6xxpppphhu committee news commiteenews · demurrage and... 13 • damages recoverable in maritime...

COMMITEE NEWSldquoCustomer quotes

called ldquopull quotesrdquo are

an excellent way to

demonstrate your suc-

cess and put emphasis

on your values They

also add visual interest

to your newsletterrdquo

- Carlos Vivanco

In This Issuebull Advantages of a

Newsletter

bull Add Value to YourNewsletter

bull Second Story

bull Another Story

bull Back Page Story

Uniting Plaintiff Defense Insurance and Corporate Counsel to Advance the Civil Justice System

Corporate Counsel CommitteeThe purpose of a newsletter is to provide specialized information to a tar-geted audience Newsletters can be a great way to market your product orservice and also create credibility and build awareness for you and theservices you provide Use positive customer pull-quotes as eye-catchingbut subtle marketing

Tips for Producing a NewsletterEvery time you produce your newsletter ask yourself

Q Who are our readersA Existing customers and potential customers

Q What will our readers want to know about our businessA Timely helpful problem solving information

Add Value to Your NewsletterKeep your content as current as possible If you publish a monthly letterensure you include content from only the last month Also use photo-graphs and other visuals to add interest and enable the reader to scanquickly for information

SSuummmmeerr 22001177

Uniting Plaintiff Defense Insurance and Corporate Counsel to Advance the Civil Justice System

COMMITTEE NEWSSummer 2020

Admiralty and Maritime Law

In This Issuebull Steering Through the

Coronavirus Crisis 1bull Chair Message 4bull Editor Message 7bull Trade Talk James Andrew

Black 9bull On Thin Ice National

and Homeland Security Implications 12

bull In Search of Just andReasonable Practices for Demurrage and 13

bull Damages Recoverable in Maritime Matters SecondEdition 14

Pierce SmithThe University of Texas School of Law Class of 2020 Pierce can be contacted at Piercesmith6790utexasedu

Editorrsquos Note Piercersquos article was selected as the winner of the 2020 ABA TIPS AMLC law student writing competition held in conjunction with Gard NA

Read more on page 18

Steering Through the Coronavirus Crisis A Beginnerrsquos Gander at Assessing the Strategic Importance of Maritime-Lien Law in Potential Cruise-Line Bankruptcies

I IntroductionThe accelerating coronavirus crisis has upended major industries across the globe but none more so than the cruise industry1 In the early days of the unfolding international catastrophe the Diamond Princess became a global topic of conversation as the locus of one of the first major outbreaks outside of mainland China2 In the following weeks this crisis for the cruise industry has only intensified and the ultimate fate of the passengers and crew of the MS Westerdam Grand Princess MSC Meraviglia MS Zaandam and other possibly affected cruise ships remains largely unknown

Coronavirus outbreaks aboard cruise ships have raised many legal questions that are likely to be of great consequence for all the stakeholders involved The potential

2americanbarorgtips

Summer 2020Admiralty and Maritime Law

Leadership Roster

ChairAaron GreenbaumPusateri Johnston Guillot amp Greenbaum1100 Poydras St Ste 2250New Orleans LA 70163-2300(504) 620-2500 aarongreenbaumpjgglawcom

Chair-ElectJuliette McCulloughCox Wootton Lerner900 Front St Ste 350San Francisco CA 94111-1427(415) 398-6000jmcculloughcwlfirmcom

Immediate Past ChairStephanie PenningerXPO Logistics Inc11215 N Cmnity Hse Rd Fl 9Charlotte NC 28277-4960(704) 323-7647Fax (312) 767-9192StephaniePenningerxpocom

Council Representative Newsletter EditorChristopher NolanHolland amp Knight LLP31 W 52nd St Fl 11New York NY 10019-6111(212) 513-3307Fax (212) 341-7237chrisnolanhklawcom

Diversity Vice-ChairJeanne AmyJones Walker LLP201 Saint Charles Ave Fl 48New Orleans LA 70170-1000(713) 283-2484 jamyjoneswalkercom

Law Student Vice-ChairHolli Packer2301 Joseph St New Orleans LA 70115-6513(201) 873-4244 hpackertulaneedu

Membership Vice-ChairChase JanssonCampbell Johnston Clark LLP2600 Douglas Road Ste 508Miami FL 33134(503) 866-9699 ChaseCJCLawcom

Plaintiff Vice-ChairJessica IbertLewis Kullman Sterbcow amp Abramson601 Poydras Street Ste 2615New Orleans LA 70130(504) 262-8345Fax (504) 588-1514jibertlksalawcom

Social Media Vice-Chair Technology Vice-ChairAllison SkopecWinston amp Strawn LLP200 Park Ave 40New York NY 10166-0005(212) 294-3278askopecwinstoncom

Vice-ChairsKirby AarsheimFarrell Smith OrsquoConnell LLP27 Congress Street Ste 109Salem MA 01970(617) 508-9891kirbyaarsheimgmailcom

Yaakov AdlerFreehill Hogan amp Mahar Llp80 Pine Street 25 FlNew York NY 10005-1759(832) 236-6109Fax (212) 425-1901adlerfreehillcom

Daniel BentsonBullivant Houser Bailey PC925 4th Ave Ste 3800Seattle WA 98104-1129(206) 292-8930 danbentsonbullivantcom

Peter BlackMills Black LLP1215 19th St NW Washington DC 20036(562) 548-8978 pblackmillsblackcom

David BoyajianSchwabe Williamson amp Wyatt1211 SW 5th Ave Ste 1900Portland OR 97204(503) 796-2943 Fax (415) 227-4255dboyajianschwabecom

Philip BrickmanDegan Blanchard amp Nash400 Poydras St Fl 26New Orleans LA 70130-3245(504) 529-3333Fax (504) 529-3337pbrickmandegancom

Michael DalyPierce Atwood LLP1 Financial Plz Fl 16Providence RI 02903-2485(401) 588-5113

Robert GardanaRobert L Gardana PA12350 SW 132nd Ct Ste 204Miami FL 33186-6458(562) 544-0168 Fax (305) 358-1680robertgardanalawcom

Danielle GauerM G amp M Law Firm600 Brickell Ave Ste 1400Miami FL 33131-3068(305) 537-3422dgauermgmlawcom

Sarah GayerThompson Bowie amp Hatch LLCPO Box 4630Portland ME 04112-4630(207) 774-2500Fax (207) 774-3591sgayerthompsonbowiecom

Christopher HamiltonShutts amp Bowen4301 W Boy Scout Blvd Ste 300Tampa FL 33607(813) 229-8900Fax (813) 227-8211chamiltonshuttscom

Grady HurleyJones Walker LLP201 Saint Charles Ave 48th FlNew Orleans LA 70170-1000(504) 582-8224Fax (504) 589-8224ghurleyjoneswalkercom

James KoelzerClyde amp Co LLP355 S Grand Ave Ste 1400Los Angeles CA 90071(317) 413-8158Fax (310) 229-5800JamesKoelzerclydecous

Max Malvin643 Magazine St Ste 405New Orleans LA 70130-3433(504) 323-5885mmalvinmontielhodgecom

Jessica MartynLink Martyn PLLC1407 S Leithgow TerracePhiladelphia PA 19147(757) 6154753jmartynlinkmartyncom

David McNealMcNeal Law Group PLLC2950 North Loop W Ste 500Houston TX 77092--8830(832) 819-3281dmcnealmcneallawgroupcom

Matthew MoellerMoeller Firm LLC650 Poydras St Ste 1207New Orleans LA 70130-7215(571) 882-0472matthewmoellerfirmcom

Jeanne NoonanWillcox amp Savage440 Monticello Ave Ste 2200Norfolk VA 23510(757) 628-5554jnoonanwilsavcom

Scott OlsonMarkel Surety9737 Great Hills Trl Ste 320Austin TX 78759-6418(512) 732-0099Fax (512) 732-8398scottolsonmarkelcom

Former Chairs of TIPS AMLC

3americanbarorgtips


Leadership Roster | continued

Pamela PalmerClark Hill PLC1055 W 7th St Ste 2400Los Angeles CA 90017-2550(312) 316-9359 Fax (213) 488-1178ppalmerclarkhillcom

Stephanie PropsomFincantieri Bay Shipbuilding826 N Duluth PlSturgeon Bay WI 54235-2959(920) 743-5020stephaniepropsomhotmailcom

Ann-Marie RoachGard (North America) Inc40 Fulton St 16th FlNew York NY 10038(646) 8125644annmarieroachgardno

Catherine SaylorMunch amp Munch PA600 S Magnolia Ave Ste 325Tampa FL 33606-2764(813) 2541557caseymunchandmunchcom

Kelly ScaliseLiskow amp Lewis701 Poydras St Ste 50001 Shell SqNew Orleans LA 70139(504) 299-6110Fax (504) 556-4108ktscaliseliskowcom

Katriel StatmanBaker Donelson1301 McKinney St Ste 3700Houston TX 77010(713) 210-7443 kstatmanbakerdonelsoncom

Sarah SweetBorden Ladner Gervais LLPBay Adelaide Centre East Tower22 Adelaide St WToronto ON M5H 4E3(416) 367-6590ssweetblgcom

Douglas TruxilloOnebane Law FirmPO Box 3507Lafayette LA 70502(337) 2372660Fax (337) 266-1232truxillodonebanecom

Raymond WaidLiskow amp Lewis701 Poydras St Ste 5000New Orleans LA 70139-5000(504) 581-7979rwaidliskowcom

Christine WalkerFowler White Burnett PA1395 Brickell Ave Floor 14Miami FL 33131(305) 789-9217cwalkerflower-whitecom


copy2020 American Bar Association Tort Trial amp Insurance Practice Section 321 North Clark Street Chicago Illinois 60654 (312) 988-5607 All rights reserved

The opinions herein are the authorsrsquo 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 amp Contracts office (copyrightamericanbarorg)

Editorial Policy This Newsletter publishes information of interest to members of the Admiralty and Maritime Law Committee of the Tort Trial amp Insurance Practice Section of the American Bar Association mdash 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

Stay Connectedwith TIPS

We encourage you to stay up-to-date on important Section news TIPS meetings and events and important topics in your area of practice by following TIPS on Twitter ABATIPS joining our groups on LinkedIn following us on Instagram and visiting our YouTube page In addition you can easily connect with TIPS substantive committees on these various social media outlets by clicking on any of the links

Connect with Admiralty amp Maritime Lawwebsite

4americanbarorgtips


Stephanie S PenningerXPO Logistics

Sr Director Legal Counsel XPO Logistics Charlotte NC

Chair Message

AMLC Unanimity in Remaining Loud About the Things That Matter When I became Chair of the Admiralty amp Maritime Law Committee (AMLC) I never imagined the tumultuous time that lay ahead Instead I traveled to the October 2019 ABA TIPS Fall Leadership meeting in Wailea Hawaii excited to embark on another year of robust educational programming and networking with fellow maritime and admiralty law practitioners throughout the country

At that time we were in the final stages of the publication of our Committeersquos first maritime practice book in many years Damages Recoverable in Maritime Matters (2nd Edition) a compilation of substantive chapters co-authored by too many talented AMLC members to name and spearheaded by our immediate past Chair Miami-based maritime lawyer Robert Gardana This grand feat also provided the backdrop for our Damages by the Bay programming during the August 2019 ABA Annual Meeting in San Francisco

I had packed the perfect Hawaiian-inspired outfit for witnessing past-Chair and ABA TIPS Secretary (not to mention prominent Holland amp Knight maritime lawyer-die-hard-Mets fan extraordinaire) Chris Nolanrsquos marriage atop a volcano (no longer active of course) surrounded by many longtime ABA friends and awoke much earlier for the ABA couplersquos marital celebration than I ever would have for anything else ndash ok may be a first class seat on a United flight There in Maui as the ocean waves crashed against the rocks where I snorkeled with a family of sea turtles (some might consider worthy of an AMLC mascot) and accompanied past Chair Sarah Gayer and her family down the resortrsquos fastest water slides we met we feasted on poke at the AMLC group dinner and we ldquoluauedrdquo including with incoming AMLC Chair Aaron Greenbaum and his family from NOLA and the ABA TIPS members at large in between programming sessions We accepted the AMCLrsquos Overall Excellence award (which took up a bit of souvenir space in my suitcase) and brainstormed our 2020 programming

5 months later the world and some of those close to our AMLC members became embroiled in battling COVID-19 Everything shut down and we were amassed with uncertainty But AMLC members did what we do best ndash we connected exchanged information and ideas and worked to expand and diversify our membership This salty bunchrsquos accomplishments thus far (despite a pandemic mind you) include

bull Holding a successful Passenger amp Crew Claims Seminar event on February 7 2020 in Miami Florida which was spearheaded by Robert L Gardana maritime counsel in Miami Florida

5americanbarorgtips


bull Sponsoring the infamous November 16 2019 Tulane Maritime Law Journalrsquos ABA IPS Admiralty and Maritime Law Committee Student Presentations at Liskow amp Lewis in New Orleans Louisiana thanks to fearless event leader and master of ceremonies (not to mention past AMLC Chair) Ray Waid

bull In November 2019 during our Committee meeting Chris Nolan presented on the recent US Supreme Court ruling in the Athos I safe berth case and Membership Chair Juliette McCullough with Cox Wootton Lerner in San Francisco led the charge to extend membership invitations to the multitude of participants in last yearrsquos Admiralty Disruption conference

bull In January 2020 Jeanne Amy based out of Jones Walkerrsquos New Orleans office submitted the AMLCrsquos annual Recent Developments contribution to the ABA Tort Trial amp Insurance Practice Law Journal

bull In February 2020 Sarah Gayer with Thompson Bowie amp Hatch LLC out of Portland Maine submitted the AMCLrsquos The Brief Editorial Board profile for publication in the Spring 2020 issue of the magazine Sarah also kept members apprised of or involved with the 27th Annual John Brown Admiralty Moot Court Competition which took place remotely in early April 2020

bull On April 16 2020 the AMLC held its first virtual Zoom videoconference meeting during which we discussed the use and effectiveness of force majeure provisions what Zoom depositions hearings and mediations were like which courts were closed or operational and the extent to which COVID-19 has changed the way in which companies have been conducting business within the maritime industry

bull May 1 2020 sparked the virtual Nashville Virtual Section Conference AMLC hospitality suite happy hour bonding session during which we battled at trivia and posed in our best Western getups (or as a cow) for a group photo with Country Music Hall of Fame and dude ranch backgrounds invoking the would be spirit of the originally planned in-person conference

bull On May 21 2020 the AMLC and fearless competition Queen Allison Skopec from Winston amp Strawn in NYC proudly announced the winners of our annual Student Writing Competition Then past AMLC Chair extraordinaire Jessica Martyn with Link Martyn PLLC in Philly presented ldquoFMC Interprets Reasonableness of Demurrage and Detention Practices in Final Rulerdquo based upon her recently published article

6americanbarorgtips


bull As part of the AMLCrsquos membership expansion efforts the Committee hasfeatured its newest in-house counsel member James Andrew Black LegalCounsel Moran Shipping Agencies Inc based out of Providence RI in thisnewsletterrsquos edition of Trade Talks

In the wake of Pride month with some stay-at-home orders now relaxed and amidst Black Lives Matter initiatives I am reminded of two quotes from two inspirational leaders At the heels of ldquoBloody Sundayrdquo during a sermon in Selma Alabama on March 8 1965 Dr Martin Luther King said ldquoA man dies when he refuses to stand up for that which is right A man dies when he refuses to stand up for justice A man dies when he refuses to take a stand for that which is truerdquo And in the words of James Baldwin whose puissant tones of sexuality race and social inequality woven into his novels has always resonated with me ldquoNot everything that is faced can be changed but nothing can be changed until it is facedrdquo

While we are amidst one of the toughest times some of us have faced in our lifetimes ndash from pandemics to grappling with how to end discrimination I am proud to be amember of a committee that faces challenges head on draws from the strength inits numbers our friendship our dedication to bringing communities together to learnand support one another and of course our ardent love of the rule of law boatsand anything that touches the sea I look forward to through our togetherness andservitude continuing to face adversity being inclusive ndash so that our membershipreflects the makeup of the external world standing up for what is right for justiceand that which is true and leading as we do ndash by example

AMLC celebrates Nashville virtual TIPS Section Conference social hour toast

7americanbarorgtips


It is our pleasure to present the TIPS AMLC Spring Summer 2020 Newsletter This is a double issue due to the packed content we have The law student writing competition winner and runner-up pieces are worthy of your time Separately an important FMC ruling on demurrage and detention is addressed Our Trade Talk piece features James Andrew Black at Moran Shipping Agencies for a wide ranging discussion

