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Admiralty and Maritime Law Committee Newsletter Spring 2016

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

Spring 2016

Carbon nanotubes (CNTs) holdpromise for many beneficialapplications. However, there havebeen concerns and calls for amoratorium raised over “mountingevidence” that CNT may be the“new asbestos,”1 or at leastdeserving of “special toxicologicalattention” due to prior experienceswith asbestos.2 The shape and sizeof some agglomerated CNTs aresimilar to asbestos—the most“desirable.” And because CNTs forstructural utility are long andthin—characteristics thought toimpart increased potency to

asbestos fibers—discussions ofparallels between these twosubstances are natural. Thus, giventhe legacy of asbestos-relatedinjury and the thousands of caseslitigated each year, consideration ofpossible implications of the use ofCNTs in research and in consumerproducts is prudent.

First reported in 19913, CNTsepitomize the emerging field ofnanotechnology, defined by someas the “ability to measure, see,manipulate, and manufacturethings usually between 1 and100 nanometers.”4 CNTs are a typeof carbon-based engineerednanoparticle generally formed by

Uniting Plaintiff, Defense, Insurance, and Corporate Counsel toAdvance the Civil Justice System

Fall 2009

Toxic Torts and EnvironmentalLaw Committee

IN THIS ISSUECarbon Nanotubes: The Next Asbestos . . . . . . . . . . . . . . . . . . . . . . . 1

Editor’s Message . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Tatera v. FMC Corporation: When Is A Product No A Product? . . . 3

Mexico’s National Wastes Management Program. . . . . . . . . . . . . . . 4

Environmental Risk During Restructuring And Bankruptcy . . . . . 5

Upcoming TTEL Programs And Meetings . . . . . . . . . . . . . . . . . . . . 6

Limitations Of Toxicogenomic Studies To Assess Toxic ExposuresAnd Injury From Benzene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Burlington Northern: The Requisite Intent For Arranger LiabilityUnder Cercla . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2009-2010 TIPS Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Continued on page 18

CommitteeNewsCommitteeNews

CARBON NANOTUBES: THE NEXT ASBESTOS?Fionna Mowat, Exponent, [email protected] Tsuji, Exponent, [email protected]

1 Miller, G. 2008. Mounting evidence that carbonnanotubes may be the new asbestos. Friends of theEarth Australia. Available at http://nano.foe.org.au.2 The Royal Society and Royal Academy ofEngineering (RS/RAE). 2004. Nanoscience andnanotechnologies. Royal Society and Royal Associationof Engineers. London: The Royal Society. Available athttp://www.royalsoc.ac.uk/.3 Iijima, S. 1991. Helical microtubules of graphiticcarbon. Nature (London) 354:56–58.4 National Science and Technology Council (NSTC).2007. The National Nanotechnology Initiative. StrategicPlan. Washington DC: NSTC, Committee onTechnology, Subcommittee on Nanoscale Science,Engineering, and Technology. December. Available athttp://www.nano.gov/ NNI_Strategic_Plan_2004.pdf.

Authored while riding circuit,2 Supreme Court Justice Story’s quote from an 1823 decision accents the historical view of mariners in the law:

Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. They are generally poor and friendless, and acquire habits of gross indulgence,

carelessness, and improvidence. If some provisions be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer

Chandris, Inc. v. Latsis “30% Rule” for Seaman Status: 20 Years Later By: Captain Robert L. Gardana, Esq.1

Admiralty and MaritimeLaw Committee


IN THIS ISSUE:Chandris, Inc. v. Latsis “30% Rule” for Seaman Status: 20 Years Later . . . . . . . . . . . . . . . . . . . . 1Message From The Chair . . . . . . . . . . . . . . . . 3Letter From The Editors . . . . . . . . . . . . . . . . . 5Trade Talk: William (“Bill”) Donohue, RLI Marine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Don’t Let Your Weight Get You Down: How To Be Ready For IMO’s New Ocean Container Weight Rule By July 1st . . . . . . . 10When Is A Maritime Non-Testifying Expert’s Work Not Safe From Prying Eyes Of Opposing Counsel? . . . . . . . . . . . . . . . . . . . . . 11Compliance And Enforcement In Italy Consistent With International Provisions To Prevent Marine Pollution . . . . . . . . . . . . . . . 132016-2017 TIPS Calendar . . . . . . . . . . . . . . . 27

1 Captain Robert L. Gardana, Esq. practices maritime law in Miami, Florida. He is rated AV Preeminent in Admiralty and Maritime Law by Martindale Hubble; Board Certified in Admiralty & Maritime Law by The Florida Bar, USCG Master 100GT, and AMLC Vice Chair for Solo and Small Initiatives; Email: [email protected]. The author gratefully acknowledges the assistance and collaboration of AMLC member Professor Attilio Costabel of St. Thomas University School of Law, and Brett Rogers, Esq., J.D. 2015 University of Miami School of Law, in preparing this article.2 In the Beginning, etc. Richard E. Berg-Andersson (The so-called “Circuit Courts”, which would function as the Federal court of intermediate appellate jurisdiction- between the District Courts below and the Supreme Court above. The 11 Districts based on States per se were grouped into “Circuits” (New Hampshire, Massachusetts [without Maine], Connecticut and New York would form the “Eastern Circuit”; New Jersey, Pennsylvania, Delaware, Maryland and Virginia [sans Kentucky] would make up the “Middle Circuit”; while South Carolina and Georgia would make up the “Southern Circuit”); Maine and Kentucky- like the non-State colloquially named “Northwest Territory”- would, even though they were parts of States, have direct appeal to the Supreme Court in matters which would have otherwise gone first to the Circuit Courts.) See: http://www.thegreenpapers.com/Hx/JusticesExplanation.html

mailto:[email protected]



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ChairJessica Martyn

Palmer Biezup & Henderson190 N Independence Mall W,

Ste 401Philadelphia, PA 19106-1508

(215) [email protected]

Chair-ElectRaymond Waid

Liskow & Lewis701 Poydras St, Ste 5000New Orleans, LA 70139(504) 581-7979 Ext 2

[email protected]

Council RepresentativeHolly Polglase

Hermes Netburn O’Connor & Spearing PC

265 Franklin St, Fl 7Boston, MA 02110-3113

(617) 210-7780Fax: (617) 728-0052

[email protected]

Diversity Vice-ChairMark Dicicco

4141 SW 70th Ter Davie, FL 33314

[email protected]

Membership Vice-ChairsSarah Gayer

Thompson & Bowie LLPPO Box 4630

Portland, ME 04112-4630(207) 774-2500

Fax: (207) [email protected]

Christopher HamiltonShutts & Bowen, LLP

4301 W. Boy Scout Blvd, Ste 300Tampa, FL 33607(813) 229-8900


Past ChairPamela Palmer*

Morris Polich & Purdy LLP1055 W 7th St, Ste 2400

Los Angeles, CA 90017-2550(213) 891-9100


Scope LiaisonMadeline Meacham

Halpern Meacham1790 30th St, Ste 280

Boulder, CO 80301-1033(303) 449-6180


Technology Vice-ChairPeter Black

Charles Taylor P&I Management (Americas), Inc

75 Broad Street, Suite 2505New York, NY 10004


Newsletter Vice-ChairChristopher Nolan*Holland & Knight LLP31 W 52nd St, Fl 11

New York, NY 10019-6111(212) 513-3307


Vice-ChairsYaakov Adler

Freehill, Hogan & Maher80 Pine Street 25 Fl

New York, NY 10005-1759(212) 381-3026


Philip BrickmanDegan, Blanchard & Nash

400 Poydras St, Fl 26New Orleans, LA 70130-3245

(504) 529-3333Fax: (504) 529-3337

[email protected]

Michael Daly*Pierce Atwood LLP

72 Pine St, Fl 5Providence, RI 02903


Blythe DalyHolland & Knight LLP31 W 52nd St, Fl 11

New York, NY 10019-6111(212) 513-3570


Robert GardanaRobert L Gardana PA

12350 SW 132nd Ct, Ste 204Miami, FL 33186-6458

(305) 358-0000Fax: (305) 358-1680

[email protected]

Grady HurleyJones Walker et al

201 Saint Charles Avenue, 48th Floor

New Orleans, LA 70170-1000(504) 582-8224


Laura KnollChaffe McCall, LLP

1100 Poydras Street, Ste 2300New Orleans, LA 70163


James Koelzer*Robins Kaplan LLP

2049 Century Park East, Ste 3400Los Angeles, CA 90067-3208

(310) 229-5443Fax: (310) 229-5800

[email protected]

Donald Andy MauHerman Herman & Katz LLC

820 O Keefe Ave, Floor 1New Orleans, LA 70113

(504) 581-4892Fax: (504) 561-6024

[email protected]

Christopher Nolan*Holland & Knight LLP31 W 52nd St, Fl 11

New York, NY 10019-6111(212) 513-3307


Stephany Olsen-LeGrandSutherland Asbill & Brennan LLP

1001 Fannin St, Ste 3700Houston, TX 77002

(713) 470-6187stephany.olsen-legrand@

sutherland.com

Stephanie PenningerBenesch

One American Square, Ste 2300Indianapolis, IN 46282

(317) 632-3232Fax: (317) 632-2962

[email protected]

Mia Pintard1514 Sheridan Rd NE, Apt 3112

Atlanta, GA 30324(404) 268-0566

[email protected]

Stephanie Propsom826 N Duluth Pl

Sturgeon Bay, WI 54235-2959(920) 743-5020

[email protected]

Giuseppe RosaGiuseppe L Rosa Esq &

Associated Counsels4 Piazza G Fracastoro

Cavaion Veronese, VR 3701039(3)35234529

Fax: 39(04)[email protected]

Pamela SchultzHinshaw & Culbertson LLP

One California Street, Floor 18San Francisco, CA 94111

(415) 263-8132Fax: (415) 956-0439

[email protected]

Ryan TennantRountree Losee LLP

2419 Market StWilmington, NC 28403-1135

(910) 763-3404Fax: (910) 763-0080

[email protected]

Christine WalkerFowler White Burnett PA

1395 Brickell Ave, Floor 14Miami, FL 33131(305) 789-9217

[email protected]

*Former Chairs of TIPS AMLC

VISIT US ON THE WEB AT:

www.ambar.org/tipsadmiralty


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It’s Spring in Philadelphia and we’re having an outstanding year as a Committee! Thanks to member involvement throughout the country, we have had great success with new initiatives, regional events, industry and organizational partnerships and increases in Committee membership and LinkedIn followers.

