PRESIDENT’S MESSAGEGreetings from the National President. NAMSGlobal will be holding its 48th National Conference West on October 11 – 13 at the Edgewater Hotel in Seattle. NAMSheld its 2001 conference at this very same location. It is a lovely location, and I strongly recommend that you bring your spouse. Mr. Jerry Edwards, Regional Vice President, North Pacific States is coordinating the event. The theme of this years’ conference is New Tools & Techniques for Marine Surveyors. Also, it is once again time for elections. Ghulam Suhrawardi is the chairman of the Nominating Committee and he is responsible for working with four other members of the Board of Directors in obtaining candidates for the offices of National President and National Vice-President. The committee consists of the following: Jerry Edwards, Dick Learned, Childs Dunbar and Jack Hornor. If you should desire to be a national officer, methods for inclusion to the listed are in the by-laws. Please contact one of these members if you should desire to become a National Officer. Each of these members should be able to provide guidance as to meeting the requirements. I am looking forward to the Seattle Conference. If you haven’t been to the Edgewater, you will find it to have beautiful accommodation. Thank you, William C Hansen, NAMS-CMS, National President NAMSGlobal National Conference West & Business MeetingPlease note there are only nine (9) days left for you to make your hotel reduced rate reservations for the upcoming NAMSGlobal National Conference West & Business Meeting. And there are only 14 days to receive the reduced rate for the National Conference. Please refer to the Upcoming Events (October 11 – 13, 2009) below or visit the NAMSGlobal website at www.namsglobal.org/events. Continuing Education CreditsThere are only two months left to obtain and report your CE Credits for 2009. If you have your credits, please report them to Evie. New Member Appointed To By-Laws Committee Steven P. Weiss has been appointed to the By-Laws Committee to assist Jim McCrory, Chair. NAMS Applicants
Upcoming EventsSeptember 11–12, 2009 National Uniform Standards of Professional Appraisal Practice (USPAP SE100), offered in Annapolis, Maryland. The objective of this 15–hour course is to familiarize students with the recognized standards—approved by the Appraisal Standards Board (ASB) of The Appraisal Foundation—governing appraisal professionals. Call toll free (800) 272–8258 to register by phone. Location: Loews Annapolis Hotel, 126 West Street, Annapolis, Maryland. Phone (410) 295–3202 September 16-19, 2009 Society of Accredited Marine Surveyors (SAMS) International Education Symposium, Houston, TX, Website:www.marinesurvey.org September 20-22, 2009 Houston Marine Insurance Seminar, Westin Oaks, contact [email protected]Website:http://www.houstonmarineseminar.com/program_info.htm September 29-30, 2009 Maritime Security & Anti-Piracy Conference in Washington, DC. Workshop on October 1, 2009. Presentations and panel discussions include Global Commerce & Modern Piracy, Crisis Response, Types of Pirate Attacks, Legal Challenges, Maritime Industry, Multi-National Forces and Regional Anti-Piracy Efforts, Piracy Counter-measures taken by US, NATO, EU, Yemen and Kenya, Available technology & products, Commercial, Government and Regional Government’s Response and Sharing Best Practices. For registration contact [email protected] or call 202-558-6187. October 3–4, 2009 8:00 a.m.–5:30 p.m. 15-Hour National USPAP Course San Francisco sponsored by ASA NorCal Chapter. To be held at Marriott Fisherman’s Wharf. The Uniform Standards of Professional Appraisal Practice (USPAP) are the generally accepted standards for professional appraisal practice in North America. USPAP contains standards for all appraisal disciplines. USPAP compliance is required for appraisers in federally regulated transactions, state appraiser certification and licensing boards; federal, state and local agencies; appraisal services; and professional appraisal associations. The Appraisal Foundation requires appraisers to take a 15-hour course on USPAP for their continuing education. ASA’s 2-day course, which includes lectures, materials and an exam, enables students to meet these requirements. This fast-paced course is intended for appraisers of all disciplines and will:
October 6-8, 2009 American Salvage Association Conference and Expo Arlington, Virginia, Key Bridge Marriott Hotel. Direct your inquiries to Michelle Zolkos, Conference Coordinator Phone 212-620-7208. Email [email protected] October 8, 2009 (8:00 a.m.–5:30 p.m.) Appraiser as Expert Witness Seminar Location: San Francisco Marriott, Fisherman’s Wharf Sponsored by ASA NorCal Chapter After the 6th International Conference on the Valuation of Plant Machinery and Equipment Roger Durkin, J.D., M.S., ASA, and Robert Podwalny, FASA, will offer a multidiscipline seminar on The Appraiser as Expert Witness Prepare for when you’re in the hot seat! Boost your confidence by learning the basics of the legal system, rules of evidence, the role of the expert witness, direct- and cross-examination tactics, the psychology of persuasion, and courtroom conduct—from dress to communication and body language. You will learn:
October 11-13, 2009 NAMSGlobal, 41st Annual National Marine Conference West and business meeting. Seattle, Washington. Conference theme: New Tools & Techniques for Marine Surveyors. Conference Chair, Jerry Edwards, NAMS-CMS. Look for further details on the NAMSGlobal website: http://www.namsglobal.org/events/ Venue: The Edgewater Hotel City Side Room Rate: $155.00 plus taxes, 2411 Alaskan Way, Pier 67, Seattle, Washington 98121 Direct reservations: 206.728.7000 or central reservations 800.624.0670. In order to receive the special group rates that have been made available, you will need to call the hotel by Wednesday, September 9, 2009 and identify the name and dates of the event. SAMS members: SAMS surveyors are invited to attend the conference at the same registration fee (Pre-registration is $445) as NAMS surveyors, a savings of $50 over the non-NAMS member fee. October 27 & 28, 2009 Ft. Lauderdale Mariners Club – “Smooth Sailing Through Troubled Waters”. 20th Annual Ft. Lauderdale Mariners Club Marine Seminar and Golf Tournament. www.ftlmc.org March 11-14, 2010 American Society of Appraisers is planning on giving the ME 208 Marine Equipment Appraisal course in San Francisco, California. It will be put on by the local ASA chapter. Details will be posted on ASA, NAMS and SAMS sites. April 25-27, 2010 NAMSGlobal 48th Annual National Marine Conference East. Conference theme: In Pursuit of Excellence. Conference Chair, Janet Peck, NAMS-CMS. Location: The Embassy Suites Historic Charleston, 337 Meeting Street, Charleston, South Carolina 29403. Room rate $179.00 plus taxes per night for a 2-Room Suite. Reservations phone 843.723.6900. In order to receive the special group rates, you will need to make your room reservation by Wednesday, March 24, 2010, and identify the group and dates of the events. NAMS Group Code: NMS Rotterdam Rules The intention of the rules is to replace outmoded cargo liability regimes, such as the Hamburg and Hague/Visby Rules. The industry has long been seeking to apply uniformity for the international carriage of goods over the current plethora of maritime liability regimes. Opposition has emerged from European shippers, with the support of the European Commission. The European Shippers’ Council has stepped up its heated quest for non-ratification, and a senior commission official said last week that Brussels will seek to present an equivalent liability regime. Shipowners generally support the rules, even if they admit their imperfection. The Brussels-based European Community Shipowners’ Associations and US shippers body NITL, to name two, have thrown their weight behind them. The primary gripe is complexity: the rules are too long and full of exceptions. They leave open ground for litigious battles, where treatment of conflicts between mandatory conventions and private conditions differs from jurisdiction to jurisdiction. The rules could also lead to higher insurance costs for non-ship players, particular smaller ones. (Lloyd’s List, 7/1/2009.) NAMSGlobal hopes to have David T. Maloof a leading expert who has put forward a white paper on the rules, address the subject in detail at the 2010 conference in Charleston, South Carolina. All surveyors and adjusters handling or hoping to become involved in Cargo Surveys should plan on attending! ECSA backs Rotterdam Rules The European Community Shipowners Associations (ECSA) has come out strongly in favour of the UNCITRAL Convention on the carriage of goods (wholly or partly) by sea, otherwise known as the Rotterdam rules. “ECSA urges all States worldwide and particularly all EU Member States, to sign up to the Rotterdam rules at the signing ceremony in Rotterdam on 23 September 2009 and to ratify these rules soonest so as to have the necessary modernization of cargo liability rules as well as legal certainty and uniformity worldwide,” the organisation said in a statement. “ECSA firmly believes that the Rotterdam rules provide for the necessary legal certainty and uniformity with regard to cargo liability. Moreover, the Rotterdam rules modernize the liability regimes that currently apply to the carriage of goods by sea and also address the gaps that presently exist, e.g. by laying down rules on e-commerce. Furthermore, the Rotterdam rules regulate the multimodal carriage of goods that involve a sea leg. It follows that the Rotterdam rules will greatly facilitate international and European trade. Finally, the Rotterdam rules provide for a well-balanced regime that takes into account the interests of both shipowners and shippers, a feature that is fully recognized and endorsed by all shippers’ interests worldwide except the European Shippers’ Council in Europe.” “ECSA does not share the views expressed by those opposing the Rotterdam rules. As regards the European Shippers’ Council (ESC), ECSA has read with great interest and fully supports the views of the US Shippers’ Organisation (Nitleague), which are also supported by some major European Shippers, that the Rotterdam rules strike a right balance between the shipowners and shippers in terms of liabilities and the allocation of risks between both parties and that ‘as European shippers did not participate in the negotiation of the Rotterdam rules until the very end of the process at UNCITRAL, their perspective represents a misunderstanding and lack of appreciation of the delicate compromise achieved in the multilateral negotiations’.” “ECSA is of the opinion that the Rotterdam rules clearly represent a last attempt to have a harmonized cargo liability regime at international level providing for modern rules and for legal certainty and uniformity, thereby reducing conflict of laws between the various jurisdictions across the world.” Source: Anderimar Shipping News. mailto: [email protected]. Courtesy Bow Wave, the marine and transport e-zine. Published free of charge to over 15 000 Readers in 120 Countries. To submit an item or to be added to the list of recipients, contact [email protected]. Elements Of Seaworthiness Clearly, seaworthiness is a relative term that depends on the intended purpose or mission of the vessel. Let’s begin by looking at some of the elements of seaworthiness.