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 chrisnolanhklawcom CHamiltonshuttscom and Laura B Knoll LKnollamrlcom Thank you to the authors who have contributed to this newsletter and to the section members for their ongoing efforts in supporting this publication

Editor Message

Chris NolanManaging Editor

Holland amp Knight LLPPhone 2125133307wwwhklawcom

Chris HamiltonLaura Beck KnollAssociate Editors

AMLC on a lobster boat in New York during non-socially distancing 2017

8americanbarorgtips


AD SIZE OPTIONS DIMENSIONS COST

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The Tort Trial amp Insurance Practice Section Introduces a New Advertising Opportunity

The rates for advertising in this publication are

Additional information and printonline advertisement opportunities including discount options and complete media kits can be found by reaching out to Staff Liaison Norma Campos at normacamposamericanbarorg

9americanbarorgtips


TRADETALK

Q Andrew tell us what promptedyou to get into the maritime legalindustry

R I worked as a Ship Agent inHouston TX my first summer homefrom college and was immediatelycharmed by the maritime industry Ispent the next 10 years working invessel operations across the US Veryoften this required me to research shipping regulations toresolve incidents and disputes on behalf of ship ownersand charterers Maritime attorneys always seemed tobe involved in the most difficult of these situations so Ichose to pursue a law degree to take part in a greatervariety of the complex issues that arise when competingstakeholders interact at sea

Q Can you describe your experience of working atMoran Shipping Agencies Inc as Legal Counsel

R Every day has been a new challenge since joiningMoran Shipping as Legal Counsel in January 2020 In ashort time Irsquove mitigated CBP penalties provided guidance

on current ballast water and bunker fuel regulations helped a client avoid major fines for a potential Jones Act violation and incorporated a new subsidiary company Overall both the pace and diversity of work have been extremely rewarding

Q What are your views on hiring outside counsel

R Moran provides agency security and pollution safetyservices in more than 100 ports with only two attorneyson staff Itrsquos simply not possible for us to becomecompetent subject matter experts on every issue thatarises in those 20+ jurisdictions Because of this wetry to establish long term relationships with experiencedand knowledgeable maritime practitioners across theUS before the need for their service ever arises Thisallows us to provide timely and accurate risk analysisto our clients and better facilitates maritime businesstransactions where we are involved

Our Trade Talk piece features James Andrew Black Legal Counsel at Moran Shipping Agencies Inc

10americanbarorgtips


Q What legal issues are coming across your desk with some frequency these days

R We are seeing a lot of issues involving crewmembers caused by the COVID-19 travel restrictions and have been working closely with local CBP offices to facilitate crew changes in as safe a manner as possible In addition the ongoing tank space shortage has sparked a lot of interesting queries regarding the extent of Jones Act limitations imposed on foreign vessel cargo movements

Q For our practitioners which industry organization(s) do you get the most out of

R As a company Moran participates in local safety and advisory in many US ports These are a tremendous resource for learning what issues keep key stakeholders up at night and how they plan to address them moving forward Personally and most recently I was fortunate to attend the 28th annual Tulane Admiralty Law Institute prior to the COVID-19 shutdowns The conference was very informative and provided a great opportunity to genuinely connect with a diverse set of maritime attorneys

Q In addition to the AMLC newsletter of course which industry publication do you find most useful

R I gain a lot from subscribing to ldquoBryantrsquos Maritime Blogrdquo which provides regular summaries on recent develops of interest to the maritime industry I also keep up to date with Tradewinds INTERTANKOrsquos weekly newsletter and the Norton Rose Fulbright legal updates

Q Thank you for taking time to speak with us today As a final question living in Boston MA when we reemerge from this Covid-19 shelter which sporting event do you hope to attend the most

R I really hope to make it to a Red Sox game at Fenway Park this summer Not sure how good the home team will be this year but nothing beats the atmosphere at Fenway on a warm New England evening



F I N D Y O U R C O M M U N I T Y

a m b a r o r g t i p s c o n n e c t


Opportunities To Become Involved

Additional InformationFor more information regarding the benefits that membership in the AMLC can provide to you check out our webpage at httpambarorgtipsadmiralty 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

Publication in the AMLC Newsletter or TIPS Law Journal

Networking Opportunities CLE and Webinar Opportunities

Leadership Positions Mentoring Relationships Young Lawyers and Law Student Writing

Competition




Kathryn A Kulaga PhDCarpenter LLP

Kathryn is a May 2020 graduate of Roger Williams University School of Law She holds a BS in Biology and English an MS in Conservation Biology and a PhD in Environmental Science and Policy She also is a US Coast Guard veteran Kathryn will sit for the September 2020 DC Uniform Bar Exam She may be contacted at kkulaga984barristerrwuedu

Editorrsquos Note Kathrynrsquos article was selected as the second-place winner of the 2020 Gard ABA TIPS AMLC law student writing competition held in conjunction with Gard NA

On Thin Ice National and Homeland Security Implications of Warming Arctic Waters for US Naval Forces

Homeland security implications for an enhanced US naval force presence

ldquohellip[A]ll action must to a certain extent be planned in a mere twilighthelliprdquo ndash Carl von Clausewitz1

The US Coast Guard and Navy must be prepared to protect increased national interests in the Arctic2 as the maritime domain expands due to melting sea ice as a result of global climate change Guided by US policy and strategy documents these naval forces3 each have developed an Arctic strategy and implementation plan for operating in this dynamically and dramatically changing environment However resource constraints and competing mission requirements hinder both the Coast Guard and Navy from fully achieving their strategic objectives to meet climate change adaptation demands in this region Moreover unpredictability in the changing rate and extent of diminishing sea ice makes planning for Arctic investments challenging4

As an Arctic nation5 the United States has national interests in the region that the Coast Guard and Navy must protect and defend6 Melting sea ice has created an even greater strategic significance for the United States as Arctic waters open to increased economic environmental and geopolitical concerns7 Accomplishing such an imperative requires heavy polar icebreaking capability8 However the maritime services currently are experiencing a shortfall in this instrument of national and homeland security9 Using a case study approach this paper is divided into parts and will explain that the national and homeland security implications of warming Arctic waters require that the Coast Guard and Navy make a major investment in acquiring heavy polar icebreakers10 All research was conducted using unclassified materials

I The US military is concerned about climate change as aldquothreat multiplierrdquo to national security

ldquoAmong the future trends that will impact our national security is climate change [It] will intensify the challenges of global instability hunger poverty and conflictrdquo ndash Secretary of Defense Chuck Hagel11

The mission of the US military is to protect the Nation from threats to its security12 The defense and homeland security communities have recognized that climate change poses both direct and indirect threats to national security and have



Carole RouffetNicoletti Hornig amp Sweeney

Carole is an attorney at Nicoletti Hornig amp Sweeney and can be reached at crouffetnicolettihornigcom


In Search of Just and Reasonable Practices for Demurrage and Detention ChargesAll actors of the international ocean supply chain are confronted with the issue of demurrage and detention charges The handling processing and billing of demurrage and detention charges is often as confusing as the terminology for demurrage and detention Generally speaking demurrage charges refer to charges incurred while the container is using terminal space at a marine terminal after discharge from the vessel while detention charges refer to charges associated with the use of the container but the definitions may vary among ocean carriers and marine terminal operators

The interests between parties to the supply chain are not always aligned and their complex contractual and operational relationships create significant risk exposure for shippers consignees and cargo owners as well as for ocean intermediaries such as freight forwarders logistics providers and non-vessel owning common carriers (NVOCCs) for demurrage and detention charges

Frustration with the amount of demurrage and detention charges often arises after events outside of the control of a shipper or consignee such as port closures port congestion weather insufficient equipment and chassis or governmental inspection of a container prevent the pick-up of a container from a terminal within a reasonable time andor the return of a container within the free time allowed by a carrier

The lack of transparency and clarity is also a cause of frustration when attempting to negotiate with ocean carriers and marine terminals to obtain release of a container from a port Marine terminal operators and ocean carriers may have their own contractual relationships setting up certain costs for demurrage However shippers may be bound by the ocean carrier tariffs providing container demurrage rates ten or twenty times higher than what a marine terminal would charge In certain circumstances the demurrage charges to be paid by a shipper may greatly exceed the value of the actual cargo and result in significant commercial loss

Ocean intermediaries such as NVOCCs may also be liable for high charges When the ultimate consignee fails to pick up a container at the port of destination carriers may seek indemnification from the NVOCC that issued a house bill of lading and therefore appeared as a ldquoshipperrdquo or ldquoconsigneerdquo in the master bill of lading Although NVOCCs have no interest in the cargo itself and no control over the movements of the container courts in the US have held NVOCCs liable for all demurrage and detention costs1



Damages Recoverable in Maritime Matters Second EditionWritten by icons of maritime law members of the Admiralty and Maritime Law Committee of the ABA Tort Trial and Insurance Practice Section (TIPS) have authored the latest addition to ABA Publishing shelves Soon to be the echelon of maritime texts the 2020 release of Damages Recoverable in Maritime Matters Second Edition represents the culmination of a yearrsquos dedication of its contributing authors editors and peer reviewers and provides a comprehensive view of the intricacies of the maritime damages recoverable in all aspects of admiralty and maritime law

A hands-on guide for maritime law practitioners Damages Recoverable in Maritime Matters Second Edition provides an in-depth analysis of the damages recoverable in all areas of admiralty and maritime matters both from a prosecution and defense perspective including references to hundreds of Federal and State decisions decided under the General Maritime Law Of the United State federal statutes state statutory remedies and maritime law cases and rules including the Supplemental Rules of Admiralty

Damages Recoverable in Maritime Matters Second Edition includes all aspects of available damages in this complex specialized field The breadth of the bookrsquos coverage is clear from a review of the Chapter titles below

bull Preface David Sharpe

bull Chapter 1 Damages Recoverable in Collisions Allisions and OtherMaritime Incidents - Jeanne L Amy and Michael T Amy

bull Chapter 2 Damages Recoverable by Seafarers (Jones Act and GeneralMaritime Law) - Chase A Jansson

bull Chapter 3 Damages Available to Passengers Under Maritime Law - DonaldA Mau

bull Chapter 4 Damages Recoverable Under the Death on the High Seas Act(DOHSA) and Its Interplay of State Wrongful Death Statutes - CaptainRobert L Gardana and Ashley S Gardana Arraras

bull Chapter 5 The Longshore and Harbor Workersrsquo Compensation Act 33USC sectsect 901ndash950 - Angie Fredrickson Nina Mitchell and Nina H Sellers

bull Chapter 6 Damages in Cargo Cases and General Average - Chris Nolanand Sean T Pribyl

Robert L GardanaRobert L Gardana PA

Editor Robert L Gardana Past Chair Admiralty and Maritime Law Committee of the ABA Tort Trial and Insurance Practice Section (TIPS)



bull Chapter 7 Salvage Awards Towage and Quantum Meruit Recovery - EleniMelekou

bull Chapter 8 Contracts Charter Parties Towing and Pilotage - Douglas WTruxillo

bull Chapter 9 Maritime Toxic Exposure Claims - Danielle T Gauer and MarkNewcomb

bull Chapter 10 Rule B Attachment and Rule C Arrest - Philip C BrickmanMichael J Daly and Aaron B Greenbaum

bull Chapter 11 Marine Insurance mdash Coverages Available for Maritime Risks -Attilio M Costabel and Pamela A Palmer

bull Chapter 12 Punitive Damage Awards Under General Maritime Law andAncillary State Claims - Sarah Yantakosol Gayer

bull Chapter 13 Defending Damages Apportionment of Fault Causation andLimitation Actions - Jessica L Martyn and Matthew A Moeller

bull Chapter 14 Maritime Whistleblowers - Danielle Gauer and Mark Newcomb

bull Chapter 15 Recreational Boating Remedies - B Otis Felder

Given the complexity of the law of maritime damages this expanded new edition is an essential resource for practitioners worldwide While covering traditional notions and well entrenched principles of recovery including the 30 percent for seaman status what constitutes a ldquovesselrdquo the respondeat superior liability against a cruise liner for the medical negligence of a shiprsquos physician it includes the Supreme Court recent decisions involving the unavailability of punitive damages for unseaworthiness under Dutra Group v Batterton The intricacies of the Longshore and Harbor Workersrsquo Compensation Act is thoroughly covered and the text is filled with relevant maritime citations providing thorough and well thought arguments supporting both sides of maritime cases Regardless of whether you practice on the plaintiff or defense side of the bench Damage Recoverable in Maritime Matters Second Edition is a resourceful addition to your desk arsenal of hands-on maritime materials

The book was peer reviewed by Attilio M Costabel an Adjunct Professor of Law at St Thomas University School of Law Robert L Gardana who is board certified by the Florida Bar in Admiralty and Maritime Law Stephanie A Propsom who practices in the area of Maritime Law and Frank J Sioli who is board certified by the Florida Bar in Admiralty and Maritime Law The Editorial Committee consists of Attilio M Costabel Robert L Gardana Ashley S Gardana-Arraraacutes Aaron B Greenbaum Chase A Jansson Stephanie A Propsom David B Sharpe and Frank J Sioli



Available at ABA Publishing with a deep discount for Admiralty amp Maritime Law Committee members please navigate to the link below

httpswwwamericanbarorgproductsinvbook393853362

normacamposamericanbarorg

The Directory allows you to create a customizedSpeaker Profile and market your experience andskillset to more than 3500 ABA entities seeking

speakers around the country and the world

Please contact TIPS Staff Norma Campos ifyou are sourcing speakers or authors for

your programs and publications

DIVERSE SPEAKERS DIRECTORYOpen to both ABA and Non-ABA members





issues are too various to attempt to enumerate let alone analyze in this short essay Accordingly this Article focuses on an issue that may become highly consequential to all the major publicly traded cruise-line companies the interaction of maritime liens and the Bankruptcy Code3

Although it may seem unfathomable that cruise-lines with market capitalizations soaring to the tens of billions just a few months ago could see the value of their equity obliterated by the absolute-priority rule in a Chapter 11 restructuring4 the coronavirus should now have taught us all to hope for the best but prepare for the worst5

This Article seeks to chart a course for the strategic lawyer to guide clients through the difficult passage of maritime bankruptcy The unique features of maritime liens will present an obstacle to the debtor-in-possession (DIP)6 in fully utilizing the administrative powers of the bankruptcy estate7 Counsel must understand these differences with Article 9 security interests and state-law statutory liens8 (among other non-maritime liens) in order to assist the client in making the right strategic decisions about the usefulness of bankruptcy or alternative procedures9 In accordance with this goal this Article will describe the usually potent administrative powers that may be hamstrung by the arcane procedures and ldquosecret liensrdquo of the admiralty10

In Part II the Article discusses the major differences between maritime liens and state-law liens In Part III it outlines the effect of these differences on important administrative powers of the DIP (the automatic stay sect 363 sales post-petition financing and executory contracts) In Part IV the Article analyzes the strategic implications for maritime debtors and creditors in the context of the cruise-line industry

II Important Differences between Maritime Liens andState-Law Liens

For a lawyer familiar with the modern notice-filing system of Article 9 or the traditional common law of pledge and possessory liens the world of maritime liens appears to be a fun-house-mirror system of secured credit Although these differences largely stem from the doctrinal curiosity of the personhood of the ship under American Maritime Law11 this Article will discuss only the practical differences between maritime and ldquoterrestrialrdquo (non-maritime) liens12

There are four primary differences between maritime liens and terrestrial liens that may be of practical relevance in a cruise-line bankruptcy13 First maritime liens arise by operation of law and do not require the partiesrsquo consent as Article 9 security interests do14 Second all maritime liens other than ldquopreferred ship mortgagesrdquo15 are ldquosecret liensrdquo and do not require recordation or any form of notice filing16 Third maritime liens are not extinguished by the sale of the vessel to a bona fide

Steering continued from page 1



purchaser17 Fourth maritime liens of the same class are ranked in a ldquolast in time first in rightrdquo order of priority18

Two final points are necessary to round out this brief discussion of the differences between maritime liens and non-maritime liens First all maritime liens19 outrank any non-maritime lien20 Second maritime liens traditionally must be perfected by an admiralty court proceeding in rem against the vessel21 This second point may give rise to a fascinating but nettlesome constitutional question concerning the bankruptcy courtrsquos authority to sell a ship free and clear of liens that was hinted at by Northern Pipeline Constr Co v Marathon Pipe Line Co22 and Stern v Marshall23 See Part IIIB infra

III Maritime Liens and the Administrative Powers of theEstate (DIP)

