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).

Sometimes, out of economic neccessity, an injured seamen is forced to return to some work while still injured or recovering due to an employer failing to pay maintenence and medical cure.  In many cases, returning to work negatively effects the seamens later claim against the employer.  Following the Supreme Court ruling laid out below, the employer will be held liable for punitive damages to the injured seamen when they refuse to pay for medical care and time off.  Here is a press release explaining the courts decision.

Significant Decision Impacting Seamen’s Right to Receive Punitive Damages for Employers’ Disregard of Maintenance and Cure Payments

On Thursday, June 25th, the United States Supreme Court decided a case styled Atlantic Sounding Co., Inc. et al. v Edgar L. Townsend 2009 WL 1789469 (U.S. June 25, 2009).  This case marked the Supreme Court’s decision to protect a seaman’s right to receive damages for an employers’ willful and wanton disregard of a maintenance and cure obligation.

Petitioners allegedly refused to pay maintenance and cure to respondent Townsend for injuries he suffered while working on its tugboat. Townsend filed suit under the Jones Act and general maritime law, alleging arbitrary and willful failure to provide maintenance and cure. He filed similar counterclaims in the declaratory judgment action, seeking punitive damages for the maintenance and cure claim.

The District Court denied petitioners’ motion to dismiss the punitive damages claim, but certified the question for interlocutory appeal. Following its precedent, the Eleventh Circuit held that punitive damages may be awarded for the willful withholding of maintenance and cure.

At issue in the Townsend case was whether an injured seaman may recover punitive damages for his employer’s willful failure to pay maintenance and cure.

Central to resolving this case were three settled legal principles. First, punitive damages have long been available at common law. Second, the common-law tradition of punitive damages extends to maritime claims. And third, there is no evidence that claims for maintenance and cure were excluded from this general admiralty rule.

The general rule that punitive damages are available at common law extends to claims arising under federal maritime law. The Supreme Court relied upon a previously decided case, i.e., Lake Shore & Michigan Southern R. Co. v Prentice, (147 U.S. 101) in making the above statement. The Prentice court held that courts of admiralty are to proceed upon the same principles as courts of common law, in allowing exemplary damages.
The only statute that could have served as a basis for overturning the common-law rule was the Jones Act. However, the plain language of the Jones Act does not provide a basis for overturning the common-law rule. The Townsend court’s previous decisions have repeatedly observed that the Jones Act preserves common-law causes of action such as maintenance and cure, and supports the view that punitive damages awards remain available in maintenance and cure actions after the Act’s passage.

Punitive damages have long been a remedy available at common law for wanton, willful, or outrageous conduct. The common-law punitive damages tradition extends to claims arising under federal maritime law.

The petitioner, Atlantic Sounding Co., cited Miles v Apex Marine Corp. (498 U.S. 19) in their argument. The Townsend court held that Miles did not limit recovery to the remedies available under the Jones Act. The Townsend court further held that Miles did not address either maintenance and cure actions in general or the availability of punitive damages for such actions. The case grappled with the question of whether general maritime law should provide a cause of action for wrongful death based on unseaworthiness. This case was not dealing with the availability of remedies for wrongful-death actions brought under general maritime law. Thus, the reasoning in Miles did not apply here.

The Townsend court held that the quest for uniformity in admiralty law does not require narrowing available damages to the lowest common denominator approved by Congress for distinct causes of action.

The Townsend dissent failed to acknowledge that the general common-law rule made punitive damages available in maritime actions. The dissent never explained why maintenance and cure actions should be excepted from this general rule. The fact that they want to limit recovery for maintenance and cure to whatever is permitted by the Jones Act would give greater pre-emptive effect to the Act than is required by its text, Miles, or any other court decisions.

The majority opinion in Townsend noted that punitive damages have long been an accepted remedy under general maritime law. Further, nothing in the Jones Act altered this understanding. Thus, damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in this case as a matter of general maritime law. The Townsend court affirms the judgment of the 11th Circuit Court of Appeals.

The Townsend opinion leaves the reader satisfied, knowing the Supreme Court continues to look out for seamen and their rights under general maritime law.

–

Thanks to Steve Gordon of Gordon & Elias, L.L.P for submitting this press release to be published here on gCaptain.  Gordon & Elias, L.L.P are a boutique law firm with a nationwide practice focusing on Jones Act, Admiralty and Maritime Law.  More information can be found at http://www.OffshoreInjuries.com, and the associated Jones Act Blog http://www.JonesActQuestions.com.

