june 2015 no. 3 mainbrace - blank rome llp · blank rome llp blank rome llp 18 • mainbrace the...

MAINBRACE

JUNE 2015 No 3

wwwblankromemaritimecom

copy 2015 BlANk RoME llp Notice The purpose of this newsletter is to identify select developments that may be of interest to readers The information contained herein is abridged and summarized from various sources the accuracy and completeness of which cannot be assured The Advisory should not be construed as legal advice or opinion and is not a substitute for the advice of counsel Additional information on Blank Rome may be found on our website wwwblankromecom

INS

IDE T H I S I S S U E

A Note from the Co-Chair of Blank Romersquos Maritime Practice Group

New York Maritime Arbitration Update

Announcement Blank Rome Welcomes 23 Attorneys of Wong Cabello

Meet Blank Rome How to Defend against Patent Trolls without Breaking the Bank

Chambers USA 2015 Honors Blank Rome Maritime Attorneys

Will 2015 Finally Fulfill the Promise for Development of US Offshore Wind

Gulf Coast Personal Injury Law Update

Navigating the South China Sea Dispute through UNCLOS

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2

5

7

15

17

9

HOUSTON (+17132286601) thinspOFFICEPHONE thinspMOBILEPHONE emspemspemspemspEMAILMichael K Bell +17134027630 +17133857630 MBellBlankRomecomKeith B Letourneau +17134027650 +17133988129 KLetourneauBlankRomecomDouglas J Shoemaker +17134027645 +17134467463 DShoemakerBlankRomecom Jeremy A Herschaft +17136328653 +15042369726 JHerschaftBlankRomecomJames C Arnold +17136328642 +19795306175 JArnoldBlankRomecom David G Meyer +17134027654 +17132894289 DMeyerBlankRomecomJay T Huffman +17136328655 +18322892412 JHuffmanBlankRomecom

NEwYOrkensp(+12128855000) thinspOFFICEPHONE thinspMOBILEPHONE emspemspemspemspEMAILJohn D Kimball +12128855259 +19739812106 JKimballBlankRomecomRichard V Singleton II +12128855166 +17328291457 RSingletonBlankRomecomThomas H Belknap Jr +12128855270 +19175234360 TBelknapBlankRomecomAlan M Weigel +12128855350 +18603347431 AWeigelBlankRomecomWilliam R Bennett III +12128855152 +16463937847 WBennettBlankRomecomLauren B Wilgus +12128855348 +17326727784 LWilgusBlankRomecom

PHILAdELPHIAensp(+12155695500) thinspOFFICEPHONE thinspMOBILEPHONE emspemspemspemspEMAILJeffrey S Moller +12155695792 +12156300263 MollerBlankRomecomJames J Quinlan +12155695430 +12672439331 QuinlanBlankRomecom

wAsHINgtONdCensp(+12027725800) thinspOFFICEPHONE thinspMOBILEPHONE emspemspemspemspEMAILJeanne M Grasso +12027725927 +12024312240 GrassoBlankRomecomGregory F Linsin +12027725813 +12023407806 LinsinBlankRomecomJonathan K Waldron +12027725964 +17034076349 WaldronBlankRomecomMatthew J Thomas +12027725971 +13012576369 MThomasBlankRomecomPatricia M OrsquoNeill +12027725825 +16097602566 PONeillBlankRomecomStefanos N Roulakis +12027725958 +16264370401 SRoulakisBlankRomecom

Blank Rome Maritime is ranked top tier in Shipping for Litigation and Regulatory in Chambers USA and recognized as a leading maritime law firm in Whorsquos Who Legal In 2013 Blank Rome was ranked ldquoLaw Firm of the Yearrdquo in Admiralty and Maritime Law by US News amp World Report In 2015 Blank Rome won the Lloydrsquos List 2015 North American Maritime Award for ldquoMaritime Services ndash Legalrdquo

MaritimeEmergencyresponseteam weareoncall 24 7 365

An incident may occur at any time Blank Romersquos MaritimeEmergencyresponseteam(ldquoMErtrdquo) will be there wherever and whenever you need us In the event of an incident please contact any member of our team

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1 8 bull M A I N B R A C E

The Co-Chair of Blank Romersquos Maritime Practice Group

A NOTE FROM unratifiedmdashtreaty in 1994 the US Court of Appeals for the Ninth Circuit used UNCLOSrsquo innocent passage provision to resolve a mooring laws case near Hawaii Barber v Hawaii 42 F3d 1185 1195-96 (9th Cir 1994) Likewise in 1996 the First Circuit Court of Appeals cited several of UNCLOSrsquo articles rea-soning that they were valid since they were used in presidential proclamations United States v Ramirez-Ferrer 82 F3d 1131 1136 n4 (1st Cir1996)