The administrative powers provided by Chapter Three Subchapter Four of the Bankruptcy Code afford to the debtor powers that would be unimaginable outside of bankruptcy 24 The automatic stay is a ldquostatutory injunctionrdquo that immediately provides a reprieve for debtors beset by dunning creditors the very instant the debtor files for bankruptcy25 The trustee (or DIP in Chapter 11) has vast powers to use sell or lease the property of the estate either in the ordinary course or with the blessing of the bankruptcy-court judge26 The DIP can even prime senior liens on property of the estate to obtain post-petition financing with the bankruptcy courtrsquos blessing and limited appellate review27 Finally the DIP has the power to assume or reject ldquoexecutory contractsrdquo and the rejection of such contracts converts the damages for breach of the executory contract into a pre-petition unsecured claim often redounding to the benefit of the DIP by allowing it to pay dimes or pennies on the dollar for the actual damages caused to the counterparty by breach of the executory contract28

All of these powersmdashand the strategic ldquobargaining endowmentsrdquo29 they provide the DIPmdashcan be limited by the unique features of maritime liens to varying degrees

A The Automatic Stay and Admiralty The In Custodia Legis Doctrine

Prior to the passage of the modern Bankruptcy Code in 1978 the first court to take possession of a vessel would have exclusive jurisdiction over such vessel30 The in custodia legis doctrine ldquobased on principles of comity is lsquoa practical means of resolving a jurisdictional dispute between two courts with concurrent jurisdiction over a single resrsquordquo31 Even after the passage of the Bankruptcy Code bankruptcy courts often deferred to admiralty courts by lifting the automatic stay to allow the admiralty court to determine the fate of the vessel32 In an influential bankruptcy-court opinion following shortly after Northern Pipeline33 the court reasoned that



following the in custodia legis doctrine was preferable because ldquoonly an admiralty court can without question deliver a vessel free and clear of all lienshellipit is unclear that a foreign jurisdiction would recognize the sale of a vessel by the Bankruptcy Courtrdquo34 Some commentators have opined that the in custodia legis doctrine encourages a race to the courthouse35

A circuit split over the continued relevance of the in custodia legis doctrine has developed between three of the nationrsquos major maritime circuits36 Briefly the Fifth Circuit has sided with the bankruptcy court and sought to consolidate proceedings under the bankruptcy courtrsquos jurisdiction in both Chapter 11 reorganizations and Chapter 7 liquidations37 The Second Circuit has adopted a middle waymdashadhering to in custodia legis in Chapter 7 liquidations but recognizing the need for a centralized proceeding in Chapter 11 reorganizations38 Recently the Ninth Circuit intensified the circuit split by holding a bankruptcy-court sale invalid because a previously filed in rem proceeding to enforce a maritime lien had vested the admiralty court with jurisdiction over the vessel39 The court further stated that the admiralty courtrsquos previously perfected jurisdiction would be respected in both a liquidation and a reorganization40 This circuit split could present forum-shopping opportunities for all cruise-line stakeholders See Part IVA infra

B Section 363 Sales Admiralty and the Authority of Article I Judges

Section 363 sales have become a frequently used method for debtors to gain much-needed cash during reorganization41 Unfortunately for maritime debtors it is unclear whether bankruptcy courts possess the constitutional authority to sell a vessel free and clear of all liens after Stern 564 US 46242 There exists a tension between a long line of cases holding that only an admiralty court may administer a proceeding in rem against a vessel and the plain language of 28 USCA sect 157(b)(2)(N) (West) which allows the bankruptcy court to enter final orders ldquoapproving the sale of propertyrdquo43 Stern 564 US 462 seems to have weighted the scales in admiraltyrsquos favor with one leading scholarly commentator explaining that

ldquoUntil Stern 28 USCA sect 157(b)(2)(N) provided a clear statutory basis to conduct sales of assets including vessels With Stern however the statutory framework began to crumble in that another provision of 28 USCA sect 157(b)(2) which authorized bankruptcy courts to hear and determine counterclaims by the estate against persons filing claims against the estate was held unconstitutional Notwithstanding the fact that Congress deemed such counterclaims appropriate for adjudication by a bankruptcy court the Supreme Court in Stern held that a non-Article III bankruptcy judge under the circumstances presented could not adjudicate state law claims set forth in a counterclaimrdquo44



If cruise-lines seek to reorganize under Chapter 11 the fate of multi-hundred-million-dollar ships and the proceeds therefrom could be decided by constitutional arcana of a federal-courts nerdrsquos dreams See Part IVB infra

C Pesky Priorities and Priming for Post-Petition Financing

11 USCA sect 364(d) (West) allows the trustee or DIP to prime liens45 in order to obtain vital post-petition financing46 In a non-maritime bankruptcy senior lienholders will often be other financial institutions (or the post-petition lender itself) thus making negotiations over priming in order to secure post-petition financing easier for the DIP47 However in a maritime bankruptcy senior lienholders on the debtorrsquos most valuable assetsmdashvesselsmdashwill often be classes of lowly seamen and maritime-tort claimants who may not necessarily possess the financial acumen or vested self-interest to support reorganization by accepting junior-lien status Although the priority of maritime liens is not governed by statute48 or a uniform general-maritime-law doctrine there is ldquogeneral agreementrdquo on the rankings49

First in priority are ldquocustodial expensesrdquo ie those incurred while the vessel is in the custody of the court (in custodia legis)50 Second in priority are seamanrsquos wage claims which have long been characterized as ldquorsquosacred liensrsquo entitled to protection lsquoas long as a plank of the ship remainsrsquordquo51 Third in priority are salvage claims52 Fourth in priority are maritime-tort claims for collision and personal injury53 Following are claims for repairs towage supplies and ldquoother necessariesrdquo54 And the lowest-ranking maritime lien is the only kind of maritime lien that a financial-institution creditor can obtain a preferred ship mortgage which is outranked by any ldquopreferred maritime lienrdquo under 46 USCA sect 31326(b)(1)

While some commentators urge policymakers to adopt the maritime approach of providing involuntary creditors (eg wage claimants and tort claimants) with priority over secured creditors55 it is likely to cause headaches for the DIP in any conceivable cruise-line bankruptcy See Part IVC infra

D Executory Contracts Collective Bargaining and Wage Priority

The power of the trustee or DIP to reject executory contracts and then pay only dimes or pennies on the dollar for the actual damages caused by such breach has been an object of fascination among bankruptcy scholars for many decades56 The priority of maritime liens generally and seamanrsquos wage claims in particular may make rejecting collective-bargaining agreements a less-useful tool for maritime debtors to reduce overhead while restructuring

Ordinarily were an employer to reject a collective-bargaining agreement the employeesrsquo damages for breach would become a pre-petition unsecured claim with low priority under the operation of 11 USCA sect 365(g) (West)57 However because



bankruptcy courts apply the priority rules provided by the underlying substantive law (usually state law but federal maritime law here) and because federal maritime law grants seamenrsquos wages priority over all but custodial fees rejecting a maritime collective-bargaining agreement may not benefit the DIP nearly as much as usual58

IV Potential Implications from the Uniqueness of Maritime LiensA Choosing the Bankruptcy VenuemdashRevenge of the Sovereign-

Selection Clause

The circuit split between the Second Fifth and Ninth Circuits over the continuing vitality of the in custodia legis doctrine see Part IIIA supra should be highly consequential for at least four classes of stakeholders (1) the cruise-line DIP (2) seamen with wage claims only (3) seamen with wage claims personal-injurywrongful-death claims and maintenance-and-cure-claims59 and (4) passengers with personal-injurywrongful-death claims

The cruise-line DIP will want to select a bankruptcy venue in the Fifth Circuit and would likely not mind venue in the Second Circuit60 However the DIP should certainly be wary of filing in the Ninth Circuit A Ninth Circuit bankruptcy court or bankruptcy appellate panel (BAP) would likely follow the binding precedent of Barnes v Sea Hawaii Rafting LLC61 and abstain from exercising jurisdiction over a vessel that was already arrested by an admiralty court

Even though the cruise-line debtor may select the bankruptcy venue a difficult issue might be presented if the wage claimants andor maritime-tort claimants were to arrest a multi-hundred-million-dollar mega-vessel in a district court in the Ninth Circuit before the filing of the bankruptcy petition Say the cruise-line debtor had filed in the Southern District of Texas for instance and that maritime-tort claimants had already arrested a mega-vessel in the Central District of California would the federal court in California be able to skirt binding precedent to release the vessel and add to the bankruptcy estate in order to facilitate the smooth reorganization of the DIP Or would the admiralty court maintain possession of the vessel and the case and divvy up the proceeds among the maritime-tort claimants and the notified creditors in a Rule F Limitation of Liability Action The uncertainty leads to one certain course of action for the cruise-lines do not sail allegedly offending vessels into the Ninth Circuitrsquos jurisdiction until you have decided whether Chapter 11 reorganization will be necessary to sort your affairs

For the wage and maritime-tort claimants the calculus is precisely the inverse They will want to seek the Ninth Circuit A recent case involving a ldquosovereign-selection clauserdquo62 in California state court suggests that preferred-maritime-lienholders may be able to ask the admiralty court in the Central District of California to take constructive



possession of certain cruise-line mega-vessels residing outside the district courtrsquos physical jurisdiction63 In Korman 32 Cal App 5th 206 the plaintiff argued that the forum-selection clause violated the saving-to-suitors clause64 by mandating that only the federal courts of the Central District of California had jurisdiction to hear any case arising under the contract65 This kind of a forum-selection clause one that specifies that only the federal or state courts within a certain location may hear cases arising from the contract is called a ldquosovereign-selection clauserdquo66 but the California appellate court held that this sovereign-selection clause did not violate the plaintiffrsquos saving-to-suitor-clause rights67 Moreover the court held that ldquofederal admiralty lawrdquo constituted the rules of decision for this case68 thus even though this is a state-court case it has persuasive precedential value for federal admiralty courts

Maritime-tort claimants have a colorable argument that under their employment contracts or passenger tickets69 the only competent jurisdiction to decide the liability of the ship or the cruise-line in personam would be the federal admiralty court in the Central District of California It may be shrewd for maritime-tort counsel to bring a case in rem against an offending vessel70 although it be outside the Central District of Californiarsquos physical jurisdiction The Central District of California could make a declaratory judgment that under the partiesrsquo contract and the pro-enforcement stance of the general maritime law toward forum-selection clauses since Carnival Cruise Lines v Shute71 the forum-selection clause is valid and it is the only court competent to hear the in rem proceeding Could the Central District of California then issue an injunction against the cruise-line to navigate the allegedly offending vessel into its physical jurisdiction so that it may properly arrest the vessel under the time-honored tradition of federal maritime law Given the enormous value of cruise-line mega-vessels and the leverage that an arrest in a Ninth Circuit district court would give to maritime-tort claimants a petition for a declaratory judgment and injunction from the Central District of California is likely a gamble worth taking for plaintiffrsquos counsel

B Constitutional Attack on sect 363 Sales of Vessels

Assuming that a cruise-line debtor successfully wrangles all its collateral into a friendly bankruptcy venue disgruntled claimants will still have a potent weapon to scuttle any reorganization they disfavor the colorable constitutional attack on the ldquofinal orderrdquo of a sect 363 sale after the Supreme Courtrsquos holding in Stern v Marshall See Part IIIB supra Under Sternrsquos reasoningmdashthat allowing non-life-tenured non-salary-protected Article I judges to wield the great power of issuing final orders would erode the authority of the Judicial Branch72mdashhow could the sale of a five-hundred-million-dollar ship by the bankruptcy judge be any less a threat to the separation of powers than the bankruptcy court adjudicating Anna Nicole Smithrsquos four-hundred-million-dollar state-law counterclaim against Pierce Marshall



Indeed the argument for vesting the in rem proceeding against an allegedly offending vessel in the exclusive jurisdiction of an Article III judge sitting in admiralty seems even stronger After all the constitutional structure embodied in Article III should be much more offended by an Article I judge finally deciding federal-maritime claims than an Article I judge finally deciding state-law counterclaims which an Article III judge could only properly adjudicate in a case of diversity or supplemental jurisdiction The Constitution itself vests the federal courts with admiralty and maritime jurisdiction73 unlike the jurisdiction to hear state-law tort counterclaims in Stern Moreover the in rem proceeding to enforce a maritime lien is vested exclusively in admiralty courts under 28 USCA sect 1333 and long tradition74

Still the necessity of speed and decisiveness may outweigh doctrinal niceties in a fast-moving multi-billion-dollar Chapter 11 reorganization75 One must remember that the dispute between Anna Nicole Smith and Pierce Marshall did not concern thousands of other stakeholders While potential cruise-line debtors have reason to hope that a bankruptcy judge will rule pragmatically on the constitutional issue if the vessel will not be able to travel and produce revenue for the DIP because of a public-health directive or other ldquosocial-distancing measuresrdquo is there really such great necessity to hurry a sect 363 sale or other final order Would there not be plenty of time to refer the constitutional question up the chain on interlocutory appeal

C Could Spiteful Seamen or Passengers Scuttle Post-PetitionFinancing

Under the unique system of maritime-lien priority any preferred ship mortgage given to a lender to secure financing will always be outranked by a preferred maritime lien See Part II supra Thus seamenrsquos wage claims and maritime-tort claims will have priority over any potential post-petition lender In the event that allegedly offending vessels need to be used as collateral in order to entice lenders to extend post-petition credit seamen and passengers will have unusual leverage relative to non-maritime employees and tort victims Under 11 USCA sect 364(d) in order to prime a lien on property of the estate the trustee (DIP) must prove that the senior lienholders will receive ldquoadequate protectionrdquo Adequate protection is defined by example in 11 USCA sect 361 and it is a central concept for understanding the administrative powers of the estate Adequate protection consists of lump-sum or periodic cash payments and additional or replacement liens on property of the estate76

Non-maritime employees and tort claimants would be unsecured creditors in an ldquoordinaryrdquo (non-maritime) bankruptcy Thus the DIP would not need to worry about these creditor classes very much in trying to obtain post-petition financingmdashtheir claims would not encumber any of the estatersquos valuable collateral In a maritime bankruptcy and particularly in a cruise-line bankruptcy where multi-hundred-million-



dollar floating-palaces would constitute the lionrsquos share of the debtorrsquos collateral the priority of preferred-maritime lienholders is likely to prevent the DIP from obtaining post-petition financing at comparable interest rates to those of a non-maritime debtor with similarly valuable collateral and future business prospects

If seamen or passengers are unhappy with their fate or with their share of the pie in bankruptcy interfering with the DIPrsquos attempts to obtain post-petition financing would be a way to harass their real or perceived enemies

V ConclusionA brief article by a fledgling legal mind could not hope to broach let alone fully analyze all of the fascinating legal issues that form such a helpful diversion in these uncertain and frightening times As the tide of care-free prosperity that has blessed this nation and many lands across the world ebbs it is likely that legal issues attending maritime bankruptciesmdashspecifically cruise-line bankruptciesmdashwill rise in prominence and importance Hopefully this Article serves as a useful opening in the strategic discussion that should be occurring between all cruise-line stakeholders and their counsel

Endnotes1 The SampP 500rsquos value was 322552 on January 31 2020 and is 282475 as of April 23 2020 This is an approximately 125 decline despite the Herculean efforts of the Federal Reserve The three major cruise-lines on the other handmdashCarnival Cruise Lines (CCL) (approximately 72 decline) Norwegian Cruise Line Holdings (NCLH) (approximately 785 decline) and Royal Caribbean Cruise Lines (RCL) (approximately 685 decline)mdashhave all declined in market value by more than two-thirds of their pre-crisis levels

2 See eg Christopher Reynolds 39 Coronavirus Cases on Cruise Ship Off Japan 174 Now Infected LA Times Feb 11 2020 at httpswwwlatimescomtravelstory2020-02-05coronavirus-cruise-passengers-diamond-princess

3 11 USCA sect 101 (West) et seq (2012)

4 11 USCA sect 1129(b)(2)(B) (West) (providing that a Chapter 11 plan may not be ldquocrammed downrdquo on unsecured creditors unless ldquojunior claimsrdquo ie equity will not receive ldquoany propertyrdquo under the plan)

5 Equity could potentially survive a Chapter 11 restructuring but only if each senior class of claims accepts the plan or is unimpaired by the plan 11 USCA sect 1129(a)(8) (West) Nevertheless given the wide-ranging classes of stakeholders with claims senior to equity one should prepare for the worst-case scenario of involuntaryacceptance of the plan through cramdown and the concomitant draconian rigors of the absolute-priority rule

6 Id sect 1101(1) The DIP is effectively the trustee in a Chapter 11 reorganization with all of the powers and most of the duties attending that role Id sect 1107(a)

7 11 USCA sect 361-366 (West)

8 In many ways statutory liens such as artisanrsquos liens are most similar to maritime liens as both arise by operation of law rather than agreement between the parties The primary difference is that artisanrsquos liens require possession whereas maritime liens are entirely non-possessory