Dear gCaptain,

Today, in the 270th Judicial District Court in Houston, Harris County, Texas a lawsuit (case 2009-26129) was filed on behalf of Mr. Richard Hicks, a steward on board the Maersk Alabama. The suit alleges that Maesrk was negligent and that the Maersk Alabama was “unseaworthy” as that term is defined by federal maritime law. If you practice maritime law, you knew this was inevitable. We all know the facts as Captain Phillips’ plight was plastered over our televisions over Easter weekend and we all prayed for his safe return. However, it is not Captain Phillips who is suing Maersk. It is, instead, another crewmember who was on board the Maersk. Without personally commenting on the viability of Mr. Hicks’ claim, I would like to generally address the liability of a Jones Act employer, such as Maersk is, in situations such as this.

The Jones Act is found in the Merchant Marine act of 1920. It was introduced by and aptly named after Washington Republican Senator Wesley L. Jones and represented this country’s commitment to the merchant mariner and to the American shipping industry. Basically, there are two sides to the Jones Act. The cabotage side [utilizing American made, U.S. flagged and U.S. manned vessels to travel between U.S. ports] and the injured seaman side. Under the Jones Act, the maritime employer owes its employees the duty of a safe work place and the duty not to have a vessel that is “unseaworthy”. “Unseaworthy” does not mean that the vessel does not float; however, “unseaworthiness” is defined as something on board the vessel that is “not fit for its intended purpose”. The question for the courts in this situation is : Was the Maersk Alabama an unsafe work place because she was ordered to pass through waters that were infested with armed criminals, i.e., modern day pirates? If the answer is yes, then there may be liability from Maersk to Mr. Hicks. If the answer is no, then, unless the vessel is unseaworthy, then there will be no liability.

Even if the answer is yes, the defense will argue: What is Maesrk suppose to do? It obviously needs to transport goods from point A to point B and that is what it is hired to do. What reasonable precautions were available to such an employer? There has been much discussion about arming seaman. We all recall the back and forth discussion about arming pilots after 911. Obviously discharging a weapon at 37,000 feet in a pressurized cabin is a heck of a lot different than firing an RPG at a 30 foot boat in open water filled with criminals. Nevertheless, it is my understanding that some ports of call will not allow heavy weaponry to be on board a vessel entering its port. This also is for obvious reasons.

So, I believe there are many factors to consider in assessing Mr. Hicks’ claim and other such claims that may be filed down the road. From my perspective, I have not seen an initiative taken by Maersk, or any other shipping companies, be they domestic and/or international, to foster meaningful and result oriented discussion. Perhaps, the next U.S. crew that is subjected to piracy will have even a stronger claim against their employer because they also did nothing to try to defend these attacks when clearly the employer is on notice that the pirates will U.S. vessels. I have seen on gCaptain the concept of drone fly-bys along the coast of Somalia that could monitor pirate activity. In World War II, it was the merchant mariner that was easy prey for the German U-Boat and guarded flotillas were a rarity.

Surely, the answer should not rest solely on the shoulders of U.S. shipping. However, other countries do not have laws as lucrative to lawyers as the Jones Act. Being from a Jones Act law firm, our law firm thinks long and hard whether to take on a case as we are keenly aware that the U.S. “Blue Water” maritime industry is rebounding from years of stagnancy. These are certainly questions that must be addressed. I will close by saying the following: anyone can sue anybody for anything; however, prevailing is another story.

Hope this helps!

Steve Gordon
Gordon & Elias

You can view the original post of the email, as well as response from gCaptain Forum members in the YOUblog section of gCaptain’s Forum HERE.

There is also another thread that discusses this issue HERE.

The Guardian tells us:

A Chinese cargo ship believed to be carrying 77 tonnes of small arms, including more than 3m rounds of ammunition, AK47 assault rifles, mortars and rocket-propelled grenades, has docked in the South African port of Durban for transportation of the weapons to Zimbabwe, the South African government confirmed yesterday. It claimed it was powerless to intervene as long as the ship’s papers were in order.

Copies of the documentation for the Chinese ship, the An Yue Jiang, show that the weapons were sent from Beijing to the ministry of defence in Harare. Headed “Dangerous goods description and container packing certificate”, the document was issued on April 1, three days after Zimbabwe’s election. It lists the consignment as including 3.5m rounds of ammunition for AK47 assault rifles and for small arms, 1,500 40mm rockets, 2,500 mortar shells of 60mm and 81mm calibre, as well as 93 cases of mortar tubes.

The carrier is listed as the Cosco shipping company in China.

The structure of shipping companies is a complicated one. Each vessel must be registered (flagged), insured, classed, managed and crewed. For reasons of liability, tax avoidance, media relations and general profit motives ship owners will often use purpose build corporations with storefronts located in the countries offering the best terms or amicable laws. The end result is purpose built complexity. This is the reason why the Cosco is not liable for the clean-up of oil spilt by the Cosco Busan and will likely deny ties to the shipment of these arms. To find the truth would require a large scale investigation well beyond the scope of this blog, or even a well funded news group.