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Admiralty and Maritime Law Committee Newsletter Fall 2016
1 1
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to
Advance the Civil Justice System
Fall 2016
Carbon nanotubes (CNTs) hold
promise for many beneficial
applications. However, there have
been concerns and calls for a
moratorium raised over “mounting
evidence” that CNT may be the
“new asbestos,”1
or at least
deserving of “special toxicological
attention” due to prior experiences
with asbestos.2
The shape and size
of some agglomerated CNTs are
similar to asbestos—the most
“desirable.” And because CNTs for
structural utility are long and
thin—characteristics thought to
impart increased potency to
asbestos fibers—discussions of
parallels between these two
substances are natural. Thus, given
the legacy of asbestos-related
injury and the thousands of cases
litigated each year, consideration of
possible implications of the use of
CNTs in research and in consumer
products is prudent.
First reported in 19913
, CNTs
epitomize the emerging field of
nanotechnology, defined by some
as the “ability to measure, see,
manipulate, and manufacture
things usually between 1 and
100 nanometers.”4
CNTs are a type
of carbon-based engineered
nanoparticle generally formed by
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to
Advance the Civil Justice System
Fall 2009
Toxic Torts and Environmental
Law Committee
IN THIS ISSUE
Carbon Nanotubes: The Next Asbestos . . . . . . . . . . . . . . . . . . . . . . . 1
Editor’s Message. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tatera v. FMC Corporation: When Is A Product No A Product?. . . 3
Mexico’s National Wastes Management Program. . . . . . . . . . . . . . . 4
Environmental Risk During Restructuring And Bankruptcy . . . . . 5
Upcoming TTEL Programs And Meetings . . . . . . . . . . . . . . . . . . . . 6
Limitations Of Toxicogenomic Studies To Assess Toxic Exposures
And Injury From Benzene. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Burlington Northern: The Requisite Intent For Arranger Liability
Under Cercla . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2009-2010 TIPS Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Continued on page 18
Committee
News
Committee
News
CARBON NANOTUBES: THE NEXT ASBESTOS?
Fionna Mowat, Exponent, fmowat@exponent.com
Joyce Tsuji, Exponent, tsujij@exponent.com
1 Miller, G. 2008. Mounting evidence that carbon
nanotubes may be the new asbestos. Friends of the
Earth Australia. Available at http://nano.foe.org.au.
2 The Royal Society and Royal Academy of
Engineering (RS/RAE). 2004. Nanoscience and
nanotechnologies. Royal Society and Royal Association
of Engineers. London: The Royal Society. Available at
http://www.royalsoc.ac.uk/.
3 Iijima, S. 1991. Helical microtubules of graphitic
carbon. Nature (London) 354:56–58.
4 National Science and Technology Council (NSTC).
2007. The National Nanotechnology Initiative. Strategic
Plan. Washington DC: NSTC, Committee on
Technology, Subcommittee on Nanoscale Science,
Engineering, and Technology. December. Available at
http://www.nano.gov/ NNI_Strategic_Plan_2004.pdf.
It just takes some creativity
(and a bit of luck) to successfully
attach a maritime defendant’s
assets in this post-Jaldhi era where
EFTs remain outside the scope of
attachable property.2
Take, for example, the ongoing case in the United
States District for the District of Delaware, Belda
Shipping S.A. v. Tadema Shipping and Logistic Inc.,
where a vessel owner, Belda Shipping, armed with
a substantial U.K. High Court judgment against a
Nigerian trader and charterer, Tadema, commenced Rule
B proceedings in an effort to satisfy its judgment.3
The
Complaint made no allegation that Tadema’s assets were
within the jurisdiction of the Delaware District Court
per se, i.e., there is no allegation that Tadema deposited
funds with one of the Delaware banks in Delaware.
Rather, Belda pled that the Delaware corporate presence
of petroleum traders who conduct business with Tadema
are capable of being served with process in Delaware,
and thus any payments that those traders owe Tadema
are subject to attachment there (debts being attachable
property under Rule B).
It goes like this. Chevron, one of the named
garnishees, is “present” in Delaware (despite the fact
MARITIME P&I INSURANCE SPOTLIGHT: RULE B IS NOT
DEAD, LONG LIVE RULE B!
By: Edward Carlson1
Admiralty and Maritime
Law Committee
IN THIS ISSUE:
Maritime P&I Insurance Spotlight: Rule B Is
Not Dead, Long Live Rule B!  .  .  .  .  .  .  .  .  .  .  .  .  . 1
Message From The Chair .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 3
Letter From The Editors  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 4
In Memoriam: Ryan F. Tennant  .  .  .  .  .  .  .  .  .  .  . 5
Trade Talk: John Rapp, Traffic Tech . .  .  .  .  .  .  . 6
My Day with Gard North America  .  .  .  .  .  .  .  .  . 9
Shipping Industry Vulnerable Following
Hanjin Administration . . . . . . . . . . . . . . . . . 10
Arresting Developments: Are you Secured?
U.S. Implications “Downunder” .  .  .  .  .  .  .  .  .  . 11
2016-2017 TIPS Calendar  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 17
1 Edward Carlson is a Senior Claims Executive at Skuld in New York City, New York,
where he is a member of the Loss Prevention and Recurring Claims group. He can be
reached at edward.carlson@skuld.com and (212) 378-0171.
2 Shipping Corp. of India v. Jaldhi Overseas PTE Ltd., 585 F.3d 58 (2d Cir. 2009).
3 Complaint, Belda Shipping S.A. v. Tadema Shipping and Logistic Inc., No. 16-463
(D. Del. June 20, 2016), ECF No. 1.
Continued on page 14
Admiralty and Maritime Law Committee Newsletter Fall 2016
2 2
Chair
Raymond Waid
Liskow & Lewis
701 Poydras St, Ste 5000
New Orleans, LA 70139
(504) 581-7979 EXT 2
rwaid@liskow.com
Chair-Elect
Sarah Gayer
Thompson Bowie & Hatch LLC
PO Box 4630
Portland, ME 04112-4630
(207) 774-2500
Fax: (207) 774-3591
sgayer@thompsonbowie.com
TIPS Council
Representative
Christopher Nolan
Holland & Knight LLP
31 W 52nd St, Fl 11
New York, NY 10019-6111
(212) 513-3307
Fax: (212) 341-7237
chris.nolan@hklaw.com
Law Student Vice-Chair
Cheryl Horn
6150 Gulfport Blvd S, Apt 402
Gulfport, FL 33707
(727) 564-8912
chachacheryl@gmail.com
Past Chair
Jessica Martyn
Palmer Biezup & Henderson
190 N Independence Mall W
Ste 401
Philadelphia, PA 19106-1508
(215) 625-7824
jmartyn@pbh.com
Scope Liaison
Stacy Tees
Goldberg Segalla LLP
1700 Market Street, Ste 1418
Philadelphia, PA 19103-3907
(267) 519-6818
Fax: (267) 519-6801
stees@goldbergsegalla.com
Vice-Chairs
Yaakov Adler
80 Pine Street, 25 Fl
New York, NY 10005-1759
(212) 381-3026
Fax: (212) 425-1901
adler@freehill.com
Jeanne Amy
800 Lafayette Street, Ste 5100
Lafayette, LA 70501
jeanne.amy@gmail.com
Philip Brickman
Degan Blanchard & Nash
400 Poydras St, Fl 26
New Orleans, LA 70130-3245
(504) 529-3333
Fax: (504) 529-3337
pbrickman@degan.com
Attilio Costabel
Attilio M Costabel PA
600 Brickell Ave, Fl 17
Miami, FL 33131-3067
(305) 371-2618
Fax: (305) 667-3215
costabel@costabel.us
Michael Daly
Pierce Atwood LLP
72 Pine St, Fl 5
Providence, RI 02903
(401) 588-5113
mdaly@pierceatwood.com
Blythe Daly
Holland & Knight LLP
31 W 52nd St, Fl 11
New York, NY 10019-6111
(212) 513-3570
Fax: (212) 385-9010
blythe.daly@hklaw.com
Robert Gardana
Robert L Gardana PA
12350 SW 132nd Ct, Ste 204
Miami, FL 33186-6458
(305) 358-0000
Fax: (305) 358-1680
rgardana@aol.com
Danielle Gauer
Danielle Gauer
1701 N. Lois Ave. Apt 428
Tampa, FL 33607
(786) 838-5053
daniellet.gauer@gmail.com
Aaron Greenbaum
Pusateri, Barrios, Guillot &
Greenbaum, LLC
1100 Poydras St, Ste 2250
New Orleans, LA 70163
(504) 620-2370
aaron.greenbaum@pbgglaw.com
Kelly Haas
Royston Rayzor Vickery &
Williams, LLP
The Hunter Building, 306-22nd
Galveston, TX 77550
(409) 763-1623
Fax: (409) 763-3853
kelly.haas@roystonlaw.com
Christopher Hamilton
Shutts & Bowen
4301 W Boy Scout Blvd, Ste 300
Tampa, FL 33607
(813) 229-8900
Fax: (813) 227-8211
CHamilton@Shutts.com
Grady Hurley
Jones Walker LLP
201 Saint Charles Avenue, 48th Fl
New Orleans, LA 70170-1000
(504) 582-8224
Fax: (504) 589-8224
ghurley@joneswalker.com
Laura Knoll
Chaffe McCall, L.L.P
2300 Energy Centre
1100 Poydras Street
New Orleans, LA 70163-2300
(504) 585-7056
Fax: (504) 544-6043
knoll@chaffe.com
James Koelzer
Robins Kaplan LLP
2049 Century Park East, Ste 3400
Los Angeles, CA 90067-3208
(310) 229-5443
Fax: (310) 229-5800
jkoelzer@robinskaplan.com
Donald Mau
Smiley Law Firm, LLC
365 Canal St, Ste 1680
New Orleans, LA 70130
(504) 894-9653
Fax: (504) 561-6024
mau@smileyfirm.com
Christopher Nolan
Holland & Knight LLP
31 W 52nd St, Fl 11
New York, NY 10019-6111
(212) 513-3307
Fax: (212) 341-7237
chris.nolan@hklaw.com
Stephanie Propsom
826 N Duluth Pl
Sturgeon Bay, WI 54235-2959
(920) 743-5020
stephanie.propsom@hotmail.com
Giuseppe Rosa
Giuseppe L Rosa Esq &
Associated Counsels
4 Piazza G Fracastoro
Cavaion Veronese, VR 37010
39(3)35234529
Fax: 39(04)58031040
glrosa@glrosalaw.com
Kelly Scalise
Liskow & Lewis
701 Poydras St, Ste 5000
1 Shell Sq
New Orleans, LA 70139
(504) 299-6110
Fax: (504) 556-4108
ktscalise@liskow.com
Pamela Schultz
Hinshaw & Culbertson LLP
One California St, Fl 18
San Francisco, CA 94111
(415) 263-8132
Fax: (415) 956-0439
pschultz@hinshawlaw.com
Diversity Vice-Chair
Stephanie Penninger
Benesch Friedlander Coplan Etal
One American Square, Ste 2300
Indianapolis, IN 46282
(317) 632-3232
Fax: (317) 632-2962
spenninger@beneschlaw.com
Membership Vice-Chair
Peter Black
Charles Taylor P&I Management
Americas I
75 Broad St, Ste 2505
New York, NY 10004
peterfblack@gmail.com
Pamela Palmer
Morris Polich & Purdy LLP
1055 W 7th St, Ste 2400
Los Angeles, CA 90017-2550
(213) 891-9100
Fax: (213) 488-1178
ppalmer@mpplaw.com
Technology Vice-Chair
Christine Walker
Fowler White Burnett PA
1395 Brickell Ave, Fl 14
Miami, FL 33131
(305) 789-9217
cwalker@fowler-white.com
*Former Chairs of TIPS AMLC
Admiralty and Maritime Law Committee Newsletter Fall 2016
3 3
I am excited to be taking over as chair of the Admiralty and Maritime Law Committee. 
The committee is coming off an outstanding year in large part to Jessica L. Martin’s efforts as
chair, having been recognized by the section for our “creativity and innovation” in activities
and programming designed to benefit our membership.  Full speed ahead - there is more great
programming to come! 
We recently returned from beautiful Coronado, California for the section leadership
meeting.  On October 27th, we sponsored the Tulane Maritime Law Journal’s presentation
during the joint Tulane Admiralty Law Institute – Maritime Law Association meeting in New
Orleans.  On November 10th, we hosted a maritime safety and networking luncheon at the Fort
Lauderdale Yacht Club.  Now, on to 2017!  We are looking forward to hosting a CLE program
during the section’s midyear meeting in Chicago.  The program, titled, “Anatomy of an Emergency Response:  In-
house Counsel, Government, Insurance, and Lawyers in the Golden Hour,” will feature speakers from BP, Great
Lakes Dredging and Dock Company, Archer Daniels Midland Company, Gen Re, and more to be confirmed.  We
are also excited to be partnering with Gard North American on our Law Student Writing Competition again in the
spring. 