(Soundings, 9/2009.) Courtesy AIMU Weekly Bulletin. Editor’s note: All this talk of seaworthiness harkens me back to my many mentors who all told me that a marine surveyor should not comment on seaworthiness—it’s a legal term. I call it the “s” word. Bi-Annual Cargo Theft Report In the first six months of 2009, there have been several noteworthy trends that differ from cargo theft in the previous year. First, cell phone thefts are occurring at an increased rate of 50% over the same time period last year, growing from 10 in the first six months of 2008 to 15 thus far in 2009. Additionally, the average value per load has significantly increased from $1,152,556 in 2008 to $2,121,638 in 2009. Second, pharmaceutical full truckload thefts are down nearly 50%. As companies are hardening their supply chains and enacting more over the road security measures, cargo theft gangs are finding fewer pharmaceutical loads being left unattended, and thus more difficult to steal. However, pharmaceuticals are clearly still being targeted by gangs, as a warehouse was burglarized in Olive Branch, Mississippi, this year, marking the first significant pharmaceutical burglary recorded. Third, from January to April 2009, warehouse burglaries were occurring at a rate of 100% over the same time period in 2008. Lastly, in almost every commodity group, the average loss per incident is sharply increasing. This coincides with reports that cargo theft gangs are seeking known brand name products, and are no longer satisfied with generics. (FreightWatch Executive Summary, 7/15/2009.) Courtesy AIMU Weekly Bulletin. Ten largest Container volumes by North American ports The rankings, by Twenty-Foot Equivalent Units (TEU), of North American ports for the year 2007 have just been released. Here are numbers 1 through 10:
There are not many real surprises on the list but it should be noted that Savannah, Oakland, Hampton Roads and Houston are clearly on the rise with some believing Savannah will continue to grow; relying on more all-water traffic through the Panama Canal. Savannah moved up from #6 in 2006. On the other hand, other major ports are losing containerized business. Courtesy Barry Tarnef, NAMS-CMS
NAMSGlobal members continue to keep track of the upcoming regulations for Inspected Towing Vessels (ITV), which up to now have been termed Uninspected Towing Vessels. The NPRM (Notice of Proposed Rulemaking) for the proposed new Towing Vessel Inspection regime has not yet reached the Office of Management and Budget (OMB). Once the NPRM arrives at OMB, that office will have ninety days to review its content prior to sending it back to the Coast Guard for publication in the Federal Register. While the NPRM is being examined at OMB, outside groups will be permitted to meet with OIRA (White House Office of Information and Regulatory Affairs) personnel. TSAC (Towing Safety Advisory Council) and AWO (American Waterways Operators) are forming groups to meet with OIRA. The Towing Safety Advisory Committee was formed several years ago, following the U.S. Coast Guard appointment to start regulating the towboat industry. NAMSGlobal members have been involved since the beginning. Ed Shearer, NAMS-CMS will be on the group looking into the technical portion. The towing vessel inspection will rely primarily on Coast Guard-approved third parties. NAMSGlobal plans to provide qualified, approved surveyors. NAMSGlobal members have been involved so third party marine surveyors will be allowed to do the inspections, and that these inspectors not be limited to a recognized classification society. Individuals’ qualifications will be considered based on their education, marine experience and completion of a required surveyor ITV training course on towing vessels. Help Wanted USCG – Recruiting Civilian Marine Inspectors The US Coast Guard has commenced its formal process of recruiting civilian marine inspectors. An announcementhttp://www.brymar-consulting.com/wp-content/uploads/2009/06/MIRA090624.pdf has been released regarding openings at its five new National Centers of Expertise. Another announcement http://www.brymar-consulting.com/wp-content/uploads/2009/06/MSRA090624.pdf discusses openings for civilian marine inspectors generally. (6/24/09). Courtesy: Bryant’s Maritime Blog – 25 June 2009 http://bryantsmaritimeblog.blogspot.com/2009/06/bryants-maritime-blog-25-june-2009.html Maritime Industries Academy High School, Baltimore, The Maryland Insurance Group, Baltimore, Maryland full-time position available Instructor Of Maritime Studies Maritime Industries Academy is an urban public school in that serves approximately 450 students in grades 9-12. Academy invites applications for a full-time faculty position. This is a teaching position that will require curriculum development, maritime program coordination, and direct instruction to students. Additional information may be obtained by calling: Joy Pinder