In February, thirteen AMLC members participated in Strategic Planning during the ABA Midyear Meeting in San Diego. The purpose of the meeting was to analyze how the Committee can best serve its current members and attract new members, establish actionable objectives, and draft a formal plan to achieve those objectives over the next three years. Meeting participants focused on regional initiatives to foster local relationships among industry, the admiralty bar, government, and insurers. The formal Strategic Plan document is forthcoming

and we will notify members when it is published to the AMLC webpage.

Our Young Lawyer Writing Competition and Law Student Writing Competitions are in full swing. Now in its third year, the Young Lawyer Writing Competition is a partnership with the Southeastern Admiralty Law Institute, with the Competition winner invited to present his or her paper during the SEALI Annual Seminar in June 2016. The Law Student Writing Competition took a thrilling turn this year with a new partnership with Gard (N.A.) Inc. The Competition winner will be invited to participate in a Day of Marine Insurance with Gard’s New York office. Winners of each Competition will be offered the opportunity for publication in the Newsletter and sponsored attendance at a TIPS in-person meeting to take advantage of the valuable experience of making personal connections within and beyond the practice of maritime law.

Concurrent with the Midyear Meeting, the AMLC partnered with the Federal Bar Association Admiralty Section to host a half-day maritime law CLE symposium and reception. We hosted the event at the U.S. District Court for the Southern District of California and inspired some lively discussion among panelists and attendees. We thank Bart Eckhardt and Larry Wolf of Robson Forensic for generously hosting a lovely reception following the program.

Continuing our partnerships with the Florida Bar Admiralty Law Committee and St. Thomas University School of Law and University of Miami School of Law Admiralty Law Societies and UM’s Professional Responsibility and Ethics Program, the AMLC presented “A Maritime State of Disformity” complimentary CLE seminar to 140 participants. Many thanks to St. Thomas and Professor Attilio Costabel for generously hosting the seminar and reception and to AMLC Vice Chair for Solo/Small Firm Initiatives, Robert Gardana of Robert L. Gardana, P.A., in Miami, Florida, for working with the Florida Bar, St. Thomas University and the University of Miami to coordinate another outstanding program. The participation of St. Thomas Maritime Law Society and University of Miami Maritime Law Society students during the program and their genuine interest in maritime law truly set this Seminar apart.

In March, the AMLC hosted its annual “Presentation of Selected Works from the Tulane Maritime Law Journal” and reception at the New Orleans office of Liskow & Lewis. The program was impressive and very well received by all in attendance. Many thanks to Chair Elect Ray Waid at Liskow & Lewis for working with the Tulane Maritime Law Journal Board to coordinate another outstanding annual program.

The AMLC also joined the University of Miami Maritime Law Society & International LLM in Ocean and Coastal Law, to present “Navigating a Career in Maritime Law.” The AMLC thanks Danielle Gauer, President of the UM Admiralty Law Society, for coordinating the event and for inviting the AMLC to participate. A video recording of the program is available on the UM Maritime Law Society’s webpage at http://www.law.miami.edu

The AMLC is very pleased to support law students exploring careers in maritime law and to foster relationships within the maritime community and we look forward to an ongoing relationship with the University of Miami, St. Thomas University, and Tulane University Schools of Law, focused on helping law students achieve their career goals.

MESSAGE FROM THE CHAIR


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©2016 American Bar Association, Tort Trial & Insurance Practice Section, 321 North Clark Street, Chicago, Illinois 60654; (312) 988-5607. All rights reserved.

The opinions herein are the authors’ and do not necessarily represent the views or policies of the ABA, TIPS or the Admiralty and Maritime Law Committee. Articles should not be reproduced without written permission from the Copyrights & Contracts office ([email protected]).

Editorial Policy: This Newsletter publishes information of interest to members of the Admiralty and Maritime Law Committee of the Tort Trial & Insurance Practice Section of the American Bar Association — including reports, personal opinions, practice news, developing law and practice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section, the Committee, nor the Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority.

Copies may be requested by contacting the ABA at the address and telephone number listed above.

Hypertext citation linking was created with Drafting Assistant from Thomson Reuters, a product that provides all the tools needed to draft and review – right within your word processor. Thomson Reuters Legal is a Premier Section Sponsor of the ABA Tort Trial & Insurance Practice Section, and this software usage is implemented in connection with the Section’s sponsorship and marketing agreements with Thom-son Reuters. Neither the ABA nor ABA Sections endorse non-ABA products or services. Check if you have access to Drafting Assistant by contacting your Thomson Reuters representative.

In March, the AMLC hosted “Know the Ropes: Understanding Distinctions Among Foreign Registries when Flagging Your Vessel” in Stamford, CT concurrent with the Connecticut Maritime Association Shipping 2016 Conference. This event was another new partnership with WISTA New England and the AMLC’s first women’s initiative event, moderated by Sarah Yantakosol Gayer, Esq. of Thompson & Bowie LLP, and featuring panelists Stephanie Penninger, Esq. of Benesch, Friedlander, Coplan & Aronoff LLP, Bonnie Huen, Esq. of Isaacs and Co. and Carrol Hand, Esq. of International Registries, Inc. The AMLC thanks Chris Nolan and Holland & Knight for generously hosting this event and providing the technology to record the program for access on our website and supporting teleconference access to those who could not attend in person.

Our new regional outreach initiative is off to an excellent start with regional liaisons reporting on recent industry and legal developments in their areas of the country for the benefit of our members during our monthly calls and on LinkedIn. The AMLC thanks our regional liaisons for their work and contributions: William Bendetson, Esq. of Boston, MA (1st Circuit), Laura Beck Knoll, Chaffe McCall L.L.P., New Orleans, LA (5th Circuit), Andy Mau of New Orleans, LA (5th Circuit), Alex Smith, TPG Marine Enterprises LLC, Indianapolis, IN (7th Circuit), Randy T. Moore, Snell & Wilmer L.L.P., Costa Mesa, CA (9th Circuit), Scott Richards, Buchanan Ingersoll & Rooney, PC, Tampa, FL (11th Circuit).

We have appointed Committee leadership for the 2016-2017 ABA year. The AMLC congratulates Raymond Waid (Chair), Sarah Gayer (Chair-elect), Robert Gardana (Chair-elect designee), Chris Hamilton and Peter Black (Co-Membership Vice-chairs), Stephanie Penninger (Diversity Vice-chair), Christine Walker (Technology Vice-chair) and additional Vice-chair positions to lead our various programs and initiatives.

We hope you will join us during our next monthly business meeting or in May during the TIPS Section Conference in Atlanta, Georgia and volunteer to work on an ongoing project or contribute to our Newsletter or another TIPS publication. Please share information about the AMLC with your colleagues and invite them to join us. We welcome the many valuable contributions of our new and longstanding members and hope that you will be involved with the AMLC. Our monthly conference call business meetings are set for the third Thursday of each month (unless otherwise noted) and agendas are sent via the Committee listserv prior to each meeting.

Jessica Link MartynPalmer Biezup & Henderson

http://legalsolutions.thomsonreuters.com/law-products/solutions/drafting-assistant/litigation

http://legalsolutions.thomsonreuters.com/law-products/solutions/drafting-assistant/litigation


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It is our pleasure to present the TIPS AMLC Spring Newsletter, featuring an 20 year anniversary review of maritime jurisprudence following Chandris, container weight issues causing headaches for shippers come this summer, how non-testifying expert reports may not be as safe as us maritime practitioner folk thought, and marine pollution lessors for cruise lines plying their trade in Italian waters. Our 18th Trade Talk piece features William Donoghue of RLI Marine 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 [email protected]; CHamilton@shutts. com; [email protected]; [email protected]

Thank you to the authors who have contributed to this newsletter, and to the section members for their ongoing efforts in supporting this publication. Chris Nolan, Managing Editor

Chris Hamilton, Ryan Tennant, Laura Beck Knoll, Associate Editors

LETTER FROM THE EDITORS

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Q. Bill, tell us whatprompted you to get into the maritime legal industry?