These are just a few of the committee’s efforts to add value to the maritime practice and create opportunities for
our membership.  If you have an idea for a program or are wondering how you can become more involved, e-mail me
at rwaid@liskow.com or call 504-556-4042.  I look forward to working with each of you in the 2016-2017 year!
Raymond Waid
Liskow & Lewis
MESSAGE FROM THE CHAIR
Admiralty and Maritime Law Committee Newsletter Fall 2016
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©2016 American Bar Association, Tort Trial & Insurance Practice Section, 321 North Clark Street, Chicago, Illinois 60654; (312)
988-5607. All rights reserved.
The opinions herein are the authors’ and do not necessarily represent the views or policies of the ABA, TIPS or the Admiralty
and Maritime Law Committee. Articles should not be reproduced without written permission from the Copyrights & Contracts
office (copyright@americanbar.org).
Editorial Policy: This Newsletter publishes information of interest to members of the Admiralty and Maritime Law Committee of the Tort
Trial & Insurance Practice Section of the American Bar Association — including reports, personal opinions, practice news, developing law
and practice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section, the Committee,
nor the Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority.
Copies may be requested by contacting the ABA at the address and telephone number listed above.
Hypertext citation linking was created with Drafting Assistant from Thomson Reuters, a product that provides all the tools needed to draft
and review – right within your word processor. Thomson Reuters Legal is a Premier Section Sponsor of the ABA Tort Trial & Insurance
Practice Section, and this software usage is implemented in connection with the Section’s sponsorship and marketing agreements with Thom-
son Reuters. Neither the ABA nor ABA Sections endorse non-ABA products or services. Check if you have access to Drafting Assistant by
contacting your Thomson Reuters representative.
It is our pleasure to present the TIPS AMLC Fall 2016 Newsletter, featuring articles on
the hottest issues in the industry from the Hanjin Shipping bankruptcy marine insurance
implication, to the use of U.S, marine lien laws outside the U.S. in Australia and the P&I
perspective to cutting edge use of Rule B attachments.  We have a special insert from our first
Gard essay winner and his day at Gard’s offices. Our 20th Trade Talk piece features John Rapp
at Traffic Tech for a wide ranging discussion.
We present this newsletter with a heavy heart having learned of the passing of our friend
and fellow editor, Ryan Tennant. Please see our remembrance to Ryan and keep him in your
thoughts.
We are currently looking for submissions for the next newsletter, and
encourage committee members and non-members alike to submit article
proposals directly to us at chris.nolan@hklaw.com; CHamilton@shutts.
com; knoll@chaffe.com. Thank you to the authors who have contributed
to this newsletter, and to the section members for their ongoing efforts in
supporting this publication.
Chris Nolan, Managing Editor
Chris Hamilton, Laura Beck Knoll, Associate Editors
LETTER FROM THE EDITORS
VISIT US ON THE WEB AT:
www.ambar.org/tipsadmiralty
Admiralty and Maritime Law Committee Newsletter Fall 2016
5 5
It is with a heavy heart that we report the loss of our friend, a friend
of the maritime industry, vice-chair, editor, and all around bright star,
Ryan F. Tennant. Ryan passed away Saturday, April 2, 2016, after a
year-long battle with cancer.
We first met Ryan in the spring of 2012 when the admiralty committee
visited Charleston in connection with the Spring meeting. Ryan was a
steady guide and liaison with the Charleston School of Law, his alma
mater. Following the meeting, we welcomed his friendship and work
with the committee – from member engagement, to authorship, and
ultimately a vice chair position with editorial responsibility with our
newsletter. He will be missed by us all.
Outside of the ABA, Ryan was an associate at Rountree Losee
practicing maritime litigation, as well as administrative and regulatory
law. Prior to joining Rountree Losee, he worked in the complex
business litigation department of a successful plaintiff’s firm in Mount
Pleasant, South Carolina. Before attending law school, Mr. Tennant
spent over a decade working domestically and internationally as both a
commercial boat captain and operations manager.
Ryan is survived by his wife, Shannon, and daughter, Perry, with whom
we share our love and fond thoughts of Ryan.
In Memoriam: Ryan F. Tennant
The AMLC leadership attends a
dinner hosted by the Charleston
School of law at the Charleston
Yacht Club with Ryan.
Inside the Charleston Yacht Club, AMLC
leadership dines with Ryan and other distinguished
guests of the Charleston School of Law.
In May 2012, during the
ABA TIPS spring meeting
in Charleston, South
Carolina, the AMLC visited
the Charleston School of
Law for an event with their
maritime society to discuss
the practice of law and plans
for the law school’s new
admiralty LLM program.
Ryan was our valued leader.
Admiralty and Maritime Law Committee Newsletter Fall 2016
6 6
Q. John, tell us what
prompted you to get into the
maritime legal industry?
R. In law school I started
working for Kozacky & Weitzel,
P.C. (now Kozacky Weitzel
McGrath P.C.).  I worked there
for eight years.  The founding
partner is Paul Kozacky.  He
remains a close friend and
mentor of mine.  His passion
was admiralty.
Q. Can you describe
your experience of working
at Traffic Tech as in-house
counsel?
R. I’ve been in-house for six months now.  It’s a
lot different than private practice.  We handle some of
our claims internally so I still get my litigation “fix,”
but I spend significantly more time trying to avoid
litigation—by carefully negotiating contracts, focusing
on risk management and negotiating claims and issues
before they hit the boiling point.  Also, the opportunities
to get involved in different aspects of the business have
been fun and challenging.  For example, I consult with
the sales team on bids and RFQs and human resources
on employment issues.  I also recently organized a
monthly philanthropy outreach for our Chicago office. 
We’ll be serving dinner the first
Monday of every month at a
local homeless shelter.
 Q. What are your views on
hiring outside counsel?
R. We are very results-
oriented when we hire outside
counsel.  We have to answer to
upper management who don’t
always understand the quagmire
that can result in litigation.  If
we have to keep reporting on
delays while the litigation budget
climbs, it gets understandably
tougher to justify.  Thus, if the
litigation budget is expected to
be high, it’s very important that we see a budget and that
it be followed.  Also, it’s important that we always know
what’s going on and when things are going to happen so
that we can pass the information along at the drop of a hat. 
Q. What legal issues are coming across your desk
with some frequency these days?
R.This is still a sales-driven industry so non-competes,
restrictive covenants and trade secrets are always going
to be an issue, as are cargo claims.  We’re currently
dealing with implementing Canada’s new eManifest
requirements, proposed changes to the NMFTA’s straight
TRADETALK
For our twentieth “Trade Talk” piece, we are pleased to spotlight
John Rapp, In-House Counsel at Traffic Tech.   
When it comes to shipping goods efficiently, Traffic Tech balances leading-edge
technology with unparalleled customer service to provide big company advantages while
retaining a small company feel. Its one-call approach and door-to-door service ensures that
the shipment will be safe through every step of the process. Its tracking technology provides
real time access to the shipment’s status at all times. Below are excerpts from our interview
with John which address his views on the maritime industry, issues concerning the hiring of
outside counsel, and his hopes and dreams for a winner in Chicago.
Admiralty and Maritime Law Committee Newsletter Fall 2016
7 7
bill of lading and the new proposed overtime rules. 
Hanjin’s bankruptcy is still a big issue too.
 Q. For our practitioners, which maritime event(s)
do you get the most out of?
R. Webinars and CLEs that report on changes in the
law and best practices are really helpful.  I get a lot of
e-mails on legal updates and try to wade through them
as much as possible, but often they sit unread in my
inbox.  If there is a place that I have to be and a time that
I have to be there, I’ll be there.
 Q. In addition to the AMLC newsletter, of course,
which maritime publication do you find most useful?
R. You mean aside from
Google?  The Transportation
& Logistics Council’s
TransDigestandtheCanadian
International Freight
Forwarders Association’s
eBulletin are very helpful, as
they provide brief updates on
several timely issues.  I also
get a weekly e-mail from
Westlaw with pertinent cases in the industry, which I try
to at least scan.
Q. Thank you for taking time to speak with us
today. As a final question and Chicagoan, who will
have more wins in 2017?  The Cubs’ John Lester or
the Chicago Bears?   
R. Lester.  And it won’t even be close.
Cubs 2016 World Series Champions!!!
Opportunities To Become Involved
n Publication in the AMLC Newsletter or TIPS Law Journal
n Networking Opportunities
n CLE and Webinar Opportunities
n Leadership Positions
n Mentoring Relationships
n Young Lawyers and Law Student Writing Competition
Additional Information
For more information regarding the benefits that membership in the AMLC can provide to you, check out
our webpage at http://ambar.org/tipsadmiralty and join our group on LinkedIn. The Committee is open to all,
including non-lawyer maritime professionals, law students and lawyers in every practice area who
want to keep abreast of developments in the field.
Benefits of AMLC Membership
Admiralty and Maritime Law Committee Newsletter Fall 2016
8 8
APRIL 26-30, 2017JW MARRIOTT CHICAGO | CHICAGO, IL
SAVE THE DATE
Join your colleagues for the premier CLE conference for
insurance, defense, corporate, and plaintiffs attorneys.
THE THIRD ANNUAL TIPS SECTION CONFERENCE WILL FEATURE:
• More than 25 hours of top-notch CLE programming, including
ethics credit, to meet all of your education needs
• Practice area-specific CLE tracks featuring premier speakers
including judges and in-house counsel covering hot topics and the
latest developments
• Numerous opportunities to network with insurance, defense,
corporate and plaintiffs attorneys, judgets and local lawyers
• Exclusive networking events for young lawyers
• Substantive business meetings for 31
practice-specific general committees
• Entertaining social events in the Windy City
For more information visit americanbar.org/tips
TTIPSConf_FPad.indd 1 10/3/16 10:49 AM
Admiralty and Maritime Law Committee Newsletter Fall 2016
9 9
A good attorney understands how her work in the
legal arena affects her client’s business. I have been
blessed with excellent classroom and practical legal
experiences as I prepare to practice law. As part of
my prize for winning the Admiralty and Maritime Law
Committee’s Law Student Writing Competition, I had
the chance to spend a day with Gard, NA, at
their New York office. The visit was a singular
complement to my education. Protection and
indemnity clubs are a vital piece of the complex
maritime industry. After learning about them
from Gard, I feel better prepared to understand
my future clients’ business.
Over the course of a day in August, Gard
North America’s staff and leadership introduced
me to P&I clubs and Gard’s work in particular.
They patiently explained to me the history
of P&I clubs. They walked me through the
modern P&I world, covering everything from
their work in claims management to loss prevention to
crisis response. I learned in detail about the role P&I
club correspondents play in responding to maritime
incidents. Their comprehensive presentation was a
fascinating look at this area of the industry.
Gard’s staff was also gracious enough to have
me present the paper I wrote for this competition on
American courts’ different interpretations of the Rivers
and Harbors Act of 1899. We discussed the Act’s
significance for blue-water shipowners whose vessels
damage publicly-owned harbor improvements. I had
focused on theAct primarily in terms of inland waterway
improvements, so it interested me to consider the topic
from another perspective.
I am grateful to Gard and to the ABATIPS Admiralty
Committee for sponsoring this competition. I know I
will be a better attorney for having had the academic
experience of writing my paper and also for the
opportunity to expand my understanding of the maritime
industry. I look forward to being an active member with
the committee in the years to come.
MY DAY WITH GARD NORTH AMERICA
By: James Johnsen, 16 September 20161
1 Editors Note: James, J.D. Candidate, 2017, The George Washington University Law School, can be reached at 850.598.3761, jjohnsen@law.gwu.edu.
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Admiralty and Maritime Law Committee Newsletter Fall 2016
10 10
The
Situation
So Far
H a n j i n
Shipping of
South Korea, the world’s seventh largest containership
operator, operating 98 containerships (some owned,
some chartered) and several other types of ships, had
been struggling financially for some time, building up
debts of reportedly more than USD $5billion. On 30
August, a restructuring finance deal fell through and
the company went into administration. The results of
this were immediate and dramatic.
Within hours of the announcement by Hanjin,
creditors moved swiftly. Meanwhile, other shipping
companies have sought to defend their own positions,
so as not to be dragged down as well. Hanjin’s entering
into administration has created issues for the “CKYHE
alliance”, existing between Cosco, “K” Line, Yang
Ming, Evergreen, and Hanjin Shipping. The alliance
partners of Hanjin have announced that they will no
longer ship their goods on Hanjin vessels and would not
carry Hanjin containers on their own vessels.