Savage, principal 5001 Sinclair Lane, Baltimore, MD 21206 410-396-024. Send application documents with appropriate address, telephone number either by email, Fax or regular mail to: [email protected] / 410-396-0085 Mixed Reaction To The Lloyd’s Open Form Salvage Arbitration System Every decade or two the Lloyd’s Open Form salvage arbitration system, which for 100 years has trod a judicious balance between the interests of salvors on the one hand and maritime property on the other, gets a mild makeover. Lloyd’s Agency Department, which manages the salvage arbitration branch, has just launched the newest bid to dust off the venerable system. But has it got it right? This time is different, cry critics who believe that the proposed changes constitute a battle for LOF’s soul and perhaps — given an alarming drop in the number of contracts being signed worldwide — its very existence. Even making allowances for the volatility of the salvage business, the figures show that LOF usage has been declining for years. In 2003, the annual haul of contracts fell below 100 for the first time and in 2006 reached a nadir of just 80. This year so far, a mere 25 new contracts have been reported, making it likely 2009 will go down as the most meager year ever. But there were also measures that have shocked many observers, not least among the current arbitration panel and the salvage community. In the past, arbitrators have been appointed to retirement age, but will now be appointed for fixed, renewable terms. Opponents say the issue is akin to that of re-electing judges. “If they are appointed for a fixed renewable period, then they become open to political influence by one party or another,” said a Netherlands-based salvage executive. Jaws really dropped, however, at a move to disband the current panel of arbitrators ahead of reconstituting the larger panel, to take office on October 1. Insiders say that the existing arbitrators, all respected QCs, received less than 24 hours’ warning before the decision was made public. Lloyd’s Agency has underlined that the existing arbitrators are at liberty to reapply for positions on the new panel and it has maintained that the decision was not based on personalities. But at least some of the arbitrators are thought to be steaming, not least because the news was accompanied by the announcement of a new code of conduct, yet to be unveiled, which almost invites speculation of past misconduct. Joint Hull Committee chairman Simon Stonehouse, representing marine hull underwriters in London, said: “Per se, we as the JHC are not against any of the changes. There was disquiet, not just in the underwriting community, but shipping generally at the way arbitrators were appointed.” He said the new process promised to be more democratic. (Lloyd’s List, 6/17/2009.) Courtesy AIMU Weekly Bulletin. Commercial Fishing Vessel Safety Program
For further details you can contact R. G. Garrott, District Five Fishing Vessel Safety Coordinator at (757) 398-6554 or via email at [email protected]. Health Of GPS System The US General Accounting Office has warned that worn-out satellites may not be replaced quickly enough to keep the global positioning system operating at current levels. The Air Force, however, which maintains GPS, says it is confident it can keep the system working fine. The critical GAO report says development of the first of the latest generation of GPS satellites in November is three years behind schedule. It is moving ahead at more than twice the $729 million originally budgeted because of technical problems, oversight issues, and contractor mergers and acquisitions, GAO says. The government is investing $5.8 billion in the system between this year and 2013. The GAO report says “It is uncertain whether the Air Force will be able to acquire new satellites in time to maintain current GPS service without interruption. If not, some military operations and civilian users could be adversely affected.” The GPS system currently has 31 satellites in orbit. Earlier generations of satellites had a theoretical life expectancy of 7-1/2 years, but most lasted twice that long. New-generation satellites have a theoretical life expectancy of 11-1/2 years. (Soundings, 8/2009.) Courtesy AIMU Weekly Bulletin. EPIRB’s and Personal Locator Beacons The US Coast Guard issued an alert stressing the importance of proper registration of EPIRB and Personal Locator Beacon (PLB) after notification to their Search and Rescue personnel from a commercial fishing vessel was delayed and the launching of rescue assets to the vessel was also affected. The improper registration prevented the identification of the vessels’ name, homeport and emergency contact information from being forwarded to USCG authorities. We should note that if a beacon is not equipped with an optional GPS receiver, it could take up to 100 minutes for orbiting satellites to identify its location.