9 The two main alternatives for cruise-lines (in a limited-fund situation) would be (1) Limitation proceedings under Rule F of the Supplemental Admiralty Rules of the Federal Rules of Civil Procedure or (2) interpleader For potential maritime-lien claimants the main alternative would be an admiralty proceeding in rem under Rule C of the Supplemental Rules for Admiralty (arrest)

10 Osaka Shosen Kaisha v Pac Exp Lumber Co 260 US 490 497 43 S Ct 172 67 L Ed 364 (1923) (ldquothis privilege or lien though adhering to the vessel is a secret onerdquo)

11 See Harmer v Bell (The Bold Buccleugh) 13 Eng Rep 884 (Privy Council 1852) ldquoUS Courts have accepted the personification theory of The Bold Buccleugh By contrast modern English practice has rejected this theoryrdquo DAviD W RobeRTson sTeven F FRieDeLL amp michAeL F sTuRLey ADmiRALTy AnD mARiTime LAW in The uniTeD sTATes 404 (3d ed 2015)

12 For a deeper analysis of this metaphysical curiosity see generally eg Douglas Lind Douglas Lind Pragmatism and Anthropomorphism Reconceiving the Doctrine of the Personality of the Ship 22 USF Mar LJ 39 (2010) (discussing the historical development of the doctrine and alternative philosophical and practical bases for its continued practice)



13 Ian T Kitts Note Ian T Kitts Between Scylla and Charybdis Maritime Liens and the Bankruptcy Code 14 Brook J Corp Fin amp Com L 125 129 (2019)

14 The John G Stevens 170 US 113 122 18 S Ct 544 42 L Ed 969 (1898) (ldquoThe collision as soon as it takes place creates as security for the damages a maritime lien or privilege jus in re a proprietary interest in the offending shiprdquo) compare sect 9-203 Attachment and Enforceability of Security Interest Proceeds Supporting Obligations Formal Requisites UnifCommercial Code sect 9-203 (outlining the prerequisites for attaching and perfecting a security interest)

15 See 46 USCA sect 31322(a) (West 2012) (detailing the requirements for obtaining a preferred ship mortgage including filing with the Coast Guard ldquoin substantial compliancerdquo with the requirements of 46 USCA sect 31321 (West))

16 Compare Osaka Shosen Kaisha 260 US 490 with UCC sectsect9-501mdash9-510 (enumerating the technical requirements of the filing system)

17 See eg Harmer v Bell (The Bold Buccleugh) supra note 11 Compare sect 9-320 Buyer of Goods UnifCommercial Code sect 9-320 (detailing how both business and consumer-goods purchasers can take free and clear of security interests created by the buyerrsquos seller)

18 The John G Stevens 170 US 113 (ldquo[T]he general rule [] is that they are to be paid in inverse orderrdquo) Compare sect 9-322 Priorities Among Conflicting Security Interests in and Agricultural Liens on Same Collateral UnifCommercial Code sect 9-322 (outlining the traditional common-law ldquofirst in time first in rightrdquo priority system as the default rule for security interests under Article 9)

19 The two main classifications of maritime liens are (1) preferred ship mortgages and (2) preferred maritime liens Preferred ship mortgages are a creature of statute See 46 USCA sect 31322(a) ldquoPreferred maritime lienrdquo is a catch-all name given by statute to pre-existing general-maritime-law liens that outrank preferred ship mortgages See 46 USCA sect 31301(5) (West)

20 46 USCA sect 31326(b)(1) (West) provides that a preferred ship mortgage ranks ldquoover all claims against the vessel (except for expenses and fees allowed by the court costs imposed by the court and preferred maritime liensrdquo (emphasis added) See also David Weil David Weil Charting A Course Through Dangerous Waters A Landlubberrsquos Introduction to the Rules of Maritime Indebtedness in the Context of A Maritime Bankruptcy 9 USF Mar LJ 195 205 (1996) (ldquoSimply put all maritime creditors have priority over all non-maritime creditorsrdquo)

21 The Rock Island Bridge 73 US 213 215 18 L Ed 753 (1867) (ldquoThe lien and the proceeding in rem are therefore correlativemdashwhere one exists the other can be taken and not otherwiserdquo)

22 N Pipeline Const Co v Marathon Pipe Line Co 458 US 50 102 S Ct 2858 73 L Ed 2d 598 (1982) See also Weil supra note 20 at 218 (ldquosophisticated admiralty lawyers believe that the current system with the district court automatically referring bankruptcy cases to the bankruptcy court is unconstitutionalrdquo)

23 Stern v Marshall 564 US 462 131 S Ct 2594 180 L Ed 2d 475 (2011) See also Stewart F Peck Stewart F Peck Navigating the Murky Waters of Admiralty and Bankruptcy Law 87 Tul L Rev 955 966 (2013) (ldquothe issue is whether in light of Stern the bankruptcy court may constitutionally inter alia enter final orders selling vessels free and clear of liens and encumbrances enter final orders staying maritime foreclosure actions [and] enter final orders allowing and ranking maritime liens and ship mortgagesrdquo)

24 11 USCA sect 361-366 (2012) See also eg eLizAbeTh WARRen JAy L WesTbRook kATheRine PoRTeR amp John Ae PoTToW The LAW oF DebToRs AnD cReDiToRs 378 (7th ed 2014) (ldquoOutside bankruptcy creditors enjoy tremendous power to call loans and seize assets in bankruptcy the automatic stay goes into effect while the debtor as DIP continues those negotiationsrdquo)

25 11 USCA sect 362(a) (West)

26 See generally 11 USCA sect 363 (West)

27 Id sectsect 364(d) 364(e)

28 Id sectsect 365(a) 365(g)

29 See eg WARRen eT AL supra note 24 at 359 (ldquoChapter 11hellipis an invitation to a negotiationrdquo) (emphasis in original)

30 Wong Shing v MV Mardina Trader 564 F2d 1183 1188 (5th Cir 1977) See also generally Moran v Sturges 154 US 256 14 S Ct 1019 38 L Ed 981 (1894)

31 See Weil supra note 20 at 202 (quoting Morgan Guar Tr Co of New York v Hellenic Lines Ltd 38 BR 987 996 (SDNY 1984))

32 See eg United States v ZP Chandon 889 F2d 233 (9th Cir 1989) Morgan Guar Trust Co of New York 38 BR 987

33 See note 20 supra

34 Morgan Guar Trust Co of New York 38 BR at 999

35 Charles A Lovell amp Eugene G Bernardo II Charles A Lovell amp Eugene G Bernardo II The Continuing Debate over Custodia Legis An Argument for Bankruptcy Court Primacy 30 J Mar L amp Com 73 75 (1999)

36 See note 12 supra Kitts at 134-138

37 See eg United States v LeBouf Bros Towing Co 45 BR 887 (ED La 1985) In re Louisiana Ship Mgmt Inc 761 F2d 1025 (5th Cir 1985)

38 See eg Morgan Guar Trust Co of New York 38 BR 987 and In re Millenium Seacarriers Inc 419 F3d 83 95 (2d Cir 2005) n 10 (2d Cir 2005) (then-Judge Sotomayor stating in dicta that ldquoWehellipneed not opine onhellipwhether the fact that the pertinent bankruptcy proceeding is a liquidation or a reorganization impacts the role [the in custodia legis doctrine] playsrdquo)

39 Barnes v Sea Hawaii Rafting LLC 889 F3d 517 524 (9th Cir 2018)

40 Id at 533

41 See generally eg Alla Raykin Alla Raykin Section 363 Sales Mooting Due Process 29 Emory Bankr Dev J 91 91 (2012) (noting that sect 363 sales are not only an immensely popular way to raise cash but also increasingly popular as a means of disposing of the entire Chapter 11 organization through such sale)

42 See note 23 supra Peck at 971-979

43 The long line of cases includes Am Dredging Co v Miller 510 US 443 447 114 S Ct 981 127 L Ed 2d 285 (1994) Red Cross Line v Atl Fruit Co 264 US 109 124 44 S Ct 274 68 L Ed 582 (1924) The Moses Taylor 71 US 411 418 18 L Ed 397 (1866)

44 Id at 972

45 To ldquoprime a lienrdquo is to grant a ldquosenior or equal lienrdquo on the same collateral See 11 USCA sect 364(d)



46 See note 24 supra WARRen eT AL at 435 (ldquoAlthough the Code can do a great deal for debtors in trouble it cannot magically produce cash and so typically the debtor must find a lender who is willing to make new infusions in order for the business to surviverdquo)

47 See id (ldquoThe first place a debtor goes knocking is its current lendersrdquo)

48 The Commercial Instruments and Federal Maritime Lien Act (CIMLA) 46 USCA sect 31301-31343 is the primary statute but ldquo[i]t is not a comprehensive code of maritime lien lawrdquo RobeRTson eT AL Id at 414 46 USCA sect 31326(b)(1) provides the only clear statutory command regarding priority all preferred maritime liens outrank any preferred ship mortgage and all preferred ship mortgages outrank anything but preferred maritime liens In other words (1) preferred maritime liens (2) preferred ship mortgages (3) all other liens Still there remains very little authoritative guidance for how to rank preferred maritime liens against one another

49 GRAnT GiLmoRe amp chARLes bLAck LAW oF ADmiRALTy sect 9-61 at 737 (2d ed 1975) See also Weil note 20 Id at 206ndash207

50 The Poznan 274 US 117 121 47 S Ct 482 71 L Ed 955 (1927) Interestingly in a case decided only six months after The Poznan the District of Maryland allowed seamanrsquos wage claims and a salvage claim to have priority over custodial wharfage fees in direct contravention of the Supreme Courtrsquos holding The William Leishear 21 F2d 862 (D Md 1927) This case underscores the informality of the maritime-lien-ranking exercise in admiralty courts As Profs Gilmore and Black stated ldquoAny branchof the law that is administered at the trial level with infrequent appellate review is apt to become highly flexible and the law of lien priorities is no exceptionhellipNine timesout of ten what seems fair to the trial judge will be the law of the case for all timerdquo See note 43 Id at 736

51 ZP Chandon 889 F2d at 238 (quoting The John G Stevens 170 US at 119) The John G Stevens at the turn of the twentieth century remains the Supreme Courtrsquos most-recent statement on the ranking of maritime liens RobeRTson eT AL supra note [] at 421

52 Salvage claims are unlikely to be important in a cruise-line bankruptcy unless something similar to the Costa Concordia disaster occurs again and precipitates a bankruptcy See Thomas A Dickerson Justice Thomas A Dickerson The Cruise Passengerrsquos Rights and Remedies 2014 The Costa Concordia Disaster One Year Later Many More Incidents Both on Board Megaships and During Risky Shore Excursions 38 Tul Mar LJ 515 518ndash19 (2014) (Justice Dickerson discussing the allision and stranding of the Costa Concordia upon a rock off the Tuscan Coast)

53 See note 49 supra GiLmoRe amp bLAck at 739-40

54 Id at 740ndash41

55 See generally eg Kristen van de Biezenbos Kristen van de Biezenbos A Sea Change in Creditor Priorities 48 U Mich JL Reform 595 (2015)

56 See eg Jay L Westbrook Jay Lawrence Westbrook A Functional Analysis of Executory Contracts 74 Minn L Rev 227 (1989) Vern Countryman Executory Contracts in Bankruptcy Part I 57 Minn L Rev 439 (1974)

57 See eg note 24 supra WARRen eT AL at 379 (ldquoSome decry [Chapter 11rsquos] use as a union buster because the DIP is given power to abrogate collective bargaining agreements that would be forbidden outside of chapter 11rdquo)

58 The bankruptcy court could view the claim to future wages as seamanrsquos wages or perhaps might view the claim as an unsecured contractual obligation to pay future wages not yet earned and therefore deny priority Nevertheless this is an issue that must be flagged because the result is not nearly as obvious as it would be in the case of a non-maritime bankruptcy

59 The seamen classes are likely to have aligned incentives in most scenarios but if the maritime-tort claims exceeded the value of the estate their interests could diverge

60 After all the Second Circuit seems virtually certain to rule in favor of the bankruptcy courtrsquos jurisdiction in a Chapter 11 reorganization after In re Millennium Seacarriers Inc note 36 supra

61 Note 39 supra

62 A forum-selection clause that requires the parties not only to litigate within a certain state but within only the federal or state courts within that state Dickerson note 52 Id at 565

63 Korman v Princess Cruise Lines Ltd 32 Cal App 5th 206 243 Cal Rptr 3d 668 (2019)

64 See 28 USCA sect 1333(1) (West) The saving-to-suitors clause saves to maritime suitors all common-law remedies to which they are otherwise entitled This has traditionally been interpreted as allowing maritime suitors to bring their claims in state courts primarily for the purpose of securing a jury trial See generally eg Romero v Intrsquol Terminal Operating Co 358 US 354 79 S Ct 468 3 L Ed 2d 368 (1959) and Lewis v Lewis amp Clark Marine Inc 531 US 438 121 S Ct 993 148 L Ed 2d931 (2001)

65 Korman 243 Cal Rptr 3d at 678ndash680


67 Id at 681

68 Id at 676

69 Assuming that the forum-selection clauses in these two types of contracts are the same and that nothing has changed with Princess Cruise Linesrsquo contracting practices since the Korman 32 Cal App 5th 206 decision was handed down

70 It may be better yet to style the action as a declaratory-judgment action against the cruise line in personam

71 Carnival Cruise Lines Inc v Shute 499 US 585 111 S Ct 1522 113 L Ed 2d 622 (1991)

72 Stern 564 US at 502ndash503

73 US Const art III sect 2 cl 3

74 See eg The Moses Taylor 71 US 411

75 Cf WARRen eT AL note 24 Id at 368 (ldquoThe drafters of Chapter 11 and the judges and lawyers that apply it have a strong practical streakrdquo)

76 11 USCA sect 361(1) and (2) 11 USCA sect 361(3) provides for ldquoother reliefrdquo as a base-covering catch-all but in practice adequate protection always consists of cash or liens





framed climate change as a ldquothreat multiplierrdquo meaning that climate change impacts exacerbate worldwide stressors that already promote terrorist activity and violence such as poverty environmental degradation political instability and social tensions13 Additionally climate change ldquopresents risks to three elements of military effectiveness readiness operations and strategyrdquo14 Initially viewed as an ldquoemergent threatrdquo due to worldwide increasing humanitarian crises that might require the military to support civil authorities climate change has grown to pose even greater challenges to the military15 As the first Secretary of Defense to formulate the militaryrsquos climate change adaptation strategy Chuck Hagel summarized these projected operational challenges

The military could be called upon more often to support civil authorities and provide humanitarian assistance and disaster relief in the face of more frequent and more intense natural disasters Our coastal installations are vulnerable to rising sea levels and increased flooding while droughts wildfires and more extreme temperatures could threaten many of our training activities Our supply chains could be impacted and we will need to ensure our critical equipment works under more extreme weather conditions Weather has always affected military operations and as the climate changes the way we execute operations may be altered or constrained16

Thus the projected impacts of climate change are anticipated to stress the military for years to come17 Although the military may face unique climate change challenges it ldquoalso possess[es] unique advantages in the realm of climate change adaptationhellipdue to its developing expertise the possibility of the militaryrsquos enormous influence in the realm of climate change adaptation should be recognized and embracedrdquo18

II National policies direct the military to plan for and adapt to climate change

ldquohellip[C]limate change constitutes a serious threat to global security an im-mediate risk to our national securityhellip it will impact how our military defends our countryhellip and we need to act nowrdquo ndash President Barack Obama19

The National Defense Authorization Act for Fiscal Year (FY) 2008 was the first time that Congress directed the Department of Defense to include climate change as a national security risk in its next national security and national defense strategies20

Specifically these strategies were to

include guidance for military planners to assess the risks of projected climate change to current and future mission of the armed forces to

On Thin Ice continued from page 12



update defense plans based on these assessments including working with allies and partners to incorporate climate mitigation strategies capacity building and relevant research and development and to develop the capabilities needed to reduce future impacts21

Furthermore Congress also directed the Department of Defense in its next quadrennial defense review to ldquoexamine the capabilities of the armed forces to respond to the consequences of climate change in particular preparedness for natural disasters from extreme weather events and other missions the armed forces may be asked to support inside the United States and overseasrdquo22 Climate change was included in subsequent versions of these documents as well However in 2018 the Quadrennial Defense Review was replaced by the classified National Defense Strategy the unclassified summary fails to mention climate change23

Similarly the Department of Homeland Security addresses the homeland security risks of climate change in its National Strategy for Homeland Security Strategy24 and Quadrennial Homeland Security Review25 though it is not mandated to do so The most recent version of the Quadrennial Homeland Security Review considers the abrupt or rapid impacts of climate change to be a ldquopotential black swanrdquomdasha low- probability high-consequence event ldquothat could materially change our assessment of overall homeland security risk and priorities over the next five yearsrdquo26