Within a day of the announcement, ports began to
refuse to allow Hanjin vessels entry, for fear of not
being paid port fees. The 3,700-TEU containership,
Hanjin Rome, became the first Hanjin vessel to be
arrested by creditors, while it was in the port of
Singapore, according to reports. The owners of the
goods being transported by Hanjin have consequently
been exposed to financial risks following the failure of
the ship operator; contractually agreed delivery dates
may be missed, goods may need to be stored, and extra
expenses may be incurred as alternative routes for
delivery are arranged. The time of year also presents
additional challenges, asAugust to October is generally
the busiest time of the year for the shipping industry, as
companies stock up for the holiday season.
Who is likely to be affected?
Due to the inherent interdependency in the industry,
the impact is likely to be far-reaching. Below, we examine
those who are likely to immediately feel the effects:
Charterparties
Firstly, of the vessels operated by Hanjin, the
majority were not in fact owned, but chartered by
the company, with Hanjin paying the owners a daily
charter hire amount for the use of the vessels, as is
common under bareboat, demise, or time charterparty
agreements. It is often difficult to tell, simply by looking
at a vessel, as to whether it is owned or chartered, as one
of the terms common to such charterparty agreements
is that the charterer can have the vessel painted into
its own colors. As a result of the recent developments,
the owners of those ships operated by Hanjin may stop
receiving the charter hire amounts, and would therefore
seek to terminate the charterparty agreement and re-take
possession of their vessels, with a view to chartering
them out to another charterer.
With a considerable number of vessels likely to be
affected in this way, the market for hire rates for such
vessels may be reduced due to increased competition.
As a result, owners may face a reduction in income
when they do find a new charterer, or, failing that, be
forced to have the vessels laid up and suffer a complete
loss of earnings.
Terminals and Ports
Terminals and ports to which the Hanjin vessels were
scheduled to visit may need to protect their own financial
position, knowing that the payment of port fees, tug and
pilot services are at risk if they do permit the vessels to
come into their facilities. They could be at risk of not
getting paid for these vessels entering the port.
For those vessels owned by Hanjin, as well as being
barred from port entry, they may have been subject to
SHIPPING INDUSTRY VULNERABLE
FOLLOWING HANJIN ADMINISTRATION
By: Marcus Baker1
& Stephen Harris2
Continued on page 15
1 Marcus’ Baker is the current Chairman of Marsh’s Global Marine Practice. He is responsible for Marsh’s Marine business lines globally (comprising marine cargo, marine hull,
P&I, and liabilities). He was formally the CEO for Marsh’s Marine and Energy practice in Europe, Middle East, and Africa and has been with Marsh and successor companies
since 1994. He has over 30 years’ experience in the industry and has a Business Studies diploma from Hertfordshire University. He can be reached at: Marcus.Baker@marsh.com.
2 Stephen Harris has been working in the marine insurance market in London for 42 years. During this time, he has underwritten a marine hull and liability account at Lloyd’s of
London for over 13 years and spent seven years as the assistant hull and liability underwriter at Cornhill Insurance. Stephen joined Marsh in 1994, to manage and train staff in
marine insurance, in addition to managing a portfolio of marine business. He can be reached at: Stephen.J.Harris@marsh.com.
Admiralty and Maritime Law Committee Newsletter Fall 2016
11 11
Ship arrests in Australia have been prevalent
throughout 2016, in difficult economic times for the
shipping industry.
It is uncontroversial that a party’s claim is only as
good as the security that it holds.  In this regard, ship
arrest in Australia for the purpose of obtaining security
or founding a favourable jurisdiction has grown in
popularity; Australia remains, in the greater scheme of
things, a sound jurisdiction to arrest in.
The process for arrest in Australia is straight forward
and can be managed by the Federal Court of Australia
(Federal Court) in Sydney for any port in Australia. 
Nine out of ten times arrest papers can be filed to have
the ship under arrest within the day.  Release is equally
quick and the Admiralty Marshal is acutely aware of
the commercial consequences of delays. Unlike many
jurisdictions, an arresting party does not have to seek
leave of any competent court.
Ship Arrest - How does it work?
For those not familiar with the concept, a ship may
be arrested by bringing a claim in Rem against the ship
(or property) (the res) rather than the debtor.  An arrest
warrant is issued by the Court and the subject ship is
physically arrested by the Admiralty Marshal of the
Court.  The papers are served on the ship and in doing
so the Court’s jurisdiction is founded even if the parties
and the dispute have no connection with Australia.  The
ship is then detained by the Court (with the help of the
Harbour Master) until such time as either adequate
replacement security is provided or the ship is sold by
way of court sale.  At that point custody, responsibility
and control vests with the Marshal.
Arrest inAustralia is straightforward with a specialist
Admiralty division of the Federal Court handling
maritime claims in Rem and in personam on a daily
basis.  The jurisdiction of the Federal Court with regard
to ship arrest is set out in the Admiralty Act 1988 (Cth)
(Admiralty Act) and the accompanying Admiralty
Rules which is largely an amended version of the 1952
Arrest Convention.
A party may arrest in respect of a wide range of
maritime claims that are divided in theAdmiraltyAct into
three categories - common law maritime liens (section
15), proprietary maritime claims (section 16 and 4(2)) and
general maritime claims (section 17 and 4(3)).
Common law maritime liens that survive a change
in the ownership of a vessel are claims in respect of
salvage, damage done by a ship, wages of the master
and crew and the masters disbursements.
Proprietary maritime claims are claims relating to
the possession, title, ownership or mortgage of a ship as
well as claims between co-owners of a ship relating to
possession, ownership, operation or earnings of a ship.
General maritime claims include, among other
things, claims for or in connection with (in practice the
majority of ship arrests in Australia will be in lieu of
maritime claims):
§	damage done by a ship (whether by collision or
otherwise);
§	loss of life or for personal injury;
§	the loading of goods on to, or the unloading of
goods from, the ship;
§	the embarkation of persons on to, or the
disembarkation of persons from, the ship;
§	the carriage of goods or persons and loss of, or
damage to, goods carried by a ship;
§	an agreement that relates to the carriage of goods
or persons by a ship or to the use or hire of a ship,
whether by charterparty or otherwise;
§	salvage (including life salvage and salvage of cargo
or wreck found on land);
ARRESTING DEVELOPMENTS: ARE
YOU SECURED? U.S. IMPLICATIONS
“DOWNUNDER”
By: Joe Hurley1
, Head Partner and Chris Sacré, Special Counsel
1 The authors are Lawyers in the HWL Ebsworth National Maritime and Trade Practice; the largest in Australia. For any further information, please contact Joe Hurley who heads
the group on jhurley@hwle.com.au.
Admiralty and Maritime Law Committee Newsletter Fall 2016
12 12
§	general average, towage and pilotage of a ship;
§	goods, materials or services (including stevedoring
and lighterage services) supplied or to be supplied
to a ship for its operation or maintenance;
§	construction of a ship (including such a claim
relating to a vessel before it was launched);
§	alteration, repair or equipping of a ship;
§	liability for port, harbour, canal or light tolls,
charges or dues, or tolls, charges or dues of a
similar kind, in relation to a ship;
§	disbursements incurred by a master, shipper,
charterer or agent on account of a ship;
§	insurance premium, or for a mutual insurance call,
in relation to a ship;
§	master or crew wages or remuneration;
§	enforcement of an arbitration award; or
§	interest.
Ship Arrest and Cross Border Insolvency collide -
Hanjin Insolvency
LastyearinthematterYuvSTXPanOceanCoLtd2
the
Federal Court was not prepared to prohibit arrest of STX
Pan Ocean vessels in Australia despite the recognition
of the Korean main proceedings under the UNCITRAL
Model Law on Cross Border Insolvency.  This was very
significant for insolvent shipping companies seeking
global protection for their fleets and creditors seeking
to circumvent the protection offered by administration.
However, the Federal Court ordered that any
application to arrest an STX Pan Ocean vessel in
Australia must be placed before a Judge of the
Federal Court (rather than the Registrar as is the usual
practice). This practice was then adopted by the Court
in a series of more recent application for recognition
and protection.
The very recent fall of Hanjin has produced a
new form of protection in the form of ex parte orders
protecting a specific Hanjin chartered vessel the Hanjin
Milano, her cargo and bunkers from arrest to allow her
to berth and discharge without interruption. The orders
were not challenged and as such whether the UNCITRAL
Model Law trumps ship arrest in rem remains open for
determination - watch this space!
Arrest for Foreign Maritime Liens
Under Admiralty law, only certain claims have the
status of a maritime lien. Namely: salvage damage done
by a ship, wages of the master or of a member of the crew
of a ship or master’s disbursements. Other jurisdictions,
such as the US or Canada, have a greater range of liens
like that of an unpaid bunker supplier.
However, it has long been unclear whether, in
Australia, foreign maritime liens - for instance for the
supply of bunkers - are enforceable by way of an arrest of
a ship, even if the underlying claim in question would not
give rise to a maritime lien under Australian substantive
law. This was initially addressed at first instance by the
Federal Court in its judgment of 11 September 2015 in
Reiter Petroleum Inc v The Ship “Sam Hawk”3
The Facts
MV “Sam Hawk” (Ship) was arrested in Albany,
Western Australia, in November 2014 at the instance of
Reiter Petroleum Inc, a Canadian bunker supplier. Reiter
Petroleum claimed it had not been paid for bunkers
supplied to the Ship. It contended that the Ship’s owner,
SPV Sam Hawk Inc, was liable to pay for them on the
basis of a maritime lien claimed pursuant to section 15 of
theAdmiraltyAct or, alternatively, on a general maritime
claim in respect of goods and materials supplied to the
Ship for its operation or maintenance pursuant to section
4(3)(m) and section 17 of the Admiralty Act.
The Issues
In an interlocutory application to the Court, the
Ship’s owners applied for orders that:
a.	 the writ be set aside for want of jurisdiction and
the action dismissed because Reiter Petroleum’s
claim as advanced did not satisfy the requirements
of either section 15 or section 17 of the Admiralty
Act; or
b.	 iftheCourtdidhavejurisdiction,therebesummary
judgment in favour of the Ship on the basis that
Reiter Petroleum had no reasonable prospect of
successfully prosecuting the proceeding.
The owners’application raised an important question
as to whether the Privy Council decision of Bankers
Trust International Ltd v Todd Shipyards Corporation4
- The Halcyon Isle) was still to be followed in Australia.
2 For a copy of this case please contact the authors.
3 [2015] FCA 1005.
4 [1981] AC 221.
Admiralty and Maritime Law Committee Newsletter Fall 2016
13 13
The Halcyon Isle stands for the proposition that
questions of the existence of an asserted maritime lien
are to be determined in accordance with the law of the
forum. This had been accepted by the Federal Court as
being the state of Australian law: Morlines Maritime
Agency Ltd & Ors v Ship5
“Skulptor Vuchetich” per
Sheppard J.
The Decision
At first instance, the Federal Court held that the
Halcyon Isle decision does not represent the state of
the law in Australia and that the Federal Court had
jurisdiction to consider the claim for a maritime lien for
the supply of bunkers and grant an arrest warrant.
The Court also found that the owners’ complaint
about the general maritime claim pursuant to section
4(3)(m) of the Admiralty Act went to the merits, not to
jurisdiction. Although the Court understood why such
complaints had been made, it found that the pleaded
claim was sufficient to establish jurisdiction.
The Court concluded that it could not be said at the
early interlocutory stage of the proceeding that either
claim should be summarily dismissed, and dismissed the
owners’ application.
Implications
The implication of this first instance decision was
that claimants who had a maritime lien under foreign
law were able to arrest ships in Australia. Compared to
a number of other jurisdictions, this made Australia an
attractive jurisdiction in which to arrest ships to obtain
security for foreign maritime liens.
The Appeal
The Shipowners appealed to the Full Federal Court
of Appeal (Court of Appeal). In summary, the Court
of Appeal allowed the appeal and set aside the writ and
arrest of the ship. The Court ordered the Plaintiff to return
the Club Letter of Undertaking dated 6 November 2014.
The Court of Appeal disagreed with the findings of
the primary Judge on the question of whether the law of
the contract or the law of the forum should be applied
when deciding whether there was a “maritime lien”
within the meaning of section 15 of the Admiralty Act. 
The Court of Appeal concluded that the question of
whether a claim is a maritime lien will be determined
by reference to Australian law and the limited list of
maritime liens that Australian Law recognises.  The
Court of Appeal reached this conclusion for reasons of
principle and policy, without finding that the first instance
Judge had necessarily erred in law.  The Court of Appeal
wished to ensure coherence in Australian law including
in relation to priorities rules, the private international law
rules for the determination of ownership of a vessel and
the private international law rules concerning rights to
goods arising by transactions. As a matter of principal,
the Court of Appeal voiced concern over whether an
owner, who was not privy to a bunker supply contract,
could be held liable under that contract, absent some
agency relationship.
