Replvin where first mortgage is not available

In an era of heightened loan defaults, litigious borrowers, and the unfettered mobility of assets – where oh where is a lender to go? No doubt, lenders have experienced the “tail of the stingray” – an often lethal combination of events that result in their security being judicially untouchable and their default rate is skyrocketing. Coupled with the borrower who plays fast and loose with the Courts, the undeniable increase in escalating recovery costs, and the borrower’s mad dash to bankruptcy court, often suffocate the lenders efforts to recover their security.

While Courts are responding to borrower’s efforts to avoid foreclosure, sometimes it is imperative that lenders go back to the basics – the old and often overlooked – “writ of replevin.” Unlike real estate, the transitory nature of vessels and aircraft often allow owners to skirt responsibility by simply going to another state or district, or even worse, a foreign country, without ever looking back. In Florida, the Bankruptcy Courts have recognized that when a borrower “surrenders” its property, it should be prohibited from raising defenses to the foreclosure proceeding. In fact, on May 13, 2015, Judge Michael Williamson, Middle District of Florida, (In re Meltzer 8:12-bk-16792-MGW, and In re Patel 8:13-bk-09736-MGW) held “at a minimum, ‘surrender’ under the Bankruptcy Code §§ 521 and 1325, means a debtor cannot take an overt act that impedes a secured creditor from foreclosing its interest in secured property.” On December 19, 2014, Judge Paul G. Hyman, Jr., Chief Judge of the Bankruptcy Court for the Southern District of Florida in In re Failla, Case No. 11-34224-PGH, ordered the borrowers to stop defending or contesting a pending state court foreclosure action where the borrowers had filed a statement of intention to surrender their property, finding that by contesting the foreclosure action, the borrowers were resisting surrender of their property and refusal on the borrowers’ part to refrain from defending against the foreclosure action could result in revocation of discharge, reasoning that the borrowers may have committed fraud on the court by stating under oath that they intended to surrender the property and then continuing to fight the foreclosure.

But when it comes to transitory collateral, the difficulty of recovery escalates. The 2011 case of Home Savings & Loan Co. of Youngstown, Ohio v. Super Boats & Yachts, LLC 2011 WL 2447641 (S.D. Fla. 2011) illustrates this difficulty. The Bank obtained a purchase-money security interest in the vessel perfected by notation on the vessel’s certificate of title. By its terms, the Note granted Home Savings a lien and security interest in the Vessel. The provisions of the Note allowed Home Savings to take immediate possession of the Vessel in the event of a default. While Home Savings initiated a replevin action for the seizure of the Vessel and the Ohio Court of Common Pleas issued an Order of Possession without a hearing against the Vessel based upon the unverified belief that the vessel was in Ohio. But, in a replevin action, the property’s location determines the existence of jurisdiction. Scaffer v. Heitner 433 U.S. 186 (1977) Hence, as the vessel had been removed from the State of Ohio and Defendant Super Boats and Yachts, LLC acquired ownership interest and possession of the Vessel and a Certificate of Title had been issued in Florida, Home Savings filed a complaint in the Southern District Court against the Vessel, in rem, and against Super Boats, in personam, in which it sought a warrant for the arrest of the Vessel, an order authorizing its sale, a judgment providing immediate possession and a decree in favor of Home Savings for damages.

Home Savings contended that “[b]ased on the Ohio Order, it is entitled to the “immediate right of possession in the [Vessel]” and argued that it possesses a lien over the Vessel that is “of a maritime nature. The District Court observed that Home Savings financed the purchase of the Vessel and, therefore, holds an ordinary mortgage. As the Supreme Court explained long ago, “[a]n ordinary mortgage of a vessel, whether made to secure the purchase money upon the sale thereof or to raise money for general purposes, is not a maritime contract. A court of admiralty, therefore, has no jurisdiction of a libel to foreclose it, or to assert either title or right of possession under it.” The J.E. Rumbell, 148 U.S. 1, 15 (1893); see also J.G. Jackson v. Inland Oil & Transp. Co., 318 F.2d 802, 804 (5th Cir. 1963). The Complaint does not allege that Home Savings provided necessaries to the Vessel. Therefore, the District Court held that Home Savings did not hold a maritime lien sufficient to for subject matter jurisdiction.

Plaintiff must possess a maritime lien or a preferred mortgage in order to invoke this Court’s admiralty jurisdiction and as Home Savings neither a valid maritime lien nor a “preferred mortgage” under the Commercial Instruments and Maritime Liens Act (“CIMLA”), 46 U.S.C. § 31301 et seq. Home Savings.” The District Court observed that a “preferred mortgage” is a mortgage that includes the whole vessel, is filed in accordance with 46 U.S.C. § 31321, and covers a documented vessel. See 46 U.S.C. § 31322(a). “[I]f a mortgage is within [CIMLA], admiralty jurisdiction is exclusive; if the mortgage is not within [CIMLA], admiralty has no jurisdiction.” Richard Bertram & Co. v. Yacht Wanda, 447 F.2d 966, 967 (5th Cir. 1971) (citing The Thomas Barlum, 293 U.S. 21 (1934)). Further, Home Savings did not filed its mortgage with the Secretary of Homeland Security, which is an express requirement under 46 U.S.C. § 31321. Further, the boat is not a documented vessel or one for which an application of documentation has been submitted (46 U.S.C. § 12105) and in the absence of a preferred mortgage, the Court lacked admiralty jurisdiction over Home Saving’s claim.

So, where does this leave the lender? First, the lender must possess the proper qualifications for initiating a replevin action. It must bring the action in a court of competent jurisdiction and at correct location. F.S. §78.055 sets forth the allegations which must be contained in a complaint for a lender to move for a writ of replevin prior to a final judgment. To obtain an order authorizing the issuance of a writ of replevin prior to judgment, the plaintiff must file with the clerk a complaint reciting; 1) a description of the claimed property; 2) a statement that the plaintiff is the owner of the claimed property or is entitled to possession of it; 3) a statement that the property is wrongfully detained by the defendant; 4) a statement that the claimed property has not been taken for a tax, assessment, or fine pursuant to law; and 5) a statement that the property has not been taken under an execution or attachment against the property of the plaintiff or, if taken, that it is exempt. Probably the greatest hurdle for the lender is the due process requirements. Florida’s statutory procedure for obtaining a writ of replevin prior to entry of a final judgment on an ex-parte basis was amended to comply with the due process requirements set forth by the U.S. Supreme Court in Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974). Section 78.068 was drafted to meet the due process requirements. It requires a statement in a verified petition or separate affidavit of the nature and amount of claim along with the grounds relied upon for issuance of the writ and provides that the writ will issue if the court finds that the property is in danger of destruction, concealment, waste, removal, or transfer, or if the defendant has failed to make payment as agreed. Some Florida cases have affirmed orders directing the issuance of a prejudgment writ of replevin under §78.068 without mentioning the requirement of pleading exigent circumstances such as destruction, concealment, or waste, suggesting holding that nonpayment is sufficient as so held by the Supreme Court in Mitchell. See: Landmark First National Bank of Fort Lauderdale v. Beach Bait and Tackle Shop, Inc., 449 So. 2d 1287 (Fla. 4th DCA 1984) (upon plaintiff’s proof of nonpayment issuance of a prejudgment writ of replevin should be upheld).