R . First and foremost, thepeople in the maritime industry are what have always interested me in this specialized area and what has led me to stay. In my experience, the people who work in the marine sector, whether domestically or internationally, have been amongst the most professional and hardworking individuals I have encountered. And I find that they are often some of the most under-appreciated. People in this industry operate in a harsh operating environment that is fraught with very diverse forms of risk. The concept of risk management has always fascinated me. I am drawn to the maritime industry because I can help people and companies manage their risk and deal with losses when they do occur.

Q. Can you describe yourexperience of working at RLI Ins. Co., Marine Group as a Claims Director?

R . Working for an insuranceunderwriter has been great and nothing like I thought it would be when I first made the leap from government and subsequently private practice. I think there are a lot of pre-conceived notions out there when it comes to maritime

law and marine insurance as being very technical and dry. Nothing could be further from the truth. Each day presents new challenges and problems that require solving; there really is “never a dull moment” in this line of work. I enjoy the collaboration amongst claims staff, underwriters, assureds, surveyors and engineers, attorneys, investigators and others who work together to get the best outcomes.

TRADETALKFor our eighteenth “Trade Talk” piece, we are pleased to spotlight

William (“Bill”) Donohue, Claims Director (Marine) at RLI Marine. RLI Marine is a specialty insurance company that helps customers navigate the world of insurance and risk. For half a century, RLI has been helping people and companies safeguard their assets through our innovative portfolio of property and casualty coverages and surety

products. Its marine coverage includes: (a) Cargo; (b) Hull and P&I; (c) Marine Liability; (d) Marina and Boat Dealership Liability; (e) Marine Artisans Liability; and (f) Inland Marine. Below are excerpts from our interview with Bill which address his views on the maritime industry, issues concerning the hiring of outside counsel, and dreams of

World Series Champion New York Mets for the first time in three decades.

https://www.rlicorp.com/marine-cargo

https://www.rlicorp.com/marine-liability

https://www.rlicorp.com/marine-liability

https://www.rlicorp.com/marine-marina

https://www.rlicorp.com/marine-artisans

https://www.rlicorp.com/inland-marine-insurance


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I am also frequently struck by the amount of contact I have with the people on the front lines of the marine industry itself. The companies we insure range from solo operations to large scale entities. Many are family run businesses that have been in existence for decades, even centuries. They take great deal of pride in their work. I am consistently humbled and grateful to have the opportunity to help them tackle real issues they and their businesses are faced with. Whether they are turning to us to resolve a complex loss or simply looking for someone to vent to, the experience is gratifying and a constant learning experience.

Q. What are your views on hiring outside counsel?

R . Outside counsel is an extremely valuable resource.I am a realist when it comes to hiring outside counsel, or any subject matter expert. I don’t expect counsel to know (or pretend to know) everything about everything. I’ve been in this field long enough to realize that the law evolves, circumstances change, and jurisdictions vary drastically. I prefer counsel who are responsive and honest up front in their capacity and capabilities, and who, at the end of the day, will provide informed advice. Even if it isn’t good news based on thoughtful research and analysis, it is better than someone who shoots from the hip.

Q. What legal issues are comingacross your desk with some frequency these days?

R . Handling hull, P&I, generalliability and cargo claims, the legal issues I encounter vary quite a bit in frequency and complexity. Contractual indemnity issues come into play often. Limitation of liability is a frequent flyer issue for many vessel owners. It’s really hard to say that some issues come up more frequently than others with marine claims work because every claim is different and carries its own unique issues.

Q. For our practitioners, whichmaritime event(s) do you get the most out of?

R . I think marine work, whetherlegal or non-legal, is still very much a

relationship driven business. Therefore, I think any event that brings us together confers some form of benefit. In terms of gaining substantive insight into issues that affect marine claims strategy and management, I would have to say that the events that bring together smaller groups of attorneys, marine surveyors, adjustors and investigators, salvors, regulators and industry personnel provide the most benefit.

Q. In addition to the AMLC newsletter, ofcourse, which maritime publication do you find most useful?

R . I’ve always been a big fan of the Coast Guard’sjournal “Proceedings,” the Journal of Maritime Law and Commerce, as well as Tradewinds for the latest industry news. I also like reading Dennis Bryant’s daily


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Opportunities To Become Involvedn Publication in the AMLC Newsletter or TIPS Law Journal

n Networking Opportunities

n CLE and Webinar Opportunities

n Leadership Positions

n Mentoring Relationships

n Young Lawyers and Law Student Writing Competition

Additional InformationFor more information regarding the benefits that membership in the AMLC can provide to you, check out

our webpage at http://ambar.org/tipsadmiralty and join our group on LinkedIn. The Committee is open to all, including non-lawyer maritime professionals, law students and lawyers in every practice area who

want to keep abreast of developments in the field.

Benefits of AMLC Membership

maritime newsletter/blog which is a nice synopsis of legislative/regulatory developments as well as a good source for news on casualties.

Q. Thank you for taking time to speak with ustoday. As a final question, being located in the greater New York City area, who will win more games in 2016, the New York Yankees or New York Mets?

R . I hope the answer to this one will be obvious to allyour readers. However, to the extent that the question calls for a response: the New York Metropolitans will undoubtedly win more games than the other New York baseball team, which shall remain nameless.

JOIN OUR LINKEDIN COMMITTEE PAGEhttp://www.linkedin.com/groups?viewMembers=&gid=3058724&sik=1317664044449


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The 2016 TIPS Section Conference The TIPS Section Conference is the premier CLE conference for a wide-range of attorneys, including both plaintiffs and defense counsel, insurance industry employees, and in-house corporate counsel. With over 25 CLE hours, nationally known speakers, and a variety of unique networking events, this conference provides exceptional CLE and valuable opportunities. TIPS is excited to host the second annual Section Conference at the InterContinental Buckhead in Atlanta, GA, May 11-15, 2016.

Program Highlights Include:

U.S. Supreme Court Update Legal and Ethical Considerations for In-house Counsel Trial Tips: Effectively Examining Expert Witnesses Resolving Insurance Disputes Quickly Establishing a Successful Referral Relationship Handling and Litigating Claims of Bad Faith Cyber-Liability: Planning for the Risk Communicating with Millennial Jurors

A number of exciting social events will provide opportunities for attendees to meet with colleagues and expand their network: A young professionals event at SweetWater Brewery, the TIPS Leadership Luncheon, and multiple nightly networking receptions. The social highlight will be Friday’s dinner at the Coca-Cola Museum.

Register Here Now! CLE Credit: This program is expected to qualify for 13.5 CLE credit hours (including 6.0 ethics/professionalism hours) in 60-minute states, and 16.20 credit hours (including 7.20 ethics hours) in 50-minute states. CE Credit: ABA-TIPS haspartnered with CEU Institute to provide CE Credit for licensed adjusters in all states with a CE requirement. Credit hoursawarded are based on state review and approval.

Register Here Now!

http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=239610745


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The International Maritime Organization (“IMO”) adopted new amendments to the Safety of Life at Sea (“SOLAS”) convention that will apply to international shipments and go into effect on July 1, 2016. This amendment will mandate a “verified gross mass” for all shipping containers to which the IMO’s convention for safe containers applies prior to loading aboard a containership. The purpose of this adoption is to further the IMO’s safety mandate because, in the past, intentional and accidental misdeclarations of container weights have been the source of various marine casualties.

Who is responsible?

Under the new SOLAS requirements, the party named as shipper on the ocean bill of lading is responsible for providing the maritime ocean carrier and the terminal operator with the verified gross mass of a packed container. The carrier and the terminal operator cannot load a packed container aboard a ship until the verified gross mass for that container has been received. If a container is empty, the regulations will not require weight verification. Carriers and terminal operators are not required to double check the verified gross mass that has been provided to them.

What methods may be used to obtain the verified gross mass of a packed container?

There are two methods by which a shipper may obtain the verified gross mass of a packed container. The first option allows for a shipper to weigh, or arranged for a third party to weigh, the entire packed container. The second option, which may be impractical for certain types of cargo, and flexitanks, allows a shipper, or a third party, by arrangement of the shipper, to weigh all packages and cargo items individually, including the mass of pallets, dunnage and other packing and securing

material, and add the tare mass of the container to the sum of the single masses of the container’s contents. A shipper may not estimate the weight of a container’s contents. Additionally, the party packing the container cannot use the weight someone else provided unless it meets a specific set of defined circumstances where the cargo has been previously weighed and that weight is clearly and permanently marked on the surface of the goods. In both methods, the equipment or any other device used to verify the gross mass must meet the applicable accuracy standards and requirements of the country in which the equipment is being used. IMO has not provided specific requirements at this time. However, the U.S. Coast Guard is expected to publish further guidance soon on obtaining verified gross mass.

What documentation is required and how must it be communicated?

SOLAS regulations require the shipper to communicate shipping containers’ verified gross masses, as determined by one of the two specified methods, in a shipping document. The document, which should clearly specify the “verified gross mass,” can be part of the shipping instructions or in a separate communication, such as a declaration, including a weight certificate. The verified weight may be expressed in kilograms or pounds, depending upon the measure commonly used in the originating jurisdiction. Irrespective of its form, the document must be signed by a person duly authorized by the shipper. SOLAS does not mandate the form of communication between parties when exchanging the verified gross mass information; therefore, the information and signature may be transmitted electronically.

