By Keith Johnson and Julian E. Barnes

WASHINGTON (Dow Jones)–The Senate will hold on Wednesday its first hearing since 2007 on ratification of the controversial and long-stalled Law of the Sea Treaty.

Three top officials–Secretary of State Hillary Clinton, Defense Secretary Leon Panetta, and chairman of the Joint Chiefs Martin Dempsey–will argue before the Senate Foreign Relations Committee that ratification of the treaty will bolster U.S. national security, the ease of naval operations, and economic prospects.

Opponents of the treaty, who have prevented it from coming up for a vote before the full Senate, argue that the pact would erode U.S. sovereignty and shackle U.S. operations on the world’s oceans. Last week, the House passed an amendment to a defense spending bill that would block U.S. funding for implementation, creating a possible showdown later with the Senate.

(This story and related background material will be available on The Wall Street Journal website, WSJ.com.)

Interest in the Law of the Sea treaty has soared in recent months, helping pave the way for the renewed ratification drive.

Aggressive Chinese behavior and maritime claims over wide patches of the South China Sea provoked a sharp response from top U.S. officials including Mrs. Clinton last fall, and heightened interest in international rules that would preserve the right of U.S. ships to freely transit the world’s waterways.

Saber rattling late last year by Iran, including threats to close the Strait of Hormuz, rekindled interest in the treaty’s guarantees for commerce through international straits. And the growing scramble for natural resources in the Arctic Ocean, including oil and natural gas, has sparked renewed interest among the U.S. business community in the treaty’s safeguards for a country’s undersea resources.

“Not since we acquired the lands of the American West and Alaska have we had such a great opportunity to expand U.S. sovereignty,” said Mr. Panetta at a recent news conference, urging U.S. ratification.

While last year’s tensions between China and other Southeast Asian nations drew attention to the maritime provisions of the law, the coming battle for Arctic resources is driving fresh interest in the U.S. Last week, the U.S. Chamber of Commerce–the largest business bloc in the U.S. and a frequent sparring partner of the Obama administration–voiced support for ratification.

The treaty would offer U.S. businesses “clear legal rights and protections” to “take advantage of the vast natural resources in and under the oceans off the U.S. coasts and around the world,” the Chamber told House members in a letter urging rejection of the funding-limit amendment.

The Heritage Foundation and other conservative organizations have lined up to oppose the bill. Sen. James Inhofe (R., Okla.), a member of the Foreign Relations Committee, opposes the treaty as a threat to U.S. sovereignty and security.

The treaty was drafted in 1982, and then-President Ronald Reagan declined to send it to the Senate for ratification because of concerns over sea bed mining provisions. Those provisions were modified in 1994, but lawmakers have continued to oppose the pact.

Sen. John Kerry (D., Mass.), the chairman of the Senate Foreign Relations Committee, said that approval of the treaty is critical because other nations are moving to lay claims in the Arctic and elsewhere.

“This is in the best interests of the United States of America, it is in our economic interest, our job creation interest, our competitive interest, our national security interest,” Mr. Kerry said.

He dismissed suggestions by some critics that the treaty gives too much power to international organizations, reducing American sovereignty.

Supporters believe they can frame support for the treaty as a jobs issue.

“The Chinese are staking claims every day,” Mr. Kerry said. “The United States needs to protect its claims. If people want to be on the side of letting China run away with the ballgame, then they can sit on the sidelines.”

The captain of the M/V Rena, whose identity is being witheld, appeared before a Tauranga court in December and later plead guilty to charges under Section 65 of the Maritime Transport Act for "operating a vessel in a manner causing unnecessary danger or risk" and under the Resource Management Act relating to the "discharge of harmful substances from ships or offshore installations."

Seafarers facing criminal charges are often treated unfairly and lack legal representation, according to an industry survey conducted by the international legal research center Seafarers’ Right International (SRI).

The survey tallied a total of 3,480 seafarers over a 12-month period and returned responses from seafarers representing 18 countries, 68 different nationalities, and eight languages.

Of those surveyed, at total of 8% had faced criminal charges; 4% had been witnesses in criminal prosecutions, while 33% knew of colleagues who had faced criminal charges. Meanwhile almost 24% of masters in the survey had faced criminal charges.

Of those seafarers who had faced criminal charges themselves, the survey found that 44% of seafarers reported that they were bodily searched; 87% who faced charges relating to the discharge of their professional duties said that they did not have legal representation; 91% of seafarers who needed interpretation services said that they were not provided with such services; and 89% of seafarers who had faced criminal charges said that they did not have their rights explained to them.