So, when vessel owners default, particularly a first preferred ship’s mortgage is lacking, Lenders must consider the benefit to be gained by seeking a prejudgment writ of possession.

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LEARN LAW BEFORE ADDING GUNS ON BOARD BY CAPT. ROBERT L. GARDANA

For recreational boaters, piracy often seems as remote as Somalia – where four cruisers were killed following the hijacking of the Quest, a 58-foot sailing vessel. Certainly the crew of four aboard the Joe Cool never suspected that their minutes were numbered and tragedy – as opposed to Bimini – would be their destination as the 47-foot sportfisher slipped out of its Miami slip one sunny September afternoon.

The hijackers, with a 9mm in their duffle bag and a ruse about their girfriends waiting for them in Bimini with their passports, convinced the crew to accept the $4,000 charter and head out. Little did the crew know that one of their passengers was a fugitive fleeing for Cuba to escape a child molestation investigation and an Arkansas felony charge relating to a $92,000 Wal-Mart robbery.

Miami mariners have an indelible memory of this tradgedy and others. While federal laws make it a federal crime to bring a dangerous weapon aboard a vessel without previously obtaining the permission of the owner or master of the vessel, only with extreme vigilance, including the physical examination of bags and the searching of pas

Now, with summer here and gun control laws making national headlines, vessel security is on the mind of boat owners and crews. But the laws surrounding protection of your vessel are confusing and change as your vessel passes from coastal waters past the demarcation line into international waters and then into a foreign port.

Federal law allows the transport of weapons in vessels if they are unloaded, rendered temporarily inoperable or are packed, cased or stored in a manner that will prevent their ready use. Under these conditions, no permit is required. As you transgress Texas, Louisiana, Alabama, Florida, Georgia, South Carolina, North Carolina and Virginia waters, while the laws are “generally similar” (with some variations and exceptions while fishing or hunting), in most states gun laws that apply to boats often follow similar rules which apply to vehicles.  These states’ laws also prohibit a convicted felon from possessing a firearm under any circumstances.

But, if you are taking a firearm aboard as a concealed weapon, then you must have a concealed weapons permit. According to Carli Segelson, Florida Fish and Wildlife Conservation Commission public information coordinator, “While Florida permits the use or possession of a firearm while engaged in fishing, camping, or hunting or going to or from lawful hunting, fishing, camping expeditions, if you are simply pleasure boating, you may carry a concealed weapon if you have the appropriate permit.

“If you do not have a concealed weapons permit, a firearm may be on your vessel as long as it is stored in the same manner as it would be if in a vehicle (private conveyance), provided that you are not in a federal park or refuge,” she added. “It is always wise to advise any law enforcement officer that you are carrying a weapon or have a weapon on your vessel.”

U.S. Residents traveling with firearms are reminded to register it with U.S. Customs and Border Protection on a form 4457 prior to taking it out of the U.S. You will need to present the firearm in person to a CBP officer in order to register it. When you re-enter the U.S., a signed CF 4457 is proof that you did not acquire the firearm abroad. If you have the original receipt for a firearm purchased in the U.S., this can be used in lieu of the form to demonstrate that it is American goods returned.

Should your cruising include the Bahamas, that country’s law permits firearms aboard your vessel as part of your ship’s equipment, but they must be declared (including the ammunition count) and stay aboard the vessel in a secure compartment at all times. In the event your boat is boarded by customs or the Royal Bahamas Defense Force, the information on your cruising permit will be checked carefully against your actual supply and ammunition must match the number on the cruising permit.

The U.S. Department of Transportation Maritime Administration and U.S. Coast Guard have focused on improving the self-awareness and self-defense capabilities of the commercial shipping industry, and recreational boaters should consider doing so as well. The maritime industry and the International Maritime Organization have established self defense standards for commercial vessels transiting piracy risky regions, and recreational vessel owners should also develop a self-defense plan. If you intend to carry a firearm aboard your vessel, verify the latest gun laws for your specific state and any other areas you travel. All states have this information readily available to boaters on both permitting and boating requirement websites.

If a weapon is carried, boaters should implement plans for proper permitting and securing of weapons aboard and proper training in the use of your weapons for all aboard.  If you operate a charter, you should have written permission to inspect all bags and include a boarding procedure which includes checking all passenger’s thoroughly for weapons.

Capt. Robert L. Gardana is a licensed U.S.C.G. master and practicing attorney for over 30 years and may be reached at Gardanalaw@gmail.com (website: www.BoatLawyer.com).

This article was first published in the June 2013 edition of – All At Sea – Southeast.

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WHAT TO DO WHEN YOUR BOAT IS ARRESTED BY CAPT. ROBERT L. GARDANA

Your sitting peacefully in your office and the Captain of your yacht calls and says: “Boss we’re under arrest by the U.S. Marshall.”  “What did you do?” you reply.  “Not us – not the crew,” the captain elaborates. “The yacht itself is being arrested and seized by the U.S. Marshall – your boat is under arrest!”

As a yacht owner, how could your vessel be getting arrested for something you are not aware of? It is likely the claim of a mechanic who you believe overcharged or a disputed boat yard or marina bill. Such mechanics, fuel suppliers or yards may file suit to foreclose a maritime lien against your vessel. They can have it “arrested” and sold at the Courthouse steps to pay the unpaid bill.

Many yacht owners are unaware that to bind their yacht does not require their direct approval. In fact, the “lienor” need not even sue you personally. Instead, the provider can sue the boat directly in what is referred to as an “in rem” proceeding. The yard or fuel bill, or any other provisions supplied to the vessel are referred to as “necessaries” under the Maritime Lien Act, which defines “necessaries” as “repairs, supplies, towage and the use of a dry dock.”   The purpose of maritime liens is to enable a vessel to obtain supplies or repairs necessary to its continued operation by giving a temporary pledge of the vessel, which may be held, until payment can be made or more formal security given. The arrest of the vessel is to prevent the owner from sailing away without having paid for the “necessaries.”

A maritime lien is a special property right in a ship given to a creditor by law – as security for a debt or claim. Under 46 U.S.C. Section 31341, persons presumed to have authority  to procure necessaries for a vessel include the owner, the master, or a person entrusted with the management of the vessel.  Hence, provided the “necessaries” were supplied to the vessel, the work order or other marine contract to provide necessaries need not be signed or even written, as long as the oral contract is clear, e.g. “fill her up” or “replace the antenna,” etc. – in which case the lien is valid and enforceable against the vessel.