DON’T LET YOUR WEIGHT GET YOU DOWN: HOW TO BE READY FOR IMO’S NEW OCEAN CONTAINER WEIGHT RULE BY JULY 1ST1

By: Stephanie S. Penninger and Brittany L. Shaw2


1 Editor’s Note: This article was first published in February 2016 by the law firm, Benesch, Friedlander, Coplan & Aronoff LLP in Currents: Keeping in Tow with Maritime Legal Updates, and reproduced herein with the permission from the firm.

2 Stephanie S. Penninger and Brittany Shaw are Associate Attorneys at Benesch, Friedlander, Coplan & Aronoff LLP (Indianapolis, Indiana), and may be contacted at [email protected] and [email protected], respectively.


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A recent ruling by the United States District Court for the Southern District of Florida has raised eyebrows and fueled some

interesting debate with respect to the work product doctrine and non-testifying experts. In B.M.I. Interior Yacht Refinishing Inc., et al. v. M/Y Claire,2 Magistrate Judge Simonton found that “exceptional circumstances” existed to warrant disclosure of a portion of a report prepared by the defendant’s non-testifying expert.

The plaintiff, Nautical Specialists, Inc. (“Nautical”) brought a motion to compel the defendant M/Y Claire to provide the expert report of Guy Clifford (“Clifford Report”), a surveyor from Patton Marine, who was asked by the owner of M/Y Claire to inspect the work done by Nautical on the vessel’s air conditioning system. Nautical sought the production of the report on two grounds: 1) M/Y Claire waived its right to not disclose the report under the work product doctrine, and 2) Clifford’s conclusions formed the basis of a subsequent report by a second expert (Marshall Report).3 At the hearing, Nautical argued that the Clifford Report was not protected by the work product doctrine because it was created prior to the contemplation of litigation.

The District Court first noted that “the privacy of an attorney’s course of preparation is . . . essential to an orderly working of our system of legal procedure”.4 A non-controversial bedrock of American jurisprudence if there ever was one. Materials prepared by an attorney for trial are “work product” and therefore prohibited from disclosure absent a showing of necessity.5 For the legal system to function properly, attorneys must be able to prepare cases without apprehension or fear that their work product will be used against their client by opposing counsel.

The work product doctrine has been codified in Federal Rule of Civil Procedure 26 and requires the party asserting the protection to demonstrate that the documents were prepared in anticipation of litigation. The courts apply two different tests to determine whether a document is prepared in “anticipation of litigation”, the “primary purpose” test and the “because of” test. After applying both the “primary purpose” test and the “because of” test, the District Court concluded that the record supported a finding that the Clifford Report was prepared in anticipation of litigation. The primary purpose behind the creation of the document was to aid in possible litigation and the document was obtained because of the prospect of litigation. The fact that the Complaint alleged that the owner of the M/Y Claire had sent letters to several marine contractors to dispute their bills and filed six lawsuits against six contractors to contest their invoices, was persuasive evidence for the Court to make a finding that litigation was contemplated well before the Clifford Report was prepared. Thus, the expert report was protected from disclosure under the work product doctrine.

The Court then turned to the issue of whether the defendant had waived any work product protection. Under Rule 26, partial disclosure of an expert’s findings only waives the protections afforded as to those items actually disclosed.6 Although the captain of the M/Y Claire read the report to the owner of Nautical over the telephone, the Court concluded that this alone did not constitute a waiver. As the privilege belongs to the attorney and the client, only the client can waive the protection.

Despite finding a lack of waiver on the part of counsel and/or the defendant, and insufficient evidence that Marshall relied on the Clifford Report in arriving

WHEN IS A MARITIME NON-TESTIFYING EXPERT’S WORK NOT SAFE FROM PRYING EYES OF OPPOSING COUNSEL? By: Danielle T. Gauer1

1 Danielle T. Gauer graduates this May, Magna Cum Laude, with a JD/LL.M in Maritime Law from the University of Miami School of Law. She holds a JD from the University of Ottawa, and is a licensed Canadian attorney authorized to practice law in Ontario. 2 B.M.I. Interior Yacht Refinishing Inc., et al. v. M/Y Claire, No. 13-62276-CIV, 2015 WL 4316929 (S.D. Fla. July 15, 2015). 3 Nautical further alleged that because the Marshall report only reflected temperature readings related to the air conditioner for the months of November and December, it needed the Clifford report to be disclosed as it captured temperature readings for August. 4 Hickman v. Taylor, 329 U.S. 495, 512 (1947).5 This includes work product as reflected in “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways”. M/Y Claire at 2.6 Hollinger Intern. Inc., v. Hollinger Inc., 230 F.R.D. 508, 521-22 (N.D. III. 2005).


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The ABA TIPS AMLC sponsored a regional event on March 15, 2016 in Florida entitled

“Navigating a Career in Maritime Law.” The speakers discussed

their respective career paths into the field of maritime law.

Students from the University of Miami School of Law and St.

Thomas School of Law, Maritime Law Societies were in attendance

and very much appreciated the presentation. The speakers included the Honorable Scott J

Silverman, Arbitrator with JAMS (Retired Judge 11th Judicial

Circuit) (Admiralty & Maritime Claims), Valentina Tejera, Esq. -

In-House Counsel Carnival Cruise Lines, Michael Conroy with

McAlpin & Conroy - Maritime Law Firm, and AMLC Vice Chair Robert Gardana as Attorney Solo Law Firm, which was moderated

by: Frank Sioli, Esq.


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COMPLIANCE AND ENFORCEMENT IN ITALY CONSISTENT WITH INTERNATIONAL PROVISIONS TO PREVENT MARINE POLLUTION: HINTS TO CRUISE LINES OPERATORS & OWNERS By: Giuseppe Lorenzo Rosa, Esq.1

1. The Regulatory Framework.

Italy – which timely acknowledged UNCLOS, Montego Bay 1982, MARPOL 73/78, SOLAS 1974, OPPRC 1990, CLC 1969/1992 and IOPC 1971/1992 – centers its focus on the subject matter of defense of the sea and prevention of pollution through several statutes, namely Law 979/82, Law 339/86 and Law 220/92.

European Commission Directive 2005/35 – the focus of which was also on the criminal sanctions front – has expressly determined that sanctionable entities are the following: owner of the ship, master, owner of the load, the classification entity, and any other entity which is related to marine trade. Under Section 4 of the Directive each Member State shall enact laws to the extent that polluting discharges be considered as criminal violations, whenever they are made willingly, at risk or based upon gross negligence. The European Council ‘s Decision 667/2005/GAI has further bound EU Member States to implement a common network of criminal sanctions to be enforced where the sea my be impaired by way of pollution.

Under existing Italian provisions in the subject matter, it is necessary to establish whether discharge, or potential discharge, has occurred within territorial waters. Should territorial waters be the case, criminal charges would be brought vs. the Master of the ship, irrespective of the flag of the vessel. Pursuant to the following provisions of Law 979/82 only the Master of a non - Italian flag vessel can be held liable.

Section 16 of Law 979 / 82 provides as follows:

Nell’ambito delle acque territoriali e delle acque marittime interne, compresi i porti, e’ fatto divieto a tutte le navi, senza alcuna discriminazione di nazionalita’, di versare in mare, o di

causarne lo sversamento, idrocarburi o miscele di idrocarburi, nonche’ le altre sostanze nocive all’ambiente marino indicate nell’elenco “A” allegato alla presente legge. Del pari e’ fatto divieto alle navi battenti bandiera italiana di scaricare le sostanze di cui al precedente comma anche al di fuori delle acque territoriali.

Within territorial waters as well as inland marine waters, including ports, it is forbidden for all vessels, irrespective of any discrimination based upon nationality, to discharge in the sea, or to cause the discharge, hydrocarbons or mixed hydrocarbons, as well as any other substances which are detrimental to the marine environment, as they are set out under Exhibit A attached to this Statute. Italian flag vessels are forbidden from discharging the substances mentioned under the preceding paragraph also beyond territorial waters...

Section 20 of Law/82 provides as follows:

Il comandante di una nave battente bandiera italiana che violi le disposizioni dell’articolo 16 o la normativa internazionale di cui all’articolo 17, nonche’ il proprietario o l’armatore della nave, nel caso in cui la violazione sia avvenuta con il loro concorso, sono puniti con l’arresto da due mesi a due anni o con l’ammenda da lire 500.000 a lire 10 milioni; se il fatto e’ avvenuto per colpa le suddette pene sono ridotte alla meta’.

1 M.A Business Law, Italy, www.glrosalaw.com, [email protected], Cell.+ 39 335 234529Fax + 39 045 8031040, Ph + 39 045 8030630, 4 Piazza Fracastoro, 37010 Cavaion Veronese, Verona, ITALY.

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Alla stessa pena e’ soggetto il comandante di una nave battente bandiera straniera che violi le disposizioni di cui all’articolo 16. Per i reati previsti al primo e secondo comma del presente articolo e’ consentita, in caso di recidiva specifica, l’emissione del mandato di cattura. Per il comandante di nazionalita’ italiana della nave la condanna per il reato di cui al precedente primo comma comporta la sospensione del titolo professionale, la cui durata sara’ determinata ai sensi dell’articolo 1083 del codice della navigazione. Ai comandanti di navi di nazionalita’ non italiana che abbiano subito condanne in relazione al reato di cui sopra sara’ inibito l’attracco a porti italiani per un periodo variabile, da determinarsi con decreto del Ministro della marina mercantile, commisurato alla gravita’ del reato commesso ed alla condanna comminata.