In addition to including climate change security threats in their statutorily mandated strategic review processes the Departments of Defense and Homeland Security each issued a climate change adaptation roadmap in 2012 pursuant to Executive Order 1351427 The roadmaps identify and plan for managing short- term and long-term climate change risks such as sea level rise extreme weather events and drought28

US and naval Arctic strategies and implementation plans reflect heightened concern of climate change threats to national interests in the region

Even before higher level climate change policy was put into place the Navy Coast Guard and Marine Corps released A Cooperative Strategy for 21st Century Seapowermdashalso known as the ldquoMaritime Strategyrdquo29mdash which states ldquoClimate change is gradually opening up the waters of the Arctic not only to new resource development but also to new shipping routes that may reshape the global transport system While these opportunities offer potential for growth they are potential sources of competition and conflict for access and natural resourcesrdquo30 Foreshadowing potential national security implicationsmdashaddressed further in Part IVmdashthis strategy



set the foundation for Arctic climate change adaptation challenges facing the sea services into the next decade and beyond

Additionally the growing concern over the unique climate change impacts to national security in the Arctic prompted the United States government to adopt additional policies plans and strategies focusing on this region In fact

Russiarsquos dramatic planting of a titanium flag on the Arctic Ocean sea bottom at the North Pole in 2007 prompted a US policy review resulting in National Security Presidential Directive-66Homeland Security Presidential Directive-25 [NSPD-66HSPD-25] and raised the possibility that Arctic issues will require national security attention from US naval forces in the future31

Among the considerations informing this directive are climate change effects and increased activity in Arctic waters32 This directive thus established a national Arctic policy declaring that the United States has compelling interests in the region requiring protection With specialized expertise ability and historical presence to meet maritime domain awareness requirements33 and to recognize and respond to any potential security threats to the United States in this dynamic maritime environment the Coast Guard and Navy are uniquely situated to shape climate change efforts in the region34

Building on NSPD-66HSPD-25 that same year the Navy chartered the Navy Task Force Climate Change (NTFCC) to develop an Arctic roadmap ldquoto promote maritime security and naval readiness in a changing Arcticrdquo35 In fact the NTFCC charter declared that because the United States is an Arctic nation with strategic interests in a primarily maritime environment ldquothe Navy must consider the Arctic and climate change in its future policy strategy force structure and investmentsrdquo36 Thus in 2009 the Navy released its Arctic Roadmap which served primarily as an assessment of the evolving Arctic situation rather than as an operations guide37 The Navy then updated the roadmap in 2014 to serve as the implementation plan38 mainly focusing on adaptation actions the Navy should take through 202039

A key partner of the Navy the Coast Guard similarly developed a task force to study operational challenges and capabilities to execute its missions in the Arctic in light of changes in sea-ice cover40 Yielding three volumes of reports41 this study formed the basis of the Coast Guardrsquos Polar Icebreaker Acquisition Program that began in 2013 to recapitalize its polar icebreaker fleet This program is discussed more in Part V

Both the Navy and Coast Guardrsquos efforts to assess climate change challenges in the Arctic occurred before any higher-level Arctic strategy or implementation plan



was issued In 2013 the White House Department of Defense and Coast Guard issued their respective Arctic strategies all with essentially the same objectives to protect national interests support safety and responsible stewardship and promote international cooperation in a rapidly changing environment brought on by climate change42 These entities subsequently issued an implementation plan for executing their strategies43

III Global climate change is causing significant melting ofArctic sea ice

ldquoI agree that the effects of a changing climate mdash such as increased maritime access to the Arctic rising sea levelshellip mdash impact our security situation I will ensure hellip that we are prepared to address the effects of a changing climate on our threat assessments resources and readinessrdquo ndash Secretary of Defense James Mattis44

Although global climate change has all but disappeared from the most recent military strategic documents the defense and homeland security communities continue to recognize and pay special attention to the national security implications of changing environmental conditions in the Arctic Global climate change is altering the Arctic environment in dramatic and unprecedented ways The United Nations Environment Programme has reported that the rate of overall Arctic temperature increases is almost twice the rate as the rest of the world45 As a result record ocean temperatures have been a factor in the decline of sea-ice levels46 For instance scientists noted in 2017 that the Arcticrsquos minimum sea-ice limit has been declining 135 percent per decade since 197947 with summer sea ice receding more quickly than winter sea ice48 Furthermore the twelve lowest recordings of September sea-ice coveragemdashthe time of year when the minimum amount of sea-ice coverage in the Arctic occursmdashall have happened in the past twelve years49 At this rate Arctic sea ice is likely to recede periodically in late summers thus permitting ldquoice-freerdquo access anywhere from 203050 to 204051

IV National and homeland security implications of Arctic climatechange for US naval forces

ldquoAll of us working together can help Americans understand that it is not just about the Arctic but it is about our Arctic ndash the American Arctic ndash and whether the United States wants to be a leader in the regionor cede that position to other Arctic and more importantly non-Arcticnationsrdquo ndash Michael Pawlowski52



One of the primary effects of Arctic climate change for which the Coast Guard and Navy must plan is the creation of ldquoblue waterrdquo meaning that warming Arctic waters have created enough ice melt to open up new shipping lanes53 Old ice which is multiyear ice that has formed after first-year ice endures the summer melt season54 is quickly disappearing in the central Arctic Ocean and being replaced by softer and thinner first-year ice55 that is more fragile and regionally variable56 Old ice ldquohas been a traditional barrier to shipping and human activityrdquo57 even stopping powerful icebreakers in their tracks58 Creation of ldquoblue waterrdquo causes concern for the Coast Guard and Navy because human activity in the region is growing In particular the nascence of blue water is expected to contribute to expanding opportunities for economic ventures ldquoby those seeking access to the regionrsquos abundant resources and trade routesrdquo59 notably in oil gas and mineral exploration and extraction tourism and commercial shipping and fishing60 The complex web of these maritime activities brings with it a host of national and homeland security implications for US naval forces

Maritime traffic related to commercial shipping and fishing tourism and natural resource exploration is expected to increase in the Arctic as decreasing coverage of sea ice creates more open water

Expansion of open water in three trans-Arctic routesmdashNorthwest Passage Northern Sea Route and Transpolar Routemdashis one significant result of decreasing sea-ice coverage61 Consequently the region has seen and is expected to continue seeing growing maritime activity related to commercial shipping and fishing tourism and energy and mineral exploration62 Sailing between the trading blocs of Asian ports and Northern Europe through the Arctic for example could be reduced by 40 percent with sizeable cost savings in fuel and emissions63 Additionally delivering goods between countries in Asia and North America using one of these routes could save shippers many travel days and thousands of miles64

Despite the potential for reduced transit length across the Arctic most commercial vessel traffic currently is regional65 From 2011 to 2013 commercial shipping transits through the Northern Sea Route increased from forty-one to seventy-one though the number of transits has decreased since then66 However commercial cross-transit through Arctic waters is expected to increase over the next ten years67 For example in the Bering Strait vessel transits increased from about 220 in 2008 to about 540 in 2015 and Coast Guard officials expect this number to grow yearly68 Additionally the first-ever commercial transit of the Northwest Passage took place in 2013 when a Danish-owned cargo ship carrying coal sailed through the area north of Canada69 Furthermore ldquoCruise companies have shown a small but growing interest in the Arctic with one to four vessels crossing the NWP [Northwest Passage] each yearhellipbut it is unclear how that growth will change in the coming decaderdquo70



In addition to opening new avenues of maritime transit warming Arctic waters open the potential for commercial fishing and hydrocarbon and mineral exploration Although a moratorium on commercial fishing exists currently in the US Arctic71 ldquohellipmoratoriums on fishing could be in flux as fish stocks alter their paths with climate changerdquo72 Warming waters and retreat of polar ice may affect the range migration productivity and availability of certain fish stocks73 and in fact Coast Guard enquiry has noted that fish stocks have begun migrating further north74 Likewise more open water expands access to sizeable new fishing areas which might be susceptible to overfishing75 and illegal fishing76

In addition to potential commercial fishing activity exploration and extraction of oil gas and minerals is expected to grow in the Arctic as sea ice continues to thaw expanding the possibility of discovering these resources77 Enlargement of an ice-free ocean in the summer may allow offshore Arctic drilling to continue as well as possibly allow ships towing seismic arrays to explore offshore areas with fewer possible collisions with ice floes over a longer time period78 Coupled with improved waterway access are promising estimates of undiscovered oil gas and minerals that have heightened interest in exploring the area79 A 2008 US Geological Survey report stated that the ldquoextensive Arctic continental shelves may constitute the geographically largest unexplored prospective area for petroleum remaining on Earthrdquo and ldquoestimated that 90 billion barrels of oil nearly 1700 trillion cubic feet of natural gas and 44 billion barrels of natural gas liquids may remain to be discovered in the Arcticrdquo80 These prospects thus correlate to approximately thirty percent of the worldrsquos undiscovered natural gas and thirteen percent of the worldrsquos undiscovered oil81 As these numbers relate to the US portion of the Arctic more than 1 billion acres of the outer continental shelf are estimated to contain ldquoundiscovered technically recoverable resources of approximately 27 billion barrels of oil and 131 trillion cubic feet of natural gas (although not all of these resources may be economically viable to recover)rdquo82 Moreover the Arctic is anticipated to contain approximately $1 trillion worth of minerals including gold zinc nickel and platinum83

However even with environmental changes and growing interest in the Arctic the region still retains ldquoenduring characteristicsrdquo that present risks to surface navigation and exploration such as unpredictable sea ice movement that could trap or damage ships84 In fact ldquothe Navy predicts that access to the Northwest Passage will continue to remain limited in the near- and mid-term with an estimated 5 weeks of open water periods beginning in the 2030srdquo85 As a result of such dangerous conditions the United States needs to be more prepared to respond to emergencies86 such as search and rescue (SAR) and oil spill response87 ldquoThe scale of this increasing activity may be minor today and seemingly slow to build but it still holds implications



for the maritime services according to some experts the worst-case logistical and operational challenge for the Coast Guard in the Arctic is a large-scale rescue missionrdquo88 Of particular concern is the possibility that cruise ships will experience problems and require assistance not only with the vessels but also with their passengers89

In addition to SAR the Coast Guard is the primary federal responder to oil spills in the region90 Cruise ships vessels engaged in trade and hydrocarbon exploration all increase the risk of oil pollution occurring and requiring a Coast Guard response91 Depending on the location of either a SAR or oil pollution incident Coast Guard aircraft or cutters could take hours days or weeks to reach the site92 This poses a problem for oil spills in particular because oil behavior in cold and icy environments is not well understood response strategies still are developing and the nearest Coast Guard pre-staged deployable cleanup equipment is located in Anchorage93 As seen with the 1989 Exxon Valdez oil spill this type of pollution can have devastating consequences for Arctic species and ecosystems94

Tensions among Arctic and non-Arctic nations claiming sovereign interests in the region could rise in the future

As the previous section demonstrated Arctic waters gradually are becoming more accessible for maritime transit and resource development due to climate change Both Arctic and non-Arctic nations realize the regionrsquos growing potential for economic opportunities95 Within the next few decades these opportunities likely will be a foundation of competition and conflict for the right to use shipping lanes and recover natural resources96

Although the likelihood of conflict is low presently ldquothe long-term geopolitical situation is complex nuanced and uncertainrdquo97 and future disagreements over trade routes fishing and hydrocarbon exploration are possible98 Even non-Arctic stakeholders such as China are contributing to this tension with their interest in the regionrsquos expanding sea routes and wealth of natural resources including oil gas minerals and fisheries99 China in fact ldquosees the Arctic as free from international boundariesrdquo100 and believes that Arctic natural resources are ldquocommon heritage of all humankindrdquo101 As a result China may challenge Arctic nations in the future with regard to guarding their own interests in the Arcticrdquo102 Additionally disputes over legal title to oil and gas reservoirs are a source of low-level conflict that could escalate103 For instance ldquoThough some may warn of Russian escalation in the Arctic a majority of experts assess that the probability of energy-related Arctic conflict is low because the majority of resources are clearly within the EEZ of respective littoral Arctic statesrdquo104 However the central Arctic Ocean contains some gray areas where hydrocarbon reserves are not delineated clearly thus serving as a possible source



of conflict105 Furthermore jurisdictional disputes over the legal status of parts of Arctic waters remain controversial and could continue as baselines change with sea-ice retreat106 Russia for instance claims part of the Northern Sea Route as its internal waters whereas the United States considers it to be international waters107

Traditional security threats have the capacity to grow in the thawing Arctic environment

Lastly creation of additional open water in the Arctic yields potential for growing traditional threats to national and homeland security108 First increased accessibility to land from water could appeal to drug runners illegal immigrants and terrorists smuggling in guns or weapons of mass destruction109 Second the region ldquois at risk of becoming a military flashpointrdquo110 especially as Russia continues building up its military capabilities and operations as a means of staking its claim to Arctic oil gas and fisheries111 Third blue water could favor ldquodestabilization of the global nuclear balancerdquo primarily between the nuclear superpowers of the United States and Russia112

Together then increased maritime activity and vying sovereignty claims as a result of the Arcticrsquos changing climate have ramifications for the Coast Guard and Navy to safeguard the fundamental national and homeland security concerns in maritime presence and security operations and freedom of navigation113 These implications thus ldquolead to a need for a greater US military and homeland security presence in the Arcticrdquo114 requiring the naval services to be prepared to protect sovereign interests and prevent conflict in the region115

V Arctic ice melt requires increased polar icebreaking capabilities to protect national interests

ldquoIn the Arctic region presence equals influence The truth is if we arenrsquot present if we donrsquot know the environment today our competitors willrdquo ndash Admiral Karl L Schultz116

Although strategies and implementation plans are in place the Coast Guard and Navy have taken little action to operationalize them that is to expand their presence in the Arctic117 The sea services have recognized that as Arctic ice continues to recede it opens up potential new operating ranges requiring year- round patrols118

Due to their design limitations Navy surface ships are capable of maneuvering and operating only up to the ldquomarginal ice zonerdquo119 in the Arctic120 Coast Guard polar icebreakers which are high endurance cutters121 engineered specifically for open-water icebreaking are vital naval force capabilities that provide the only guaranteed surface access in the Arctic and supplement military submarine and air assets122



Originally the Navyrsquos responsibility polar icebreaking missions were transferred to the Coast Guard in 1965123 The Coast Guard is designated as the lead agency with Department of Defense support to advance US security interests in the changing Arctic by ldquo[e]nsur[ing] the United States maintains icebreaking and ice- strengthened ship capability with sufficient capacity to project a sovereign US maritime presencehelliprdquo124 Polar icebreakers thus are key instruments for establishing ldquomaritime presence and maritime security operations homeland security asserting a more active and influential presence and exercising control over the US EEZ the continental shelf and the contiguous zonerdquo125 US naval forces however have fallen short in maintaining a sufficient and capable polar icebreaker fleet126

The nationrsquos icebreaker inventory and capability status are insufficient to achieve current and future Arctic security mission objectives

The Coast Guardrsquos polar icebreaking fleet is composed of two heavy polar icebreakers the sister ships Polar Star and Polar Sea and one medium polar icebreaker the Healy127 Only the Polar Star and Healy currently are active128 Commissioned in the late-1970s the Polar Sea and Polar Star are past their designed 30-year service life129 The Polar Sea has been out of service since 2010 due to a catastrophic engine failure and presently serves as a spare parts donor to the Polar Star130 Should the Polar Star suffer the same casualty it has no self-rescue capability131 and would have to rely on foreign icebreaker assistance132 During the 2018 and 2019 icebreaking seasons the Polar Star experienced fire as well as mechanical and electrical failures illustrating that age is taking a toll on the cutter133 Replacing parts to keep the cutter operational is challenging because either they no longer are made or they have been stripped from the Polar Sea requiring the Coast Guard to scour alternate sources such as eBay134