Register new or previously unregistered EPIRB and PLB, as required by Federal Regulation, at the NOAA website. You can also fax the form to 301-817-4565 or mail your registration to: Beacon Registration Courtesy Barry Tarnef, NAMS-CMS The Surveyor’s bag by Mike Wall, NAMS-CMS Some surveyors use a backpack, some a hold-all, some a document case with wheels, I’ve even seen just a plastic bag, but they all have the same thing in common. They have to be like Doctor Who’s proverbial Tardess, i.e., externally small and compact but internally voluminous to take the plethora of equipment required to do the job. First to be packed is the boiler suit or overalls, together with the working shoes or boots. The former can range from a sparkling white new boiler suit to a tatty, stained and torn shadow of its former self (The more experienced surveyor prefers the latter so as not to look like a beginner) The latter can range from a pair of trainers to steel capped leather boots. As some may not choose to launder their boiler suit on a regular basis with the boots rarely disinfected, it is advisable to stand well clear when a surveyor is opening his bag on site. After these two essentials comes the flashlight, some surveyors clearly trying to prove something with a multiple cell torch, others being more modest with a smaller, but just as powerful, model. Whichever is used, it will need to have batteries that last forever, be watertight, intrinsically safe and sturdy enough to survive being regularly dropped from great heights. Then we have the compulsory notebook, pen and often a file containing case documents. The notebook is usually of A6 size, i.e., small enough to fit into the boiler suit breast pocket, but large enough to contain what pretends to be authoritative scribbling. Since this book may, on occasion, be a legal document, many surveyors have taken a leaf out of the lawyers’ book, writing illegibly and in gobbledygook so that nobody can understand or interpret the hieroglyphics. In this way the surveyor avoids any legal consequences. The pen, of course, has to last forever without any refills and again has to be sturdy enough to suffer the same fate as the flashlight. A camera is again obligatory although there is still some debate over whether this should be a traditional film or digital type. More and more surveyors are using the latter as there have to date been no publicized cases of judges questioning the validity of digital photos. However, the macho surveyor must have the largest camera possible with a super zoom phallic lens, whilst the more modest members of our profession have learned to keep it small and compact to save space and weight. The old adage about sparrows and “I’m not bragging but …..” comes to mind here. Nowadays, many surveyors carry a laptop computer so that they can reduce downtime and start the report on site. These again can range in size, complexity and weight but are available in smaller and lighter sizes for those who travel often. Unfortunately, the digital camera, possible rechargeable flashlight and computer need regular recharging and thus many cables and adapters must be carried. Some will carry spare batteries for battery operated equipment. The copper wire in the cables and batteries are in fact what add the majority of the weight to the bag. As batteries can be purchased anywhere, these could be omitted. A simple test of equipment before leaving base or the hotel room will reveal if replacements are needed. Many surveyors like to carry emergency supplies around with them in the form of band aids, aspirin, cough drops, Imodium, etc, for the often possible self inflicted pain. Some used to carry a Swiss army knife which came in handy on many occasions, sometimes, but rarely, for terminating the self inflicted pain! However, due to security concerns this, and many other useful tools, may not now be carried on flights. Apart from the above standard items, the surveyor may be required to carry ultrasonic thickness testing equipment, ultrasound hatchcover testing equipment, specialised thermometers, moisture content meters, tape measures, rulers, paint thickness gauging equipment, gas and oxygen detectors, together with a hard hat, although most of the aforementioned may not need to be carried simultaneously. The bag should also have space for the traveler’s wallet, containing passport, tickets, foreign currency, credit cards, loyalty program cards, etc. The bag should therefore have the ability to be locked for security purposes. As a consequence of the weight the straps will need to look trendy but be comprised of high tensile steel braiding. Given the above, the surveyor must be a superman, but that’s another story! If you can think of anything I’ve missed, please let me know. Rise In Recreational Boating Fatalities The Coast Guard reported rise in 2008 recreational boating fatalities. The fatality rate, a measure of the number of deaths against the number of registered recreational boats, increased from 5.3 in 2007 to 5.6 deaths per 100,000 registered recreational boats in 2008. During this time, the Coast Guard recorded 709 deaths, 3,331 injuries and about $54 million in damage to property, stemming from 4,789 recreational boating accidents. Operator inattention, careless or reckless operation, no proper lookout, operator inexperience and passenger or skier behavior, rank as the top five contributing factors to recreational boating accidents. Alcohol consumption continues to be of major concern in fatal boating accidents and is listed as the leading contributing factor in 17 percent of the deaths. Rear Adm. Kevin Cook, the Coast Guard’s director of prevention policy, emphasized the importance of boating education. “The 2008 report shows a clear link between safety and boating education by highlighting that only 10 percent of deaths occurred on boats where the operator had received boating safety education,” he said in a statement. “This statistic indicates that boaters who have taken a boating safety course are less likely to be involved in an accident,” he added. “In addition, two-thirds of all fatal boating accident victims drowned and, of those, 90 percent were not wearing a life jacket.” Courtesy Soundings Trade Only. Food Safety Legislation It’s been a long time coming, but legislation that’s on a fast track through the US Congress to bolster the safety of the food supply may catch some in the supply chain by surprise. The Food Safety Enhancement Act of 2009 will give the Food and Drug Administration authority to register all shippers and carriers in the food chain. It will require electronic recordkeeping to expedite product tracing, and the agency for the first time will be able to charge a fee to support its future inspection and enforcement efforts. “Just about everybody is [sic] the supply chain is going to have to register in one form or another. Either you’re the importer, or you’re a service provider that’s handling the product,” said Susan Kohn Ross, a partner in the Los Angeles-based law firm Rodriguez O’Donnell Ross. “What this bill will do is make your shipment illegal to be in the U.S. much less illegal to be distributed in the food supply, if everybody you’re dealing with is not registered,” she said. (The Journal of Commerce, 6/22/2009.) Courtesy AIMU Weekly Bulletin. Court: Coast Guard can’t be sued in ‘Lady D’ tragedy By Tricia Bishop | [email protected] June 27, 2009. When a squall flipped the Lady D water taxi in 2004, killing five people and injuring many more, the pontoon boat had 25 people aboard – 10 more than there should have been – because of a Coast Guard mistake. The agency overestimated the capacity the boat could safely carry. But it can’t be held responsible. A federal appeals court ruled that the Coast Guard cannot be sued in the Inner Harbor tragedy because the inspection process it used fell under certain discretionary duties that are immune from legal blame. The decision confirms a lower court ruling made last year, after the boat’s owners, operators and insurers collectively sued the Coast Guard. “But for that mistake, the accident would not have occurred, and the vessel would have had sufficient stability to withstand the storm,” said Robert Hopkins, an attorney for the Lady D affiliates, who sued to recoup money they paid to settle death and injury claims stemming from the accident. The appellate ruling ends those efforts, unless the group – made up of Indemnity and Continental insurance companies, Baltimore Harbor Shuttle (doing business as Seaport Taxi), National Historic Seaport of Baltimore and Living Classrooms Foundation – decides to seek U.S. Supreme Court review. It’s the latest move in a lengthy, frustrating and perhaps futile blame game, trying to sort out the accident’s contributing factors. The National Transportation Safety Board, too, has complained that the Coast Guard gauged boat capacity based on outdated weight statistics. And the Coast Guard has faulted the boat’s captain for taking the Lady D out in questionable weather. “There’s no single cause. What happens is, you have a number of unsafe conditions laying dormant, waiting for the right occasion to manifest themselves in concert,” said Brian Penoyer, deputy commander of the Coast Guard’s Baltimore sector. The Coast Guard’s report on the incident is awaiting approval in Washington, the final stage in a case that Penoyer characterizes as the most significant in a dozen years. It led to a “sea change” in the way pontoon vessel stability will be measured, along with other proposed rule changes that could improve the safety of hundreds of thousands of boaters, he said. Penoyer declined to discuss responsibility, leaving that for the courts to decide. In rendering its opinion, the 4th U.S. Circuit Court of Appeals noted that the Coast Guard inspector who certified the Lady D’s safe capacity level had “inadvertently” used a procedure meant for another style of boat. The accident took the lives of five people who were being shuttled from one tourist attraction to the next. Killed were 6-year-old Daniel Bentram of Harrisonburg, Va.; 26-year-old Andrew Roccella of Vienna, Va., and the woman he planned to propose to, Corinne Schillings, 26; and Joanne Pierce, 60, of Vineland, N.J. and her 34-year-old daughter, Lisa Pierce. Copyright © 