The Court of Appeal followed the English authorities
and the rule set out in the Halcyon Isle which concludes
that, to the extent that a creditor’s claim under the law
of the contract included rights of priority over other
creditors (a possessory lien in this case), that particular
part of the law of the contract would be compelled to
yield to the law of the forum of any foreign court in
which the action in Rem was brought. 
Although it was not determinative, the Court also
concluded that the lex causae was not Canadian or US
law but was more likely to be the laws of Hong Kong or
Turkey or Australia.6
5 [1997] FCA 432.
6 Copies of the lower court and appeal decision are available from the authors.
VISIT US ON THE WEB AT:
www.ambar.org/tipsadmiralty
Admiralty and Maritime Law Committee Newsletter Fall 2016
14 14
that Chevron primarily conducts its trading operations
in Texas). Chevron also may owe money to Tadema
for the purchase of Nigerian petroleum products. But
the fact that Chevron is “present” in Delaware— from
Belda’s perspective— means that any debts due and
owing to Tadema by Chevron in Houston are attachable
in Delaware because of the jurisdictional hook.
Further, because so many businesses are “present” in
Delaware, Belda was able to name 13 garnishees in a
single proceeding as opposed to commencing multiple
proceedings in multiple jurisdictions.
Conceptually, Belda pushes the boundaries of Rule
B, as in most Rule B cases the actual asset is located
within the jurisdiction where the Rule B application has
been made, not just the corporate presence of potential
garnishees. This approach creatively re-conceptualizes
what it means for a garnishee to hold an asset and be
present for purposes of jurisdiction, especially in this
age of digital commerce when debts and credits are
essentially bytes in a computer system.
Additional Rule B nuances should also be considered
when attaching a physical asset to obtain security for
a maritime claim and/or jurisdiction over a maritime
defendant who has unplugged the phone and stopped
responding to emails. The attachment of a physical asset
under Rule B, such as a cargo aboard a ship or bunkers
in a tank, usually requires initial service of the writ of
attachment by the U.S. Marshall. So when you advise
your client that they can seek a Rule B to secure their
claim in arbitration, make sure to also advise them up
front about the need to deposit the U.S. Marshalls’ fees
in the courthouse where the application is being made,
which can vary by jurisdiction ($6500/month in the
Southern District of New York if no substitute custodian,
$2000 up front if there is a substitute custodian). And
by also including authorization for the appointment of a
substitute custodian with the Rule B plaintiff’s proposed
order and writ of attachment, U.S. Marshall costs can be
reduced by essentially subcontracting the duty to watch
the attached res pending resolution of the litigation.
But should you find yourself in protracted litigation
with a Rule B defendant— especially one who opts to
file for Chapter 15 recognition of a foreign bankruptcy
while also challenging the Rule B attachment in federal
court— your client could find him or herself paying a
hefty custodial fee to essentially babysit the attached
physical asset for months.
Additional sticky situations can result when attaching
physical assets. Take another example, bunkers, which
are often targeted. But in doing so, consider what
happens when the owner of the bunkers throws in the
towel and leaves the Rule B plaintiff the onerous task
of taking possession via hiring a bunker barge, and
then having to sell the bunkers for salvage. Attaching
bunkers can be useful when the Rule B defendant has
the financial wherewithal to post security and keep their
maritime business operations moving. But if the Rule
B defendant is in a precarious financial situation, they
may simply opt to leave the Rule B plaintiff with the
bunkers. Which, to be frank, is much more messy than
serving commodity traders in Delaware to attach assets
on a computer screen in Houston.
Finally, a word about ownership. If you attach a cargo
under Rule B, especially one as valuable (and tradable)
as petroleum, expect a fight as to who owns the cargo at
the time the writ of attachment is served. Commodity
trades can be purposefully opaque as to who owns the
cargo at what time, thereby kicking up a smokescreen of
title for the Rule B plaintiff to navigate. Attach a cargo
that doesn’t belong to the Rule B defendant, and you
could find yourself in the unenviable positon of footing
the bill for the vessel’s expenses incurred while serving
as a “warehouse custodian” of the improperly restrained
cargo (vessel’s daily hire rate plus fuel, pilotage and
launch services).4
MARITIME P&I INSURANCE...
Continued from page 1
4 See Marastro Compania Naviera v. Canadian Maritime Carriers, Ltd., 959 F.2d 49 (5th Cir. 1992).
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Admiralty and Maritime Law Committee Newsletter Fall 2016
15 15
mortgages from banks, which could seize vessels under
the terms of the finance agreements once Hanjin goes
into default on those loan agreements.
Freight Forwarders
Freight forwarders could be put in a difficult
position if they have taken goods into their care (or
have contractually agreed to do so), as those contracts
may impose financial penalties if the goods are not
delivered to the right place at the right time. If the freight
forwarder has scheduled to have the goods loaded onto
a vessel that does not arrive, they will have to find an
alternative, which could prove expensive, particularly
as many freight forwarders will also be looking to find
alternatives. This is unless the freight forwarders have
arranged to be contractually held not liable by the owners
of the goods in their freight forwarder agreements, in
the event of the financial insolvency or default of the
scheduled carrier. However, few freight forwarders are
likely to have considered this.
All this could lead to ports becoming rapidly
inundated with containers which are unable to be
shipped quickly. Available space to store these
containers could soon become exhausted; therefore,
the ports and terminals may have to close their gates to
Hanjin-scheduled containers.
This will then have an adverse effect on independent
truck companies, rail freight companies, and hauliers,
as they will be refused entry to ports and will have to
find a means of storing these containers, with the added
financial burden of not being paid for having failed to
deliver the boxes to the port. In order to avoid entering
financial difficulties themselves, such companies may
have to refuse to load boxes scheduled to be carried on
Hanjin vessels. While this would reduce the problem of
storage, it would also reduce their income. In addition,
since many trucking companies work on very tight
financial margins, the financial insolvency of Hanjin
could lead to the financial default of others all along the
supply chain.
Crews
The crews on Hanjin-operated vessels may find
themselves at risk of not being paid, or receiving
reduced pay, and being left stranded at various ports
around the world. While this may be lessened in some
jurisdictions, especially following the implementation
of the Maritime Labour Convention (MLC 2006),
the likelihood of full pay is threatened. Hanjin’s port
agents around the world may also face a loss of income
if their agency fees are unpaid.
Alliance Partners
The CKYHE alliance partners of Hanjin may also
face logistical problems, if they have relied on Hanjin
vessels to provide a service for their own customers (that
is, under a “box swapping” arrangement). Similarly,
some of those partners (for example, Evergreen) are
already refusing to carry Hanjin boxes on their own
vessels, which merely adds to the woes of Hanjin
customers. However, while many of the boxes may be
emblazoned with Hanjin’s color and logo, many are
leased by the company, not owned. The box owners will
most likely want to claim back their property if Hanjin
fails to pay the required lease amounts.
The various companies that supply to Hanjin-
operated vessels, such as oil (bunker) providers and
food and equipment suppliers could face challenges and
financial loss as a result of this insolvency.
Cargo Owners
The cargo owners entrusted to the care of Hanjin
or other service providers who have loaded onto, or
were near to loading onto, a Hanjin vessel, are perhaps
most at risk of a financial loss following the shipping
company’s failure.
The arrival of all goods at the required location is, to
a greater or lesser extent, time sensitive, especially with
the proliferation of a “just in time” shipments culture.
With the approaching holiday season, suppliers are
looking to stock up ahead of an expected demand. With
perishable or seasonal goods the need is far more critical
than it may be for general goods. However the knock-
on effects, following a delayed arrival of goods, even if
undamaged, can be serious. Projects, dependent on the
timely arrival of materials, during a manufacturing or
constructionprocesscouldbecomethemselvesdelayedas
a result, with varying consequences for the manufacturer
or for the construction project management. Often,
contractual penalties are imposed on manufacturers or
construction contractors for delay in delivery or delay in
start-up respectively. All of these could be affected by a
hiccough in the supply chain. The longer the delay, the
more severe the effects could be.
SHIPPING INDUSTRY...
Continued from page 10
Admiralty and Maritime Law Committee Newsletter Fall 2016
16 16
Other Considerations – Supply Chain Interruption
and Delay
From what has already been detailed, it is clear that
end users of goods or components could suffer delay or
a loss of supplies. In either case, the disruption could
be significant and have knock-on effects as facilities
become clogged and competition for alternative
capacity intensifies. The potential disruption should be
evaluated and planning put in place prior to the full
effects being felt.
Insurance Coverage Issues
Unsurprisingly, there is now considerable concern
throughout the industry as to whether or not companies
are insured against this scenario, and certainly whether
additionally incurred forwarding costs are covered.
Unfortunately, there is no simple answer that fits all
cases, as marine cargo insurance policies are written on
a wide variety of terms and conditions, for which there
are going to be very different answers on a “case-by-
case” basis. Many policies have additional conditions
imposed by insurers beyond those laid down in the
standard market “Institute” sets of clauses.
Attention has been drawn to one particular exclusion
commonly found in marine cargo insurance policies,
namely the “Insolvency of Carrier exclusion”3
Despite that exclusion, for cover to continue against
the perils otherwise covered under the insurance, the
shipper must not have been aware, at the time of loading
the goods on the vessel, that the carrier was in such a
parlous financial state that could prevent the voyage
from taking place.
However, one further concession under the Institute
Cargo Clauses in 2009 was for the buyers of goods
(presumably under a cost, insurance, and freight
(CIF) type of contract of sale, and where the goods
have already been loaded on the vessel at the time of
purchase) to be exempt from this exclusion. In order
to have a valid claim, any loss or damage would need
to have been proximately caused by a peril otherwise
covered under the terms of the policy. The Institute
Cargo Clauses go into further detail in Clause 9, titled
Termination of Contract of Carriage, on what happens
if, during the period covered by the contract of carriage
(normally from when the goods have been loaded on the
vessel), the carrier becomes insolvent.
Clause 12, titled Forwarding Charges, explains how
expenses incurred should be handled. However, we must
emphasize that the standard Institute clauses are often
just the initial basis of insurance cover provided, and
numerous amendments, additions, and alterations to the
terms and conditions will apply on a case-by-case basis.
For those that are unsure about, or have questions
regarding, their coverage, we would advise you to
consult your broker at the earliest opportunity.
What Risks Should Buyers of Goods Now
Consider?
Potential buyers of goods may now find themselves
being offered attractive bargains. However, buyers
(or consignees) need to exercise considerable care
when being offered goods that are already on ships
(commonly under CIF type of contacts), as they may,
unwittingly, be buying into this problem, if those goods
are actually being carried on Hanjin-operated vessels.
Before purchasing such goods, careful examination of
the bill of lading (BoL) is strongly advised to see who
the carrier is, in addition to scrutiny of the terms of the
insurance that is offered to cover the goods on the vessel
under such CIF contracts, by the seller. It should be
noted that insurance cover deemed to be “adequate” in
the mind of the seller, may not be so for the buyer.
What Next?
In the immediate aftermath of the collapse, there
have been reports of financial injections into Hanjin
Shipping to save the company. While this may happen,
there is the strong possibility that, despite all efforts,
the company will still fall into bankruptcy. In addition
to the survival issues for Hanjin, there is no “one-size-
fits-all” answer to the numerous insurance questions
arising from this turn of events from cargo interests and
others. Marsh will continue to monitor the situation and
will look to assist clients on various insurance matters
arising as this develops.4
3 (Clause 4.6 of the Institute Cargo Clauses A, B, and C).
4 Editors Note: This article is based on a piece originally published by Marsh Ltd. in September 2016, and republished here with Marsh’s permission. The information
contained herein is based on sources we believe reliable and should be understood to be general risk management and insurance information only. The information is ot
intended to be taken as advice with respect to any individual situation and cannot be relied upon as such. In the United Kingdom, Marsh Ltd is authorised and regulated by the
Financial Conduct Authority. Marsh Ltd, trading as Marsh Ireland is authorised by the Financial Conduct Authority in the UK and is regulated by the Central Bank of Ireland
for conduct of business rules.