With only one operational heavy polar icebreaker the Coast Guard lacks Arctic maritime domain awareness135 National and homeland security experts thus have expressed concern that current and anticipated national security concerns in the Arctic are at risk without an expanded icebreaker fleet136 2007 National Research Council report for example concluded that the United States needs a minimum of three polar icebreakers to meet the nationrsquos current defense security sovereignty economic and scientific requirements in the polar regions and it anticipated that the number would increase as climate change facilitated greater activity in the Arctic137 For instance the Coast Guard does not have sufficient icebreaker capability to access remote areas where an oil spill may occur138 Moreover in 2009 Admiral Thad Allen testified that a minimum of three but ideally six cutters would constitute an adequate icebreaker fleet to maintain continuous presence and protect national interests as activity grows in the Arctic139 Furthermore in 2010 the Coast Guard



commissioned the High Latitude Study to analyze its current and future mission needs and asset requirements in the polar regions140 The study concluded that the ldquosignificant deterioration of the Coast Guard icebreaker fleethellipwill significantly impact emerging mission demandshellip[in] Defense Readiness Ice Operations Marine Environmental Protection and Ports Waterways and Coastal Security in the high latitude regionsrdquo141 This point was illustrated when from FY 2011 through FY 2016 the Coast Guard could meet only 78 percent of requests for its polar icebreaking services mainly because both the Polar Star and Polar Sea were unavailable142 Another study the Department of Homeland Securityrsquos 2013 Mission Needs Statement confirmed that the Coast Guard requires up to three heavy and three medium polar icebreakers to meet present and future mission demands in the polar regions143

The inadequacy of the United Statesrsquo current icebreaker inventory also causes concern as analysts note the sizable capacity of foreign icebreaker fleets and growing militarization of the environmentally changing Arctic144 One study observed ldquoThis deficiency is particularly significant given the recent and continuing investment in icebreaking resources by other countries including China Russia Japan South Korea and the European Unionrdquo145 Russiarsquos inventory for example contains forty-six icebreakers seven of which are nuclear powered and two of which are armed with missiles146 Additionally Russia has eleven more icebreakers under construction and four more planned147 Furthermore ldquoRussia is securing its interests with increased militarization of the Arcticrdquo with the presumed purpose of ldquodeter[ring] other countries and actors from pursuing Arctic interests and effectively creat[ing] a northern buffer for the Russian homelandrdquo148 As former Coast Guard Commandant Paul Zukunft noted ldquoRussia is making claims to abundant natural resources in the rapidly melting Arctic and the US can do little to challenge themhellipThe remedyhellipis to build more polar icebreakersrdquo149 China also is demonstrating its commitment to securing a place in the Arctic where China calls the cross-transit trade routes the ldquoPolar Silk Roadrdquo150 with its fleet of three icebreakers and one more under construction151 Although China is not preparing presently to militarize the region China has not ruled out the possibility that future conflict may occur and that the United States should ldquomaintain defensive capabilities for safeguarding the security of the Arctic regionrdquo152

Recapitalizing the Coast Guard heavy polar icebreaker fleet is an investment decision that supports the countryrsquos current and emerging security needs in the changing Arctic

Recognizing that increasing its icebreaking capability is not only an operational imperative to achieving its own missions within more than 950000 square miles



of ocean off the Alaskan coast153 but also is ldquocritical to the success of DOD in the Arcticrdquo154 the Coast Guard tried for several years to recapitalize its icebreaker program155 Faced with a tight budget156 and competing funding priorities the Coast Guard launched a polar icebreaker acquisition program in FY 2013 to procure the first of three heavy polar icebreakers157 The Coast Guard has taken various steps since then to advance its polar icebreaker acquisition program158

Notably in FY 2016 the Coast Guard and Navy established a joint partnership by forming an Integrated Program Office (IPO) ldquoto leverage the Navyrsquos shipbuilding expertise and collaborate on developing and implementing an acquisition approachrdquo159 The Coast Guard also released an accelerated acquisition schedule where delivery of the first heavy polar icebreaker is projected to occur in FY 2023mdashthree years earlier than initially planned160 In FY 2017 the IPO confirmed the icebreaker design161 which included reserving space to accommodate an anti-ship cruise missile package should the need arise in the future to arm the cutter ldquoif tensions ramp up (lsquo[g]iven how rapidly the Arctic is changing and the potential showdown in the Arctic over US sovereign watersrsquo) and the Navy continues to cede the Arctic to the Coast Guardrdquo162 After the IPO issued a Request for Proposal in FY 2018 for detail design and construction at a US shipyard the Coast Guardrsquos next step was to secure full funding in FY 2019 so that it could adhere to its accelerated acquisition schedule163 As part of its strategy to secure its requested budget of $750 million for the heavy polar icebreaker acquisition program the Coast Guard rebranded it the ldquoPolar Security Cutterrdquo program to emphasize its national security missions164 Averting a second government shutdown Congress passed the FY 2019 Department of Homeland Security Consolidated Appropriations Act165 which provides $675 million for the Polar Security Cutter program including $20 million towards materials for the programrsquos second ship166 With the spending bill passed the IPO awarded a shipbuilding contract to VT Halter Marine Inc on April 23 2019167

The sea services must plan for a likely heavy polar icebreaking capability gap between the end of the Polar Starrsquos useful service life and delivery of the first new heavy polar icebreaker

The Polar Starrsquos useful service life is expected to end between FY 2020 and FY 2023168 Deployment of the first new heavy polar icebreaker is not expected before FY 2023 and the Coast Guard does not anticipate the cutter will ldquoachieve its operational requirements until FY 2026rdquo169 As required by law the Coast Guard must determine how to mitigate this gap of three to six years170 Currently the Coast Guard is planning on investing $75 million to keep the Polar Star operational until FY 2025171 which would allow the Coast Guard to concurrently operate two heavy polar icebreakers172 However analysts observe that this figure is too low



because repairs will be more costly and time consuming than anticipated173 The Polar Star thus is vulnerable to incapacitation174 potentially leaving the United States without a national security asset ldquoto enable full maritime power projectionrdquo in the melting Arctic for the foreseeable future175

VI Summary of findings and concluding remarksldquoThe issue of climate change respects no border Its effects cannot be reined in by an army nor advanced by any ideology Climate change hellip is an issue that must be addressed by the worldrdquo ndash President George W Bush

Climate change is having a profound physical effect in the Arctic while holding consequences for national and homeland security The decline of sea ice has heightened interest in the region as the growing navigable sea continues to unlock new economic opportunities in commercial shipping and fishing energy and mineral recovery and tourism for both Arctic and non-Arctic nations176 In addition to influencing increased human activity these climate-induced environmental changes hold potential for conflict and competition as nations assert sovereign claims in the region177 These factors combined with climate model forecasts of a sustained Arctic thaw require US naval forces to maintain a continuous presence in the region using heavy polar icebreakers178 However obsolescence of the Coast Guard polar icebreaker fleet has hindered the sea services from achieving their Arctic strategic objectives179 To narrow the polar icebreaking capability gap the Coast Guard has initiated an acquisition program to recapitalize its fleet180 With the Navyrsquos support the Coast Guard is planning to construct three heavy polar icebreakers and extend the service life of the Polar Star the nationrsquos only remaining operational heavy polar icebreaker181 However the risk exists that a three- to six-year gap could occur if the Polar Star suffers a catastrophic failure beyond repair before the expected delivery of the first new heavy polar icebreaker in 2023 thus leaving the United States vulnerable to national and homeland security risks in the warming Arctic182

Endnotes1 cARL von cLAuseWiTz on WAR book ii ch ii (1832)

2 ldquoArcticrdquo is defined as ldquoall United States and foreign territory north of the Arctic Circle and all United States territory north and west of the boundary formed by the Porcupine Yukon and Kuskokwim Rivers all contiguous seas including the Arctic Ocean and the Beaufort Bering and Chukchi Seas and the Aleutian island chain (Arctic Research and Policy Act of 1984 Pub L No 98-373 sect 112 (1984) (codified at 15 USC sect 4111))

3 In this paper the Coast Guard and Navy collectively are referred to as ldquomaritime servicesrdquo ldquosea servicesrdquo ldquonaval servicesrdquo and ldquonaval forcesrdquo where the specified issues may apply to each of them However some statements relate to the individual services and are noted as such The Navy is one of the four military branches operating under the Department of Defense The Coast Guard is the fifth branch of the military but it operates under the Department of Homeland Security and may be transferred to the Navy either by Congress in a declaration of war or by presidential direction References in this paper to ldquoUS militaryrdquo include all five branches unless otherwise specified

4 us GovrsquoT AccounTAbiLiTy oFF GAo-15-566 DoD exPecTs To PLAy A suPPoRTinG RoLe To oTheR FeDeRAL AGencies AnD hAs eFFoRTs unDeR WAy To ADDRess cAPAbiLiTy neeDs AnD uPDATe PLAns 24 (2015)



5 Id at 1

6 See RonALD orsquoRouRke conG ReseARch seRv RL41153 chAnGes in The ARcTic bAckGRounD AnD issues FoR conGRess (2019) httpsfasorgsgpcrsmiscR41153pdf see also Joshua William Busby Climate Change and US National Security Sustaining Security Admidst Unsustainability in susTAinAbLe secuRiTy ReThinkinG AmeRicAn nATionAL secuRiTy sTRATeGy (Jeremi Suri amp Benjamin Valentino eds forthcoming 2016) nATrsquoL Res counciL nATionAL secuRiTy imPLicATions oF cLimATe chAnGe FoR us nAvAL FoRces 48 (2011) Tod OrsquoConnell The Bering Strait ndash Strategic Choke Point (May 6 2016) (Naval War C paper) (on file with the Joint Chiefs of Staff Education Publications)

7 See eg Henri Feron A New Ocean The Legal Challenges of the Arctic Thaw 45 ecoLoGy LQ 85 (2018)

8 Coast Guard Arctic Implementation Capabilities Hearing before the Subcomm on Coast Guard amp Mar Transp of the H Comm on Transp amp Infrastructure 114th Cong (2016) DePrsquoT homeLAnD sec coAsT GuARD mission neeDs sTATemenT FiscAL yeAR 2015 RePoRT To conGRess (Jan 8 2016)httpswwwdhsgovsitesdefaultfilespublicationsUnited20States20Coast20Guard2020Mission20Needs20Statement20FY202015pdf see Melissa Renee Pegna US Arctic Policy The Need to Ratify a Modified UNCLOS and Secure a Military Presence in the Arctic 44 J MAR L amp COM 169 (2013)

9 us GovrsquoT AccounTAbiLiTy oFF GAo-16-453 ARcTic sTRATeGy is unDeRWAy buT AGency couLD beTTeR Assess hoW iTs AcTions miTiGATe knoWn ARcTic cAPAbiLiTy GAPs (2016) httpswwwgaogovassets680677855pdf RonALD orsquoRouRke conG ReseARch seRv RL34391 coAsT GuARD PoLAR secuRiTy cuTTeR (PoLAR icebReAkeR) PRoGRAm bAckGRounD AnD issues FoR conGRess (2019) httpscrsreportscongressgovproductpdfRLRL34391

10 Polar icebreakers are used for missions in both the Arctic and Antarctica (ldquopolar regionsrdquo) This paper focuses on icebreaker usage in the Arctic although reference to ldquopolar regionsrdquo sometimes is used where necessary

11 Chuck Hagel US Secrsquoy of Def The Department of Defense Must Plan for the National Security Implications of Climate Change

White House Blog (Oct 13 2014 1130 AM) httpwwwwhitehousegovblog20141013defense-department-must-plan-national- security-implications-climate-change

12 See DePrsquoT oF DeF summARy oF The 2018 nATionAL DeFense sTRATeGy (2018) httpsdoddefensegovPortals1Documentspubs2018-National-Defense-Strategy-Summarypdf The WhiTe house nATionAL secuRiTy sTRATeGy (2017) httpswwwwhitehousegovwp-contentuploads201712NSS-Final-12-18-2017-0905-2pdf

13 DePrsquoT oF DeF QuADRenniAL DeFense RevieW (2014) httpwwwdefensegovpubs2014_Quadrennial_Defense_Reviewpdf DePrsquoT oF DeF 2014 cLimATe chAnGe ADAPTATion RoADmAP (2014) httpwwwacqosdmiliedownloadCCARprint_wForeword_cpdf DePrsquoT oF homeLAnD sec QuADRenniAL homeLAnD secuRiTy RevieW (2014) httpwwwdhsgovpublication2014-quadrennial-homeland-security-review-qhsr DePrsquoT oF homeLAnD sec cLimATe chAnGe ADAPTATion RoADmAP (2012) httpswwwdhsgovsitesdefaultfilespublicationsAppendix20A20DHS20FY201220Climate20Change20Adaptation2 0Plan_0pdf

14 The cTR FoR cLimATe sec cLimATe secuRiTy 101 3 (2015) httpwwwclimatesecurity101org

15 Busby supra note 6 at 4

16 DePrsquoT oF DeF 2014 cLimATe chAnGe ADAPTATion RoADmAP (2014) supra note 13 at Foreword

17 CNA miL ADvisoRy boARD nATionAL secuRiTy AnD The AcceLeRATinG Risks oF cLimATe chAnGe 17 (2014)

18 Gregg Badichek The Threat Divider Expanding the Role of the Military in Climate Change Adaptation 41 coLum J envTL L 139 141 (2016)

19 US President Barack Obama Remarks at the United States Coast Guard Academy Commencement (May 20 2015)

20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)

23 DePrsquoT oF DeF summARy oF The 2018 nATionAL DeFense sTRATeGy (2018) httpsdoddefensegovPortals1Documentspubs2018-National-Defense-Strategy-Summarypdf

24 As directed by presidential order establishing the Department of Homeland Security

25 Homeland Security Act of 2002 Pub L No 107-296 (2002) (codified at 6 USC sect 347)

26 DePrsquoT oF homeLAnD sec QuADRenniAL homeLAnD secuRiTy RevieW supra note 13 at 29

27 Exec Order No 13514 74 Fed Reg 52117 (Oct 5 2009) (requiring federal agencies to evaluate climate-change risks and vulnerabilities) This Exec Order was revoked by Exec Order No 13693 on March 25 2015 Exec Order No 13693 required federal agencies to develop climate change preparedness and resilience planning

28 DePrsquoT oF DeF cLimATe chAnGe ADAPTATion RoADmAP (2012) httpwwwacqosdmiliedownload green_energydod_sustainability2012Appendix20A2020DoD20Climate20Change20Adaption20Roadmap_20120918pdf DePrsquoT oF DeF 2014 cLimATe chAnGe ADAPTATion RoADmAP supra note 13 DePrsquoT oF homeLAnD sec cLimATe chAnGe ADAPTATion RoADmAP supra note 13 (The roadmaps focus largely on identifying risks and providing strategic objectives Implementation plans usually are issued separately) See eg us nAvy mARine coRPs amp coAsT GuARD A cooPeRATive sTRATeGy FoR 21sT cenTuRy seAPoWeR (2015) httpwwwnavymilmaritimeMaritimeStrategypdf (identifying climate change as an item of interest and discussing areas for likely future naval attention) see also eg us nAvy mARine coRPs amp coAsT GuARD nAvAL oPeRATions concePT 2010 1 (2010) httpswwwuscgmilPortals0StrategyMaritimeStrategypdf (ldquodescribes the ways with which the sea services will achieve the ends articulated in A Cooperative Strategy for 21st Century Seapowerrdquo)

29 us nAvy coAsT GuARD amp mARine coRPs A cooPeRATive sTRATeGy FoR 21sT cenTuRy seAPoWeR (2007)

30 David W Titley amp Courtney C St John Arctic Security Considerations and the US Navyrsquos Roadmap for the Arctic 63 nAvAL WAR c Rev 35 42 (Spring 2010)

31 nATrsquoL Res counciL supra note 6 at 48

32 Titley amp St John supra note 29 at 43

33 ldquoMaritime domain awarenessrdquo is defined as ldquothe effective understanding of anything associated with the maritime domain that could impact the security safety or economy of the United Statesrdquo us mARine coRPs nAvy amp coAsT GuARD A cooPeRATive sTRATeGy FoR 21sT cenTuRy seAPoWeR supra note 28 at 15

34 nATrsquoL Res counciL supra note 6 at 30 See Badichek supra note 18 at 139 see also Christine Parthemore Promoting the Dialogue Climate Change and the Maritime Services (Ctr for a New Am Sec Working Paper 2010) Titley amp St John supra at note 30

35 Bob Freeman Office of the Oceanographer of the Navy Navy Releases Roadmap for Global Climate Change (May 24 2010) httpswwwnavymilsubmitdisplay



aspstory_id=53562 (The article also notes that the Navyrsquos Climate Change Roadmap ldquois intended to be a companion document to the Navy Arctic Roadmap released in November 2009rdquo According to the director of the Navy Task Force Climate Change Rear Adm Dave Titley ldquoWe issued the Arctic Roadmap first because that is where the most significant evidence of climate change is occurringhelliprdquo) See us nAvy nAvy cLimATe chAnGe RoADmAP (2009) httpsappsdticmildtictrfulltextu2a522306pdf us nAvy nAvy ARcTic RoADmAP 2014-2030 (updated to include an implementation plan that delineates the Navyrsquos strategic approach to developing Arctic operation capabilities) httpswwwnavymildocsUSN_arctic_roadmappdf