Seafarers were also specifically asked about their perceptions and found that 80% who had faced criminal charges felt intimidated or threatened. Concerning casualty inquiries and accident investigations, 46% of seafarers who answered the question said that they would be reluctant to cooperate fully and openly with such inquiries. Reasons expressed included: “The information that I would provide might be used against me”; “I would fear incriminating myself”; “Anything you say can be used as evidence against you”.

Overall, an overwhelming 81% of those who faced criminal charges did not consider that they had received fair treatment.

In addition to the survey, SRI carried out a review of all incidents involving criminal charges against seafarers reported by Lloyd’s List, TradeWinds and Fairplay, for a period ranging from 2000 to 2011. In total, SRI found there were 415 incidents reported involving 1,580 seafarers.

“The voices of seafarers are expressing real fears and concerns over criminal charges and it must be in the interests of the whole maritime industry that these are addressed and seafarers adequately protected,” said Deirdre Fitzpatrick, SRI Executive Director. “The prospect of criminal charges is daunting for any human being, whether in your own country – or even more so in a foreign country – and so for seafarers, entering foreign ports on a daily basis, the risks are high and the consequences can be dire if fair and due process is not followed.

“We hope that the results of this survey will provide momentum for increased efforts to ensure fair treatment of seafarers, whether innocent or guilty of a criminal charge, and that from this survey, the faces and the voices of the seafarers will be seen clearly and heard loudly”.

The Seafarers’ Right International says the full report of the survey will shortly be available on their website.

The M/V Rena as observed from a morning overflight on January 24. Photo: LOC

The Master and Second Officer of the cargo vessel Rena today pleaded guilty to 10 out of the 11 charges laid by Maritime New Zealand (MNZ) against the men following an investigation into the ship’s grounding on the Astrolabe Reef off Tauranga on 5 October.

MNZ charged the Master and the ship’s Second Officer (Navigation) with a number of offences following the ship’s grounding.

Charges included:

• Section 65 of the Maritime Transport Act (MTA) 1994, “for operating a vessel in a manner causing unnecessary danger or risk”
• Section 338 (1B) and (15B) of the Resource Management Act 1991 (RMA) relating to the “discharge of harmful substances from ships or offshore installations”
•  S117(e) & 66 of the Crimes Act, alleging they “willfully attempted to pervert the course of justice” by altering ship’s documents subsequent to the grounding

The Master faces four charges under the Crimes Act, and the Second Officer three charges.  Each charge carries a maximum penalty of seven years’ imprisonment.

Today, appearing in the Tauranga District Court, the Master entered guilty pleas to all six charges laid against him.

The Second Officer pleaded guilty to the MTA charge and all three Crimes Act charges, but entered no plea to the RMA charge. If necessary a two day hearing will take place on the 22 and 23 May to hear legal argument regarding the RMA charge.

Sentencing for both men will take place in the Tauranga District Court on 25 May.

M/T Samho Dream

The shipping industry has certainly seen better days, which for some shipowners, has put them in a financial bind.  A recent example is the VLCC Samho Dream which was recently sold at auction after the owner defaulted on it’s bank loans.

So what happens with the crew in that situation?

In Thome Ship Management’s December newsletter, they talked with two of their captains on that very subject, here’s what Captain Jeevan N Thombre of MT HERO 1, and Captain Lakshman Kumar of MT Leander had to say:

Both vessels, being part of the same fleet, were arrested on 12 August 2011.

1. What happened when the vessels were arrested?

Captain Jeevan N Thombre (JNT): Once arrested, a security guard was placed onboard our vessel. He was joined by a Solicitor and an officer from the Sheriff’s office. In accordance with the High Court of the Republic of Singapore, a warrant was issued against the vessel and a copy of the warrant was given to me and a copy was displayed on the bridge.

2. What does it mean when the ship gets arrested?

JNT: It simply means the ship is not allowed to move from its present position. A security guard is kept onboard to make sure the vessel does not leave the port and no one is allowed to visit the vessel without prior approval from the sheriff’s office.  However, there were no restrictions for the crew. Shore leave / Sign-on sign-off can be carried out after getting approval from the sheriff’s office.

Captain Lakshma Kumar (LK): It also means that the Owner, Master and Managers all have no authority to make any decision over the ship, crew and even the supplies of provisions.  Fortunately our own Owners/Managers have taken the initiative to request for provisions, bunkers and urgent stores at a fortnight interval applying through the Sheriff’s Office for approval.

