Striding the Quarterdeck

Nearly a year after issuing its most direct broad-scale guidance on maritime cybersecurity in the context of certain shoreside facilities, the U.S. Coast Guard has followed up with guidance and compliance parameters for vessels as well – an apropos event given that the etymology of the word “cyber” has direct, deep-seated maritime roots. The word itself derives from the term “cybernetics,” a neologism coined by Norbert Weiner in his 1948 book about the science and architecture of biological and technical control systems. This word in turn was derived from the ancient Greek word (kubernētēs), the ancient Greek word for “helmsman” or “pilot” of a vessel. Thus, in a very real linguistic sense, the much-discussed buzz-word “cyber” and related “cybersecurity” have their roots in the age-old operations of maritime trade. read more…

Representatives Sean Patrick Maloney (D-NY) and Peter DeFazio (D-OR) have recently introduced the Maritime Transportation System Emergency Relief Act (MTSERA) to provide financial relief to the maritime industry for losses due to COVID-19 or other natural disasters or emergencies, which are defined as any natural disaster such as a hurricane or flood, as well as any catastrophic failure from an external cause that impacts the U.S. maritime industry. The bill specifically states that the COVID-19 pandemic shall be treated as an emergency for purposes of funding under this Act. read more…

On May 18, 2020, the Federal Maritime Commission (FMC) published its Final Interpretive Rule on Demurrage and Detention Under the Shipping Act (Demurrage/Detention Rule), 85 Fed. Reg. 29638, 29638 (May 18, 2020).  This final rule, nearly six years in the making (as detailed in the Background section of the Final Rule), was the culmination of “years of complaints from U.S. importers, exporters, transportation intermediaries, and drayage truckers that ocean carrier and marine terminal operator demurrage and detention practices unfairly penalized shippers, intermediaries, and truckers for circumstances outside their control.”  Id.  These complaints ultimately led in 2016 to the filing of a formal Petition for Rulemaking by the Coalition for Fair Port Practices (FMC No. P4–16, Ex. A (Dec. 7, 2016) (Pet. P4–16)). The focus of industry concerns, primarily from shippers/shipping intermediaries, centered on the fact that (a) ocean carriers, rather than marine terminal operators, generally controlled demurrage and detention practices, without uniformity or consistency of terms/terminology; and (b) these practices typically allowed ocean carriers and marine terminal operators to levy detention/demurrage charges even when cargo/equipment could not be retrieved or returned due to circumstances outside the control of the shipper/intermediary, which weakened any incentive for the ocean carrier/marine terminal operator to address port congestion and their own operational inefficiencies.  Id. at 29639.  These concerns, in turn, mobilized a formal investigation (consisting of hearings, field interviews, and document reviews) by the FMC, culminating in FMC Fact Finding 28 and a final recommendation to the FMC Commissioner in August 2019 for development of an interpretive rule on detention/demurrage. [Note – The full record for Fact Finding 28 leading up to issuance of the Demurrage/Detention Rule is documented at the FMC’s website – https://www.fmc.gov/fact-finding-28/.]  That recommendation has now been realized with the issuance of the final Demurrage/Detention Rule. read more…

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In the midst of the chaos generated by the COVID-19 pandemic, on March 20, 2020, the United States Coast Guard (USCG) released an important Navigation and Vessel Inspection Circular (NVIC 20-01) concerning “Guidelines for Addressing Cyber Risks at Maritime Transportation Security Act (MTSA) Regulated Facilities,” together with a Commandant Notice commenting on the NVIC.  NVIC 20-01 has had a long path to finalization via notice and comment rulemaking, and has been discussed previously during the comment period on this blog.   Ironically, given the increased threat of cyber attacks during this period when so many are working remotely via potentially vulnerable online infrastructures, this NVIC is perhaps unintentionally particularly well-timed. read more…

All aspects of the maritime industry, from global ocean-going shipping to domestic inland brown water transportation and offshore energy, have been and will continue to be profoundly affected by the COVID-19 crisis, perhaps even more than other industries given that mobility and inter/trans-national movement of people and goods are their very lifeblood. read more…