Admiralty and Maritime Law Committee Newsletter Fall 2016
17 17
December 2016
5	 TIPS Free Member Monday CLE	 Free Teleconference
	 Contact: Ninah Moore – 312/988-5498	
January 2017
12-14	 Midwinter Symposium on Insurance &
	 Employee Benefits	 Hyatt Regency
	 Contact: Ninah Moore – 312/988-5498	 Coral Gables, FL
19-21	 Fidelity & Surety Committee Midwinter Mtg	 Roosevelt Hotel
	 Contact: Felisha Stewart – 312/988-5672	 New Orleans, LA
February 2017
2-5	 ABA Midyear Meeting	 Miami, FL
	 Contact: Felisha Stewart – 312/988-5672
23-25	 Insurance Coverage Litigation Midyear Mtg	 Arizona Biltmore Rst
	 Contact: Felisha Stewart – 312/988-5672	 & Spa, Phoenix AZ
March 2017
8-10	 Transportation Mega Conference	 Sheraton New Orleans Hotel
	 Contact: Donald Quarles – 312/988-5702	 New Orleans, LA
25-29	 TIPS/ABOTA National Trial Academy	 TBD
	 Contact: Donald Quarles – 312/988-570	
April 2017
6-7	 Motor Vehicle Products Liability Program	 Arizona Biltmore Resort
	 Contact: Donald Quarles – 312/988-5708	 & Spa, Phoenix AZ
7-8	 Toxic Torts & Environmental Law Midyear Mtg	 Arizona Biltmore
	 Contact: Felisha Stewart – 312/988-5672 	Resort & Spa, Phoenix, AZ
26-30	 TIPS Section Conference	 JW Marriott Chicago
	 Contact: Felisha Stewart – 312/988-5672	 Chicago, IL
	 Speaker Contact: Donald Quarles – 312/988-5708	
2016-2017 TIPS CALENDAR

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2016AdmiraltyFall

  • 1. Admiralty and Maritime Law Committee Newsletter Fall 2016 1 1 Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to Advance the Civil Justice System Fall 2016 Carbon nanotubes (CNTs) hold promise for many beneficial applications. However, there have been concerns and calls for a moratorium raised over “mounting evidence” that CNT may be the “new asbestos,”1 or at least deserving of “special toxicological attention” due to prior experiences with asbestos.2 The shape and size of some agglomerated CNTs are similar to asbestos—the most “desirable.” And because CNTs for structural utility are long and thin—characteristics thought to impart increased potency to asbestos fibers—discussions of parallels between these two substances are natural. Thus, given the legacy of asbestos-related injury and the thousands of cases litigated each year, consideration of possible implications of the use of CNTs in research and in consumer products is prudent. First reported in 19913 , CNTs epitomize the emerging field of nanotechnology, defined by some as the “ability to measure, see, manipulate, and manufacture things usually between 1 and 100 nanometers.”4 CNTs are a type of carbon-based engineered nanoparticle generally formed by Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to Advance the Civil Justice System Fall 2009 Toxic Torts and Environmental Law Committee IN THIS ISSUE Carbon Nanotubes: The Next Asbestos . . . . . . . . . . . . . . . . . . . . . . . 1 Editor’s Message. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Tatera v. FMC Corporation: When Is A Product No A Product?. . . 3 Mexico’s National Wastes Management Program. . . . . . . . . . . . . . . 4 Environmental Risk During Restructuring And Bankruptcy . . . . . 5 Upcoming TTEL Programs And Meetings . . . . . . . . . . . . . . . . . . . . 6 Limitations Of Toxicogenomic Studies To Assess Toxic Exposures And Injury From Benzene. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Burlington Northern: The Requisite Intent For Arranger Liability Under Cercla . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2009-2010 TIPS Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Continued on page 18 Committee News Committee News CARBON NANOTUBES: THE NEXT ASBESTOS? Fionna Mowat, Exponent, fmowat@exponent.com Joyce Tsuji, Exponent, tsujij@exponent.com 1 Miller, G. 2008. Mounting evidence that carbon nanotubes may be the new asbestos. Friends of the Earth Australia. Available at http://nano.foe.org.au. 2 The Royal Society and Royal Academy of Engineering (RS/RAE). 2004. Nanoscience and nanotechnologies. Royal Society and Royal Association of Engineers. London: The Royal Society. Available at http://www.royalsoc.ac.uk/. 3 Iijima, S. 1991. Helical microtubules of graphitic carbon. Nature (London) 354:56–58. 4 National Science and Technology Council (NSTC). 2007. The National Nanotechnology Initiative. Strategic Plan. Washington DC: NSTC, Committee on Technology, Subcommittee on Nanoscale Science, Engineering, and Technology. December. Available at http://www.nano.gov/ NNI_Strategic_Plan_2004.pdf. It just takes some creativity (and a bit of luck) to successfully attach a maritime defendant’s assets in this post-Jaldhi era where EFTs remain outside the scope of attachable property.2 Take, for example, the ongoing case in the United States District for the District of Delaware, Belda Shipping S.A. v. Tadema Shipping and Logistic Inc., where a vessel owner, Belda Shipping, armed with a substantial U.K. High Court judgment against a Nigerian trader and charterer, Tadema, commenced Rule B proceedings in an effort to satisfy its judgment.3 The Complaint made no allegation that Tadema’s assets were within the jurisdiction of the Delaware District Court per se, i.e., there is no allegation that Tadema deposited funds with one of the Delaware banks in Delaware. Rather, Belda pled that the Delaware corporate presence of petroleum traders who conduct business with Tadema are capable of being served with process in Delaware, and thus any payments that those traders owe Tadema are subject to attachment there (debts being attachable property under Rule B). It goes like this. Chevron, one of the named garnishees, is “present” in Delaware (despite the fact MARITIME P&I INSURANCE SPOTLIGHT: RULE B IS NOT DEAD, LONG LIVE RULE B! By: Edward Carlson1 Admiralty and Maritime Law Committee IN THIS ISSUE: Maritime P&I Insurance Spotlight: Rule B Is Not Dead, Long Live Rule B! . . . . . . . . . . . . . 1 Message From The Chair . . . . . . . . . . . . . . . . . 3 Letter From The Editors . . . . . . . . . . . . . . . . . 4 In Memoriam: Ryan F. Tennant . . . . . . . . . . . 5 Trade Talk: John Rapp, Traffic Tech . . . . . . . . 6 My Day with Gard North America . . . . . . . . . 9 Shipping Industry Vulnerable Following Hanjin Administration . . . . . . . . . . . . . . . . . 10 Arresting Developments: Are you Secured? U.S. Implications “Downunder” . . . . . . . . . . 11 2016-2017 TIPS Calendar . . . . . . . . . . . . . . . 17 1 Edward Carlson is a Senior Claims Executive at Skuld in New York City, New York, where he is a member of the Loss Prevention and Recurring Claims group. He can be reached at edward.carlson@skuld.com and (212) 378-0171. 2 Shipping Corp. of India v. Jaldhi Overseas PTE Ltd., 585 F.3d 58 (2d Cir. 2009). 3 Complaint, Belda Shipping S.A. v. Tadema Shipping and Logistic Inc., No. 16-463 (D. Del. June 20, 2016), ECF No. 1. Continued on page 14
  • 2. Admiralty and Maritime Law Committee Newsletter Fall 2016 2 2 Chair Raymond Waid Liskow & Lewis 701 Poydras St, Ste 5000 New Orleans, LA 70139 (504) 581-7979 EXT 2 rwaid@liskow.com Chair-Elect Sarah Gayer Thompson Bowie & Hatch LLC PO Box 4630 Portland, ME 04112-4630 (207) 774-2500 Fax: (207) 774-3591 sgayer@thompsonbowie.com TIPS Council Representative Christopher Nolan Holland & Knight LLP 31 W 52nd St, Fl 11 New York, NY 10019-6111 (212) 513-3307 Fax: (212) 341-7237 chris.nolan@hklaw.com Law Student Vice-Chair Cheryl Horn 6150 Gulfport Blvd S, Apt 402 Gulfport, FL 33707 (727) 564-8912 chachacheryl@gmail.com Past Chair Jessica Martyn Palmer Biezup & Henderson 190 N Independence Mall W Ste 401 Philadelphia, PA 19106-1508 (215) 625-7824 jmartyn@pbh.com Scope Liaison Stacy Tees Goldberg Segalla LLP 1700 Market Street, Ste 1418 Philadelphia, PA 19103-3907 (267) 519-6818 Fax: (267) 519-6801 stees@goldbergsegalla.com Vice-Chairs Yaakov Adler 80 Pine Street, 25 Fl New York, NY 10005-1759 (212) 381-3026 Fax: (212) 425-1901 adler@freehill.com Jeanne Amy 800 Lafayette Street, Ste 5100 Lafayette, LA 70501 jeanne.amy@gmail.com Philip Brickman Degan Blanchard & Nash 400 Poydras St, Fl 26 New Orleans, LA 70130-3245 (504) 529-3333 Fax: (504) 529-3337 pbrickman@degan.com Attilio Costabel Attilio M Costabel PA 600 Brickell Ave, Fl 17 Miami, FL 33131-3067 (305) 371-2618 Fax: (305) 667-3215 costabel@costabel.us Michael Daly Pierce Atwood LLP 72 Pine St, Fl 5 Providence, RI 02903 (401) 588-5113 mdaly@pierceatwood.com Blythe Daly Holland & Knight LLP 31 W 52nd St, Fl 11 New York, NY 10019-6111 (212) 513-3570 Fax: (212) 385-9010 blythe.daly@hklaw.com Robert Gardana Robert L Gardana PA 12350 SW 132nd Ct, Ste 204 Miami, FL 33186-6458 (305) 358-0000 Fax: (305) 358-1680 rgardana@aol.com Danielle Gauer Danielle Gauer 1701 N. Lois Ave. Apt 428 Tampa, FL 33607 (786) 838-5053 daniellet.gauer@gmail.com Aaron Greenbaum Pusateri, Barrios, Guillot & Greenbaum, LLC 1100 Poydras St, Ste 2250 New Orleans, LA 70163 (504) 620-2370 aaron.greenbaum@pbgglaw.com Kelly Haas Royston Rayzor Vickery & Williams, LLP The Hunter Building, 306-22nd Galveston, TX 77550 (409) 763-1623 Fax: (409) 763-3853 kelly.haas@roystonlaw.com Christopher Hamilton Shutts & Bowen 4301 W Boy Scout Blvd, Ste 300 Tampa, FL 33607 (813) 229-8900 Fax: (813) 227-8211 CHamilton@Shutts.com Grady Hurley Jones Walker LLP 201 Saint Charles Avenue, 48th Fl New Orleans, LA 70170-1000 (504) 582-8224 Fax: (504) 589-8224 ghurley@joneswalker.com Laura Knoll Chaffe McCall, L.L.P 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163-2300 (504) 585-7056 Fax: (504) 544-6043 knoll@chaffe.com James Koelzer Robins Kaplan LLP 2049 Century Park East, Ste 3400 Los Angeles, CA 90067-3208 (310) 229-5443 Fax: (310) 229-5800 jkoelzer@robinskaplan.com Donald Mau Smiley Law Firm, LLC 365 Canal St, Ste 1680 New Orleans, LA 70130 (504) 894-9653 Fax: (504) 561-6024 mau@smileyfirm.com Christopher Nolan Holland & Knight LLP 31 W 52nd St, Fl 11 New York, NY 10019-6111 (212) 513-3307 Fax: (212) 341-7237 chris.nolan@hklaw.com Stephanie Propsom 826 N Duluth Pl Sturgeon Bay, WI 54235-2959 (920) 743-5020 stephanie.propsom@hotmail.com Giuseppe Rosa Giuseppe L Rosa Esq & Associated Counsels 4 Piazza G Fracastoro Cavaion Veronese, VR 37010 39(3)35234529 Fax: 39(04)58031040 glrosa@glrosalaw.com Kelly Scalise Liskow & Lewis 701 Poydras St, Ste 5000 1 Shell Sq New Orleans, LA 70139 (504) 299-6110 Fax: (504) 556-4108 ktscalise@liskow.com Pamela Schultz Hinshaw & Culbertson LLP One California St, Fl 18 San Francisco, CA 94111 (415) 263-8132 Fax: (415) 956-0439 pschultz@hinshawlaw.com Diversity Vice-Chair Stephanie Penninger Benesch Friedlander Coplan Etal One American Square, Ste 2300 Indianapolis, IN 46282 (317) 632-3232 Fax: (317) 632-2962 spenninger@beneschlaw.com Membership Vice-Chair Peter Black Charles Taylor P&I Management Americas I 75 Broad St, Ste 2505 New York, NY 10004 peterfblack@gmail.com Pamela Palmer Morris Polich & Purdy LLP 1055 W 7th St, Ste 2400 Los Angeles, CA 90017-2550 (213) 891-9100 Fax: (213) 488-1178 ppalmer@mpplaw.com Technology Vice-Chair Christine Walker Fowler White Burnett PA 1395 Brickell Ave, Fl 14 Miami, FL 33131 (305) 789-9217 cwalker@fowler-white.com *Former Chairs of TIPS AMLC
  • 3. Admiralty and Maritime Law Committee Newsletter Fall 2016 3 3 I am excited to be taking over as chair of the Admiralty and Maritime Law Committee.  The committee is coming off an outstanding year in large part to Jessica L. Martin’s efforts as chair, having been recognized by the section for our “creativity and innovation” in activities and programming designed to benefit our membership.  Full speed ahead - there is more great programming to come!  We recently returned from beautiful Coronado, California for the section leadership meeting.  On October 27th, we sponsored the Tulane Maritime Law Journal’s presentation during the joint Tulane Admiralty Law Institute – Maritime Law Association meeting in New Orleans.  On November 10th, we hosted a maritime safety and networking luncheon at the Fort Lauderdale Yacht Club.  Now, on to 2017!  We are looking forward to hosting a CLE program during the section’s midyear meeting in Chicago.  The program, titled, “Anatomy of an Emergency Response:  In- house Counsel, Government, Insurance, and Lawyers in the Golden Hour,” will feature speakers from BP, Great Lakes Dredging and Dock Company, Archer Daniels Midland Company, Gen Re, and more to be confirmed.  We are also excited to be partnering with Gard North American on our Law Student Writing Competition again in the spring.  These are just a few of the committee’s efforts to add value to the maritime practice and create opportunities for our membership.  If you have an idea for a program or are wondering how you can become more involved, e-mail me at rwaid@liskow.com or call 504-556-4042.  I look forward to working with each of you in the 2016-2017 year! Raymond Waid Liskow & Lewis MESSAGE FROM THE CHAIR
  • 4. Admiralty and Maritime Law Committee Newsletter Fall 2016 4 4 ©2016 American Bar Association, Tort Trial & Insurance Practice Section, 321 North Clark Street, Chicago, Illinois 60654; (312) 988-5607. All rights reserved. The opinions herein are the authors’ and do not necessarily represent the views or policies of the ABA, TIPS or the Admiralty and Maritime Law Committee. Articles should not be reproduced without written permission from the Copyrights & Contracts office (copyright@americanbar.org). Editorial Policy: This Newsletter publishes information of interest to members of the Admiralty and Maritime Law Committee of the Tort Trial & Insurance Practice Section of the American Bar Association — including reports, personal opinions, practice news, developing law and practice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section, the Committee, nor the Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority. Copies may be requested by contacting the ABA at the address and telephone number listed above. Hypertext citation linking was created with Drafting Assistant from Thomson Reuters, a product that provides all the tools needed to draft and review – right within your word processor. Thomson Reuters Legal is a Premier Section Sponsor of the ABA Tort Trial & Insurance Practice Section, and this software usage is implemented in connection with the Section’s sponsorship and marketing agreements with Thom- son Reuters. Neither the ABA nor ABA Sections endorse non-ABA products or services. Check if you have access to Drafting Assistant by contacting your Thomson Reuters representative. It is our pleasure to present the TIPS AMLC Fall 2016 Newsletter, featuring articles on the hottest issues in the industry from the Hanjin Shipping bankruptcy marine insurance implication, to the use of U.S, marine lien laws outside the U.S. in Australia and the P&I perspective to cutting edge use of Rule B attachments.  We have a special insert from our first Gard essay winner and his day at Gard’s offices. Our 20th Trade Talk piece features John Rapp at Traffic Tech for a wide ranging discussion. We present this newsletter with a heavy heart having learned of the passing of our friend and fellow editor, Ryan Tennant. Please see our remembrance to Ryan and keep him in your thoughts. We are currently looking for submissions for the next newsletter, and encourage committee members and non-members alike to submit article proposals directly to us at chris.nolan@hklaw.com; CHamilton@shutts. com; knoll@chaffe.com. Thank you to the authors who have contributed to this newsletter, and to the section members for their ongoing efforts in supporting this publication. Chris Nolan, Managing Editor Chris Hamilton, Laura Beck Knoll, Associate Editors LETTER FROM THE EDITORS VISIT US ON THE WEB AT: www.ambar.org/tipsadmiralty