3. What did you do onboard while the ship was arrested? How did you pass your time?

JNT: Although the ship was arrested, we were still carrying out our routine jobs and trying to keep the vessel ready for trading at any time when required.

LK: For me, other than carrying out my usual duties, most of the time I was trying to find ways to boost the morale of my crew. I assured them that no one is going to lose any money working with Thome. I have been working with the company for a long time and I have never experienced any irregularities in the settlement of monthly wage or final BOW. For this tenure though, they might expect some delays in getting their MPO/Allotments.

4. How was Thome supporting you as the Captain when the ship was under arrest?

JNT: Thome supported me as the Captain to sort out all the requirements for the safety of the ship and the crew.

LK: Thome has been supporting me as and when I require their assistance that is why I am with them for the last 10-11 years and proud to be part of them.  However in this kind of situation, I know their hands are tied as everything requires the approval of the sheriff or the solicitor.

5. What advice would you give to other captains in the event their ship was under arrest?

JNT: Keep up the morale of the crew

LK: I agree. Let your crew understand that you are in the same predicament as the Master is part of the crew as well and help your crew meet their basic needs (i.e. wages owed, food and fresh water and bunker).

Headquartered in Singapore, Thome Shipmanagement is a niche provider of personalized, high quality, and specialized shipmanagement services.  Thome manages vessels and and provides officers and ratings under the flags of Singapore, Bahamas, Panama, Liberia, UK, Marshall Islands, and Indonesia, as well as the NIS and DIS registeries.  

The three entered their pleas in U.S. District Court to 26 counts, 22 of which are eligible for the death penalty. The government hasn’t decided whether to seek the death penalty, but is examining the possibility.

Through an interpreter, Ahmed Muse Salad, Abukar Osman Beyle and Shani Nurani Shiekh Abrar pleaded not guilty to murder, piracy, hostage taking and violence against maritime navigation resulting in death, among other charges.

The defendants are among 14 men who were charged with piracy and other counts in the hijacking of the yacht Quest in February. The other men have already entered guilty pleas and agreed to cooperate with authorities.

The owners of the Quest, Jean and Scott Adam of California, along with friends Bob Riggle and Phyllis Macay of Seattle, were shot to death several days after being taken hostage several hundred miles south of Oman.

They were the first U.S. citizens killed in a wave of pirate attacks that have plagued the Gulf of Aden and the Indian Ocean in recent years, despite an international flotilla of warships that patrol the area.

U.S. Magistrate Judge F. Bradford Stillman warned the three defendants of the severity of the charges they faced. “If you are convicted, you could be sentenced to the penitentiary for life, or you could be sentenced to death and executed,” Mr. Stillman told the defendants, who wore faded black-and-gray prison uniforms. They entered court in shackles.

Each defendant, when asked through an interpreter, firmly denied the charges. Each also requested a jury trial.

“This is not something that I have done, so this is not something I will plead guilty to,” Mr. Salad, 43, said through an interpreter.

“This is not a crime that I committed,” said Mr. Abrar, 29. “I have never killed anybody.”

“The allegations are not something that I did,” Mr. Beyle, 22, said.

Attorneys for Mr. Salad said after the hearing they expected a long, complex path to trial. The defendants speak no English, attorneys face national-security clearance issues and the men’s home country is a dangerous and lawless place.

“Somalia is a place we have been advised as Westerners we should not really be entering,” Paul G. Gill, a federal public defender, said outside of the courthouse. “It’s going to be a great battle just to even identify witnesses who know anything about the clients’ past that are in a place we can get access to.”

The defendants, who have little or no education, also present a challenge, Mr. Gill said.

“They are from a totally different culture that is nothing like Western culture and American culture in particular,” Mr. Gill said. “We all grew up watching ‘Law and Order’ or whatever and even if we’re lay people we have some fundamental understanding of how things work. It’s all news to them.”

During two separate hearings before different judges, attorneys laid out various issues that will push the Quest trial into 2012. Judge Stillman waived federal speedy-trial guidelines.

One reason is the government’s decision to examine the possibility of seeking “a sentence of death with respect to any or all of the defendants,” according to a government motion. The process typically takes 90 days. The ultimate decision rests with Attorney General Eric Holder.

“Obviously it’s within their discretion and we’re just going to have to see what they do,” said Larry M. Dash, who is also representing Mr. Salad.