Murky waters swirl in the legal gulf that separates the absence of any “genuine dispute[s] as to any material fact” (in which case summary judgment is appropriate); and the presence of non-speculative “evidence [on which] a reasonable jury could return a verdict for the nonmoving party” (in which case summary judgment is not appropriate and the case must be fully tried to the fact finder). Two recent Fifth Circuit decisions, however, have plumbed these depths and charted a truer course (if only slightly) for navigating maritime summary judgments – although the two decisions resulted in diametrically opposed outcomes. read more…

Of modern standers-of-mast-heads we have but a lifeless set; mere stone, iron, and bronze men; who, though well capable of facing out a stiff gale, are still entirely incompetent to the business of singing out upon discovering any strange sight.

MOBY DICK, Chap. XXXV. “THE MAST-HEAD”

While driverless terrestrial vehicles have been a hot topic in the media (including on Baker Donelson’s Autonomous Vehicle Law blog) – from Tesla autopilot crashes to self-driving freight trucks – there has been an equally (if not more) anticipated and analyzed trend (some would say nascent revolution) in the less popularly publicized international maritime vessel operations: the rise of autonomous vessel technologies on the world’s oceans, rivers, and harbors. The term of art for these autonomous vessels – “maritime autonomous surface ships,” “MASS” for short – is ironically cognate with the very vessel “MASters” that autonomous technology would stand to replace.

The initial forays into the possibilities of autonomous vessel technologies began (more or less) with Rolls-Royce just into the second decade of the 2000s. Since then the concept has been put to numerous actual proofs by Rolls-Royce and others, and it is safe to say that it is now not a matter of if or even when MASS technology enters the market, but rather the extent to which MASS technology will disrupt traditional global shipping and vessel operations. And while the technical advances have been steadily developing in the hands of engineers, regulators have been attempting to keep pace with the legal ramifications of MASS. read more…

The slumberous snare
had scarce unbound [Palinurus’s] limbs, when, leaning o’er,
the god upon the waters flung him forth,
hands clutching still the helm and ship-rail torn,
and calling on his comrades, but in vain.!
…Yet were they drawing nigh
the sirens’ island-steep, where oft are seen
white, bleaching bones, and to the distant ear
the rocks roar harshly in perpetual foam.
Then of his drifting fleet and pilot gone
Aeneas was aware, and, taking helm,
steered through the midnight waves, with many a sigh
and, by his comrade’s pitiable death
sore-smitten, cried, “O, thou didst trust too far
fair skies and seas, and liest without a grave,
my Palinurus, in a land unknown!”
 
Vergil’s Aeneid, Book V, ll. 852 et seq.

These are Aeneas’s eulogizing words for Palinurus, the trusted helmsman of the lead Trojan vessel after the fall of Troy, who dozed off under the spell of the god of Sleep, let go the rudder of the ship, fell into the sea and drowned. This ancient mythic episode of omnipotent gods and fallible men serves as a poignant metaphor for the ultra-modern automated “smart” systems that, despite their power, remain as fallible as the men and women using them. And the maritime setting of Palinurus’s slumbering at the rudder is an ancient analog for the United States Coast Guard’s July 8, 2019 Marine Safety Alert entitled, “Cyber Incident Exposes Potential Vulnerabilities Onboard Commercial Vessels” (Cyber MSA) regarding a February 2019 “significant cyber incident impacting their shipboard network” aboard an ocean-going commercial vessel inbound to the port of New Jersey. read more…

Yet now, federated along one keel…
MOBY DICK, HERMAN MELVILLE, Chap. XXVII

In the wake of Justice Thomas’s landmark decision in Atlantic Sounding Co. v. Townsend, American maritime jurisprudence was left with its “keeled hulls split at sea” due to a circuit split between the Fifth and Ninth Circuits over a simple but hugely important question: do seamen have a claim for punitive damages under the general maritime law cause of action for unseaworthiness? This question was the fulcrum for leverage in personal injury claims across the country: after Townsend maritime personal injury plaintiffs – pursuing the “white whale” threat of exponentially large exemplary/punitive damage awards – routinely began to include punitive damage claims in their petitions/complaints, usually linked to an unseaworthiness or GML negligence claim, ostensibly as a bargaining chip in settlement/case-valuation negotiations. read more…