSS) which are, in effect, shipping lanes used to separate inbound and outbound vessels. The three TSS’s that were before the court were the Santa Barbara, Long Beach and San Francisco ones. The Centerasserted that the Coast Guard failed to consult with the National Marine Fisheries Service to determine the impact of TSS’s on endangered blue whales.
The federal court in San Francisco dismissed the suit finding that the claimed ESA violations relating to the Long Beach and San Francisco TSS’s lacked jurisdiction for failing to fulfill the ESA’s procedural requirement of providing specific notice of an intention to bring suit. The Center’s notice letter only discussed the Santa Barbara TSS.
As to the Santa Barbara TSS, the court found that the challenged action by the Coast Guard was not “ongoing,” thereby finding the Center’s claims to be stale or time-barred by the statute of limitation. The court further found that any Coast Guard operations related to the TSS (radio advisories, maintenance of aids to navigation) do not constitute “agency action” triggering a right to court review.
The court did give the Center a hint as to Round 2. In footnote 3, the court stated:
The absence of ongoing or new agency action, however, does not suggest a party such as plaintiff has no legal recourse where circumstances affecting listed species assertedly have changed. Rather, the law provides an appropriate vehicle for seeking such relief. In particular, a petition for new rulemaking may be filed, see 5 U.S.C. § 553(e), and, if the petition is denied, judicial review of such denial may be sought, see 5 U.S.C. § 704. Additionally, to the extent private parties are asserted to be in violation of the ESA by “tak[ing]” listed species, suit may be brought against such parties under § 9 of the ESA, 16 U.S.C. § 1538. Here, plaintiff filed a Petition for Emergency Rulemaking with NMFS (see Cummings Decl. Ex. A), which petition was denied (see id. Ex. D). There is no evidence in the record, however, suggesting plaintiff sought judicial review of such denial.
I have obtained copies of the pleadings which are available for download below:
Coast Guard’s Motion for Summary JudgmentCenter’s Memorandum in OppositionCoast Guard’s ReplyOrder Granting Motion for Summary JudgmentFinal Judgment
Found this interesting article in Newsweek which suggests that the U.S. Coast Guard and not the Navy is better suited to address the Somali piracy situation.
The counterpiracy plan outlined Wednesday by Secretary of State Hillary Clinton was short on specifics, but long on nuance. Clinton committed to tracking and freezing the Somali bandits' finances—something that could prove difficult—while also working with shipping conglomerates and insurance companies to address "gaps in their self-defense measures." With a heavy military presence in the region all but off the table, given officials' remarks on the subject, what could that mean?
John Patch, a retired Navy commander who now teaches at the U.S. Army War College, has one possible answer. In the past few months, Patch has repeatedly said the global security threat posed by pirates is "overstated." But if Washington now feels compelled to respond to the surge in piracy in the Gulf of Aden, Patch argues, the best approach would be to treat the problem as a law-enforcement issue, not a military mission. NEWSWEEK's Katie Paul spoke to him about why, if the U.S. is to play any armed role in responding to the Somali pirates, the Coast Guard might be its best bet.
While the Coast Guard is likely the best maritime military force worldwide to address Somali piracy, bar none, it is plainly too small to take on another mission. Law Enforcement Detachment (LEDETs) embarked on Navy or other allied ships could provide a crucial, internationally viable response to the pirate threat. Endgame remains a vexing issue and absent political will for prosecution/incarceration in other countries, the Gulf of Aden's cat and mouse game will continue.
The Court of Appeals for the Ninth Circuit just issued its opinion in the case of Mazda Motors of America, Inc. v. M/V Cougar Ace (opinion here).
The legal issue is whether a defendant in rem can assert a contract right despite being a non-party to the contract. The clause in question was a forum selection clause.