Court records said the pirates intended to bring the Americans back to Somalia, where they could be held for ransom. That plan fell apart when four U.S. warships began shadowing the Quest.

The Navy had told the pirates that they could keep the yacht in exchange for the hostages, but they refused to take the deal because they didn’t believe they would get enough money. Ransoms are typically made for millions of dollars.

Mr. Abrar fired a shot above Mr. Adam’s head and told him to tell the Navy that if they came any closer, the Americans would be killed, according to court records. Soon after, a rocket propelled grenade was fired by one of the convicted pirates at the USS Sterett, where two other pirates were on board conducting the negotiations.

The Americans were being held in the yacht’s steering wheel house by seven men when gunfire directed at the Americans erupted, according to court records. Other pirates have said they tried to stop the shooting once it started.

In all, 19 men boarded the American boat. Four of them died on board — including two who have also been identified in court records as those who shot at the Americans. One person was released by authorities because he is a juvenile.

Dow Jones & Company, Inc.

Steve Gordon is an Offshore Injury Lawyer representing the family of Karl Kleppinger, a victim of the incident, and ten injured rig workers including Douglas Brown whose interests he represented as a party of special interest during the Joint USCG/BOEMRE Investigation.

Ali, also known as Ismail Ali or Ahmed Ali Adan, had been residing in Somalia. He was arrested on April 20, 2011 at Dulles International Airport. He is scheduled to make his initial appearance April 26, 2011 in the U.S. District Court for the District of Columbia.

The indictment, returned April 15, 2011 and unsealed today, charges him with conspiracy to commit piracy, piracy under the law of nations, attack to plunder a vessel, and aiding and abetting in the crimes. If convicted of the charges, he faces a sentence of up to life in prison.

This marks the first time that charges have been filed in the District of Columbia against a person accused of negotiating and receiving a ransom in an act of piracy.

According to the indictment, Ali and others conspired to take over the M/V CEC Future, a Danish-owned vessel carrying American cargo, in a plan to hold the crew and cargo for ransom. The pirates used AK-47s and a rocket-propelled grenade to take over the ship off the coast of Somalia on November 7, 2008, and held it for a total of 71 days. The vessel was owned by Clipper Group and contained cargo belonging to McDermott International, Inc.

Ali boarded the ship within two or three days of the attack, the indictment states. He allegedly communicated with the ship’s owners and demanded $7 million for the release of the vessel and its cargo and crew. According to the indictment, Ali agreed on January 13, 2009 to accept $1.7 million, which was delivered the following day. The takeover ended on January 16, 2009, with the release of the 13 crew members, as well as the vessel and cargo.

“This case shows our resolve to prosecute pirates and those who profit from crimes on the high seas,” said U.S. Attorney Machen. “Those who negotiate and collect these ransoms are every bit as responsible for these crimes as the pirates who commandeer the ships.”

The defendant is the second person to be charged in the case. Jama Idle Ibrahim, also known as Jaamac Ciidle, 39, was arrested last year and pled guilty in September 2010 to charges of conspiracy to commit piracy under the law of nations and conspiracy to use a firearm during and in relation to a crime of violence. His plea marked the first conviction in the District of Columbia for a piracy-related offense.

Ibrahim, also of Somalia, was sentenced earlier this month to the maximum penalty of five years in prison for the piracy conspiracy charge and the maximum of 20 years for the firearm conspiracy charge. That sentence runs concurrently to a 30-year prison term Ibrahim is now serving for the April 2010 attack on a U.S. navy vessel, also in the Gulf of Aden.

An indictment is merely a formal allegation that a defendant has committed a violation of criminal laws and every defendant is presumed innocent until, and unless, proven guilty.

This case is being investigated by the FBI’s Washington Field Office and the Joint Terrorism Task Force and is being prosecuted by Assistant U.S. Attorney Brenda J. Johnson from the U.S. Attorney’s Office, National Security Section, and Trial Attorney Jennifer E. Levy from the Counterterrorism Section of the Department of Justice’s National Security Division.