2009, The Baltimore Sun http://www.baltimoresun.com/ Luxury Pleasure Craft and Damages in Australia The latest edition of the Trade and Transport Bulletin published by DLA Phillips Fox in Sydney features an unusual claim before the New South Wales Supreme Court by the owners of a private pleasure craft. In Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463, the luxury game fishing vessel, the Eagle, suffered damage to its main engines due to negligent works by the defendant. The Eagle was custom built and practically new with fittings and finishings of a very high standard. The damage to its engines was such that they had to be removed and replaced by cutting open and reconfiguring the engine room to accommodate different model engines. Not only did the owner claim the costs of repairs, he also sought damages for:
The Court allowed a 10 to 15% loss on pre-loss value of AU$2.7 to $3 million at $360,000 and also that the proper measure for loss of enjoyment was the time value of money invested in the vessel. The Court allowed the equivalent of interest at the Court rate on the full value of the vessel in the sum of $240,263. Read the full case note at:http://www.dlaphillipsfox.com/content/upload/files/T&T_Bulletin_18_June_09_(U).pdf Yacht Policy Held Void Due To Misrepresentations In Application Great Lakes Reinsurance (UK) PLC v. Maria Arbos, et al. 2009 AMC 334 (S.D. Fla. 2009.) Arbos bought a 50’ Sea Ray from Marine Max. Her friend, Quevedo, paid for the vessel. Lebo, the manager at Marine Max assisted Arbos with arranging marine insurance on the vessel. Lebo contacted Bateman Gordon & Sands (BG&S), a surplus lines broker, and requested a quote. Lebo provided certain information to BG&S about Arbos and Quevedo which BG&S put on a yacht information form. The yacht information form was sent to Great Lake’s underwriting agent who issues a quote subject to receipt of a photograph of the boat, a satisfactory application, and a hurricane questionnaire plan. BG&S received the application back from Lebo and submitted to the underwriting agent. Among other things, the application named Quevedo as an authorized operator and stated no named operator has been involved in a marine loss for the past ten years. It also contained representations about Arbo’s boating experience and what purported to be Arbo’s signature. A cover note for the policy was eventually issued. Approximately one year after the policy was issued, the vessel disappeared. Arbos submitted a claim for the full insured value of the vessel, $556,000. During the investigation of the claim, Great Lakes discovered Quevedo previously owned a vessel that was reported stolen and that Arbos had no prior boating or boat owning experience. Great Lakes denied the claims and filed a declaratory relief action seeking a judgment the policy was void because of the misrepresentations in the application. The district court entered summary judgment for Great Lakes, holding the policy void. It began its analysis by recognizing the marine insurance doctrine of uberimmae fidei which requires an insured to fully and voluntary disclose to the insurer all facts material to the risk. Under that doctrine, a material misrepresentation is a ground for voiding the policy. The court held the representation about no prior losses and significant boating experience to have been material. (Bullivant Houser Bailey, Spring 2009.) Courtesy AIMU Weekly Bulletin. No Right To Long-term Anchorage Boaters do not have a right to free long-term anchorage in public waters. In an unpublished decision, the US Court of Appeals for the Ninth Circuit affirmed the lower court’s dismissal of an action for failure to state a claim. Plaintiff had sued the local port authority claiming a right to free long-term anchorage in the port. The court held that boaters have no constitutional right to unregulated long-term anchorage in public navigable waters. It further rejected plaintiff’s assertion that such long-term anchoring should be considered a fundamental right. Renard v. San Diego Unified Port District, No. 08-55412 (9th Cir., July 8, 2009). Courtesy: Bryant’s Maritime Blog – 10 July 2009 Allowing Those Yanks To Arm – They Would Anyway Thanks to the author for this report by M.E. DeOrchis for the “Client Alert” published by DeOrchis & Partners LLP, New York Bill Introduced To Provide Legal Protection For U.S. Vessels Who Fight Pirates. Heavily armed pirates in speedboats continue to chase and shoot at merchant vessels, which are then held for ransom. The large vessels try to increase speed and make evasive maneuvers in attempts to wiggle out of the danger, but, as everyone knows, numerous ships have fallen into the hands of these modern-day Blackbeards operating off the coast of Somalia or the Gulf of Aden. With no small arms on board, such merchant vessels are often easy prey for pirates. But even if armed security personnel are made part of the crew, what if they fired at someone they mistake for a pirate or innocent party? Two bills have been introduced in the U.S. Congress to provide legal protection for shipowners, time charterers, and individual crewmembers who take steps in good