The Master of an Italian flag vessel who violates the provisions of Section 16 or the International provisions mentioned under Section 17, as well as the Owner or the Operator of the vessel, in the event that violation occurred with their contribution, shall be punished by arrest from two months up to two years, or with a fine from Italian Lira 500,000.00 up to Italian Lira 10,000,000.00 (Euro Equivalent: 258/5,165). Should occurrence happened by way of negligence, the mentioned sanctions shall be half. The Master of the non Italian vessel shall be subject to the same sanctions in the event of violations of Section 16. In the event of recurring specific violations of the provisions named above, a writ of arrest shall be issued.

Should a Master of an Italian flag be condemned for violations mentioned above, professional license shall be suspended, for a time period to be determined pursuant to Section 1083 of the Italian Code of Navigation. Masters

of non Italian flags who have been condemned for violations of the crime mentioned above shall be prevented from docking at Italian ports for a flexible period of time, to be ruled by means of a Decree to be issued by the Minister of Merchant Marine, taking into account the seriousness of the crime and the sanction applied.

Section19 of Law 979/82 mandates several provisions to be applied to record any facts which fall within the provisions of Section 16 thereof, inasmuch as an Italian flag vessel is concerned, including Oil Content Meters OCMs/Hydrocarbons logbook.

OCMs notation books and recording for non Italian flag vessels shall be consistent with International Conventions, and the legislation of the flag of the vessel.

Sections 218/220 of UNCLOS attributes the State Port Authority SPA several powers in connection with situations where discharge may have occurred outside territorial waters or the exclusive economic zone, or a vessel is in violation of international rules and standards relating to unseaworthiness of vessels and thereby threatens damage to the marine environment.

Legislative Decree March 24, 2001 n.53 introduced several provisions to comply with European Commission Directive 2009/16, for the purpose of implementing effective procedures to monitor vessels of non Italian flag which call at Italian ports, and in compliance with international and EU provisions relating to safe navigation, marine transport, seamen, vessels, port facilities, marine and coastal environment and marine biological resources.

2. Enforcement.

Marine Environment Department of Port Authorities (the Italian acronym being RAM is actually the specific enforcement and liaison unit established under Law 179/ 2002 to assure effective co-operation between the Italian Ministry of the Environment and the Headquarters of the Italian Coast Guard with respect to all areas where the latter is authorized to take care of marine and coastal environments.

RAM, inter alia, has the task of monitoring all data pertaining to compliance with MARPOL 73/78 and other IMO Conventions for the protection of the environment and retrieval of data relating to the principal activities of environmental monitoring.




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RAM is particularly sensitive and active in connection with the enforcement of provisions aimed to exerting an actual control over management of all potential sea pollutants attributable to vessels pursuant to Annexes I, II, IV and V of MARPOL, including oil , bilge liquids.

RAM is the direct liaison between Italian Port Authorities and overseas analogous entities, like the U.S Coast Guard.

The Italian Coast Guard is increasingly sensitive to any issue which may adversely affect Italian waters.

Italy – being a peninsula extended into and across the Mediterranean Sea – boasts 9,000 kms of coastline as well as an effective system of defense and protection of sea waters.

3. OCMs: purpose, mishandling, consequences.

OCMs’ purpose is to allow owners, operators, SPA, to properly monitor flow and possible discharges of bilge liquids into the sea.

Supposing that owner or operator of a vessel, at the time of her delivery by prior owner or operator, wishes to determine whether any improprieties may have occurred with respect to conducts detrimental to prevention of sea pollution, inspection companies are retained to carry on a thorough check.

Should such inspection determine potential tampering with OCMs applied to Oil Water Separators OWS – irrespective of any material evidence that even a magic pipe (i.e a detachable pipe) may have been applied to the OCMs and the OWS – in my opinion it is enough to establish that one or more OCM/s may have either by-passed by a magic pipe, or switched off, for the purpose of avoiding adequate monitoring of the works of the OWS.

4. Owner’s/Operator’s Policies and Procedures to Address Improper Use of OCMs and OWS.

Particularly at the time of delivery of a vessel to a new Owner/Operator, precautions should be implemented, as a matter of standard policies and procedures, in order to assess any possible or straight violation incurred by the previous Owner/Operator, the process being referred to a due diligence following closing of the legal deals whereby the relevant vessel changes cruise line.

Liabilities may in effect arise with respect to past violations of any of the provisions under § 1 herein, or, more likely, potential increased monitoring and

enforcement by SPA may actually occur following any such prior improper use of the vessel, which , according to SPA may adversely affect compliance with those provisions in the future.

Where no evidence exists that (i) either a discharge in Italian territorial waters or (ii) any official, formal notation of tampering with one or more OCMs, but only an indication of a possible tampering reported internally by Owner’s / Operator’s or independent surveying staff or (iii) a discharge in non Italian waters which may have been reported to Italian authorities, the following considerations should be noted by Owners/Operators of the newly acquired and delivered cruise vessel:

(a) no criminal, civil or administrative violations, and ensuing sanctions may be considered for the period up to change of management;

(b) considering the framework of Italian/EU regulatory provisions, as well as monitoring practices under International Conventions, vessels which are beyond a ten-year old original registration, particularly if cruise substantial ships, of a foreign flag state, and appear to have operated and to be operated primarily in the Mediterranean basin, are more likely than others to be the subject matter of monitoring by SPA and enforcement agents, namely the Italian Coast Guard.

5. Typical log-book of a case before Italian SPA affecting a foreign flag cruise vessel.

Having highlighted in the preceding paragraphs the context of a potentially contingent situation affecting compliance of a cruise vessel - being operated by a new Owner and Operator across the Mediterranean and in Italian waters – with the several provisions aimed to prevent sea pollution, it is now interesting to consider what may actually happen in practice.

Following is a sequence of events which actually occurred in 2015. To protect the client and its interests some of the information has been generalized. However, the actions taken with Italian authorities and results garndered in Italian courts are exact. The target was a substantial cruise vessel, over 10 years old, which was delivered to new Owner’s/Operator’s actual management in April 2015. The vessel’s flag was Caribbean-based.



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• April 2015: Port of Genoa, Italy: independent inspection team detected possible tampering with OCMs applied to OWS, at the time of delivery of the vessel;

• June 2015: Port of Dubrovnik, Croatia: SPA noted minor violations made in the logbooks of the vessel;

• June 2015: Port of Venice, Italy: SPA’s agents, namely the Italian Coast Guard, after thorough checks on board the vessel, issued two separate orders whereby Euro 3,000.oo approx are to paid as fine for violations made in the keeping of records on board the vessel and Euro 30,000 are to be paid as fine for violations relating to the sulphur percentage content in the Marine Gas Oil MGO used for maneuvers in port areas. “..Based upon Test Report ASI (omissis) dated June (omissis) 2015, issued by the laboratory of the Customs Agency on Sample taken directly from the bunker called (omissis) MGO used in mooring, it appeared that the sulfur content was equal to 0.26% by mass.” “..This constitutes a violation of hyphen 6 of Art. 295 of Legislative Decree no.152/2006 in the version currently in force (implementation of the Directive 2005/33/EC). The above is punished under hyphen 5 of Art. 296 Legislative Decree 152/2006 in the version currently in force (implementation of Directive 2005/33/EC)”.

• June 2015: Owner and Operator of the vessel, after paying the Euro 3,000 approx fine, approached Italian counsel to be advised and assisted in challenging the Euro 30,000 fine.

• July 2015: Italian counsel met informally with the Italian Coast Guard officers who, being part of SPA in Venice, were in charge of the case.

• July 2015: Based upon due diligence run with the active co-operation of the vessel’s Owner and Operator General Counsel, Italian counsel filed Defense brief with the Venice SPA demanding that no fine be applied, or, subordinately, that the minimum statutory fine ( equivalent to Euro 15,000 ) be applied.

• Aug. 2015: A supplementary Defense brief was filed by Italian counsel, based upon a sequence of reports made available by independent Swiss laboratory, whereby samples of MGO on board

the vessel taken at three different ports of call in her route after Venice had been analyzed, to prove that Owner and Operator had timely taken all possible action to remedy the contingent situation, the outcome being that the MGO sulphur content got well below the statutory 0.1 percentage.

• Sept. 2015: Italian counsel attended formal hearing at the SPA offices in Venice, presenting orally his defense on behalf of Owner and Operator of the vessel.

• Oct. 2015: SPA in Venice issued its decision, whereby, after taking expressly into account the factual circumstances – namely extremely short period of management of the vessel by new Operator and Owner prior to the June 2015 fine, as well as the immediate action taken to remedy the situation on board the vessel to avoid further mixing of MGO with HFO ( the fuel used for navigation), and the fact that the Venice Customs Agency Lab’s test had been properly copied to the vessel Operator Agent in Venice – ordered that the Euro 15,000 minimum statutory fine be paid.

• Nov. 2015: The fine was settled by Operator of the vessel, and the case closed.