  • 5. Admiralty and Maritime Law Committee Newsletter Fall 2016 5 5 It is with a heavy heart that we report the loss of our friend, a friend of the maritime industry, vice-chair, editor, and all around bright star, Ryan F. Tennant. Ryan passed away Saturday, April 2, 2016, after a year-long battle with cancer. We first met Ryan in the spring of 2012 when the admiralty committee visited Charleston in connection with the Spring meeting. Ryan was a steady guide and liaison with the Charleston School of Law, his alma mater. Following the meeting, we welcomed his friendship and work with the committee – from member engagement, to authorship, and ultimately a vice chair position with editorial responsibility with our newsletter. He will be missed by us all. Outside of the ABA, Ryan was an associate at Rountree Losee practicing maritime litigation, as well as administrative and regulatory law. Prior to joining Rountree Losee, he worked in the complex business litigation department of a successful plaintiff’s firm in Mount Pleasant, South Carolina. Before attending law school, Mr. Tennant spent over a decade working domestically and internationally as both a commercial boat captain and operations manager. Ryan is survived by his wife, Shannon, and daughter, Perry, with whom we share our love and fond thoughts of Ryan. In Memoriam: Ryan F. Tennant The AMLC leadership attends a dinner hosted by the Charleston School of law at the Charleston Yacht Club with Ryan. Inside the Charleston Yacht Club, AMLC leadership dines with Ryan and other distinguished guests of the Charleston School of Law. In May 2012, during the ABA TIPS spring meeting in Charleston, South Carolina, the AMLC visited the Charleston School of Law for an event with their maritime society to discuss the practice of law and plans for the law school’s new admiralty LLM program. Ryan was our valued leader.
  • 6. Admiralty and Maritime Law Committee Newsletter Fall 2016 6 6 Q. John, tell us what prompted you to get into the maritime legal industry? R. In law school I started working for Kozacky & Weitzel, P.C. (now Kozacky Weitzel McGrath P.C.).  I worked there for eight years.  The founding partner is Paul Kozacky.  He remains a close friend and mentor of mine.  His passion was admiralty. Q. Can you describe your experience of working at Traffic Tech as in-house counsel? R. I’ve been in-house for six months now.  It’s a lot different than private practice.  We handle some of our claims internally so I still get my litigation “fix,” but I spend significantly more time trying to avoid litigation—by carefully negotiating contracts, focusing on risk management and negotiating claims and issues before they hit the boiling point.  Also, the opportunities to get involved in different aspects of the business have been fun and challenging.  For example, I consult with the sales team on bids and RFQs and human resources on employment issues.  I also recently organized a monthly philanthropy outreach for our Chicago office.  We’ll be serving dinner the first Monday of every month at a local homeless shelter.  Q. What are your views on hiring outside counsel? R. We are very results- oriented when we hire outside counsel.  We have to answer to upper management who don’t always understand the quagmire that can result in litigation.  If we have to keep reporting on delays while the litigation budget climbs, it gets understandably tougher to justify.  Thus, if the litigation budget is expected to be high, it’s very important that we see a budget and that it be followed.  Also, it’s important that we always know what’s going on and when things are going to happen so that we can pass the information along at the drop of a hat.  Q. What legal issues are coming across your desk with some frequency these days? R.This is still a sales-driven industry so non-competes, restrictive covenants and trade secrets are always going to be an issue, as are cargo claims.  We’re currently dealing with implementing Canada’s new eManifest requirements, proposed changes to the NMFTA’s straight TRADETALK For our twentieth “Trade Talk” piece, we are pleased to spotlight John Rapp, In-House Counsel at Traffic Tech.    When it comes to shipping goods efficiently, Traffic Tech balances leading-edge technology with unparalleled customer service to provide big company advantages while retaining a small company feel. Its one-call approach and door-to-door service ensures that the shipment will be safe through every step of the process. Its tracking technology provides real time access to the shipment’s status at all times. Below are excerpts from our interview with John which address his views on the maritime industry, issues concerning the hiring of outside counsel, and his hopes and dreams for a winner in Chicago.
  • 7. Admiralty and Maritime Law Committee Newsletter Fall 2016 7 7 bill of lading and the new proposed overtime rules.  Hanjin’s bankruptcy is still a big issue too.  Q. For our practitioners, which maritime event(s) do you get the most out of? R. Webinars and CLEs that report on changes in the law and best practices are really helpful.  I get a lot of e-mails on legal updates and try to wade through them as much as possible, but often they sit unread in my inbox.  If there is a place that I have to be and a time that I have to be there, I’ll be there.  Q. In addition to the AMLC newsletter, of course, which maritime publication do you find most useful? R. You mean aside from Google?  The Transportation & Logistics Council’s TransDigestandtheCanadian International Freight Forwarders Association’s eBulletin are very helpful, as they provide brief updates on several timely issues.  I also get a weekly e-mail from Westlaw with pertinent cases in the industry, which I try to at least scan. Q. Thank you for taking time to speak with us today. As a final question and Chicagoan, who will have more wins in 2017?  The Cubs’ John Lester or the Chicago Bears?    R. Lester.  And it won’t even be close. Cubs 2016 World Series Champions!!! Opportunities To Become Involved n Publication in the AMLC Newsletter or TIPS Law Journal n Networking Opportunities n CLE and Webinar Opportunities n Leadership Positions n Mentoring Relationships n Young Lawyers and Law Student Writing Competition Additional Information For more information regarding the benefits that membership in the AMLC can provide to you, check out our webpage at http://ambar.org/tipsadmiralty and join our group on LinkedIn. The Committee is open to all, including non-lawyer maritime professionals, law students and lawyers in every practice area who want to keep abreast of developments in the field. Benefits of AMLC Membership
  • 8. Admiralty and Maritime Law Committee Newsletter Fall 2016 8 8 APRIL 26-30, 2017JW MARRIOTT CHICAGO | CHICAGO, IL SAVE THE DATE Join your colleagues for the premier CLE conference for insurance, defense, corporate, and plaintiffs attorneys. THE THIRD ANNUAL TIPS SECTION CONFERENCE WILL FEATURE: • More than 25 hours of top-notch CLE programming, including ethics credit, to meet all of your education needs • Practice area-specific CLE tracks featuring premier speakers including judges and in-house counsel covering hot topics and the latest developments • Numerous opportunities to network with insurance, defense, corporate and plaintiffs attorneys, judgets and local lawyers • Exclusive networking events for young lawyers • Substantive business meetings for 31 practice-specific general committees • Entertaining social events in the Windy City For more information visit americanbar.org/tips TTIPSConf_FPad.indd 1 10/3/16 10:49 AM
  • 9. Admiralty and Maritime Law Committee Newsletter Fall 2016 9 9 A good attorney understands how her work in the legal arena affects her client’s business. I have been blessed with excellent classroom and practical legal experiences as I prepare to practice law. As part of my prize for winning the Admiralty and Maritime Law Committee’s Law Student Writing Competition, I had the chance to spend a day with Gard, NA, at their New York office. The visit was a singular complement to my education. Protection and indemnity clubs are a vital piece of the complex maritime industry. After learning about them from Gard, I feel better prepared to understand my future clients’ business. Over the course of a day in August, Gard North America’s staff and leadership introduced me to P&I clubs and Gard’s work in particular. They patiently explained to me the history of P&I clubs. They walked me through the modern P&I world, covering everything from their work in claims management to loss prevention to crisis response. I learned in detail about the role P&I club correspondents play in responding to maritime incidents. Their comprehensive presentation was a fascinating look at this area of the industry. Gard’s staff was also gracious enough to have me present the paper I wrote for this competition on American courts’ different interpretations of the Rivers and Harbors Act of 1899. We discussed the Act’s significance for blue-water shipowners whose vessels damage publicly-owned harbor improvements. I had focused on theAct primarily in terms of inland waterway improvements, so it interested me to consider the topic from another perspective. I am grateful to Gard and to the ABATIPS Admiralty Committee for sponsoring this competition. I know I will be a better attorney for having had the academic experience of writing my paper and also for the opportunity to expand my understanding of the maritime industry. I look forward to being an active member with the committee in the years to come. MY DAY WITH GARD NORTH AMERICA By: James Johnsen, 16 September 20161 1 Editors Note: James, J.D. Candidate, 2017, The George Washington University Law School, can be reached at 850.598.3761, jjohnsen@law.gwu.edu. JOIN OUR LINKEDIN COMMITTEE PAGE http://www.linkedin.com/groups?viewMembers=&gid=3058724&sik=1317664044449
  • 10. Admiralty and Maritime Law Committee Newsletter Fall 2016 10 10 The Situation So Far H a n j i n Shipping of South Korea, the world’s seventh largest containership operator, operating 98 containerships (some owned, some chartered) and several other types of ships, had been struggling financially for some time, building up debts of reportedly more than USD $5billion. On 30 August, a restructuring finance deal fell through and the company went into administration. The results of this were immediate and dramatic. Within hours of the announcement by Hanjin, creditors moved swiftly. Meanwhile, other shipping companies have sought to defend their own positions, so as not to be dragged down as well. Hanjin’s entering into administration has created issues for the “CKYHE alliance”, existing between Cosco, “K” Line, Yang Ming, Evergreen, and Hanjin Shipping. The alliance partners of Hanjin have announced that they will no longer ship their goods on Hanjin vessels and would not carry Hanjin containers on their own vessels. Within a day of the announcement, ports began to refuse to allow Hanjin vessels entry, for fear of not being paid port fees. The 3,700-TEU containership, Hanjin Rome, became the first Hanjin vessel to be arrested by creditors, while it was in the port of Singapore, according to reports. The owners of the goods being transported by Hanjin have consequently been exposed to financial risks following the failure of the ship operator; contractually agreed delivery dates may be missed, goods may need to be stored, and extra expenses may be incurred as alternative routes for delivery are arranged. The time of year also presents additional challenges, asAugust to October is generally the busiest time of the year for the shipping industry, as companies stock up for the holiday season. Who is likely to be affected? Due to the inherent interdependency in the industry, the impact is likely to be far-reaching. Below, we examine those who are likely to immediately feel the effects: Charterparties Firstly, of the vessels operated by Hanjin, the majority were not in fact owned, but chartered by the company, with Hanjin paying the owners a daily charter hire amount for the use of the vessels, as is common under bareboat, demise, or time charterparty agreements. It is often difficult to tell, simply by looking at a vessel, as to whether it is owned or chartered, as one of the terms common to such charterparty agreements is that the charterer can have the vessel painted into its own colors. As a result of the recent developments, the owners of those ships operated by Hanjin may stop receiving the charter hire amounts, and would therefore seek to terminate the charterparty agreement and re-take possession of their vessels, with a view to chartering them out to another charterer. With a considerable number of vessels likely to be affected in this way, the market for hire rates for such vessels may be reduced due to increased competition. As a result, owners may face a reduction in income when they do find a new charterer, or, failing that, be forced to have the vessels laid up and suffer a complete loss of earnings. Terminals and Ports Terminals and ports to which the Hanjin vessels were scheduled to visit may need to protect their own financial position, knowing that the payment of port fees, tug and pilot services are at risk if they do permit the vessels to come into their facilities. They could be at risk of not getting paid for these vessels entering the port. For those vessels owned by Hanjin, as well as being barred from port entry, they may have been subject to SHIPPING INDUSTRY VULNERABLE FOLLOWING HANJIN ADMINISTRATION By: Marcus Baker1 & Stephen Harris2 Continued on page 15 1 Marcus’ Baker is the current Chairman of Marsh’s Global Marine Practice. He is responsible for Marsh’s Marine business lines globally (comprising marine cargo, marine hull, P&I, and liabilities). He was formally the CEO for Marsh’s Marine and Energy practice in Europe, Middle East, and Africa and has been with Marsh and successor companies since 1994. He has over 30 years’ experience in the industry and has a Business Studies diploma from Hertfordshire University. He can be reached at: Marcus.Baker@marsh.com. 2 Stephen Harris has been working in the marine insurance market in London for 42 years. During this time, he has underwritten a marine hull and liability account at Lloyd’s of London for over 13 years and spent seven years as the assistant hull and liability underwriter at Cornhill Insurance. Stephen joined Marsh in 1994, to manage and train staff in marine insurance, in addition to managing a portfolio of marine business. He can be reached at: Stephen.J.Harris@marsh.com.