This case arises out of the M/V Cougar Ace mishap (depicted here)
The bills of lading for the cargo had a forum selection clause requiring that disputes be resolved in Tokyo, Japan. The ship itself was not a party to the bills of lading, but was named as a defendant in a proceeding brought in Portland, Oregon. The bills of lading had a Himalaya clause which provided:
The Merchant undertakes that no claim or allegation shall be made against any servant, agent or Sub- Contractor of the Carrier which imposes or attempts to impose upon any of them, or upon any vessel owned or operated by any of them, any liability whatsoever in connection with the Goods, and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing, every such servant, agent and Sub-Contractor shall have the benefit of all provisions herein benefiting
the Carrier as if such provisions were expressly for their benefit; and in entering into this contract, the Carrier, to the extent of those provisions, does so not only on its own behalf, but also as agent and trustee for such servants, agents and Sub-Contractors.The Himalaya clause contractually allows non-parties to assert rights under the contract. The Ninth Circuit’s opinion seemed compelled by the Supreme Court’s 2004 decision in the Norfolk Southern Railway Co. v. Kirby decision. The unanimous decision required an expansive view of Himalaya clauses (which theretofore had been construed narrowly). Justice O’Connor stated:
The Court of Appeals’ ruling is not true to the contract language or to the intent of the parties. The plain language of the Himalaya Clause indicates an intent to extend the liability limitation broadly — to “any servant, agent or other person (including any independent contractor)” whose services contribute to performing the contract. App. to Pet. for Cert. 59a, cl. 10.1 (emphasis added). “Read naturally, the word `any’ has an expansive meaning, that is, `one or some indiscriminately of whatever kind.’” United States v. Gonzales, 520 U. S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). There is no reason to contravene the clause’s obvious meaning. See Green v. Biddle, 8 Wheat. 1, 89-90 (1823) (“[W]here the words of a law, treaty, or contract, have a plain and obvious meaning, all construction, in hostility with such meaning, is excluded”). The expansive contract language corresponds to the fact that various modes of transportation would be involved in performing the contract. Kirby and ICC contracted for the transportation of machinery from Australia to Huntsville, Alabama, and, as the crow flies, Huntsville is some 366 miles inland from the port of discharge. See G. Fitzpatrick & M. Modlin, Direct-Line Distances 168 (1986). Thus, the parties must have anticipated that a land carrier’s services would be necessary for the contract’s performance. It is clear to us that a railroad like Norfolk was an intended beneficiary of the ICC bill’s broadly written Himalaya Clause. Accordingly, Norfolk’s liability is limited by the terms of that clause.
Apparently, there had never been a reported decision of an in rem defendant being protected by the Himalaya clause…till today.
The National Transportation Safety Board has released its report on the Cosco Busan incident (quick and dirty summary in the San Francisco Chronicle’s article here).
From the Executive Summary:
The National Transportation Safety Board determines that the probable cause of the
allision of the Cosco Busan with the San Francisco–Oakland Bay Bridge was the failure to safely
navigate the vessel in restricted visibility as a result of (1) the pilot’s degraded cognitive
performance from his use of impairing prescription medications, (2) the absence of a
comprehensive pre-departure master/pilot exchange and a lack of effective communication
between the pilot and the master during the accident voyage, and (3) the master’s ineffective
oversight of the pilot’s performance and the vessel’s progress. Contributing to the accident was the failure of Fleet Management Ltd. to adequately train the Cosco Busan crewmembers before their initial voyage on the vessel, which included a failure to ensure that the crew understood and complied with the company’s safety management system. Also contributing to the accident was the U.S. Coast Guard’s failure to provide adequate medical oversight of the pilot in view of the medical and medication information that the pilot had reported to the Coast Guard.The following safety issues were identified during this accident investigation:
• Medical oversight of the Cosco Busan pilot;
• Medical oversight of mariners in general;
• Guidance for vessel traffic service operators in exercising authority to manage traffic;
• Procedures for improving the assessment of oil spills in California waters; and
• Training and oversight of the Cosco Busan crew.Board member Deborah A.P. Hersman issued her own statement in dissent, identifying her criticism of the Coast Guard’s Vessel Traffic Service (VTS):
The taxpayers support 35 employees at VTS San Francisco to provide this protection and enforce discipline in an industry of safe professionals who may be imprudently influenced by economic pressures and who may occasionally make mistakes. VTS San Francisco’s stated purpose is to facilitate the safe and efficient transit of vessel traffic in an effort to prevent collisions, rammings, groundings, and the associated loss of life and damage to property and the environment. By not naming VTS as a contributing factor in the probable cause, the Board turned a blind eye to the public’s strongest safety advocate in the San Francisco Bay.
The Pacific Business News published an Op-Ed I drafted on International Law and Somali Piracy. (PBN has published here).
My text is repeated below:
Until recently, we viewed “piracy” to be teenagers downloading internet songs or copying a DVD. Now, armed hijackings, crews and cargos held hostage in the Gulf of Aden
A Maersk Alabama mariner, Richard Hicks, has brought suit against Maersk for negligence, maintenance and cure and other damages allegedly suffered during the piratical attacks off Somalia recently.
The suit was brought in Houston, Texas. Thanks to gCaptain for the tip and Terry Bryant for posting the complaint online.
Complaint available here.
The Coast Guard has released its two marine casualty investigations into the facts and circumstances surrounding two separate de-masting incidents on Hawaii-based catamarans, Fourteenth Coast Guard District’s news release here.
More to follow after I digest the findings.
The Hawaii State Bar Association’s Admiralty Section was pleased to host two speakers from the State of Hawaii’s Department of Land and Natural Resources, Kamaile Nichols and Bin Li.
They discussed civil penalties or assessments for natural resource damages for injury to coral reefs. The pertinent legal authorities are set forth in a handout here