When engaging a boatyard, mechanic, or other marine tradesman, boat owners should insist upon a signed work order – signed by both sides – the owner of the yard (or its agent) and the owner (or captain) of the vessel. A clear written work order eliminates surprises when it comes to paying the bill, and if a dispute does arise, the yard would be hard pressed to try to get more in court than the amount agreed upon in writing between the parties.

But be very cautious about to who you give the “keys” or let use your vessel – as even an agreed buyer in possession of the vessel or a charterer, or one entrusted with the vessel’s management is presumed, under maritime law, to have authority to bind the vessel for “necessaries.”  This presumption created by section 31341 can be rebutted by showing that the provider knew of a “no-lien clause” which prevented the person who ordered those necessaries from binding the vessel. If, however, that no-lien clause is not made known to the supplier, the maritime lien stands.

An arrest of your vessel must be filed in the U.S. District Court where the vessel is located – under special procedures of arrest unique to admiralty law. Recently, the U.S. Supreme Court reversed a judgment against a houseboat APRIL 2013 because the majority agreed with the vessel owner that the structure was not a “vessel” under the maritime lien act – even though it was at a marina and floating in a slip.

Recently, arrest has been challenged for violating procedural due process. The Supreme Court decisions require five basic criteria for constitutional seizure of a vessel:

  • Effective notice to persons having an interest in the property seized;
  • Judicial review prior to attachment;
  • Avoidance of conclusory allegations in the Complaint
  • Security posted by the Plaintiff to protect the owner of the property under attachment; and
  • A meaningful and timely hearing after attachment.

While these maritime procedures are seemingly straight forward, regrettably, attorneys not familiar them often make mistakes. Non-maritime attorneys who take on the defense of a maritime lien case can unwittingly jeopardize the yacht, which may be sold by the U.S. Marshall, making matters far worse than they need be.  Procedures for the arrest of a vessel are dictated by the Supplemental Admiralty Rules, Rule C and E and the Courts enforce these rules strictly. As an owner, you must file a verified statement of right or interest within 14 days after the arrest of your vessel. The statement must describe your interest in the vessel which will support your right to defend the action. And, thereafter, a person claiming possession or any ownership interest, must file an answer and defenses within 21 days.  Failing to comply with either or both of these procedures may result in a default, thereby preventing you from stopping the sale at public auction.

An owner of a vessel may obtain release of the vessel by posting a bond approved by the court, should your vessel be arrested, the most important steps to follow are to retain a maritime attorney familiar with the defense of such claims and ensure that a verified statement of right or interest is filed within 14 days after arrest and that you serve an answer within 21 days after filing the statement of interest or right.

And remember, time is of the utmost essence.

Capt. Robert L. Gardana is a licensed U.S.C.G. Master and Attorney with over 30 years’ experience and may be reached at Gardanalaw@gmail.com (website: www.BoatLawyer.com).

Do you have a boating related legal question?  Submit it to Gardanalaw@gmail.com to address in a future issue.

This article was first published in the April 2013 edition of – All At Sea – Southeast.

 

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The Changing Waterfront – After Lozman:The Plaintiff’s Lawyer Perspective

By: Robert L. Gardana, Esq. [1]


I. Introduction

Poet James Whitcomb Riley (1849–1916) may have coined the phrase when he wrote: “when I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”  Now, the Supreme Court has echoed that parable by the development of the “reasonable observer’s test, applying a “practical,” not “theoretical” definition of  a “vessel” – holding that Fane Lozman’s floating home was not a §3 vessel [2]– “[b]ut for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water.”[3]

This article is intended to provide guidance to the Plaintiff when determining whether  a structure is a “vessel” sufficient to support admiralty jurisdiction.   “In Lozman, the Supreme Court has sent a shot across the bow of those lower courts that have “endorse[d] the ‘anything that floats’ approach” to defining vessels.”[4]  The Lozman criteria “offer(s) guidance in a significant number of cases where the “capacity” to transport over water is in doubt.”[5]

The touchstone of admiralty jurisdiction rests upon the finding that the structure involved is a “vessel,” including maritime lien suits, marine insurance disputes, seaman’s claims and many others.  The Lozman majority believes that “in those borderline cases, the method used for resolution is workable; and unlike an “anything that floats” test, is consistent with statutory text, purpose, and precedent.”[6]

Lozman Criteria

As the majority observed, “Lozman’s floating home was a house-like plywood structure with empty bilge space underneath the main floor to keep it afloat.”  He had it towed several times before deciding on a marina owned by the city of Riviera Beach, Florida (“City”).  After various disputes with Lozman and unsuccessful efforts to evict him from the marina, the City brought a federal admiralty lawsuit in rem against the floating home, seeking a lien for dockage fees and damages for trespass. Lozman moved to dismiss the suit for lack of admiralty jurisdiction.  The District Court found the floating home to be a “vessel” under the Rules of Construction Act, which defines a “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water,” 1 U. S. C. §3, concluded that admiralty jurisdiction was proper, and awarded the City dockage fees and nominal damages. The Eleventh Circuit affirmed, agreeing that the home was a “vessel” since it was “capable” of movement over water despite petitioner’s subjective intent to remain moored indefinitely.”[7]

Reversing the Eleventh Circuit, the Lozman majority reasoned that the Eleventh Circuit’s  interpretation was too broad.   “Not every floating structure is a ‘vessel.’  To state the obvious,  a wooden washtub, a plastic dishpan, a swimming platform  on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not ‘vessels,’ even if they are ‘artificial contrivance[s]’ capable of floating, moving under tow, and incidentally carrying  even a fair-sized item or two when they do so.  Rather, the statute applies to an ‘artificial contrivance . . . capable of  being used . . . as a means of transportation on water.’”[8]

The Reasonable Observer Test

The Supreme Court’s decision will be particularly rememberd for articulating a new test to determine if a structure is a “vessel”.  The majority reasoned:

“[b]ut for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water.  It had no rudder or other steering mechanism.  Its hull was unraked, . . . it had a rectangular bottom 10 inches below the water . . . no special capacity to generate or store electricity . . .  could obtain that utility only through ongoing connections with the land. Its small rooms looked like ordinary non-maritime living quarters.  And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows.  Although lack of self-propulsion is not dispositive, it may be a relevant physical characteristic. And Lozman’s home differs significantly from an ordinary houseboat in that it has no ability to propel itself.  . . . Lozman’s home was able to travel over water only by being towed.  Prior to its arrest, that home’s travel by tow over water took place on only four occasions over a period of seven years. And when the home was towed a significant distance in 2006, the towing company had a second boat follow behind to prevent the home from swinging dangerously from side to side.”[9] (Citations omitted)

In light of these non-marine characteristics, the Lozman majority ultimately held “[t]he home has no other feature that might suggest a design to transport over water anything other than its own furnishings and related personal effects.  In a word, we can find nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for ‘transportation on water.’” Id.