  • 11. Admiralty and Maritime Law Committee Newsletter Fall 2016 11 11 Ship arrests in Australia have been prevalent throughout 2016, in difficult economic times for the shipping industry. It is uncontroversial that a party’s claim is only as good as the security that it holds.  In this regard, ship arrest in Australia for the purpose of obtaining security or founding a favourable jurisdiction has grown in popularity; Australia remains, in the greater scheme of things, a sound jurisdiction to arrest in. The process for arrest in Australia is straight forward and can be managed by the Federal Court of Australia (Federal Court) in Sydney for any port in Australia.  Nine out of ten times arrest papers can be filed to have the ship under arrest within the day.  Release is equally quick and the Admiralty Marshal is acutely aware of the commercial consequences of delays. Unlike many jurisdictions, an arresting party does not have to seek leave of any competent court. Ship Arrest - How does it work? For those not familiar with the concept, a ship may be arrested by bringing a claim in Rem against the ship (or property) (the res) rather than the debtor.  An arrest warrant is issued by the Court and the subject ship is physically arrested by the Admiralty Marshal of the Court.  The papers are served on the ship and in doing so the Court’s jurisdiction is founded even if the parties and the dispute have no connection with Australia.  The ship is then detained by the Court (with the help of the Harbour Master) until such time as either adequate replacement security is provided or the ship is sold by way of court sale.  At that point custody, responsibility and control vests with the Marshal. Arrest inAustralia is straightforward with a specialist Admiralty division of the Federal Court handling maritime claims in Rem and in personam on a daily basis.  The jurisdiction of the Federal Court with regard to ship arrest is set out in the Admiralty Act 1988 (Cth) (Admiralty Act) and the accompanying Admiralty Rules which is largely an amended version of the 1952 Arrest Convention. A party may arrest in respect of a wide range of maritime claims that are divided in theAdmiraltyAct into three categories - common law maritime liens (section 15), proprietary maritime claims (section 16 and 4(2)) and general maritime claims (section 17 and 4(3)). Common law maritime liens that survive a change in the ownership of a vessel are claims in respect of salvage, damage done by a ship, wages of the master and crew and the masters disbursements. Proprietary maritime claims are claims relating to the possession, title, ownership or mortgage of a ship as well as claims between co-owners of a ship relating to possession, ownership, operation or earnings of a ship. General maritime claims include, among other things, claims for or in connection with (in practice the majority of ship arrests in Australia will be in lieu of maritime claims): § damage done by a ship (whether by collision or otherwise); § loss of life or for personal injury; § the loading of goods on to, or the unloading of goods from, the ship; § the embarkation of persons on to, or the disembarkation of persons from, the ship; § the carriage of goods or persons and loss of, or damage to, goods carried by a ship; § an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; § salvage (including life salvage and salvage of cargo or wreck found on land); ARRESTING DEVELOPMENTS: ARE YOU SECURED? U.S. IMPLICATIONS “DOWNUNDER” By: Joe Hurley1 , Head Partner and Chris Sacré, Special Counsel 1 The authors are Lawyers in the HWL Ebsworth National Maritime and Trade Practice; the largest in Australia. For any further information, please contact Joe Hurley who heads the group on jhurley@hwle.com.au.
  • 12. Admiralty and Maritime Law Committee Newsletter Fall 2016 12 12 § general average, towage and pilotage of a ship; § goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; § construction of a ship (including such a claim relating to a vessel before it was launched); § alteration, repair or equipping of a ship; § liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship; § disbursements incurred by a master, shipper, charterer or agent on account of a ship; § insurance premium, or for a mutual insurance call, in relation to a ship; § master or crew wages or remuneration; § enforcement of an arbitration award; or § interest. Ship Arrest and Cross Border Insolvency collide - Hanjin Insolvency LastyearinthematterYuvSTXPanOceanCoLtd2 the Federal Court was not prepared to prohibit arrest of STX Pan Ocean vessels in Australia despite the recognition of the Korean main proceedings under the UNCITRAL Model Law on Cross Border Insolvency.  This was very significant for insolvent shipping companies seeking global protection for their fleets and creditors seeking to circumvent the protection offered by administration. However, the Federal Court ordered that any application to arrest an STX Pan Ocean vessel in Australia must be placed before a Judge of the Federal Court (rather than the Registrar as is the usual practice). This practice was then adopted by the Court in a series of more recent application for recognition and protection. The very recent fall of Hanjin has produced a new form of protection in the form of ex parte orders protecting a specific Hanjin chartered vessel the Hanjin Milano, her cargo and bunkers from arrest to allow her to berth and discharge without interruption. The orders were not challenged and as such whether the UNCITRAL Model Law trumps ship arrest in rem remains open for determination - watch this space! Arrest for Foreign Maritime Liens Under Admiralty law, only certain claims have the status of a maritime lien. Namely: salvage damage done by a ship, wages of the master or of a member of the crew of a ship or master’s disbursements. Other jurisdictions, such as the US or Canada, have a greater range of liens like that of an unpaid bunker supplier. However, it has long been unclear whether, in Australia, foreign maritime liens - for instance for the supply of bunkers - are enforceable by way of an arrest of a ship, even if the underlying claim in question would not give rise to a maritime lien under Australian substantive law. This was initially addressed at first instance by the Federal Court in its judgment of 11 September 2015 in Reiter Petroleum Inc v The Ship “Sam Hawk”3 The Facts MV “Sam Hawk” (Ship) was arrested in Albany, Western Australia, in November 2014 at the instance of Reiter Petroleum Inc, a Canadian bunker supplier. Reiter Petroleum claimed it had not been paid for bunkers supplied to the Ship. It contended that the Ship’s owner, SPV Sam Hawk Inc, was liable to pay for them on the basis of a maritime lien claimed pursuant to section 15 of theAdmiraltyAct or, alternatively, on a general maritime claim in respect of goods and materials supplied to the Ship for its operation or maintenance pursuant to section 4(3)(m) and section 17 of the Admiralty Act. The Issues In an interlocutory application to the Court, the Ship’s owners applied for orders that: a. the writ be set aside for want of jurisdiction and the action dismissed because Reiter Petroleum’s claim as advanced did not satisfy the requirements of either section 15 or section 17 of the Admiralty Act; or b. iftheCourtdidhavejurisdiction,therebesummary judgment in favour of the Ship on the basis that Reiter Petroleum had no reasonable prospect of successfully prosecuting the proceeding. The owners’application raised an important question as to whether the Privy Council decision of Bankers Trust International Ltd v Todd Shipyards Corporation4 - The Halcyon Isle) was still to be followed in Australia. 2 For a copy of this case please contact the authors. 3 [2015] FCA 1005. 4 [1981] AC 221.