6. Conclusions.

Based upon the overall context of statutory provisions, the features of cruise line vessel operations in the Mediterranean, and Italian waters in particular, and the sequence of events in an actual case which I had the responsibility and privilege to handle in 2015, following are my personal friendly hints:

• Carry on effective and thorough due diligence prior and after closing a deal whereby a vessel is turned into new Owner or Operator, allowing for covenants to claim damages out of improper handling of safety, compliance etc. by previous Owner/Operator;

• Take immediate action upon reports issued by independent inspection agents who have detected possible tampering with OCMs applied to OWS, namely have a thorough review of bunker tanks where MGO and HFO are stored;

• Make sure, by means of taking samples, that no contamination exists between MGO and HFO,


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and take immediate consistent action to apply new, focused change-over procedures or proceed to washing bunker tanks completely;

• Make sure that proper and effective communi-cations are in place between Owner / Operator Head Offices and local agents at ports of call of a fleet or vessel, so that any and all matters relating to the operations of a fleet or a vessel are timely and fully advised to Head Offices;

• In the event that a fine is issued by SPA, make sure that the local agent at the ports of call of a fleet or a vessel timely and fully report to Head Offices any correspondence however related to the subject matter, including laboratory test reports of MGO or other fuels advised by SPA or its agents;

• Through Head Offices lines of communications, make sure that policies and procedures are

applied and enforced on all vessels and at any port of call of a fleet or a vessel;

• Local counsel should be always hired in order to advise about which course of action may be taken to remedy contingent situations (e.g fines), or, possibly, to avoid them tout court by means of a constructive and effective compliance assistance to Head Offices on a continuous, long term basis;

• Cruise lines Head Offices should perceive the crucial importance that their fleet or vessels be not considered actual or possible offenders by SPA, particularly in areas of operation, like the Mediterranean and Italian waters, where defense of the sea and prevention of pollution are strategic to a specific country, or to an area, like the European Union.


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the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment.3

In 1903, the Supreme Court referred to Justice Story’s opinion in the first Supreme Court case that adopted the doctrine of maintenance and cure.4 Then, in Aguilar v Standard Oil of New Jersey, the Supreme Court again echoed Justice Story’s historic quote in upholding that seaman are entitled to maintenance and cure. The Court said:

From the earliest times maritime nations have recognized that unique hazards, emphasized by unusual tenure and control, attend the work of seamen. The physical risks created by natural elements and the limitations of human adaptability to work at sea enlarge the narrower and more strictly occupational hazards of sailing and operating vessels. And the restrictions which accompany living aboard ship for long periods at a time combine with the constant shuttling between unfamiliar ports to deprive the seaman of the comforts and opportunities for leisure, essential for living and working that accompany most land occupations. Furthermore, the seaman’s unusual subjection to authority adds the weight of what would be involuntary servitude for others to these extraordinary hazards and limitations of ship life.5

Congress enacted the Jones Act in 1920, providing a remedy for “[a]ny seaman” injured in the “course

of his employment.”6 The determination of “seaman status” has judicially evolved through the United States Supreme Court opinions. “An employee’s duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission.”7

On June 14, 1995, the Supreme Court first articulated the Chandris test for “seaman status.” A seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial both in terms of its duration and nature.8 The Supreme Court also adopted the general rule developed by the Fifth Circuit Court of Appeals, which required that a worker spend thirty percent or more of his time “in the service of a vessel in navigation” to qualify as a Jones Act seaman.9

Two years later, in Harbor Tug and Barge Co. v. Papai, the Court held that “[t]he “substantial connection to a vessel or a fleet of vessels, requires a requisite degree of common ownership or control.”10 Also, in Wilander, the Court observed that “[w]ith the passage of the Longshore Harbor Workers Compensation Act (“LHWCA”), Congress established a clear distinction between land-based and sea-based maritime workers.11 The latter, who owe their allegiance to a vessel and not solely to a land-based employer, are seamen.”12

While the Chandris court qualified its adoption of the thirty percent temporal element, it explained “seaman status is not merely a temporal concept.”13 This qualification is in line with the Fifth Circuit’s application of the thirty percent general rule.14

A seaman’s status is not grounded on the employee’s job title; rather the question “‘concerns his actual duties.’”15 In Harbor Tug, the Court found that the respondent, Papai, was not engaged in a “seagoing activity” – he was painting the housing structure of the tug PT Barrow, which was docked, and “Papai was not going to sail with the vessel after he finished painting.”16

3 Harden v. Gordon, 11 F.Cas. 480 (No. 6,047) (C.C.D.Me. 1823). 4 The Osceola, 189 U.S. 158, 172 (1903) (“The earliest case upon the subject is that of Harden v. Gordon . . . .”). 5 Aguilar v Standard Oil of New Jersey, 318 U.S. 724, 727 (1943).6 46 U.S.C. App. § 688 (retitled as 46 U.S.C. § 30104).7 McDermott International, Inc. v. Wilander, 498 U.S. 337, 355 (1991). 8 Chandris, Inc. v. Latsis, 515 U.S. 347, 376-77 (1995). 9 Id. at 371; see also Easley v. Southern Shipbuilding Corp., 965 F. 2d 1 (5th Cir. 1992). 10 Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 560 (1997). 11 Wilander, 498 U.S. at 347-48. 12 Id. at 348-49.13 Chandris, Inc., 515 U.S. at 371-72.14 See Easley, 965 F. 2d at 5 (“We do not imply that the quantum or percentage of a worker’s time spent on a vessel in navigation is either the sole factor or the determinative factor in the search for seaman status.”). 15 Harbor Tug, 520 U.S. at 558. 16 Id. at 551.

Chandris, Inc. v. Latsis...Continued from page 1

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Citing Chandris, the Harbor Tug Court explained that a “transitory or sporadic” connection to a vessel or group of vessels “does not qualify one for seaman status.”17 Coupled with the fact that Papai’s painting work was not of a seagoing nature, the Harbor Tug Court held that the limited deckhand work he did for the company 2 ¼ years before his injury was precisely of the transitory or sporadic nature that Chandris described.18 Accordingly, his sporadic deckhand work was not enough to grant “seaman status.”19 Of note, the Court considered the “seaman status inquiry” to be “a mixed question of law and fact” where it is often inappropriate “to take the question from the jury.”20

In Little v. Amoco Production Co., the court also considered the thirty percent rule as a guideline.21 In defining seaman status, the court stated that the importance of keeping the “‘thirty percent guide’ in proper context” and observed that the guideline “does not create a bright-line rule.”22

Some plaintiffs may satisfy the thirty percent rule but will still not be classified as seamen. In Turner v. Wayne B. Smith, Inc., the plaintiff, Lloyd E. Turner, Jr. was a welder employed for defendant, Wayne B. Smith, Inc.23 Turner spent 90 percent of his time welding, 24 specifically, aboard the defendant’s docked tow-boats.25 The court found that this far exceeds the 30 percent rule as “work performed aboard docked vessels in the service of those vessels contributes to the duration requirement.”26

Nevertheless, the court found that Turner was not a seaman.27 The court articulated that Chandris was intended to identify employees whose work exposes them to the special hazards and disadvantages of the

sea.28 Moreover, the court cited several cases for the contention that employees who work primarily aboard docked vessels are not seamen because they are not exposed to the perils of the sea.29 Likewise, Turner was not assigned to any vessel, was not a crew member of any vessel, was not exposed to the perils of the sea, and was not regularly performing sea-based activities.30 Thus, Turner was not a seaman.31

Turning now to more recent cases, in Naquin v. Elevating Boats, L.L.C., a divided panel of the Fifth Circuit upheld a jury’s determination that a vessel repair supervisor at a Louisiana shipyard qualified as a Jones Act seaman, to the exclusion of the Longshore Harbor Workers Compensation Act (“LHWCA”).32 Naquin supervised maintenance and repair of Elevating Boats’ fleet of 26-30 lift boats, and in this capacity spent 70 percent of his time working aboard the vessels, and the remaining 30 percent of his time in the fabrication shop or on Elevating Boats’ land-based crane.33 His work on the vessels included painting, inspections, cleaning, replacing parts, performing engine repairs, and operating the lift boats’ cranes and jack-up legs.34 Naquin would occasionally go on “test runs” and two to three times a week would work on the vessels while they were being repositioned in the canal on which the Elevating Boats’ repair yard fronted.35 Naquin was injured while operating the land-based crane.36

For courts making a determination of whether a worker is a seaman, the Supreme Court has established a two-prong test:

“First, ‘an employee’s duties must contribute to the function of the vessel or to the accomplishment of its

17 Id. at 555. 18 Id. at 560. 19 Id.20 Id. at 554 (emphasis added). 21 Little v. Amoco Production Co., 734 So. 2d 933, 936-37 (La. App. 1 Cir. 1999).22 Id.23 Turner v. Wayne B. Smith, Inc., No. 2:13–cv–100–SPM, 2014 WL 6775796 (E.D. Mo. Dec. 2014).24 Id.25 Id.26 Id.27 Id.28 Id.29 Id.30 Id.31 Id.32 Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014).33 Id. at 933-34.34 Id. at 933.35 Id. at 930-31. 36 Id. at 930.