Practical considerations for the “Reasonable Observer” – Criteria for determining whether structure is a “vessel”

In the fine common law tradition, recognizing several key decisions, the Lozman majority opinion identified certain criteria which the reasonable observer should review in determining whether the structure at issue is a “vessel.”

  1. “Use of structure” wharfboat not a vessel – At oral argument, counsel for Lozman was adamant that his client’s structure was most similar to that in one particular case, Eveansville & Browning Green Packet Co. vs. Chero Cola Bottling Co., 217 U.S. 19 (1926); the Court agreed,  It opined that “‘a wharfboat was not a vessel;’ . . . it was floated next to a dock; it was used to transfer cargo from ship to dock and ship to ship; it was connected to the dock with cables, utility lines, and a ramp.  Id. at 21.  Despite that fact that annually it was towed each winter to a harbor, “it was not used to carry freight from one place to another, nor did it encounter perils of navigation to which craft used for transportation are exposed.”  Id. at 22.
  2. “Waterborn function” – dredge was a vessel – the majority found support in Stewart v. Dutra Constr. Co., 543 U. S. 481, 496, which observed that dredges ordinarily “served a waterborne transportation function, namely that ‘in performing their work they carried machinery, equipment, and crew over water.’  Id. at 491-492.
  3. “Engaged in transportation” – citing two lower court decisions for support, the Lozman majority opinion raised examples, as follows:

i    Bernard v. Binnings Constr. Co., 741 F.2d 824, 828, n. 13, 832, n. 25 (5th Cir. 1984), observed that a work punt was not a vessel – as the mere capacity to float or move across navigable waters does not necessarily make a structure a vessel

ii   Ruddiman v. A Scow Platform, 38 F. 158 (S.D.N,Y, 1889) determined a scow was not a vessel, though “capable of being towed . . . though not without some difficulty, from its clumsy structure” just a floating box, is not a “vessel,” because “it was not designed or used for the purpose of navigation,” not engaged “in the transportation of persons or cargo,” and had “no motive power, no rudder, no sails”)

“Original design vs. later physical alterations” original design is not always determinative – as Lozman observed that a design based or purpose-related criterion is not always the test of vessel, as “[a] craft whose physical apprearance and activities objectively evidence waterborne transportation purpose or function may still be rendered a non-vessel by later physical alterations – such as the [famous Cunard cruise ship] Queen Mary – where the owner takes a structure that is otherwise a vessel and connects it permanently to land.”

“Newly designed structure” – floating processing plant no longer vessel where a large opening had been cut into her hull, citing Kathriner v. Unisea, Inc., 975 F. 2d 657, 660 (CA9 1992).

The Lozman Dissent

Justice Sonia Sotomayor prepared a robust dissent, and focused on the ramifications of the lack an objective vessel determinative test.  “[W]ithout knowing whether a particular ship is a §3 vessel, it is impossible for lenders to know how properly to characterize it as collateral for a financing agreement because they do not know what remedies they will have recourse to in the event of a default.  . . . Similarly, cities like Riviera Beach provide docking for crafts like Lozman’s on the assumption that such crafts actually are “vessels,”  . . .  The majority makes it impossible for these marinas to know whether the “houseboats” that fill their slips are actually vessels and what remedies they can exercise in the event of a dispute.  Moreover, the majority’s decision reaches well beyond relatively insignificant boats like Lozman’s craft, ….. because it specifically disapproves of lower court decisions dealing with much larger ships, (questioning Holmes v. Atlantic Sounding Co., 437 F. 3d 441 (5th Cir. 2006) (finding a 140-foot-long and 40-foot-wide dormitory barge with 50 beds to be a 1 U.S.C. §3 vessel)).”[10]

Post Lozman Decisions

The dust did not have time to settle before courts around the country began to address the impact of the Supreme Court’s ruling.  On January 22, 2013, in Lemelle v. St. Charles Gaming Co., Inc., the Supreme Court  vacated  the Louisiana State Appellate Court, Third Circuit’s determination that a casino boat was not a vessel, granting certiorari, vacating the judgment, and remanding in light of Lozman.[11]   The state appellate court had previously reversed the trial court’s determination that the Crown was a vessel and observed “that the Crown has been affixed in its dockside location, to some degree, since 2001 by lines and cables. It has not sailed since the 2001 legislation prohibiting it from conducting cruises or excursions.  In fact, since 2001, its crew size has been reduced due to the lack of need to tie and untie the Crown onto the dock.  According to the testimony of the Crown’s captain, the Coast Guard no longer inspects the Crown.  Rather, at the time of the captain’s deposition, inspections were performed by a state entity.  Mr. Lemelle asserts that the Crown‘s practice of operating its engine and thrusters should be viewed as indicative of its actual capacity for transportation or movement. Similarly, its navigation equipment is intact.  However, the practice referenced by Mr. Lemelle is not, in fact, used for navigation or transportation purposes.”[12]

The Lozman decision was also applied in a marine insurance case on January 25, 2013.  In Fireman’s Fund Ins. Co., v. Great American Ins. Co.[12], involving a drydock, the district court judge observed that, “while arguably sufficient in a pre-Lozman landscape to prove the drydock a vessel, falls short post-Lozman.  Simply put, this Court cannot say that a reasonable observer would consider a drydock designed or ‘regularly’ used, to transport or things over water.”  Finding that the drydock and the Lozman vessel are materially indistiguishable. The Court went through an exhaustive reasonable observer analysis, as follows:

While towable, the Drydock lacked the ability to propel itself.   Accord Lozman 2013 WL 149633, at *5 (citing the fact that “Lozman’s home was able to travel over water only by being towed” as evidence that the houseboat was not “designed to any practical degree transport persons or things over water”).  Nor did the Drydock have a steering mechanism.  Accord id. (citing as additional evidence that ‘[Lozman’s home] had no rudder or other steering mechanism’).  Similarly, it lacked navigational lights, life boats, a wheel house or other equipment that would allow it to be used for the transportation of passengers.  Dkt. No.202, Ex. C; accord Lozman. 2013 WL 149633, at *9 (noting that whether a boat is “designed to any practical degree” for the transportation of cargo or people is relevant to the inquiry). In addition, the Drydock was never used to transport cargo or people, and the living quarters were no longer in use when the drydock was stationed at Port Arthur. Dkt. 202, Ex. B (“Cates Dep.”) at 212-213.