  • 13. Admiralty and Maritime Law Committee Newsletter Fall 2016 13 13 The Halcyon Isle stands for the proposition that questions of the existence of an asserted maritime lien are to be determined in accordance with the law of the forum. This had been accepted by the Federal Court as being the state of Australian law: Morlines Maritime Agency Ltd & Ors v Ship5 “Skulptor Vuchetich” per Sheppard J. The Decision At first instance, the Federal Court held that the Halcyon Isle decision does not represent the state of the law in Australia and that the Federal Court had jurisdiction to consider the claim for a maritime lien for the supply of bunkers and grant an arrest warrant. The Court also found that the owners’ complaint about the general maritime claim pursuant to section 4(3)(m) of the Admiralty Act went to the merits, not to jurisdiction. Although the Court understood why such complaints had been made, it found that the pleaded claim was sufficient to establish jurisdiction. The Court concluded that it could not be said at the early interlocutory stage of the proceeding that either claim should be summarily dismissed, and dismissed the owners’ application. Implications The implication of this first instance decision was that claimants who had a maritime lien under foreign law were able to arrest ships in Australia. Compared to a number of other jurisdictions, this made Australia an attractive jurisdiction in which to arrest ships to obtain security for foreign maritime liens. The Appeal The Shipowners appealed to the Full Federal Court of Appeal (Court of Appeal). In summary, the Court of Appeal allowed the appeal and set aside the writ and arrest of the ship. The Court ordered the Plaintiff to return the Club Letter of Undertaking dated 6 November 2014. The Court of Appeal disagreed with the findings of the primary Judge on the question of whether the law of the contract or the law of the forum should be applied when deciding whether there was a “maritime lien” within the meaning of section 15 of the Admiralty Act.  The Court of Appeal concluded that the question of whether a claim is a maritime lien will be determined by reference to Australian law and the limited list of maritime liens that Australian Law recognises.  The Court of Appeal reached this conclusion for reasons of principle and policy, without finding that the first instance Judge had necessarily erred in law.  The Court of Appeal wished to ensure coherence in Australian law including in relation to priorities rules, the private international law rules for the determination of ownership of a vessel and the private international law rules concerning rights to goods arising by transactions. As a matter of principal, the Court of Appeal voiced concern over whether an owner, who was not privy to a bunker supply contract, could be held liable under that contract, absent some agency relationship. The Court of Appeal followed the English authorities and the rule set out in the Halcyon Isle which concludes that, to the extent that a creditor’s claim under the law of the contract included rights of priority over other creditors (a possessory lien in this case), that particular part of the law of the contract would be compelled to yield to the law of the forum of any foreign court in which the action in Rem was brought.  Although it was not determinative, the Court also concluded that the lex causae was not Canadian or US law but was more likely to be the laws of Hong Kong or Turkey or Australia.6 5 [1997] FCA 432. 6 Copies of the lower court and appeal decision are available from the authors. VISIT US ON THE WEB AT: www.ambar.org/tipsadmiralty
  • 14. Admiralty and Maritime Law Committee Newsletter Fall 2016 14 14 that Chevron primarily conducts its trading operations in Texas). Chevron also may owe money to Tadema for the purchase of Nigerian petroleum products. But the fact that Chevron is “present” in Delaware— from Belda’s perspective— means that any debts due and owing to Tadema by Chevron in Houston are attachable in Delaware because of the jurisdictional hook. Further, because so many businesses are “present” in Delaware, Belda was able to name 13 garnishees in a single proceeding as opposed to commencing multiple proceedings in multiple jurisdictions. Conceptually, Belda pushes the boundaries of Rule B, as in most Rule B cases the actual asset is located within the jurisdiction where the Rule B application has been made, not just the corporate presence of potential garnishees. This approach creatively re-conceptualizes what it means for a garnishee to hold an asset and be present for purposes of jurisdiction, especially in this age of digital commerce when debts and credits are essentially bytes in a computer system. Additional Rule B nuances should also be considered when attaching a physical asset to obtain security for a maritime claim and/or jurisdiction over a maritime defendant who has unplugged the phone and stopped responding to emails. The attachment of a physical asset under Rule B, such as a cargo aboard a ship or bunkers in a tank, usually requires initial service of the writ of attachment by the U.S. Marshall. So when you advise your client that they can seek a Rule B to secure their claim in arbitration, make sure to also advise them up front about the need to deposit the U.S. Marshalls’ fees in the courthouse where the application is being made, which can vary by jurisdiction ($6500/month in the Southern District of New York if no substitute custodian, $2000 up front if there is a substitute custodian). And by also including authorization for the appointment of a substitute custodian with the Rule B plaintiff’s proposed order and writ of attachment, U.S. Marshall costs can be reduced by essentially subcontracting the duty to watch the attached res pending resolution of the litigation. But should you find yourself in protracted litigation with a Rule B defendant— especially one who opts to file for Chapter 15 recognition of a foreign bankruptcy while also challenging the Rule B attachment in federal court— your client could find him or herself paying a hefty custodial fee to essentially babysit the attached physical asset for months. Additional sticky situations can result when attaching physical assets. Take another example, bunkers, which are often targeted. But in doing so, consider what happens when the owner of the bunkers throws in the towel and leaves the Rule B plaintiff the onerous task of taking possession via hiring a bunker barge, and then having to sell the bunkers for salvage. Attaching bunkers can be useful when the Rule B defendant has the financial wherewithal to post security and keep their maritime business operations moving. But if the Rule B defendant is in a precarious financial situation, they may simply opt to leave the Rule B plaintiff with the bunkers. Which, to be frank, is much more messy than serving commodity traders in Delaware to attach assets on a computer screen in Houston. Finally, a word about ownership. If you attach a cargo under Rule B, especially one as valuable (and tradable) as petroleum, expect a fight as to who owns the cargo at the time the writ of attachment is served. Commodity trades can be purposefully opaque as to who owns the cargo at what time, thereby kicking up a smokescreen of title for the Rule B plaintiff to navigate. Attach a cargo that doesn’t belong to the Rule B defendant, and you could find yourself in the unenviable positon of footing the bill for the vessel’s expenses incurred while serving as a “warehouse custodian” of the improperly restrained cargo (vessel’s daily hire rate plus fuel, pilotage and launch services).4 MARITIME P&I INSURANCE... Continued from page 1 4 See Marastro Compania Naviera v. Canadian Maritime Carriers, Ltd., 959 F.2d 49 (5th Cir. 1992). JOIN OUR LINKEDIN COMMITTEE PAGE http://www.linkedin.com/groups?viewMembers=&gid=3058724&sik=1317664044449
  • 15. Admiralty and Maritime Law Committee Newsletter Fall 2016 15 15 mortgages from banks, which could seize vessels under the terms of the finance agreements once Hanjin goes into default on those loan agreements. Freight Forwarders Freight forwarders could be put in a difficult position if they have taken goods into their care (or have contractually agreed to do so), as those contracts may impose financial penalties if the goods are not delivered to the right place at the right time. If the freight forwarder has scheduled to have the goods loaded onto a vessel that does not arrive, they will have to find an alternative, which could prove expensive, particularly as many freight forwarders will also be looking to find alternatives. This is unless the freight forwarders have arranged to be contractually held not liable by the owners of the goods in their freight forwarder agreements, in the event of the financial insolvency or default of the scheduled carrier. However, few freight forwarders are likely to have considered this. All this could lead to ports becoming rapidly inundated with containers which are unable to be shipped quickly. Available space to store these containers could soon become exhausted; therefore, the ports and terminals may have to close their gates to Hanjin-scheduled containers. This will then have an adverse effect on independent truck companies, rail freight companies, and hauliers, as they will be refused entry to ports and will have to find a means of storing these containers, with the added financial burden of not being paid for having failed to deliver the boxes to the port. In order to avoid entering financial difficulties themselves, such companies may have to refuse to load boxes scheduled to be carried on Hanjin vessels. While this would reduce the problem of storage, it would also reduce their income. In addition, since many trucking companies work on very tight financial margins, the financial insolvency of Hanjin could lead to the financial default of others all along the supply chain. Crews The crews on Hanjin-operated vessels may find themselves at risk of not being paid, or receiving reduced pay, and being left stranded at various ports around the world. While this may be lessened in some jurisdictions, especially following the implementation of the Maritime Labour Convention (MLC 2006), the likelihood of full pay is threatened. Hanjin’s port agents around the world may also face a loss of income if their agency fees are unpaid. Alliance Partners The CKYHE alliance partners of Hanjin may also face logistical problems, if they have relied on Hanjin vessels to provide a service for their own customers (that is, under a “box swapping” arrangement). Similarly, some of those partners (for example, Evergreen) are already refusing to carry Hanjin boxes on their own vessels, which merely adds to the woes of Hanjin customers. However, while many of the boxes may be emblazoned with Hanjin’s color and logo, many are leased by the company, not owned. The box owners will most likely want to claim back their property if Hanjin fails to pay the required lease amounts. The various companies that supply to Hanjin- operated vessels, such as oil (bunker) providers and food and equipment suppliers could face challenges and financial loss as a result of this insolvency. Cargo Owners The cargo owners entrusted to the care of Hanjin or other service providers who have loaded onto, or were near to loading onto, a Hanjin vessel, are perhaps most at risk of a financial loss following the shipping company’s failure. The arrival of all goods at the required location is, to a greater or lesser extent, time sensitive, especially with the proliferation of a “just in time” shipments culture. With the approaching holiday season, suppliers are looking to stock up ahead of an expected demand. With perishable or seasonal goods the need is far more critical than it may be for general goods. However the knock- on effects, following a delayed arrival of goods, even if undamaged, can be serious. Projects, dependent on the timely arrival of materials, during a manufacturing or constructionprocesscouldbecomethemselvesdelayedas a result, with varying consequences for the manufacturer or for the construction project management. Often, contractual penalties are imposed on manufacturers or construction contractors for delay in delivery or delay in start-up respectively. All of these could be affected by a hiccough in the supply chain. The longer the delay, the more severe the effects could be. SHIPPING INDUSTRY... Continued from page 10
  • 16. Admiralty and Maritime Law Committee Newsletter Fall 2016 16 16 Other Considerations – Supply Chain Interruption and Delay From what has already been detailed, it is clear that end users of goods or components could suffer delay or a loss of supplies. In either case, the disruption could be significant and have knock-on effects as facilities become clogged and competition for alternative capacity intensifies. The potential disruption should be evaluated and planning put in place prior to the full effects being felt. Insurance Coverage Issues Unsurprisingly, there is now considerable concern throughout the industry as to whether or not companies are insured against this scenario, and certainly whether additionally incurred forwarding costs are covered. Unfortunately, there is no simple answer that fits all cases, as marine cargo insurance policies are written on a wide variety of terms and conditions, for which there are going to be very different answers on a “case-by- case” basis. Many policies have additional conditions imposed by insurers beyond those laid down in the standard market “Institute” sets of clauses. Attention has been drawn to one particular exclusion commonly found in marine cargo insurance policies, namely the “Insolvency of Carrier exclusion”3 Despite that exclusion, for cover to continue against the perils otherwise covered under the insurance, the shipper must not have been aware, at the time of loading the goods on the vessel, that the carrier was in such a parlous financial state that could prevent the voyage from taking place. However, one further concession under the Institute Cargo Clauses in 2009 was for the buyers of goods (presumably under a cost, insurance, and freight (CIF) type of contract of sale, and where the goods have already been loaded on the vessel at the time of purchase) to be exempt from this exclusion. In order to have a valid claim, any loss or damage would need to have been proximately caused by a peril otherwise covered under the terms of the policy. The Institute Cargo Clauses go into further detail in Clause 9, titled Termination of Contract of Carriage, on what happens if, during the period covered by the contract of carriage (normally from when the goods have been loaded on the vessel), the carrier becomes insolvent. Clause 12, titled Forwarding Charges, explains how expenses incurred should be handled. However, we must emphasize that the standard Institute clauses are often just the initial basis of insurance cover provided, and numerous amendments, additions, and alterations to the terms and conditions will apply on a case-by-case basis. For those that are unsure about, or have questions regarding, their coverage, we would advise you to consult your broker at the earliest opportunity. What Risks Should Buyers of Goods Now Consider? Potential buyers of goods may now find themselves being offered attractive bargains. However, buyers (or consignees) need to exercise considerable care when being offered goods that are already on ships (commonly under CIF type of contacts), as they may, unwittingly, be buying into this problem, if those goods are actually being carried on Hanjin-operated vessels. Before purchasing such goods, careful examination of the bill of lading (BoL) is strongly advised to see who the carrier is, in addition to scrutiny of the terms of the insurance that is offered to cover the goods on the vessel under such CIF contracts, by the seller. It should be noted that insurance cover deemed to be “adequate” in the mind of the seller, may not be so for the buyer. What Next? In the immediate aftermath of the collapse, there have been reports of financial injections into Hanjin Shipping to save the company. While this may happen, there is the strong possibility that, despite all efforts, the company will still fall into bankruptcy. In addition to the survival issues for Hanjin, there is no “one-size- fits-all” answer to the numerous insurance questions arising from this turn of events from cargo interests and others. Marsh will continue to monitor the situation and will look to assist clients on various insurance matters arising as this develops.4 3 (Clause 4.6 of the Institute Cargo Clauses A, B, and C). 4 Editors Note: This article is based on a piece originally published by Marsh Ltd. in September 2016, and republished here with Marsh’s permission. The information contained herein is based on sources we believe reliable and should be understood to be general risk management and insurance information only. The information is ot intended to be taken as advice with respect to any individual situation and cannot be relied upon as such. In the United Kingdom, Marsh Ltd is authorised and regulated by the Financial Conduct Authority. Marsh Ltd, trading as Marsh Ireland is authorised by the Financial Conduct Authority in the UK and is regulated by the Central Bank of Ireland for conduct of business rules.
  • 17. Admiralty and Maritime Law Committee Newsletter Fall 2016 17 17 December 2016 5 TIPS Free Member Monday CLE Free Teleconference Contact: Ninah Moore – 312/988-5498 January 2017 12-14 Midwinter Symposium on Insurance & Employee Benefits Hyatt Regency Contact: Ninah Moore – 312/988-5498 Coral Gables, FL 19-21 Fidelity & Surety Committee Midwinter Mtg Roosevelt Hotel Contact: Felisha Stewart – 312/988-5672 New Orleans, LA February 2017 2-5 ABA Midyear Meeting Miami, FL Contact: Felisha Stewart – 312/988-5672 23-25 Insurance Coverage Litigation Midyear Mtg Arizona Biltmore Rst Contact: Felisha Stewart – 312/988-5672 & Spa, Phoenix AZ March 2017 8-10 Transportation Mega Conference Sheraton New Orleans Hotel Contact: Donald Quarles – 312/988-5702 New Orleans, LA 25-29 TIPS/ABOTA National Trial Academy TBD Contact: Donald Quarles – 312/988-570 April 2017 6-7 Motor Vehicle Products Liability Program Arizona Biltmore Resort Contact: Donald Quarles – 312/988-5708 & Spa, Phoenix AZ 7-8 Toxic Torts & Environmental Law Midyear Mtg Arizona Biltmore Contact: Felisha Stewart – 312/988-5672 Resort & Spa, Phoenix, AZ 26-30 TIPS Section Conference JW Marriott Chicago Contact: Felisha Stewart – 312/988-5672 Chicago, IL Speaker Contact: Donald Quarles – 312/988-5708 2016-2017 TIPS CALENDAR