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mission.’ Second, `a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and nature.’” Importantly, an individual can still qualify for seaman status even if he divides his time among multiple vessels under common ownership or control.37

The relevant question for the Fifth Circuit was whether, in the course of his current job, Naquin substantially contributed to the vessels’ functions and maintained a substantial connection with the fleet.38

The Court rejected Elevating Boats’ argument that the plaintiff did not regularly “face the perils of the sea” because the plaintiff virtually never slept on the vessels and virtually never traveled with the vessels beyond the canal.39 The Court found that the plaintiff satisfied the second prong – substantial relationship, in duration and nature, to a vessel in navigation – based on the 30 percent “rule of thumb,” in so much as Naquin spent 70 percent of his time aboard the Elevating’s vessels.40

Judge Jones dissented - specifically noting the potentially overbroad results that may occur - under the majority opinion - based upon allowing an essentially land-based repair worker to qualify as a seaman under the Jones Act, which runs afoul of Chandris’ “basic point” that land-based workers are not seaman.41

Next, in Clark v. American Marine & Salvage, LLC, 494 F. App’x 32 (11th Cir. 2012) the Eleventh Circuit evaluated whether an employee who performs a variety of tasks, including marine repairs, with most of his work on land, but other work on water, qualifies as a seaman under the Jones Act and general maritime law.42 The district court ruled that William Clark was not a seaman and entered summary judgment in favor

of American Marine and against Clark’s complaint of unseaworthiness and maintenance and cure under maritime law, and negligence under the Jones Act.43

Based on this record, the Eleventh Circuit affirmed and observed that: “A two-part test governs whether a marine employee is a seaman: the employee’s duties must “contribute to the function of the vessel,” and the employee must “have a connection to a vessel in navigation . . . that is substantial in terms of both its duration and its nature.”44

As a general rule, an employee “who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman.”45 “[T]he inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee’s duties take him to sea.”46 A seaman need not “aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship’s work.”47 If the employee has “only a transitory or sporadic connection to a vessel in navigation, and . . . [his] employment does not regularly expose [him] to the perils of the sea,” the employee is a “land-based worker . . . [who is not] entitled to . . . protection” under the Jones Act or maritime law.48 Clark worked only sporadically from a vessel in navigation.49 He worked primarily from land and traveled by land to marinas and other sites from which sometimes he entered the water to perform marine repairs.50

Clark worked only 70 of his 768.5 hours — less than ten percent of his work hours — in the service of a vessel in navigation owned by American Marine.51 Although the record establishes that the 159 hours during which Clark made repairs and improvements to the work barge contributed to its functionality, Clark performed most of the repair work on land or, at least, while tethered to a land base, and that work was not of a seafaring nature.52

37 Id. at 932-33.38 Id. at 933. 39 Id. at 934.40 Id. at 935.41 See id. at 942. 42 Clark v. American Marine & Salvage, LLC, 494 F. App’x 32, 34-35 (11th Cir. 2012) (per curiam).43 Id.44 Id. (citing Chandris, 515 U.S. at 368).45 Chandris, 515 U.S. at 371.46 Harbor Tug, 520 U.S. at 555.47 Wilander, 498 U.S. at 347.48 Chandris, 515 U.S. at 368.49 Clark v. American Marine & Salvage, LLC, 494 F. App’x 32, 34-35 (11th Cir. 2012) (per curiam).50 Id.51 Id.52 Id.

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Clark, in contrast, had only a transitory and sporadic connection to a vessel owned by American Marine when he performed the work of a commercial diver.53

The Eleventh Circuit observed that the district court correctly concluded that Clark did not qualify as a seaman.54 Clark failed to introduce any evidence that his work was substantially connected to a vessel in navigation.55 American Marine was entitled to a summary judgment against Clark’s complaint, having found that although the work barge was a vessel in navigation and Clark’s repairs contributed to its functionality, Clark’s “159 hours of dockside repair work . . . [did not] [bear] a substantial connection to a vessel in navigation.”(Emphasis added)56 The district court concluded that Clark did not qualify as a seaman because he “spent only 9.1 [percent] of his time performing Jones Act work.”57 The district court also rejected Clark’s argument that he qualified as a seaman as a matter of law because his work as a commercial diver was inherently maritime.58

In Holt v. F/V Sir Martin E., Inc. (N.D. Fla., 2014), Plaintiff was a new deckhand and had worked in the commercial fishing industry for a short period of time - approximately 3 months.59 There is evidence in the record that during those 3 months he spent more than 30% of his time in service of a vessel.”60 The Court observed that threshold requirement is broad. All who work at sea in the service of a ship are deemed to contribute to a vessel’s mission.61 The Court found that Plaintiff met the threshold requirement.62

In Alexander v. Express Energy Services, 784 F.3d 1032 (5th Cir. 2015), the Fifth Circuit reiterated that to acquire seaman status requires that claimant (1) contributed to a vessel or accomplishment of its mission, and (2) that the employee was assigned permanently

to the vessel or spent substantial part of his total work time - at least 30% - aboard the vessel or identifiable fleet of vessels.”63 Alexander job consisted of plugging decommissioned oil wells off the coast of Louisiana and he was injured on the platform itself.64 The district court granted Express’ motion for summary judgment concluding that Alexander’s duties in this case were similar to those of the plaintiff in Hufnagel, 182 F.3d 340 (5th Cir. 1999)(district court correctly held that the undisputed evidence establishes that Hufnagel was not a seaman and hence could not recover under the Jones Act. To maintain a cause of action under the Jones Act, the plaintiff must be a seaman. Land-based workers are not seamen. See Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117 S. Ct. 1535, 1540, 137 L. Ed. 2d 800 (1997)) which the Fifth Circuit held did not contribute to the function of a vessel because those duties related to the fixed platform, not the vessel.65

The Court observed that the undisputed summary judgment evidence shows that approximately 65% of Alexander’s jobs involved a fixed platform only, without the help of an adjacent vessel.66 Even on the other jobs involving a vessel adjacent to the platform, his work occurred mostly on the platform.67 The opinion observed that it is not sufficient under Chandris that Alexander was merely near a vessel on more than 30% of his jobs or that he performed some incidental work on a vessel on those jobs; – to be a seaman, he must show that he actually worked on a vessel at least 30% of the time.68 Alexander has failed to produce sufficient evidence to prove that point, which is an essential element of seaman status.69

The Fifth Circuit’s opinion emphasized that “[a] maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore not a member of the vessel’s crew,

53 See id. at 433-34 & n.4. 54 Id.55 Id.56 Id.57 Id.58 Id.59 Holt v. F/V Sir Martin E., Inc., No. 5:13-cv-100-RS-CJK, 2014 WL 4825223 (N.D. Fla., 2014). 60 Id.61 Id.62 Id.63 Alexander v. Express Energy Services, 784 F3d 1032 (5th Cir. 2015). 64 Id.65 Alexander at 1037 (referencing Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999)).66 Id.67 Id.68 Id.69 Id.

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regardless of what his duties are.”70 The Court explained that although the inquiry is fact-specific, “where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed verdict.”71

Skinner v Schulumberger Technology Corp. 2015 WL 348593. (W.D. La. June 2, 2015) The Court granted the employer’s motion for summary judgment and determined that Skinner did not qualify as a seaman under Jones Act, regardless of whether or not he was working under a new assignment when he was injured, or whether his seaman status calculations are based on the number of days or the number of hours he worked on board vessels.72 Plaintiff claimed he was a “coiled tubing supervisor trainee” on the day he was injured, having been recently assigned to work on the Bengal 160.73 The record on the motion for summary judgment revealed that there was no evidence that his assignment to the Bengal was permanent and his employer testified in deposition that he “may run the pumps over one day” and “be coil tubing the next.”74

The Court observed that the Fifth Circuit recently emphasized in Alexander that based on Chandris “a maritime worker who spends only a fraction of his time on board a vessel is fundamentally land based and therefore not a member of the vessel’s crew regardless of what his duties are.”75 The Court observed that “While the thirty percent rule of thumb looks at the entire length of a plaintiff’s employment with the defendant, the Supreme Court has articulated an exception to this 30-percent requirement “[w]hen a maritime worker’s basic assignment changes.” citing Chandris, 515 U.S. at 372.76 “If a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new position.”77

“Thus, a worker who, over the course of his employment, has worked in the service of a vessel in navigation - well under thirty percent of his time - may still qualify for seaman status if he has been reassigned to a new position that meets this temporal requirement.”78 (Citing Becker at 335 F.3d at 389.) An otherwise land-based worker must show that his “essential duties” had “substantial[ly]” or “fundamentally” changed, not merely that he “serve[d] on a boat sporadically.”79 For the purposes of the Jones Act, a “permanent” assignment means an assignment that is “ ‘for an indefinite period’—not temporary.”80

The Court rejected Plaintiff’s attempt to classify both his work on land and on board the Bengal to be 100% in the service of the vessel, as his work time reports during his assignment to the Bengal, showed he also worked on the A.J. Borg for Chevron and on the Juan for Offshore Marine Contractors, LLC and other vessels owned and operated by another company.81 The District Court granted summary judgment for Schlumberger holding that regardless of whether his seaman status calculations are weekly or hourly, Plaintiff has failed to meet his burden of establishing a permanent reassignment or the requisite 30% of his work with Schlumberger was aboard a vessel or fleet of vessels under common ownership or control and therefore he cannot prove seaman status.82

Baldwin V. CleanBlast, LLC., Louisiana Third Circuit Court of Appeals 158 So.3d 270 (La. App. 3 Cir. 02/04/15) - Baldwin, was an employee of CleanBlast, LLC, assigned to work as a sandblaster and painter on various rigs and platforms located in the navigable waters of the Gulf of Mexico.83 After allegedly sustaining injuries in a fall, Baldwin brought Jones Act and general maritime law claims in State Court. Defendant argued that Baldwin lacked seaman status given that CleanBlast that it did not own the vessel to which plaintiff was assigned; that the alleged incident occurred not on a vessel, but on a Tennessee Oil and Gas platform and that

70 Alexander v. Express Energy Servs. Operating, L.P. 784 F.3d 1032 (5th Cir. 5/07/2015)71 Id.72 Skinner v Schulumberger Technology Corp., No. 13-03146, 2015 WL 348593 (W.D. La. June 2, 2015).73 Id.74 Id.75 Id.76 Id.77 Id.78 Id.79 Id. at 388-91.80 Id. (citing Smith v. Nicklos Drilling Co., 841 F.2d 598, 599-600 (5th Cir.1986)). 81 Id.82 Id.83 Baldwin v. CleanBlast, LLC., No. 14-1026, 158 So.3d 270 (La App. 3 Cir. Feb. 4, 2015).