Moreover, while the drydock has been moved long distances at least twice in the distance past, it was, in the years leading up to its destruction, more or less permanently moored in one place. Dkt. No. 164 (“Haley Decl.) at ¶ 10. Although the drydock was still moved away from its mooring at least every two to three years for dredging of the sea floor beneath the drydock, Lozman makes plain that this amount of transportation is not sufficient. Lozman, 2013 WL 149633, at *5.

Lozman’s house was not a drydock in part because “[p]rior to its arrest, that home’s travel by tow over water took place on only four occasions over seven years.” More to the point, the drydock’s later movements were brief and of short distances, and the short trips were made solely to allow for dredging the slip, Cates Dep. at 114-115, which is self-evidently not the sort of “transportation” contemplated by the Supreme Court in Lozman.  Indeed, this type of movement is not “transportation” at all. See supra, note 5.

Upon release of the Lozman decision, on January 26, 2013, the Supreme Court also denied a petition for writ of certiorari in Grixi Mendez v. Anadarko Petroleum Corporation, et al.  In this case, Mendez sued Anadarko in Texas state court, seeking benefits under the Jones Act, 45 U.S.C. § 51, et seq. Anadarko removed on the basis that Mendez was not a Jones Act seaman because the RED HAWK Spar was not a “vessel” for the purposes of that Act.  Mendez moved to remand, Anadarko responded and on October 29, 2010, the court held that the RED HAWK Spar was not a vessel for the purposes of the Jones Act and remand was not appropriate.  The RED HAWK Spar, is a floating oil-production facility, which sits in over 5,000 feet of water in the Gulf of Mexico approximately 210 miles from Sabine Pass, Texas.  The Spar is located on the outer continental shelf.   The two states closest to the Spar are Texas and Louisiana. Since 2004, six anchors sunk into the ocean floor have held it in place.    The court found the RED HAWK Spar is a permanently moored work platform designed to process gas extracted from the seabed and is not practically capable of marine transportation.  As a result, Mendez is not a Jones Act seaman because he had no connection with a vessel in navigation.[13]

Lastly, in Mooney v. W&T Offshore, Inc., No. 2:12-cv-969 (E.D. La. Mar. 3, 2013), in light of Lozman, District Judge Lance M. Africk held that the MATTERHORN SEASTAR, a tension leg platforms (“TLP”) – a floating oil and gas production structure that has been secured to the Outer Continental Shelf off the coast of Louisiana since 2003 by six mooring tendons – was not a vessel as a matter of law.

Conclusion

Following Lozman, Plaintiff’s counsel must engage in a vessel-determinative analysis, as a resonable observer, to determine whether the prospective in rem defendant is a “vessel” and in cases where the basis for admiralty jurisdiction rests on the finding of a vessel, the Plaintiff’s counsel must utilize the Lozman criteria to make such a determination.  In borderline cases, I would recommend that counsel employ the use of marine surveyors, engineers or other experts to assist in this determination, such as Anadarko commissioned in Red Hawk spar case.[14] The district courts have only begun to unpeel the layers that is the Lozman decision.  As they do, more previously settled structures will be reexamined to confirm their status –leaving a plaintiff with some uncertainty in the coming years.  But overall, compared to the “anything but floats” previous 11th Circuit test, the Supreme Court’s new “reasonable observer” test is a welcome tool for plaintiffs and their counsel around the country.


[1] Captain Robert L. Gardana is a licensed U.S.C.G. Master and Maritime Attorney for over 30 years.  He is the founder and president of Robert L. Gardana, P.A..  His practice focus is maritime law, maritime liens, passenger and crew claims, and personal injury.   His contact is Robert L. Gardana at Robert L. Gardana, P.A., 12350 SW 132nd Court, Suite 204, Miami, Fl  33186, website: www.BoatLawyer.com  e-mail: Gardanalaw@gmail.com

[2] Lozman v. City of Riviera Beach, 2013 WL 149633, 133 S.Ct. 735, (Jan. 15, 2013)

[3] 2013 WL 149633, at *7, Id. at 741-744.

[4] Fireman’s Fund Ins. Co., v. Great American Ins. Co., 2013 WL 311084 (S.D.N.Y. January 25, 2013).

[4] 2013 WL 149633, at *8.

[5] Id.   Nor do we believe that the dissent’s approach would prove any more workable.   For example, the dissent suggests a relevant distinction between an owner’s “clothes and personal effects” and “large appliances (like an oven or a refrigerator).” Post, at 752 (opinion of SOTOMAYOR, J.). But a transportation function need not turn on the size of the items in question, and we believe the line between items being transported from place to place (e.g., cargo) and items that are mere appurtenances is the one more likely to be relevant.   Cf. Benedict, American Admiralty s 222, at 121 (“A ship is usually described as consisting of the ship, her tackle, apparel, and furniture …”).

[6] Id.  2013 WL 149633, 737 Syllabus

[7] Id. at *4.

[8] Id.  2013 WL 149633, 737 Syllabus

[9] Id. 2013 WL 149633, Id. at 744-746.

[10] 2013 WL 215486 (U.S.La.).

[11] Lemelle v. St. Charles Gaming Co., Inc., 86 So.3rd 627 (La. 2012).

[12] 2013 WL 311084 (S.D.N.Y. January 25, 2013)

[13] The RED HAWK Spar is a cell spar comprised of smaller “tube” cells that together serve as the 560 foot hull, allowing for greater stability. The RED HAWK is comprised of six twenty-foot diameter tubes surrounding a seventh tube. The tubes are “bundled” to form the equivalent of a hull that is sixty-four feet in diameter;  has no means of self-propulsion; its work platform consists of three individual decks, sits on top of the hull.  It supports a twelve-man living quarters, crane, boom, heledeck, power generators, production equipment, mono-ethylene-glycol recovery unit, heaters, glycol storage tanks, utilities, pipeline launchers and receivers, and safety and survival capsules. Its deck is 55 feet by    74 feet and the main and production decks are 105 feet by 135 feet.  In 2004, the Spar was floated into place on its side, righted, and attached to the anchors by the six permanent mooring lines. When the Spar was installed, the suction anchors were first put in place, then the hull was towed and upended by flooding the lower segments. The hull was then    moored. The deck was lifted onto the hull and fixed in place. The lines were then installed.  In addition to these mooring lines, an underwater infrastructure of flow lines and export pipeline systems, as well as umbilicals extending from the Spar to the subsea wellheads, used to transport oil and gas to shore-based facilities attach the Spar to the ocean floor. A pipeline extends from the Spar to the Pelican Gas Plant in Patterson Louisiana, by way of the VR-397 platform. The gas comes from the well heads on the sea floor, up through the flow lines (steel pipes), then to the platform. Once on the platform, a separator takes the liquids out, and the gas flows to shore through a sixteen-inch steel pipeline.