faith to defend their vessels against attacks by pirates, H.R. 2984, and H.R. 3376, both named the “United States Mariner and Vessel Protection Act of 2009.” H.R. 2984, proposed amendments to Title 46, would allow trained crewmembers to defend U.S. vessels in international waters against pirate attacks. It provides that an “owner, operator, time charterer, or master of vessel” shall not be liable for any damages in an action brought in a federal or state court arising out of use of force (including lethal force) in defense of a vessel against piracy. The same defenses are afforded an individual “unless the individual is grossly negligent or engages in willful misconduct. “The proposed law would apply only if the individual who uses force authorized under the regulations is a licensed officer or documented merchant mariner who has completed training certified by the U.S. Coast Guard for use of firearms aboard vessels. Meanwhile, the USCG issued an Advisory for U.S. flagged vessels. Further, H.R. 294 would apply only to a certified U.S. vessel operating in waters designated by the Secretary of Defense as “high risk waters.” H.R. 3376 is simpler and flatly provides that “owners, charterers, operators, Masters and mariners shall not be liable for any injury or death caused by such force to any person participating in the act of piracy.” A third bill, already passed by the House of Representatives, the National Defense Authorization Act, H.R. 2647, would require the Department of Defense to protect U.S.-flagged ships in high risk waters, supplying military security teams to ride U.S. commercial vessels as they transit dangerous waters would be authorized by this bill. Guest Editors Note:- While we await action by the U.S. Congress, the U.S. Coast Guard has issued three Port Security Advisories numbered 3-09, 4-09, and 5-09. These advisories address: protection for commercial vessels and embarked personnel, including hired security employing deadly force in self defense; guidance in obtaining a Temporary Export License in placing firearms on board vessels and standards which must be met by security personnel to perform shipboard tasks. There comes a time Yanks will always substitute international guidelines — for more practical solutions to get the bad guys. Indeed, the Somali thugs have taken quite enough ships. Courtesy Bow Wave–the marine and transport e-zine. Bow Wave is published each week to over 15 000 Readers in the transport, insurance, shipping and finance industries. To subscribe contact Sam Ignarski [email protected] Useful links http://www.aimu.org/ – New Version Of Issues Book. A new version of the Issues Book has been added to the website. You will find the description and positions on international topics: UNCITRAL, Piracy, Wreck Removal, Athens Protocol, Ship Recycling, WTO, NAFTA, Legislation and Regulation issues. AIMU: Empowering The Marine Insurance Professional Did you miss a live AIMU webinar? Did you know that many of the AIMU webinars are available on the AIMU website for viewing at your convenience? There are currently twenty-two online classes which allow a 30-day access window for viewing at your convenience. Check it out at http://www.aimu.org/ (Select “Education Tab”, Item 15 “Online Web Lecture Center” and explore AIMU’s online education at your fingertips! http://www.aimu.org/ – Global Network Conference The joint conference sponsored by AIMU and MICA was a two-day educational and informational program comprised of a variety of presentations and workshop. The presentations and photos can be found on the website http://www.aimu.org/under the “Papers & Reports” tab, section #7 AIMU-MICA Seminars, click “Program with Presentation.” Big Bunch ‘O Black Barges – Beached The latest edition of the CargoLaw ezine contains a series of photographs charting an unusual tow (a stack of barges)from the pick up point in Shanghai to an untimely beaching in South Africa in July. Cargolaw is edited and issued by LA forwarding attorney Michael McDaniel http://www.cargolaw.com/2009nightmare_margaret.html Courtesy Bow Wave–the marine and transport ezine. BOW WAVE is published each week to over 15 000 Readers in the transport, insurance, shipping and finance industries. To subscribe contact Sam Ignarski [email protected] Heavy Lift Project Cargo NAMS-CMS Doug Mentuck of Massachusetts recently co-wrote an article that was published in the magazine Heavy Lift Project Forwarding International, which can be found at the following address:http://content.yudu.com/Library/A17zlm/HLPFIMayJune2009/resources/index.htm?referrerUrl=http%3A%2F%2Fwww.heavyliftpfi.com%2Fcontent%2Fissue.aspx The article begins on page 49. Mr. Mentuck gave an in-depth presentation on “Frozen Seafood Claims” at the AIMU Global Network Conference in June. International Institute of Marine Surveying 2009/ 2010 Prospectus International Institute of Marine Surveying has posted their 2009/ 2010 Prospectus for classes leading to Diplomas in Yacht & Small Craft Surveying, Marine Engineering Surveying, Marine Industry Surveying and Cargo Surveying Go tohttp://www.iims.org.uk |
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