36 JW GReeneRT TAsk FoRce cLimATe chAnGe chARTeR 1 (2009) httpgreenfleetdodlivemilfiles201009Task-Force- Climate-Change-Charterpdf [httppermaccML4A-M9UE]

37 US Navy Energy Envrsquot amp Climate Change Arctic amp Maritime Security httpgreenfleetdodlivemilclimate-changearctic-and- maritime-security [httppermaccKJP8-2KK6] (describing the roadmap as ldquodesigned to promote studies and assessments to help the Navy better understand the changing environment and its impact on future readiness and to capture the challenges of high latitude naval operationsrdquo)

38 Id (ldquohellipthe roadmaphellipoutlines the Navyrsquos strategic approach for the Arctic Ocean and the ways and means to support the desired defense and national end statesrdquo)

39 Id

40 Abs consuLTinG uniTeD sTATes coAsT GuARD hiGh LATiTuDe ReGion mission AnALysis cAPsTone summARy (PRePAReD FoR The uniTeD sTATes coAsT GuARD) (2010) httpassetsfiercemarketsnetpublicsitesgovithlssummarycapstonepdf

41 Id at 1

42 The WhiTe house 2013 nATionAL sTRATeGy FoR The ARcTic ReGion (2013) httpsobamawhitehousearchivesgovsitesdefaultfilesdocsnat_arctic_strategypdf DePrsquoT oF DeF ARcTic sTRATeGy (2013) httpsappsdticmildtictrfulltextu2a591584pdf us coAsT GuARD ARcTic sTRATeGy (2013) httpswwwuscgmilPortals0Strategycg_arctic_strategypdf T

43 The WhiTe house imPLemenTATion PLAn FoR nATionAL sTRATeGy FoR The ARcTic ReGion (2014) httpsstoragegoogleapiscomarcticgov-staticpublicationsrelatedimp_plan_for_natl_strategy_for_arctic_regionpdf The WhiTe house APPenDix A imPLemenTATion FRAmeWoRk FoR The nATionAL sTRATeGy FoR The ARcTic ReGion (2016) httpsobamawhitehousearchivesgovsiteswhitehousegovfilesdocumentsNational20Strategy20for20the20Arctic20Region20Implementation20Framework2028Appendix20A2920Finalpdf DePrsquoT oF DeF RePoRT To conGRess on ResouRcinG The ARcTic sTRATeGy (2016) httpsdoddefensegovPortals1DocumentspubsReport_to_Congress_on_Resourcing_the_Arctic_Strategypdf us coAsT GuARD ARcTic sTRATeGy imPLemenTATion PLAn (2014) httpswwwdcouscgmilPortals9DCO20Documents5pwArctic20PolicyCGAS20IPlan20Final20Signedpdfver=2017- 08-25-075935-927

44 To Conduct a Confirmation Hearing on the Expected Nomination of Mr James N Mattis to be Secretary of Defense Hearing Before the S Comm on Armed Servs 115th Cong (2017) (statement of James Mattis Secrsquoy of Def Nominee)

45 UNEP GLobAL ouTLook FoR ice amp snoW (2007) httpwwwwedocsuneporgbitstreamhandle20500118227792full_report_LowRespdfsequence+3ampisAllowed+y

46 bRiAn LA shieR amp JAmes sTAnish envrsquoT amp eneRGy sTuDy insT issue bRieF The nATionAL secuRiTy imPAcTs oF cLimATe chAnGe 5 (2017)

47 Id

48 us GovrsquoT AccounTAbiLiTy oFF supra note 4 at 25

49 us GovrsquoT AccounTAbiLiTy oFF GAo-19-42 nAvy RePoRT To conGRess ALiGns WiTh cuRRenT AssessmenTs oF ARcTic ThReAT LeveLs AnD cAPAbiLiTies ReQuiReD To execuTe DODrsquos sTRATeGy (2018)

50 nATrsquoL Res counciL supra note 6 at S-5 (The report also notes that ldquothe term lsquoice-freersquo is used to mean that multiyear ice has nearly (or completely) disappeared however to date in what are termed lsquoice-freersquo conditions sufficient ice is present to remain a hazard to ordinary ships and routine marine operationsrdquo)

51 us GovrsquoT AccounTAbiLiTy oFF GAO-12-180 DoD ADDResseD mAny sPeciFieD RePoRTinG eLemenTs in iTs 2011 ARcTic RePoRT buT shouLD TAke sTePs To meeT neAR - AnD LonG - TeRm neeDs (2012) (This report notes ldquoA joint Coast GuardUS Navy Statement on Arctic ice terminology supports usage of the term lsquoice-diminishedrsquo rather than lsquoice-freersquo because both agencies recognize that the region will continue to remain ice-covered during the wintertime through the end of this century and the current and projected decline in Arctic sea ice is highly variable from year to year The term lsquoice-freersquo means that no ice of any kind is present The term lsquoice-diminishedrsquo refers to sea ice concentrations of up to 15 percent ice in the areardquo)

52 Michael Pawlowski Chief of Staff Office of Senator Lisa Murkowski Remarks at The Polar Institutersquos The Arctic and US National Security Symposium (Dec 4 2018)

53 Nick Sobczyk Navy Plotting Release of New Arctic Strategy Envrsquot amp Energy Daily (Apr 20 2018) LEXIS

54 ARcTic counciL ARcTic mARine shiPPinG AssessmenT RePoRT 2009 22 (2009) httpswwwpmelnoaagovarcticzonedetectdocumentsAMSA_2009_Report_2nd_printpdf


56 orsquoRouRke supra note 6 at 22

57 CNA miL ADvisoRy boARD supra note 17 at 17

58 ARcTic counciL supra note 54 at 22

59 us nAvy coAsT GuARD amp mARine coRPs A cooPeRATive sTRATeGy FoR 21sT cenTuRy seAPoWeR supra note 28 at 6

60 Id


62 See eg us GovrsquoT AccounTAbiLiTy oFF supra note 4 nATrsquoL Res counciL supra note 6 US coAsT GuARD supra note 42

63 CNA miL ADvisoRy boARD supra note 17 at 17-18



66 noRTheRn seA RouTe inFo oFF httpwwwarctic-liocom

67 See The inTrsquoL counciL on cLeAn TRAnsP A 10-yeAR PRoJecTion oF mARiTime AcTiviTy in The us ARcTic ReGion (2015) httpswwwcmtsgovdownloadsCMTS_10-Year_Arctic_Vessel_Projection_Report_1115pdf





70 The inTrsquoL counciL on cLeAn TRAnsP supra note 67 at 45

71 Id

72 Nick Sobczyk Russia Beating US to ResourcesmdashCoast Guard Chief envrsquoT amp eneRGy DAiLy (Apr 18 2018)

73 orsquoRouRke supra note 6 at 39 Titley amp St John supra note 30 at 38

74 Robert J Papp The Emerging Arctic Frontier 13821308 us nAvAL insT PRoc 16 (2012)

75 Feron supra note 7 at 86

76 Id at 116


78 Id at 29

79 Id

80 Us GeoLoGicAL suRv ciRcum-ARcTic ResouRce APPRAisAL esTimATes oF unDiscoveReD oiL AnD GAs noRTh oF The ARcTic ciRcLe FAcT sheeT 2008-3049 (2008) httpspubsusgsgovfws20083049

81 us eneRGy inFo ADmin ARcTic oiL AnD nATuRAL GAs ResouRces (2012) httpwwweiagovtodayinenergydetailcfmid=4650

82 orsquoRouRke supra note 6 at 28-29


84 Id at 9 orsquoRouRke supra note 6 at 29



87 See eg Feron supra note 7 orsquoRouRke supra note 9

88 Parthemore supra note 34 at 8


90 40 CFR Part 300 (1994) See The WhiTe house supra note 42


92 John K Baker Department of Defense Arctic Strategy Building Resiliency on Thin Ice 7 (Jan 4 2016) (Strategy Res Project US Army War C)

93 orsquoRouRke supra note 6 at 34 See DePrsquoT homeLAnD sec beRinG seA AnD ARcTic oceAn PoLLuTion ResPonse (2018) httpswwwdhsgovsitesdefaultfilespublicationsUSCG-2020Bering20Sea20and20Arctic20OceanPollution20Responsepdf


95 us nAvy nAvy ARcTic RoADmAP 2014-2030 supra note 35 at 3

96 Titley amp St John supra note 30 at 42 (citing us nAvy mARine coRPs amp coAsT GuARD A cooPeRATive sTRATeGy FoR 21sT cenTuRy seAPoWeR (2007))


98 Id

99 OrsquoConnell supra note 6 at 11

100 Id at 2

101 David Curtis Wright Dragon Eyes Top of the World Arctic Policy Debate and Discussion in China 7 (Aug 2011) (Ctr for Naval Warfare Stud China Mar Study No 8 US Naval War C)



104 Baker supra note 92 at 7


106 Id See Wright supra note 101

107 orsquoRouRke supra note 6 at 60 Titley amp St John supra note 30 at 40 (noting ldquoCurrently there are overlapping unresolved maritime boundary claims between the United States and Canada Canada and Denmark Denmark and Norway and Norway and Russia At this time none of these disputed boundary claims pose a threat to global stabilityrdquo)

108 See eg Feron supra note 7 Symposium Mounting Tension and Melting Ice Exploring The Legal and Political Future of the Arctic Who Controls the Northwest Passage 42 vAnD J TRAnsnATrsquoL L 1133 (2009)

109 Feron supra note 7 at 86 116 Symposium supra note 108 at 1188


111 orsquoRouRke supra note 6 at 60 Sobczyk supra note 53 (noting that the Department of Defense revised its National Defense Strategy in 2018 to reflect Russia and Chinarsquos growing interest in the Arctic)



112 Feron supra note 7 at 120 ldquo[The Arctic thaw] could facilitate the deployment of the American sea-based Aegis BMD [ballistic missile defense] in the Arctic Ocean (designed to intercept midcourse short-to-intermediate range missiles) as well as the deployment of surface anti-submarine warfare capabilities to hunt nuclear-armed submarinesrdquo Id at 122

113 NSPD-66HSPD-25 (III)(B)(1)


115 us nAvy nAvy ARcTic RoADmAP 2014-2030 supra note 35 at 3 Titley amp St John supra note 30 at 40 (stating ldquoWhile present boundary disputes and security concerns pose no major risk to international stability and security the long-term potential for significant change in the Arctic must be recognized and thoroughly assessedrdquo)

116 Admiral Karl L Schultz US Coast Guard Commandant Remarks at The Polar Institutersquos The Arctic and US National Security Symposium (Dec 4 2018)

117 Sobczyk supra note 53

118 orsquoRouRke supra note 6 at 46 (stating ldquoAlthough polar ice is diminishing due to climate change observers generally expect that this development will not eliminate the need for US polar icebreakers and in some respects might increase mission demands for themhellipparticularly since waters described as lsquoice freersquo can actually still have some amount of icerdquo)


120 us GovrsquoT AccounTAbiLiTy oFF supra note 49 at 11 The Navy noted in a June 2018 report that its current assets are sufficient to execute the 2016 Department of Defense Arctic Strategy Because of this contention the Navy has no plans to ice-harden its existing surface vessels ldquoIce hardeningrdquo refers to winterizing the shiprsquos hull for operating in polar temperatures and protecting the ship from free-floating sea ice Id at 3 The Navy also noted that using Coast Guard vessels is an ldquooptionrdquo for asserting sovereign presence in the Arctic Id at 12

121 A cutter is a Coast Guard commissioned vessel at least 65 feet long with living accommodations for permanently assigned crew The polar icebreakers are in the designated WAGB class us coAsT GuARD The cuTTeRs boATs AnD AiRcRAFT oF The us coAsT GuARD 4 (2018) httpswwwuscgmilPortals0documentsCG_Cutters-Boats-Aircraft_2015-2016_editionpdfver=2018-0614-092150-230

122 Us mARine coRPs nAvy amp coAsT GuARD A cooPeRATive sTRATeGy FoR 21sT cenTuRy seAPoWeR Supra Note 28 At 91 nATrsquoL Res counciL supra note 28 at 91 nATrsquoL Res counciL supra note 6 at 54

123 us GovrsquoT AccounTAbiLiTy oFF GAO-18-600 PoLAR icebReAkeR PRoGRAm neeDs To ADDRess Risks beFoRe commiTTinG ResouRces 4 (2018) The Coast Guardrsquos primary duties are set forth in 14 USC sect 2 Per 14 USC sect 2(4) the Coast Guard shall among other things ldquodevelop establish maintain and operate with due regard to the requirements of national defensehellipicebreaking facilitieshellipfor the promotion of safety on under and over the high seas and waters subject to the jurisdiction of the United Statesrdquo and per 14 USC sect 2(5) the Coast Guard shall ldquopursuant to international agreements develop establish maintain and operate icebreaking facilities on under and over waters other than the high seas and waters subject to the jurisdiction of the United States rdquo

124 The WhiTe house supra note 42 at 8

125 NSPD-66HSPD-25 These objectives ldquospeak directly to Coast Guard responsibilities reflecting aspects of the Coast Guardrsquos 11 statutory missionsrdquo nATrsquoL Res counciL supra note 6 at 50-51 The Coast Guard has three basic rolesmdashmaritime safety maritime security and maritime stewardshipmdashwhich are subdivided further into eleven statutory homeland security and non-homeland security missions as codified in Sec 888(a) of the Homeland Security Act of 2002

126 ABS consuLTinG supra note 40 at 10

127 orsquoRouRke supra note 9 at 3 5 (Icebreaking classification is based on icebreaking capability Heavy polar icebreakers can break through ice up to 6 feet thick at a speed of 3 knots whereas medium polar icebreakers can break through ice up to 4frac12 feet thick at a speed of 3 knots The Healy is used primarily for scientific research)


129 Id at 4

130 Id

131 The Maritime Executive US Coast Guard Receives Funding for New Heavy Icebreaker (Feb 15 2019) httpswwwmaritime-executivecomarticleu-s-coast-guard-receives-funding-for-new-heavy-icebreaker

132 See Woody infra note 133

133 Christopher Woody A Fire Broke Out Aboard the USrsquos Only Heavy Icebreaker in One of the Most Remote Places on Earth Business Insider (Feb 28 2019) httpswwwbusinessinsidercomfire-aboard-coast-guard-heavy-icebreaker-polar-star-in-south- pacific-2019-2

134 Id

135 Pegna supra note 8 at 182 See supra text accompanying note 33

136 See eg Pegna supra note 8 cnA miL ADvisoRy boARD supra note 17

137 nATrsquoL Res counciL PoLAR icebReAkeRs in A chAnGinG WoRLD An AssessmenT oF us neeDs 99 (2007)

138 Scott Waldman US Couldnrsquot Clean Up an Oil SpillmdashCoast Guard Chief Climatewire (July 19 2017)

139 Oversight of the US Coast Guard Hearing Before the S Subcomm on Oceans Atmosphere Fisheries amp Coast Guard 111th Cong 54-55 (2009) (statement of Adm Thad Allen Commandant US Coast Guard)

140 Abs consuLTinG supra note 40

141 Id at 10-13 15

142 us GovrsquoT AccounTAbiLiTy oFF GAo-17-698R sTATus oF PoLAR icebReAkinG FLeeT cAPAbiLiTy AnD RecAPiTALizATion PLAn 4 (2017) httpswwwgaogovassets690687330pdf

143 orsquoRouRke supra note 9 at 8 (citing DePrsquoT homeLAnD sec PoLAR icebReAkinG RecAPiTALizATion PRoJecT mission neeD sTATemenT veRsion 10 APPRoveD by Dhs June 28 2013))

144 See eg orsquoRouRke supra note 6 OrsquoConnell supra note 6 Baker supra note 92



145 nATrsquoL Res counsiL supra note 6 at 54


147 Id



150 orsquoRouRke supra note 6 at 64 In 2012 a Chinese icebreaker completed Chinarsquos first cross-Arctic transit by navigating the Northern Sea Route OrsquoConnell supra note 6 at 10


152 Wright supra note 101 at 4

153 Arctic Operations Hearing before the H Subcomm on Western Hemisphere amp Europe Eurasia amp Emerging Threats 114th Cong (2015) (statement of Vice Adm Charles D Michel Vice Commandant US Coast Guard)


155 Ben Werner Coast Guard Secures $655 Million for Polar Security Cutters in New Budget Deal USNI News (Feb 15 2019) httpsnewsusniorg20190215polar_security_cutter_coast_guard As the only military service not under the Department of Defense the Coast Guardrsquos budget is ldquouniquely disadvantaged among the military services Under the Budget Control Act discretionary appropriations are divided into defense and non-defense expenditures and capped at limits placed upon each of those categories Unlike other services the Coast Guard is funded 96 by nondefense dollars even though 40 of its major cutters are serving today under the operational command of the Defense Departmentrdquo Bryant E Gardner Semper Gumby Benedictrsquos Mar Bull (2018)

