Photo of Mark M. Murakami

Mark M. Murakami

Subscribe to Mark M. Murakami's Posts

Mark Murakami practices in the firm’s Appeals, Business & Commercial Law, Construction Law, Land Use & Eminent Domain, Litigation & Dispute Resolution, Real Estate, and Wills, Trusts & Estates practice groups. His focus is on complex commercial disputes, land use negotiation and litigation, environmental, and general civil litigation. He has appeared in all federal and states courts in Hawaii, most of the administrative boards and commissions, and is licensed in the U.S. Supreme Court, Ninth Circuit Court of Appeals and Court of Federal Claims. He is rated “BV” by Martindale-Hubbell, receiving a rating of 4.4/5.0.

Mark is the 2025 President of the Hawaii State Bar Association (HSBA). Hawaii’s attorneys selected Mark for this leadership role in a statewide election in late 2022. He subsequently served as the 2023 Vice President and 2024 President-Elect. Founded in 1899, the HSBA is a mandatory professional organization for active and inactive licensed attorneys in Hawai. Its mission is to unite and inspire Hawaii’s lawyers to promote justice, serve the public and improve the legal profession. Mark was first elected by his peers to the 21-person HSBA Board in 2012 and was elected Treasurer from 2014 to 2017.

Mark has been appointed to a leadership position in the American Bar Association Section of Litigation. He will serve as Co-Chair for the Real Estate, Condemnation & Trust Litigation Committee and will be responsible for programming and publications for the nationwide membership.

Mark has been elected as the Hawaii member of Owners’ Counsel of America (OCA), an exclusive association of the nation’s leading eminent domain lawyers. Eminent domain is the legal process by which the government acquires private property for public uses, most often by forcing the owner to sell it. Membership in OCA is by invitation-only, and limited to a single member in each state. Members are selected for their experience and dedication in defending the constitutional rights of private property owners in eminent domain, inverse condemnation, regulatory takings, and other property rights matters.

Mark was elected a Fellow of the American College of Real Estate Lawyers (ACREL). Admission to the College is by invitation only to lawyers who are distinguished real estate practitioners and who have contributed to the improvement of real estate law through a combination of speaking, writing, teaching, and serving on relevant boards and commissions. Founded in 1978, the College is comprised of more than 1,000 lawyers distinguished for their skill, experience, and high standards of professional and ethical conduct in the practice of real estate law.

Mark was awarded the CRE (Counselor of Real Estate) credential by The Counselors of Real Estate, an international association of experienced real estate practitioners including appraisers, lawyers, and brokers, who provide expert advisory services to clients on complex real property and land-related matters. Membership in The Counselors of Real Estate is selective and is extended by invitation only, attesting to the practitioner’s expertise and proven competence in his or her chosen area of real estate.

Mark once again was selected by his peers for inclusion in the 2025 Edition of The Best Lawyers in America® for his work in Commercial Litigation, Eminent Domain & Condemnation Law, Land Use & Zoning Law, Litigation-Land Use & Zoning, Real Estate Law, Trusts & Estates, Litigation-Real Estate, and Litigation-Trusts & Estates. He was also named the Best Lawyers® 2013 Lawyer of the Year Eminent Domain & Condemnation Law. Mark has been selected by Super Lawyers for over 10 years.

Mark was the Valedictorian of the Class of 1999 from the University of Hawaii at Manoa, William S. Richardson School of Law where he served as Articles Editor of the University of Hawaii Law Review. He has received numerous academic awards, including: Dean’s Scholar, Porter Scholastic Award (2 times); Awards for highest grade in Property I, Torts I, Contracts I, Corporations, and Professional Responsibility; Kono Award for Academic Achievement; Phi Delta Phi Professional Responsibility Award; HSBA Real Property and Financial Services Section Award.

He is also a graduate of the U.S. Coast Guard Academy in New London, Connecticut. He served for 13 years on active duty before joining the U.S. Coast Guard Reserve in 2005. During his time on active duty, he served on three different Coast Guard cutters, including command of a patrol boat in California. He spent four years assigned to the Fourteenth Coast Guard District Legal Office, prosecuting courts-martial, litigating cases in federal court as a Special Assistant U.S. Attorney, and advising Coast Guard officials on maritime, criminal, environmental and international law issues.

Mark has been awarded the Legion of Merit, the Defense Meritorious Service Medal, two Meritorious Service Medals, the Joint Service Commendation Medal, two Coast Guard Commendation Medals and four Coast Guard Achievement Medals. He retired in July 2022 as a Captain, culminating thirty years of active duty and reserve commissioned service.

To view his blog on federal litigation and maritime law, in and around Hawaii and Oceania, please visit: www.hawaiioceanlaw.com.

Mark was born on Maui and raised in Kailua, Oahu. He is a graduate of Kailua High School and was active in the Castle Performing Arts Center.

Follow:Read more about Mark M. MurakamiMark's Linkedin ProfileMark's Twitter ProfileMark's Facebook Profile

Last week, I posted an Op-Ed from Newsweek asserting that the Coast Guard was the better service to address Somali piracy (post here).  The “war” on drugs has required the use of Coast Guard Law Enforcement Detachments (LEDETs) embarked on Navy ships (typically, less capable frigates) to extend the reach of U.S. law enforcement without requiring the nation to build more Coast Guard cutters.  The model works well and has been employed in the Persian Gulf since the first Gulf War.  In fact, the first Coast Guardsman killed in combat since Vietnam, Petty Officer Nathan Bruckenthal, lost his life with two sailors while intervening in a suicide bomb attack on an Iraqi oil platform in 2004.

Per the Navy’s post on flickr.com:

GULF OF ADEN (May 13, 2009) Members of a visit, board, search and seizure (VBSS) team from the guided-missile cruiser USS Gettysburg (CG 64) and U.S. Coast Tactical Law Enforcement Team South Detachment 409 capture suspected pirates after responding to a merchant vessel distress signal while operating in the Combined Maritime Forces (CMF) area of responsibility as part of Combined Task Force (CTF) 151. CTF 151 is a multinational task force established to conduct counter-piracy operations under a mission-based mandate throughout the CMF area of responsibility to actively deter, disrupt and suppress piracy in order to protect global maritime security and secure freedom of navigation for the benefit of all nations. (U.S. Navy photo by Mass Communication Specialist 1st Class Eric L. Beauregard/Released) 
 
SomPiracy1 
 
SomPiracy

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)

Cougarace 

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).

Cosco.jpg

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.

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.