[14] Anadarko has no plans to move the RED HAWK Spar.  Anadarko commissioned a study on the feasibility of  having the Spar moved to another field approximately 100 miles away. The study concluded that doing so would take approximately 50 days and cost over $42 million. The actual movement of the Spar would take only 2 to 4 of those 50 days; the greatest time and difficulty were presented by preparing to move it and modifying it to anchor it in the new location. Only the Spar itself would be moved; the mooring system, and the risers and umbilicals, would all have to be severed or disconnected. The mooring system would either be disposed of or left in place. Anadarko would have to build a new mooring system at the new location if it decided to have the Spar moved. There are no plans to do so.

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Court extends indemnity in the BP-Transocean Drilling Contract to include Transocean’s “gross negligence,” but excludes indemnity for civil penalties and punitive damages.

On January 26, 2012, the Court entered its finding(s)

1) That BP is required to indemnify Transocean for compensatory damages asserted by third parties against Transocean related to pollution that did not originate on or above the surface of the water, even if the claim is the result of Transocean’s strict liability (including OPA and unseaworthiness), negligence, or gross negligence. (The Court said – “As distinguished from a release, a true indemnity agreement determines which party to a contract ultimately bears the risk of injury to a third party.” )

2) BP does not owe Transocean indemnity to the extent Transocean is held liable for punitive damages. (“if Transocean committed gross negligence that caused pollution originating below the surface of the water, public policy would not bar its claim for contractual indemnity from BP. However, this holding is limited to compensatory damages, and does not include any punitive damages which might arise if Transocean is found grossly negligent.”)

3) BP does not owe Transocean indemnity to the extent Transocean is held liable for civil penalties under Section 311(b)(7) of the CWA, 33 U.S.C. § 1321(b)(7). (The court denied indemnity as to civil penalties under the Clean Water Act indicating the civil penalty “has multiple goals including restitution, but the primary objectives are to punish and deter future pollution.”)

The Court reasoned that the contract’s catch-all indemnity clause, including reference to “gross” negligence” meant that the parties agreed grossly negligent conduct by Transocean would be allocated to BP for pollution originating below the surface of the water.

– “Order and Reasons” link is:

http://www.laed.uscourts.gov/OilSpill/Orders/012612Order(TransoceanIndemnity).pdf

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COMMERCIAL SALVOR REQUIRED TO RETURN TO SPAIN 500 MILLION IN TREASURES

Verified Claim of The Kingdom of Spain

Federal Register Odyssey

This case originated by ODYSSEY MARINE EXPLORATION, INC., arresting THE UNIDENTIFIED, SHIPWRECKED VESSEL, its apparel, tackle, appurtenances and cargo in rem – much like any other “finds’ case or “salvage” claim. The Kingdom of Spain filed a Verified Claim, based upon the Public Notice to the State Department in 2001 – relating to the policies of Governmentsof France, Grmany, Japan, Russian Federation, Span and the United Kingdom. Based upon Spain’s 2001 position filed six years before the “find” by Odyssey. A copy of the Verified Claim of The Kingdom of Spain and the Federal Register Public Notice 4614 – is available by clicking above links.

What has occurred is that the U.S. Eleventh Circuit Court of Appeals has denied Odyssey Marine’s motion to stay an Order mandating Odyssey Marine to return coins and objects to Spain which had been removd from the “Black Swan” (the Nuestra Senora de las Mercedes) a sunken 19th century Spanish galleon, discovered by Odyssey in 2007. The case commenced April 9, 2007, when Odyssey Marine filed a complaint in federal district court in Tampa, Florida under admiralty and maritime law (known as an admiralty in rem action). Odyssey argued that it should either own the shipwrecked vessel under the law of finds or is entitled to “a liberal salvage award” from the vessel under the law of salvage. Odyssey lost the case. in September, the Eleventh Circuit Court of Appeals upheld the district court’s decision and ordered Odyssey “to release the recovered res [i.e. the shipwreck materials] to the custody of Spain.” Odyssey filed a motion to stay this decision – as it appealed the case to the U.S. Supreme Court. Odyssey argued in its December 2, 2011 motion to the Circuit Court that once it delivered materials to Spain – the objects would not be returned to Odyssey if it ultimately won the case before the U.S. Supreme Court as “Spain’s position that it is not subject to the jurisdiction of the U.S. Courts …” Odyssey also cited seven points of error that remain to be challenged in the case. The appellate court “denied” the motion to stay Tuesday.

 

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DUE PROCESS REQUIRED TO EXCLUDE STUDENT FROM SCHOOL

ELEVENTH CIRCUIT citiing Supreme Court rules Valdosta State University student entitled to due process prior to being expelled – over his facebook page! (“[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of …the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from ng school.”)

Zaccari says that Barnes engaged in threatening behavior. But Barnes’s
Facebook collage, emails, and letter—when viewed in the light most favorable to
him—reveal a student who is passionate about environmental issues, but do not
require an inference that Barnes intended to harm someone. Zaccari claims that his
name connected to the word “memorial” in Barnes’s Facebook collage suggests that
Zaccari would soon be dead. But reasonable minds could differ. Several university
officials contemporaneously viewed the collage and concluded it was not threatening.
And the Director of the VSU Counseling Center, Dr. Victor Morgan, told Zaccari that
the collage was not a threat. Thomas Hayden Barnes v. Ronald M. Zaccari, et al. 10-14622 1:08-cv-00077-CAP

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ARE CRUISE LINES GETTING AWAY WITH 1974 PRICES FOR INJURY OR DEATH – IT IS TIME TO ADOPT THE 2002 Protocol to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974?

As of January 28, 2011, the signatories to the 2002 Protocol to the Athens Convention were Finland, Germany, Norway, Sweden, Spain, and the United Kingdom (all subject to ratification/acceptance).  (Contracting States: Albania, Latvia, Saint Kitts and Nevis, Syrian Arab Republic).

EC Vice-President Siim Kallas, European Commissioner for Transport has asked that the currently ongoing review of EU passenger ship safety legislation take fully into account “any lessons to be learnt from the Costa Concordia tragedy.”  Vice President Siim Kallas called upon Member States to ratify without delay the latest update (2002 Protocol) of the International Convention for liability of carriers by sea and the compensation of passengers in case of accidents (Athens Convention), in order to advance its entry into force.  He recalled that specific EU legislation based on this Convention will come into force at the end of 2012.

The Protocol would, if ratified by at least 10 States, impose a compulsory insurance requirement on passenger ship operators and raise liability limits to 250,000 Special Drawing Rights about $325,000. The amendments to the Convention are contained in a Protocol to the Athens Convention. IMO Secretary General William A. O’Neil said that the 2002 Protocol, when it comes into force, would provide a much-needed update to the 1974 Convention and he urged Governments to ratify the Protocol as soon as possible.  He said, “For some time now it has been recognized that the limits of liability in the 1974 Convention are no longer adequate to meet the needs of the international community, which the liability of the carrier for the death of or personal injury to a passenger shall in no case exceed 700,000 francs per carriage (about $70,000 USD).