Via U.S. DOJ

Pictured: M/V CEC Future

It is currently considering retroactively amending the Death on the High Seas Act [DOHSA] and the Jones Act to bring judicial fairness in allowing a court to consider non-pecuniary damages when a father, spouse or child is killed at sea. Currently, the law is grossly unfair and is an anomaly in only allowing pecuniary [economic] damages and the seaman’s conscious pain and suffering prior to death if not killed instantly. For example, it currently would not allow a child or spouse to make a claim for their obvious emotional injury due to the loss of the love, care, guidance, etc. of their father, mother, husband or wife. This is clearly out of line with all states’ wrongful death laws as well as even DOHSA as it applies to air crash victims. Seamen play a vital and long standing role in commerce; are considered wards of the court; and are even given special treatment in the U. S. Constitution in the Savings to Suitors Clause. It is time to bring DOHSA and the Jones Act in line with modern day recognition of damages.

Congress is also considering legislation repealing the Exoneration and Limitation of Liability Act from 1851. This arcane law is completely outdated with modern day communication; deprives seaman a choice of their forum which has always been judicially protected; allows a vessel owner to limit its liability to the dead and injured to the value of a vessel’s hull and cargo as it sits on the seabed floor without even including available liability insurance which has been bought and paid for; allows a vessel owner, like Transocean, to receive a hull insurance payment for its hull of $401MIL+ [current value of the Deepwater Horizon] and try to limit its liability to $26.7MIL which is grossly unfair; and should be immediately, and retroactively, repealed, OR, at bare minimums, it should be amended to require the vessel owner to always include all available insurance in the “limitation fund” amount available to the injured and killed seamen.

Congress should also use this time to pass all laws which support the protection of seaman (1) ever being included in multidistrict litigation, e.g., not lumping injury/death Jones Act claims with environmental claims, loss of tourism claims, ecological injuries, etc., which drag out for years and years; and (2) in enforcing the cabotage aspects of the Jones Act, e.g., foreign flagged vessels operating in our waters have skirted USCG manning far too long and not only does this pose safety risks but it also does not support American shipbuilders and American workers’ jobs.

If you are a US citizen and this issue is important to you please CLICK HERE ]]> http://gcaptain.com/jones-petition-time-running/?15494/feed/ 0 http://gcaptain.com/book-serves-reference-tool-guide/?13893 http://gcaptain.com/book-serves-reference-tool-guide/?13893#comments Wed, 07 Apr 2010 18:49:19 +0000 Mike Schuler http://gcaptain.com/maritime/blog/?p=13893

The following is a press release issued on The International Law of the Shipmaster, a new book that serves as a reference tool and guide to “Shipmaster Law”.  According to its publishers, no similar book has been written since 1912.

(WASHINGTON) — Tara Leiter, an attorney at Blank Rome LLP, collaborated with John A.C. Cartner (United States Coast Guard shipmaster and lawyer) and Richard P. Fiske (retired US naval captain and attorney with John Cartner at Cartner & Fiske LLC) to author the recently released legal treatise The International Law of the Shipmaster.

Released in the IMO’s declared Year of the Seafarer, the book is designed to identify and explain the complexity of the legal position faced daily by today’s shipmasters and serves as a ready reference tool and guide to “shipmaster law”. No similar book has been written since the 14th edition of Abbott on Shipping in 1912.

“There are countless circumstances under which the shipmaster can incur liability and not a single legal resource in nearly one hundred years outlines the vast majority of those liabilities for most maritime nations under one cover” observed Ms. Leiter. “In this increasingly litigious world, the shipmaster must constantly be aware of his duties and obligations, at law and in practice, to his ship’s owners, P&I Clubs, shippers, charterers, flag state, port states, coastal states, crewmembers, and managers, among others.”The book is divided into three parts. The first part comprises a survey of international law as it relates to the master, and introduces the law of the shipmaster in historical, social and practical context and the international law affecting the master. The second part addresses the substantive doctrines of law governing the shipmaster and the legal powers, rights and duties of the master, as well as their obligations for the safety of the vessel, cargo, the environment and crew. The final part considers the statutes governing the shipmaster for each of the 195 maritime flag states, functionality of governments, stability and rule of law for most states.

“This treatise is a necessary educational tool and a user-friendly quick-reference for masters, owners, lawyers or anyone else in the shipping industry,” added Ms. Leiter. “It was written with all corners of the maritime industry in mind and I believe it will serve its purpose well.”

Tara L. Leiter is a U.S. and U.K. (pending) licensed lawyer and received her Masters of International Maritime Law from the IMO International Maritime Law Institute in Malta, EU.

She practices corporate law and U.S. and international maritime and admiralty law at Blank Rome LLP in Washington, DC. She is a member of the Maritime Law Association and WISTA- USA (Women’s International Shipping and Trade Association).