156 See us GovrsquoT AccounTAbiLiTy oFF supra note 9 at 37 (The preliminary estimate for one heavy polar icebreaker was $109 billion The Coast Guardrsquos FY 2016 acquisition budget was $1945 billion)


158 us GovrsquoT AccounTAbiLiTy oFF supra note 142 at 4 A detailed discussion of the acquisition program including design specifications funding and costs is found in us GovrsquoT AccounTAbiLiTy oFF supra note 9


160 Id at 5

161 Id

162 Megan Eckstein Zukunft Changing Arctic Could Lead to Armed US Icebreakers in Future Fleet USNI News (May 18 2017) httpsnewsusniorg20170518zukunft-changing-arctic-environment-could-lead-to-more-armed-icebreakers-in-future-fleet



165 Division A of HRJ Res 31 116th CongPub L No 116-6 (2019)

166 The Coast Guard and Navy now expect the acquisition cost for each heavy polar icebreaker to be approximately $700 million The first ship known as the lead ship will cost more because ldquoit will incorporate design costs and be at the start of the production learning curve for the classrdquo orsquoRouRke supra note 6 at 47

167 The Maritime Executive VT Halter Wins Contract for New US Coast Guard Icebreaker (Apr 23 2019) httpswwwmaritime-executivecomarticlevt-halter-wins-contract-for-new-u-s-coast-guard-icebreaker


169 Id

170 Coast Guard and Maritime Transportation Act of 2012 Pub L No 112-213 sect 222 126 Stat 1540 1560-1561 (2012) amended by Howard Coble Coast Guard and Maritime Transportation Act of 2014 Pub L No 113-281 sect 505 128 Stat 3022 3059-3060 (2014)

171 us GovrsquoT AccounTAbiLiTy oFF GAo-18-454 coAsT GuARD AcQuisiTions AcTions neeDeD To ADDRess LonGsTAnDinG PoRTFoLio mAnAGemenT chALLenGes 31 (2018)

172 Id at 29

173 Id at 31

174 Id


176 See eg OrsquoConnell supra note 6 us nAvy nAvy ARcTic RoADmAP 2014-2030 supra note 35


178 Id at 49 see us nAvy mARine coRPs amp coAsT GuARD nAvAL oPeRATions concePT supra note 28 at 91

179 See ABS consuLTinG supra note 39 at 10



182 Id at 6



In light of these issues in December 2016 a coalition of importers exporters and logistics providers petitioned the Federal Maritime Commission (FMC) to provide guidance on what constitute ldquojust and reasonable practicesrdquo with respect to demurrage and detention An eighteen-month broad consultation of all the maritime actors under the leadership of Commissioner Rebecca F Dye attempted to reconcile all interests in this complex web of contractual and operational relationships

Commissioner Dye issued her final report on Conditions and Practices Relating to Detention Demurrage and Free Time in International Oceanborne Commerce on December 3 20182 While recognizing that demurrage and detention are valuable charges when applied in ways that incentivize cargo interests to move cargo promptly from ports and marine terminals the report acknowledged that all international supply chain actors could benefit from more transparent consistent and reasonable demurrage and detention practices For instance the ocean freight delivery system would benefit from simplified billing practices and dispute resolution processes between carriers and shippers

On September 6 2019 the FMC adopted the set of recommendations made by Commissioner Dye3 Thereafter on September 13 2019 the FMC issued a Notice of Proposed Rulemaking (NPRM) outlining the specifics of the FMCrsquos proposed interpretative rule4

The NPRM proposed to add a new rule 46 CFR sect 5455 titled ldquoInterpretation of Shipping Act of 1984-Unjust and unreasonable practices with respect to demurrage and detentionrdquo The purpose of the new rule is to provide guidance on how the Commission will interpret 46 USCA sect 41102(c) (West)5 (addressing carriers and terminal operatorsrsquo need to observe reasonable practices in relation with delivering property) and 46 CFR sect 5454(d)6 (stating that practices and regulations must be just and reasonable) in the specific context of demurrage and detention

The new rule 46 CFR sect 5455 provides a non-exclusive list of factors when evaluating claims and complaints for demurrage and detention charges following the incentive principle The more a demurrage practice is tailored to promote freight fluidity cargo availability and empty-container return the less likely the practice is to be found unreasonable

For instance in assessing the reasonableness of demurrage practices and regulations the FMC could consider whether and how regulated entities provide notice to cargo interests that cargo is available for retrieval including type of notice to whom notice is provided format of notice and method of distribution of notice Another factor that the FMC could consider in its reasonableness analysis is the

In Search continued from page 13



existence and accessibility of policies implementing demurrage and detention practices and regulations including dispute resolution policies

The FMC received more than one hundred comments to the NPRM The support for the new rule came mainly from importers exporters transportation intermediaries and truckers Many ocean carriers and marine terminal operators opposed the rule as imposing for instance ldquosweeping new standards that would make ocean carriers financially responsible for circumstances beyond their controlrdquo7 Having considered all comments the FMC adopted the Final Interpretive Rule on Demurrage and Detention under the Shipping Act on April 28 2020 which became effective on May 18 20208 Rule 46 CFR sect 5455 was adopted as set forth in the NPRM with a few minor changes In particular the FMC revised the regulatory text to ldquo(1) adopt a policy regarding demurrage and detention practices and government inspections and (2) to make clear that the rule does not preclude the Commission from considering additional factors outside those specifically listedrdquo9

The final rule appears to be a compromise between all actors of the supply chain As the FMC emphasized ldquothe rule is not intended to and cannot solve every demurrage and detention problem or quell all disputesrdquo10 The FMC does not impose strict or mandatory rules or procedures for carriers or marine terminals to follow and takes into account the diversity of situation than can cause the imposition of detention and demurrage charges The downside of this flexibility of action is the uncertainty remaining for cargo interests as to the imposition of charges by carriers Whether a charge might be considered reasonable under the circumstances of each case will likely have to be decided in litigation and unfair practices might not change until a solid jurisprudence has been established

Endnotes1 See eg CMA CGM SA v Deckwell Sky (USA) Inc 91 F Supp 3d 841 (ED Va 2015)

2 Available on the FMC website at httpswww2fmcgovreadingroomdocsFF20No2028FF-28_FRpdf

3 See httpswwwfmcgovcommission-approves-dyes-final-recommendations-on-detention-and-demurrage

4 Available at httpswww2fmcgovreadingroomdocs19-0519-05_NPRMpdf

5 46 US Code sect 41102(c) states

(c) Practices in Handling Propertymdash

A common carrier marine terminal operator or ocean transportation intermediary may not fail to establish observe and enforce just and reasonable regulations and practices relating to or connected with receiving handling storing or delivering property

6 46 CFR sect 5454 provides as follows

46 USCA sect 41102(c) is interpreted to require the following elements in order to establish a successful claim for reparations

(d) The practice or regulation is unjust or unreasonable hellip

7 FMC Interpretive Rule on Demurrage and Detention under the Shipping Act April 28 2020 p 10 available at httpswwwfederalregistergovdocuments202005182020-09370interpretive-rule-on-demurrage-and-detention-under-the-shipping-act

8 Id

9 Id p 3

10 Id



Sexual Haras m _nt and Retaliation

AMERICANBARASSOCIATION

Matthew Queer Jnd Ligl1t Townsenel

MODERN CAPTIVE UtiS_U_RAN_C_E_ A Legal Guide to Formation Operation and Exit Strategies

DEFENSE i bull1 1bull

i=(iN o j1tmiddoti1 PS BOOKS

NA wwwShopABAorg 800-285-2221 AMERICANBARASSOCIATION

Tort Trial and Insurance Practice Section



Hypertext citation linking was created with Drafting Assistant from Thomson Reuters a product that provides all the tools needed to draft and review ndash right within your word processor Thomson Reuters Legal is a Premier Section Sponsor of the ABA Tort Trial amp Insurance Practice Section and this software usage is implemented in connection with the Sectionrsquos sponsorship and marketing agreements with Thomson 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

Calendar

September 2020

Motor Vehicle Products Liability ConferenceContact Janet Hummons ndash 312988-5656 Danielle Daly ndash 312988-5708

Virtual Programing

September 2020Toxic Torts amp Environmental Law ConferenceJuel Jones 312-988-5597

Virtual Programing

October 7-12 2020TIPS Fall Leadership MeetingContact Janet Hummons ndash 312-988-5656Juel Jones 312-988-5597

TBD

October 29-30 2020 Aviation LitigationContact Danielle Daly ndash 312988-5708 TBD

November 4-5 2020 Fidelity amp Surety Law Fall ConferenceContact Juel Jones ndash 312988-5597 TBD

January 14-16 2021 Life Health amp DisabilityContact Danielle Daly ndash 312988-5708 TBD

February 3-5 2021Fidelity amp Surety Law Midwinter ConferenceContact Juel Jones ndash 312988-5597

JW Marriott Washington DC

February 10-14 2021

Insurance Coverage Litigation Midyear ConferenceContact Janet Hummons ndash 312988-5656 Danielle Daly ndash 312988-5708

Omni Resort Montelucia Scottsdale AZ

February 17-22 2021 ABA Midyear MeetingContact Juel Jones ndash 312988-5597

Hyatt Regency Chicago Chicago IL

March 10-12 2021Transportation Mega Conference XVContact Janet Hummons ndash 312988-5656 Danielle Daly ndash 312988-5708

Sheraton New Orleans New Orleans LA

March 12-13 2021 Admiralty Maritime Law ConferenceContact Juel Jones ndash 312988-5597


2americanbarorgtips


Leadership Roster

ChairAaron GreenbaumPusateri Johnston Guillot amp Greenbaum1100 Poydras St Ste 2250New Orleans LA 70163-2300(504) 620-2500 aarongreenbaumpjgglawcom

Chair-ElectJuliette McCulloughCox Wootton Lerner900 Front St Ste 350San Francisco CA 94111-1427(415) 398-6000jmcculloughcwlfirmcom

Immediate Past ChairStephanie PenningerXPO Logistics Inc11215 N Cmnity Hse Rd Fl 9Charlotte NC 28277-4960(704) 323-7647Fax (312) 767-9192StephaniePenningerxpocom

Council Representative Newsletter EditorChristopher NolanHolland amp Knight LLP31 W 52nd St Fl 11New York NY 10019-6111(212) 513-3307Fax (212) 341-7237chrisnolanhklawcom

Diversity Vice-ChairJeanne AmyJones Walker LLP201 Saint Charles Ave Fl 48New Orleans LA 70170-1000(713) 283-2484 jamyjoneswalkercom

Law Student Vice-ChairHolli Packer2301 Joseph St New Orleans LA 70115-6513(201) 873-4244 hpackertulaneedu

Membership Vice-ChairChase JanssonCampbell Johnston Clark LLP2600 Douglas Road Ste 508Miami FL 33134(503) 866-9699 ChaseCJCLawcom

Plaintiff Vice-ChairJessica IbertLewis Kullman Sterbcow amp Abramson601 Poydras Street Ste 2615New Orleans LA 70130(504) 262-8345Fax (504) 588-1514jibertlksalawcom

Social Media Vice-Chair Technology Vice-ChairAllison SkopecWinston amp Strawn LLP200 Park Ave 40New York NY 10166-0005(212) 294-3278askopecwinstoncom

Vice-ChairsKirby AarsheimFarrell Smith OrsquoConnell LLP27 Congress Street Ste 109Salem MA 01970(617) 508-9891kirbyaarsheimgmailcom

Yaakov AdlerFreehill Hogan amp Mahar Llp80 Pine Street 25 FlNew York NY 10005-1759(832) 236-6109Fax (212) 425-1901adlerfreehillcom

Daniel BentsonBullivant Houser Bailey PC925 4th Ave Ste 3800Seattle WA 98104-1129(206) 292-8930 danbentsonbullivantcom

Peter BlackMills Black LLP1215 19th St NW Washington DC 20036(562) 548-8978 pblackmillsblackcom

David BoyajianSchwabe Williamson amp Wyatt1211 SW 5th Ave Ste 1900Portland OR 97204(503) 796-2943 Fax (415) 227-4255dboyajianschwabecom

Philip BrickmanDegan Blanchard amp Nash400 Poydras St Fl 26New Orleans LA 70130-3245(504) 529-3333Fax (504) 529-3337pbrickmandegancom

Michael DalyPierce Atwood LLP1 Financial Plz Fl 16Providence RI 02903-2485(401) 588-5113

Robert GardanaRobert L Gardana PA12350 SW 132nd Ct Ste 204Miami FL 33186-6458(562) 544-0168 Fax (305) 358-1680robertgardanalawcom

Danielle GauerM G amp M Law Firm600 Brickell Ave Ste 1400Miami FL 33131-3068(305) 537-3422dgauermgmlawcom

Sarah GayerThompson Bowie amp Hatch LLCPO Box 4630Portland ME 04112-4630(207) 774-2500Fax (207) 774-3591sgayerthompsonbowiecom

Christopher HamiltonShutts amp Bowen4301 W Boy Scout Blvd Ste 300Tampa FL 33607(813) 229-8900Fax (813) 227-8211chamiltonshuttscom

Grady HurleyJones Walker LLP201 Saint Charles Ave 48th FlNew Orleans LA 70170-1000(504) 582-8224Fax (504) 589-8224ghurleyjoneswalkercom

James KoelzerClyde amp Co LLP355 S Grand Ave Ste 1400Los Angeles CA 90071(317) 413-8158Fax (310) 229-5800JamesKoelzerclydecous

Max Malvin643 Magazine St Ste 405New Orleans LA 70130-3433(504) 323-5885mmalvinmontielhodgecom

Jessica MartynLink Martyn PLLC1407 S Leithgow TerracePhiladelphia PA 19147(757) 6154753jmartynlinkmartyncom

David McNealMcNeal Law Group PLLC2950 North Loop W Ste 500Houston TX 77092--8830(832) 819-3281dmcnealmcneallawgroupcom

Matthew MoellerMoeller Firm LLC650 Poydras St Ste 1207New Orleans LA 70130-7215(571) 882-0472matthewmoellerfirmcom

Jeanne NoonanWillcox amp Savage440 Monticello Ave Ste 2200Norfolk VA 23510(757) 628-5554jnoonanwilsavcom

Scott OlsonMarkel Surety9737 Great Hills Trl Ste 320Austin TX 78759-6418(512) 732-0099Fax (512) 732-8398scottolsonmarkelcom


3americanbarorgtips





















4americanbarorgtips




Chair Message






5americanbarorgtips









6americanbarorgtips






7americanbarorgtips




Editor Message





8americanbarorgtips















9americanbarorgtips


TRADETALK






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021









3americanbarorgtips





















4americanbarorgtips




Chair Message






5americanbarorgtips









6americanbarorgtips






7americanbarorgtips




Editor Message





8americanbarorgtips















9americanbarorgtips


TRADETALK






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021









4americanbarorgtips




Chair Message






5americanbarorgtips









6americanbarorgtips






7americanbarorgtips




Editor Message





8americanbarorgtips















9americanbarorgtips


TRADETALK






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021









5americanbarorgtips









6americanbarorgtips






7americanbarorgtips




Editor Message





8americanbarorgtips















9americanbarorgtips


TRADETALK






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021









6americanbarorgtips






7americanbarorgtips




Editor Message





8americanbarorgtips















9americanbarorgtips


TRADETALK






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021









7americanbarorgtips




Editor Message





8americanbarorgtips















9americanbarorgtips


TRADETALK






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021









8americanbarorgtips















9americanbarorgtips


TRADETALK






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021









9americanbarorgtips


TRADETALK






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021






























Competition








































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021
















































































































Selection Clause
































































40 Id at 533




44 Id at 972












54 Id at 740ndash41







61 Note 39 supra






67 Id at 681

68 Id at 676








































































































5 Id at 1
















20 Pub L No 110-181 (2008)

21 Id sect 951(g)

22 Id sect 951(2)




















39 Id


41 Id at 1






47 Id













60 Id













71 Id





76 Id at 116


78 Id at 29

79 Id



















98 Id


100 Id at 2































129 Id at 4

130 Id




134 Id







141 Id at 10-13 15








147 Id













160 Id at 5

161 Id








169 Id



172 Id at 29

173 Id at 31

174 Id








182 Id at 6


























8 Id

9 Id p 3

10 Id














Calendar

September 2020


Virtual Programing


Virtual Programing


TBD






February 10-14 2021







