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Maritime Law--Presentation at the Southeastern Admiralty Law Institute on International Conventions

On June 27, 2014, I had the pleasure of speaking at the Southeastern Admiralty Law Institute ("SEALI") in New Orleans, Louisiana at their Annual Seminar on the topic titled "International Conventions and Their Applicability to U.S. Maritime Cases." My partner in this presentation was Kate Goodsell of Cassidy & Black, P.A.


My portion of the presentation focused on how rules of international law are established in the United States, the International Salvage Convention of 1989 and the Maritime Labour Convention. I briefly discuss each of these in turn.

International Law as U.S. Law

Rules of international law can be established in the United States in three principal ways: (1) by international agreement between countries; (2) international custom; and (3) by derivation of principles common to major world legal systems. Since its inception, the United States has recognized that international legal commitments are binding upon it both internationally and domestically. However, in order to have a domestic, judicially enforceable law, the provisions of treaties and executive agreements may require implementing legislation that provides the United State with the authority necessary to enforce and comply with the provisions of international agreements.

The effects that international agreement entered into the United States have upon our domestic law are dependent up on the nature of the agreement--namely, whether the agreement is self-executing or non-self-executing and possibly whether it was made pursuant to a treaty or an executive agreement. A self-executing agreement means that the treaty has the force of law without the need for subsequent congressional action. In other words, the treaty has automatic domestic effect as federal law upon ratification.

A non-self-executing agreement means that the treaty requires implementing legislation to provide U.S. agencies with legal authority to carry out the functions and obligations contemplated by the agreement or to make them enforceable in court by private parties. Treaties are found non-self-executing for at least 3 reasons: (1) the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation; (2) the Senate is giving consent to a treaty, or Congress by resolution, requires implementing legislation; or (3) implementing legislation is constitutionally required.

International Salvage Convention of 1989

The International Salvage Convention of 1989 ("Salvage Convention") was a self-executing treaty that was ratified by the U.S. but has not adopted any legislation or regulation to give it effect. The Salvage Convention introduces a "special compensation" provision to be paid to salvors who have failed to earn a reward by salvaging the ship and cargo if the work minimized or prevented environmental damage. the compensation consists of the salvor's expenses, plus up to 30% of these expenses if, thanks to the efforts of the salvor, environmental damage has been minimized or prevented.

Prior to the Convention, U.S. courts relied on the factors that were enunciated by the U.S. Supreme Court in The Blackwell in 1869. These factors included: (1) the labor expended by the salvors in rendering the salvage service; (2) the promptitude, skill, and energy displayed in rendering the service and saving the property; (3) the value of the property employed by the salvors in rendering the service, and the danger to which the property was exposed; (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and (6) the degree of danger from which the property was rescued.

While the Convention's criteria substantially overlap with the Blackwall factors and in most cases, a salvage award under either is likely to be identical, there are potentially important differences between the two. First, the fifth factor under the Salvage Convention provides that life salvage is a factor in considering the quantum of a salvage award. This is not found anywhere in the Blackwall factors.

Second, the ninth factor under the Salvage Convention expressly acknowledges that a salvor's "state of readiness and efficiency" should be recognized in rendering a salvage award. While I personally think this factor is part of the Blackwall analysis under "promptitude, skill and energy" other commentators have suggested that this factor is not strictly part of the Blackwall analysis.

However, the most significant difference between the Blackwall factors and the Convention criteria is the second factor of the Convention which requires a court to consider the skill and efforts of the salvor in preventing or minimizing damage to the environment. This is not found anywhere in the Blackwall factors.

Finally, another potentially significant difference between the Convention and U.S. general maritime law concerns the question of what kinds of property are subject to salvage and where. Under U.S. law, jurisdiction over salvage claims compares to admiralty contract jurisdiction. U.S. courts have been reluctant to grant salvage awards where a "vessel" was not involved. Contrast this with Article 1 of the Convention which provides that a "salvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any waters whatsoever and applies to "any property not permanently and intentionally attached to the shoreline...", which is a much broader reading of maritime property than under U.S. law. Combining these definitions leaves the reader to reasonably conclude that the Salvage Convention should apply in salvage situations involving sunken aircraft in a non-navigable lake of one of the United States.

  
Maritime Labour Convention ("MLC")

I have written extensively on the MLC and do not intend to regurgitate what the MLC does, how it applies and its details. You may view my other blog posts on MLC if you wish to learn more about the MLC. However, I did want to point out two issues of interest that I have not written on before: (1) U.S. flagged vessels overseas; and (2) foreign crewmembers attempting to apply the MLC in U.S. Courts.

First, the MLC has not been ratified by the United States. A result, U.S. flagged vessels are arguably not subject to the MLC. However, Article V, paragraph 7 of the Convention contains a "no more favorable treatment clause," which requires the governments of ratifying nations to impose Convention requirements on vessels from non-ratifying nations, including the United States. As a result, although U.S. port state control officials will not enforce these regulations here, any U.S. flag vessel may be subject to port state control action in other countries that have ratified the MLC.

Despite not ratifying the MLC, the U.S. has established a voluntary inspection program for vessel owners and operators that wish to document their compliance with the standards of the MLC. The Coast Guard published a notice in the Federal Register announcing the availability of a Navigation and Vessel Inspection Circular ("NVIC"), setting forth detailed guidance on Coast Guard policies and procedures regarding the inspection of U.S. vessels for voluntary compliance with MLC. The primary purpose of the NVIC is to assist U.S. vessels in avoiding port state control actions in foreign ports of countries that have become party to the MLC by providing for a voluntary inspection program mechanism for U.S. flag vessels, resulting in the issuance of a Statement of Voluntary Compliance, Maritime Labour Convention.

Second, foreign crew from a flag state that has ratified the MLC may be able under the MLC to assert violations against the owner/operator of the vessel. There are currently a few cases of foreign crew attempting to assert violations of MLC in U.S. Courts. While the few cases in the U.S. are in the context of cruise line crewmembers attempting to circumvent their collective bargaining agreements ("CBA") calling for arbitration, out of the context of CBA cases, I can see various arguments that can be advanced by foreign crew against foreign owners here in the U.S., if the vessel is subject to the MLC.

If you are interested in learning more about the presentation given at SEALI, you are interested in receiving a copy of the PowerPoint slides or just wish to contact me, you may do so by writing to me at mov@chaloslaw.com.

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