The Protocol introduces compulsory insurance for passenger personal injury claims and other mechanisms to assist passengers in obtaining compensation, the level of which is increased significantly. An EU Regulation, which incorporates the Protocol, has determined that EU Member States will ratify and apply the Protocol in the EC by January 2013 at the latest. The Protocol has been ratified already by a few countries both within and outside the EU and, in the interests of consumer protection, it is clearly desirable that it achieves global acceptance as soon as practicable.

The UK strongly supports the entry into force of the 2002 protocol because it will significantly enhance the international regime of liability that exists for damage suffered as a result of the death of, or personal injury to, a passenger and the loss of or damage to luggage, by sea—established by the 1974 Athens convention. The 2002 protocol will require shipowners to maintain compulsory insurance up to approximately £250,000 per passenger per voyage to cover liability in respect of the death of and personal injury to passengers on board ships and significantly raise the limits of liability from approximately £46,000 to £400,000 per passenger on each distinct occasion. It will also introduce other mechanisms to assist passengers in obtaining compensation, based on well-accepted principles applied in existing liability and compensation regimes dealing with environmental pollution. These include replacing the fault-based liability system with a strict liability system for shipping-related incidents and introducing the right of direct action against the insurer.

The Union has already adopted EU Regulation 392/2009 on the liability of carriers of passengers by sea which incorporates the 2002 protocol into EU law and ensures the uniform application of the 2002 protocol in the EU from 31 December 2012. It is, however, important that the UK and other EU member states ratify, or accede to, the 2002 protocol to ensure that both instruments apply simultaneously within the EU as soon as possible. Such an approach will greatly simplify the application of Athens regime in the shipping industry.

While certainly too late for the Concorida  victims, will their grave losses become the beacon which guides member states to recognize the inadequacies of the Athens Convention and pave the way to increased limitations?

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A new look at cruise ship muster drills and passenger ship evacuation procedures – “women and children first” – not the Captain – and don’t forget to NOT to return to your cabin to get your life jacket!

With the 100 year anniversary of the epic sinking of the RMS Titanic approaching and the recent bizarre grounding of the MS Concordia, undoubtedly maritime disasters are forefront in our minds. The International Maritime Organization, through its Secretary-General Koji Sekimizu, after the MS Concordia tragedy, said that IMO needs to “seriously consider the lessons to be learnt [from the accident] and, if necessary, re-examine the requirements on the safety of large passenger ships.”

While the Titanic’s high fatality rate was due in part to the disproportionate number of life boats to passengers, the inaccessibility of many Concordia life boats, (as the port side life boats were ultimately under water and the starboard were incapable of deployment – after capsizing), the inexcusable “instruction” of the Concordia crew to passenger to “return to cabins” for life jackets – will likely prove to be the cause of many Concordia fatalities.

Ironically, all disasters provide “lessons learned.” IMO Secretary-General Koji Sekimizu, has stated that IMO is the right international body to deal with safety of passenger ships and, in particular, a safety review after the Costa Concordia accident. He has included an additional item on “Passenger Ship Safety” on the agenda of the IMO’s Maritime Safety Committee, which meets for its 90th session from 16-25 May this year. This will provide an opportunity for IMO Members in the Maritime Safety Committee (MSC) to consider any issues arising.

From the Titanic sinking, the International Maritime Organization (IMO) passed the Safety of Life at Sea Covenants (SOLAS), which requires all commercial vessels, regardless of its flag, to assemble all passengers within 24 hours of embarkation to be instructed on the use of life jackets and the actions to be taken in the event of an emergency. While the Concordia had held a lifeboat drill, in compliance with law, within 24 hours of embarking from Savona the previous Saturday on a seven-day Mediterranean round-trip cruise, there had been no drill for the 600 passengers who boarded January 13 at Civitavecchia, Port of Rome.

Thus, it was within the mandate of SOLAS to conduct the safety drill on the Concordia the morning following its departure from Civitavecchia, as planned. But, once the vessel impacted the rocks off Giglio Island, passengers were traumatized and had no idea what was happening and at this point were told by crew members – go to your cabins to get your life vests. At this point, many of the crew (not all by any means – as there were certainly heroes) seemed to be helpless – from the Captain down.  Interestingly, under maritime law, the measure of a cruise ships actions or omissions is measured by the concept of “reasonable under the circumstances.” Could anything be less “reasonable under the circumstances” than to tell passengers on a stricken, listing, grounded and capsizing cruise ship to return to their cabins to get life jackets?

So, what lessons were learned from the Concordia incident – especially for the IMO – in relation to possible revisions of SOLAS? Should the IMO consider the adoption of a SOLAS amendment – that passenger vessels must contain a significant number of life jackets at or near muster stations to accommodate the number passenger and crew on board? Certainly, having to return to your cabin to obtain your life jacket will likely be your demise. Presently the IMO Safety of Life at Sea (SOLAS) requires that “additional life vests be remotely located at survival stations.”

Regulation 7 – Personal life-saving appliances: Covers the requirements for life buoys, life jackets and immersion suits and anti-exposure suits. Life jackets must be provided for every person on board ship, plus additional life jackets should be provided for children and for persons on watch and at remotely located survival craft stations.

While most of the life boats on the Concordia were unusable after capsizing, reports indicate many crew appeared were inept or unsure what to do immediatly after the vessel grounded.  Why the delay in the abandon ship call?  Why were the available life boats not deployed sooner before the vessel capsized?  Also, should the crew be required by the SOLAS to have at least participated in a life boat drill actually in a life boat – while being lowered?  The time-line of disaster is certainly the matter for much investigation. But, could this apparently paralyzed crew relate to the 2006 SOLAS revision – which dropped the requirement of lowering crew in life boats during drills while they are being lowered into the water? Was the Concordia crew prepared? Does the 2006 SOLAS revision make sense? How effective is training a life boat crew – when it is not required to experience being lowered into the water on board a life boat?  Is such training representative of true disaster situations?

As for life jackets being stored at muster stations, the IMO only need look as far as its own regulations regarding ro-ro passenger ships to appreciate the importance of storing life jackets at muster stations. In 1998, Passenger Ship Regulation 26, entitled “Life-saving appliances and arrangements,” enacted additional requirements for “ro-ro passenger ships,” which mandates:

A sufficient number of life jackets must be stored in the vicinity of muster stations so passengers do not have to return to their cabins for life jackets.

