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Supreme Court Holds A Safe-Berth Clause In A Charter Is A Warranty Of Safety By The Charterer

On March 30, 2020, the Supreme Court decision in Citgo Asphalt Refining Company v. Frescati Shipping Co., Ltd, No. 18-565, held that a safe-berth clause in a charter party (a maritime contract for the use of a vessel) constitutes a warranty of safety imposing liability on the charterer, notwithstanding its diligence to select a berth.  The landmark decision, authored by Justice Sotomayor, affirmed the Third Circuit Court of Appeals and resolved a split between the Fifth Circuit and the Second Circuit.  The Court rejected the argument that a charterer may avoid liability under a charter party by simply exercising due diligence in selecting a berth. 

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MARITIME - International Maritime Organization Issues Novel Coronavirus (2019-nCoV) Guidance

            The International Maritime Organization (“IMO”) is a specialized agency of the United Nations dedicated to establishing global standards for international shipping.  The IMO governs a broad spectrum of international shipping issues, including safety requirements for shipping companies, passengers, and seafarers.  Currently, IMO has 173 Member States.

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MARITIME - Modernization of Global Maritime and Distress System

On January 15, 2020, the IMO announced efforts of the Subcommittee on Navigation Communications and Search and Rescue to review requirements for the Global Maritime Distress and Safety System (“GMDSS”).  The GMDSS is an integrated satellite and land-based radio communication system that is mandatory under the International Convention for the Safety of Life at Sea (“SOLAS”).  IMO announced that the Subcommittee for Navigation, Communications and Search and Rescue will finalize its suggestions and report to be submitted to the Maritime Safety Commission with proposed amendments to SOLAS that will be enforced in 2024.  This work by the Subcommittee is an effort toward continual modernization of SOLAS.

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Marine Salvage Award for Post-Hurricane Vessel Recovery

Recently, a United States District Court in the Southern District of Georgia granted a salvage award to a professional salvor for the recovery of a pleasure vessel in the aftermath of Hurricane Matthew. In JSM Marine LLC v. Gaughf, — F. Supp.3d – (S.D. Georgia 2019), 2019 WL 4309014, the court held that the marine salvor was entitled to a salvage award for successfully rescuing the pleasure boat from marine peril. The court also awarded the salvor reasonable attorney’s fees against the vessel owner.

Defendant owned the MIST APPROACH, a 2007 Grady White 228 Seafarer. The 22 foot boat had a small cabin and was designed for offshore saltwater fishing and inshore fishing in the Savannah, Georgia area. At the time Hurricane Michael landed onshore, the MIST APPROACH was tied to Defendant’s dock on a boat lift. The hurricane force winds destroyed Defendant’s boat lift and dock, and ripped the MIST APPROACH from its moorings. The vessel was transplanted four houses down and shoved aground onto a rocky shore surrounded by a field of hurricane debris. The vessel was clearly incapacitated. Unfortunately, at the time of the hurricane, Defendant had not properly registered the MIST APPROACH with the Georgia Department of Natural Resources.

Defendant and her husband were forced to evacuate from the area and did not return home until after the hurricane. Defendant reported the damage to the vessel insurer who assigned an adjuster. After inspecting the vessel, the adjuster planned to contract with a third party to tow the vessel. Before the adjuster could retain the towage contractor, Plaintiff salvaged the vessel.

Plaintiff and a crew of four men working over 40 man-hours, conducted the salvage operation for the MIST APPROACH. Because of the precarious position of the vessel, Plaintiff was required to use a 130 foot barge, a 35 ton crane, a work skiff, gear, a push boat, a truck with a trailer and other specialized equipment. Plaintiff and his crew were forced to cut away rock debris and hoist the vessel from the debris field before transporting the boat to a warehouse.

Defendant refused to pay Plaintiff’s invoice of $7,144. Defendant claimed that Plaintiff’s salvage efforts were unnecessary, and claimed that Plaintiff had stolen her vessel. Plaintiff was arrested by local authorities for felony theft, but ultimately the charges were dismissed. Plaintiff then filed suit for a salvage award.

The district court found that the MIST APPROACH was clearly in marine peril because it was grounded and stranded on a rocky outcrop in a field of debris and could not be safely moved without assistance. Accordingly, the district court applied the specific criteria for a salvage award articulated by the Supreme Court in landmark decision The SABINE, 101 U.S. 384 (1879) recognized and applied by the Eleventh Circuit in Girard v. M/V BLACKSHEEP, 840 F.3d 1351, 1356 (11th Cir. 2016). The elements of a valid salvage claim are: (1) property in marine peril; (2) service voluntarily rendered by a third party when not required by either a contract or existing duty; and (3) success of the salvage, either in whole or in part. In Girard, the Eleventh Circuit specifically recognized, that “as a matter of public policy, salvage law encourages mariners to aid ships in distress.” Id. at 671.

The district court used the factors in landmark general maritime law decision in THE BLACKWALL, 77 U.S. 1 (1869) to measure the amount of the salvage award. These factors are:











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International Maritime Organization (“IMO”) Update - Symposium on Extreme Maritime Weather

On October 23 – 25, the IMO, in conjunction with the World Meteorological Organization (“WMO”), hosted a Symposium on Extreme Maritime Weather Towards Safety of Life at Sea and a Sustainable Blue Economy at the IMO London Headquarters. The Symposium was a contribution to the UN Decade of Ocean Science for Sustainable Development.

The 200 attendees represented shipping companies, ports, harbors, off-shore industries, terminal operators, Coast Guard and marine insurers. The purpose of the meeting was to discuss the impact of global warming and increasing extreme weather conditions on the international carriage of cargo. The group acknowledged that most cargo sold in international trade is transported by ships. The attendees discussed implementation of additional safety measures and new emergency protocols to protect human lives and prevent large cargo losses. The group further discussed new methods to anticipate, detect and avoid extreme weather conditions. In addition, the group focused on the need for sustainable shipping practices and risk reduction.

International Maritime Organization (“IMO”) Update - 2012 Cape Town Agreement

The Cape Town Agreement was adopted in 2012 for the purpose of providing comprehensive international rules to assure the safety of fishing vessels and their crew. The International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel 1995 (the “1995 STCW-F Convention”) that is currently in force, dovetails with the Cape Town Agreement to promote safety for the worldwide fishing industry.

During the October 21 – 23 IMO Torremolinos Ministerial Conference on Fishing Vessel Safety and Illegal Unreported and Unregulated Fishing, 48 States signed a public Declaration of support for the Cape Town Agreement. Notably, the Cape Town Agreement imposes compulsory safety requirements for fishing vessels that are 24 meters in length. The safety regime includes requirements for stability, seaworthiness, electrical equipment, machinery, mandatory life-saving equipment, communication equipment, fire protection equipment as well as obligatory vessel construction methods. The Cape Town Agreement will not come into force until it is executed by a minimum of 22 Member States with a combined total of 3,600 fishing vessels of more than 24 meters that would be within the ambit of the convention.

2019 May - June Highlights: Maritime

IMO FAL Convention Now Requires Mandatory Electronic Information Exchange

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