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the plaintiff’s work was largely spent on the platform compared to a minimal amount of time on the vessel to which he was assigned. (M/V Brody)84

At first, the trial court denied the motion, but later entered summary judgment in favor of the employer, after supplementation of evidence, dismissing Baldwin’s Jones Act claim as well as the claim for maintenance and cure.85 On appeal to the Louisiana Third Circuit Court of Appeals, Baldwin asserted that the trial court improperly weighed evidence erred in finding as a matter of law that he did not have seaman status.86

The appellate court started its analysis by noting that the focus of the CleanBlast’s motion for summary judgment was on the second element of the Chandris test.87 The Court acknowledged that Baldwin’s testimony was that, in fact, he did spend less than thirty percent of his time in the service of a vessel.88 CleanBlast suggested that even the plaintiff’s account of his hours aboard the vessel versus work performed on the platform indicates that only 28.65% of his time was spent in service of the vessel.89 CleanBlast suggests that much of this time, however, such as time attributable to eating and downtime cannot be attributable to the overall total, as it was not in the service of the vessel.90

The Court, based on Chandris, 515 U.S. at 371, held that the thirty-percent figure, was not only as a rule of thumb, but no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.”91 Notably, the inquiry into seaman status is fact specific and dependent on the nature of the vessel and the employee’s precise relation to it.92 Considering the parties’ submissions, however, we do not find that the work, as described by the plaintiff, had a “clearly inadequate temporal

connection” to the M/V Brody Paul so as to support only one reasonable view.93

While the plaintiff had no operational duties aboard the M/V Brody Paul, we do not find that it can be said, as a matter of law, that the plaintiff did not have a substantial connection to the vessel in terms of duration and nature.94 In addition to the fact that CleanBlast’s work on the Tennessee Oil and Gas platform was vessel-dependent, we do not find merit in CleanBlast’s contention that the fact that the plaintiff may not be able to reach the thirty percent rule of thumb is determinative in this case.95 First, if a fact-finder were to accept the plaintiff’s account of his vessel/platform activities, his hourly work would be only slightly below the thirty percent figure.96 Additionally, a fact-finder could certainly determine that the plaintiff’s assignment, which required repeated, week-long periods at sea, even in times of foul weather, were circumstances that exposed him to the perils of the sea. The appellate court reversed that determination and remanded for further proceedings.97

That brings us to the final case which is not a seaman status case, but is noteworthy. On May 4th, 2015, the U.S. Supreme Court denied certiorari to an Eleventh Circuit’s decision in Skye v. Maersk Line, Ltd.98 In Skye, the issue before the Court was “whether a seaman can recover money damages under the Jones Act, 46 U.S.C. §30104,” for a physical injury, for hypertension and ventricular hypertrophy stemming from excessive work hours, arduous working conditions, and an erratic sleep schedule.99 Citing the Supreme Court case of Gottshall, the Eleventh Circuit concluded that the “central focus” of the Jones Act is “on physical perils;” an arduous work schedule and an irregular sleep schedule are not physical perils.100 That Skye

84 Id.85 Id.86 Id.87 Id.88 Id.89 Id.90 Id.91 Id.92 Id.93 Id.94 Id.95 Id.96 Id.97 Id.98 Skye v. Maersk Line, Ltd., 751 F.3d 1262 (11th Cir. 2014).99 Id. at 1263.100 Id. at 1266.

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developed a “physical injury” is of no matter; the cause of his injury was work-related stress.101

Compensating Skye for his injury would potentially lead to, in the words of the Supreme Court, “a flood of trivial suits, the possibility of fraudulent claims . . . and the specter of unlimited and unpredictable liability” because there is no way to predict what effect a stressful work environment—compared to a physical accident such as an exploding boiler—would have on any given employee.102 Skye’s complaint of a physical injury caused by work-related stress is foreclosed by binding precedent of the Supreme Court, and the judgment in his favor cannot stand as a matter of law.103

Conclusion

Has the rule of thumb analysis of Chandris approach gotten too far off-kilter? Would the employment of a “bright line approach” provide a clear and certain rule for determination of “seaman status?” Observation: The DOJ regulations employ a 20% rule for “seaman status” regarding the exclusion from overtime under the Fair Labor Standards Act. Section 13(b)(6) of the FLSA provides an exemption from overtime pay for “any employee employed as a seaman.” 29 U.S.C.A. 213. As explained in 29 C.F.R. § 783.31, in accordance with the legislative history and authoritative decisions as discussed in §§ 783.28 and 783.29, an employee will ordinarily be regarded as “employed as a seaman” if he performs, as master or subject to the authority, direction, and control of the master aboard a vessel, service which

is rendered primarily as an aid in the operation of such vessel as a means of transportation, provided he performs no substantial amount of work of a different character. This is true with respect to vessels navigating inland waters as well as ocean-going and coastal vessels.

When deciding whether an employee is “employed as a seaman,” the duties of the employee must qualify as “service which is rendered primarily as an aid in the operation of such vessel as a means of transportation.” Id. Employees who make repairs to vessels between navigation seasons would not be “employed as” seamen during that period. 29 C.F.R. § 783.33.

An employee will be regarded as “employed as a seaman” if the work performed as a whole meets the test stated in 29 C.F.R. § 783.31, even though during the workweek the employee performs some work of a nature other than that which characterizes the services of a seaman, if the amount of such other “non-seaman’s” work is not substantial. 29 C.F.R. § 783.37. “For enforcement purposes, the Administrator’s position is that such differing work is ‘substantial’ if it occupies more than 20 percent of the time worked by the employee during the workweek.” Id. Because the workweek is the unit of time used in determining the applicability of this exemption, the workweek is the period of time used in determining whether a substantial amount of non-seaman’s work has been performed so as to make the exemption inapplicable. 29 C.F.R. § 783.49.

101 Id. at 1267.102 Id.103 Id.



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How is the regulation enforced and what penalties may parties face?

Noncomplying containers that are too heavy or without weight verifications cannot be loaded aboard the ship. Additionally, containers inadvertently or otherwise loaded onto vessels after July 1, 2016 which are not weight verified may not be covered by the shipper’s maritime insurance. Additionally, possible penalties that could be assessed against a shipper include fines, repacking costs, administration fees for amending documents, demurrage charges, and delayed or cancelled shipments. SOLAS imposes an obligation on the carrier and the terminal operator not to load a packed container aboard ship for which no verified gross mass has been provided or obtained. If carrier and terminal operator do not comply with the regulations, commercial and operational penalties, such as delayed shipment and additional costs, may apply if the shipper has not provided the verified gross mass for the packed container and it is loaded onto a vessel.

How can you prepare?

Shippers and carriers must work together to establish and implement processes to ensure that the verified container weights are provided to the necessary parties in a timely fashion. Carriers need to provide shippers with “cut-off times” within which the carrier must receive the weight verification. This information is necessary to prepare the stowage plan of the ship prior to loading. While deadlines will differ, shippers should request cut-off times from carriers, in as much time in advance of the vessel’s sailing as possible, to ensure that the deadline is met particularly for just in time shipments. Carriers and shippers should also evaluate their current service agreements, terms and conditions, bills of lading and tariffs to protect themselves against delayed shipments and additional costs associated with shippers not providing the weight verification on time. Shippers should determine which method is best suited for verifying gross mass, taking into consideration the types of cargo being shipped, and make advance preparations to ensure timely delivery of the verified gross mass to the carrier in the form requested by the carrier. Finally, U.S. importers should develop procedures for verifying that their foreign sources are in compliance with the new SOLAS amendment.

DON’T LET YOUR WEIGHT...Continued from page 10

at his opinions, the Court reasoned that Nautical satisfied the heavy burden of demonstrating exceptional circumstances as per Rule 26(b)(4)(D). To overcome this burden, Nautical was required to show the existence of either of two situations: “1) the object or condition observed by the non-testifying expert is no longer observable by an expert of the party seeking discovery, or 2) although it is possible to replicate expert discovery on a contested issue, the cost of doing so is so ‘judicially prohibitive’”.7

In concluding that Nautical satisfied the first situation, the Court noted that this was a “close call”. The Court explained that because a portion of the Clifford Report included a chart, which reflected temperatures taken at various locations on the M/Y Claire by crew, to be factual in nature, and not the opinion work product of either Clifford or counsel, it would not be possible for Nautical to obtain these readings via any other means and/or source. This was enough to tip the scale in favor of warranting disclosure with respect only the portion of the Clifford Report pertaining to the temperature readings.

7 Cooper v. Meridian Yachts, Ltd., No. 06-61630-CIV, 2008 WL 2229552, at 5 (S.D. Fla. May 28, 2008).

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