Hence, based on the “ro-ro passenger ship” regulations, the concept of not having to return to your cabin to obtain your life jacket while the vessel is in peril is obviously not a new concept – but maybe the test of time and lessons learned will dictate the IMO expand this regulation to passenger ships.  But, as the Concordia is not a “ro-ro” ship, many passengers had to return to their cabins for life jackets only to be lost in the ship and perish – lost to the sea.  The IMO should require all large passenger ships follow the same ro-ro regulation to ensure that when such a disaster occurs – you don’t have to enter the bowels of the ship to obtain a life jacket and then go to the muster station.   Royal Caribbean Cruise Line, LTD is the first major cruise line to store life jackets at muster stations rather than in cabins on the Oasis of the Seas and Allure of the Seas.

Also, should not the life boat crew be prepared for a true emergency? There is no doubt that a decisive evacuation plan should be implemented and the IMO should reinstate the requirement for crew on-board life boat lowering drills. The crew should be trained for a real emergency – including lowering the life boat while boarded.

As for future cruisers, the ideal emergency plan should be – when you first board a cruise ship, determine where your muster station is located and make a family plan for disaster which includes going directly to that muster stationnot returning to inside the ship to look for family members or to get your life jacket. It should be the “reasonable under the circumstances” responsibility of cruise line to ensure life jackets are sufficiently available at muster stations and that the crew is sufficiently ready and trained to deploy the life boats.

By: Robert L. Gardana, Esq. – U.S.C.G. Licensed Captain-Master, Maritime Attorney  www.BOATLAWYER.com  (TM)

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What will ITALY Say Now – after Concordia? “Cancelled” by the Sea!

Italy’s emotional statement for those that have “been ‘cancelled’ by the sea, buried and marked as “nameless” as if they had never existed”  from the meeting of the 98th Session of the Legal Committee the International Maritime Organization (IMO) – 2011.

ANNEX 9
STATEMENT BY ITALY CONCERNING THE SEARCH AND RESCUE
OPERATION IN THE SICILY CHANNEL ON 6 APRIL 2011
On 6 April 2011 at about 1.30 a.m., the Maritime Rescue Coordination Centre, Malta,
informed the Italian Maritime Rescue Coordination Centre of the presence, in its waters, 45 miles from the Italian island of Lampedusa and mid-way between Malta and Italy, of a boat in distress due to flooding, with an alleged 200 people on board. The information had been received via a Mayday call originating from people on board the boat, which had departed from Zuara, a Libyan port.
The situation in the area was sea force 6 and wind of 39 knots from the North West.
Due to the temporary unavailability of Maltese patrol boats, naval SAR assets from
Lampedusa were shipped to the area in order to rescue and assist the persons, described as being stranded and very panic-stricken as a consequence of many days on board. At 4 a.m., after the authorization from the NATO base of Naples to infringe the “No fly zone”, a SAR aircraft was sent to the area.
Other merchant vessels were despatched to the rescue area; at 4.15 a.m., two SAR units reached the distressed boat, a vessel of 13 meters, capable of holding a maximum of 40 people. It had severely listed. On board were men, women and children of different nationalities (from Somalia, Eritrea, Nigeria, Bangladesh, Cote d’Ivoire, Chad and Sudan) – approximately 300 persons.
Moreover, due to damage to the engine, the boat was prey to high waves and it was
impossible to manoeuvre it.
In such a situation, the risk of the boat capsizing was considered to be very great;
furthermore it would be difficult to rescue the panic-stricken occupants in order to prevent further listing of the boat while attempting to berth alongside it.
At 5.35 a.m., after various attempts to tranship the occupants, the boat eventually capsized, due to the massive quantity of water on board, and despite the deployment of all possible measures, only 52 survivors were rescued, while over 250 were missing.
Due to their poor health conditions, including advanced hypothermia, the survivors were taken to Lampedusa, and, at 7 a.m., a team of rescuers arrived.
At the same time, a wider search operation was underway and is still ongoing. But, as of today, only 23 bodies have been found.
Mr. Chairman,
To these bare facts, let me add a few personal but sad comments, just to better clarify the situation.
This terrible event in the Sicily Channel is the last episode in a very long string of casualties and serious situations, very likely to be repeated with similar results, in many other parts of the world, as a consequence of massive migration which is inevitable and quite impossible to stem, because it originates from people’s desire to achieve minimal standards of living, often denied in their own countries.
At the same time, this kind of “exodus” is destined to create an abyss between humanity, human sentiments and moral obligations on one side, and concrete possibilitie of supplying proper aid on the other.
This gigantic movement of persons and the continuous loss of lives at sea (hypocritically referred to as “missing persons”) are sadly familiar sights in the Mediterranean Cemetery, where for every 100 people safely landing, 5 drown without leaving any trace. Additionally, of the 26,000 people who disembarked during the first three months of the current year on the rock of Lampedusa, between 800 to 1000 died.
It makes nearly 15,000, I repeat 15,000, over the last 10 years: just like a war!
But, worse than this, is the consideration that people drowned without their names ever being known. They have been “cancelled” by the sea, buried and marked as “nameless” as if they had never existed.
Most of them are anonymous; nobody, perhaps, will ever know they have died, deprived of the minimal dignity, such as their name and the unique sign of their individuality. This is a supreme outrage!
Yesterday, watching the TV, I saw survivors happy to be rescued and waving a banner
saying: “Thanks for rescuing us, we just want to live and all we need is a bit of warmth and humanity”.
My apologies, Mr. Chairman, for this lengthy digression but it is necessary to depict a
situation that cannot be confined within national borders and of which the international community, not just the maritime community, has to take due responsibility.
By ironic coincidence, just two days ago, this delegation met the Spanish delegation and the Secretariat to examine the matter and extremely fruitful results were achieved.
Our hope is now that the “Draft Regional Agreement on the procedures for the
disembarkation of persons rescued at sea”, as finalized during the meeting here in IMO, with the personal good offices of the Secretary-General, could be a precursor for further debate among all the Mediterranean States and Regional Institutions, so as eventually to give concreteness to agreed operational measures, aimed at stemming the occurrence of tragedies such as the one just described in the Sicily Channel and all the ones likely to occur tomorrow in any area of the planet.
But the key point is that we must act now without further delay, since many people’s
lives are at stake!
___________

With the 99th Sesson of the USCG: IMO Legal Committee (LEG) set for April 16-20, 2012

The Legal Committee (LEG) current provisional agenda does not include this issue – but with the MS Concordia incident and the 100th aniversary of the RMS Titanic, is should be added.  Added February 3, 2012:

IMO Secretary-General Koji Sekimizu, has stated that IMO is the right international body to deal with safety of passenger ships and, in particular, a safety review after the Costa Concordia accident.  He has included an additional item on “Passenger Ship Safety” on the agenda of the IMO’s Maritime Safety Committee, which meets for its 90th session from 16-25 May this year. This will provide an opportunity for IMO Members in the Maritime Safety Committee (MSC) to consider any issues arising.

http://www.uscg.mil/imo/leg/docs/LEG%2099-1.pdf

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