With respect to the view that UNCLOS constitutes custom-ary international law in 1999 the First Circuit referred to the applicability of some UNCLOS articles stating ldquo[t]he Convention has been signed by the Presidentthinsphellipthinspit has not yet been ratified by the Senate Consequently we refer to UNCLOS only to the extent that it incorporates customary international lawrdquo Mayaguezanos por la Salud y el Ambiente v United States 198 F3d at 304-05 n 14 (1st Cir 1999) The Fourth Circuit also cited provi-sions of UNCLOS law on salvage and freedoms on the high seas as binding because on the basis of customary international law ldquoexclusive judicial action beyond the territorial limits of a nation would disrupt the relation-ship among nations that serves as the enforcement mechanism of interna-tional law and customrdquo RMS Titanic Inc v Haver 171 F3d 943 968 (4th Cir 1999)

Concerning those provisions of UNCLOS directly implicated by Chinarsquos actions in the South China Sea it should also be noted that they find common acceptance in US law For example UNCLOS provisions ensuring freedom of navigation and the free movement of maritime commerce constitute bedrock principles of the USrsquo historic maritime policy priorities The US Coast Guard has stated that it operates as though UNCLOS is in effect and the US Military has long pushed for UNCLOS ratification

Islands Issue under UNCLOSWhile UNCLOS can provide the framework for resolving the issues in the South China Sea the application of these princi-ples is more complex Essentially the debate rests on two key issues The first issue is sovereignty Under UNCLOS states have the right to construct artificial islands within their sover-eignty even within their EEZ which extends 200 miles from a coastline Additionally states have the right to construct artificial islands on reefs or rocks that are considered sover-eign territory Thus the threshold issue in the South China

Sea is the validity of the claims that China the Philippines and Vietnam make to the various islands Should these states have a valid claim on the areas they claim UNCLOS does give certain rights as far as the construction of certain islands

The second issue is the status of the territory in question and whether this would give rise to a territorial sea Under UNCLOS the type of territory in question is critical to deter-mining the rights afforded to it For example while a state may construct an artificial island in its EEZ such an island does not give rise to a territorial sea Alternatively a rocky uninhabitable island can give rise to a territorial sea and exclusive economic zone in fact the United States uses these principles to determine its own maritime boundaries

Ultimately these are complicated issues with no clear answers The first question requires a complex legal analysis of competing his-torical colonial and other claims The second issue is a question based on fact The fact that there is a dearth of legal precedent for determining what is an ldquoartificial islandrdquo creates further difficulties

The complexity of the ques-tions presented by the issues in the South China Sea show gaps that currently exist in Public International Law While the Philippines has sought to move the barometer on this point by submitting its claim to PCA Chinarsquos refusal to participate will prove a stumbling block Additionally if the United States were a signatory to UNCLOS it would have more clout to speak on issues relating to the South

China Sea The questions presented by this dispute may give rise to renewed calls for ratification

Looking ForwardThe shipping industry and maritime community as a whole have benefitted from the freedom of navigation and growth in rule of law brought about by UNCLOS and other maritime treaties Indeed the maritime community has been a world-wide leader in advancing rules to facilitate a truly global industry The current dispute is an opportunity for states to recall the principles enshrined in UNCLOS as they resolve their disagreements particularly in areas of dispute resolution and ensure that the important shipping lanes of the South China Sea remain open to maritime commercethinspp

I wanted to take the opportunity to let our readers know how much we appreciate the feedback we receivemdashnot only from our clients but also from the general publicmdashwith regard to the

articles we write for Mainbrace We often wonder whether people take the time to read the articles given the fast pace of our industry and the overwhelming amount of information that is available electronically these days They take a long time to write and often involve thorough research because whether what we write is ldquobillablerdquo or ldquonon-billablerdquo it has to be right Your feedback helps give us the incentive to continue to prepare articles of value and interest so thank youmdashagain

In addition we are proud to announce that following the rec-ognition earlier this year that the Firmrsquos maritime group was selected as the winner of the Lloydrsquos List 2015 North American Award for ldquoMaritime Services ndash Legalrdquo a number of the Firmrsquos practice groups and attorneys were recognized by Chambers USA as leaders in their field For those of you who may not be familiar with Chambers I provide the following introduction Chambers conducts research through in-depth interviews with attorneys and clients and then assesses those results via a team of more than 140 full-time researchers and editors Individual lawyers are ranked (in their practice-area(s)) on the basis of their legal knowledge and experience their ability their effec-tiveness and their client service Where a firm has several departments specializing in different areas of law Chambers may rank some departments and not others Decisions are based and judged (a) by interviews with those active in the marketmdashmainly clients (who can be law firms instructing other law firms) and other lawyers with whom they work and (b) by assessing recent work done The rankings and editorial com-ments concerning the attorneys are independent and objective Inclusion in the guide is based solely on the research teamrsquos findings Chambers is widely viewed among the most highly respected publications in the world with regards to rating law-yers in part because inclusion cannot be purchased

This year 45 Blank Rome attorneys were ranked as ldquoleaders in their fieldsrdquo by Chambers USA Seven of these attorneys were from Blank Rome Maritime With regard to practice areas Blank Rome received national recognition in four practice areasmdashthree in the shipping field and one in bankruptcy

Shipping Regulatory (outside New York) ndash 1 ranking Shipping Litigation (New York) ndash 1 ranking Shipping Litigation (outside New York) BankruptcyRestructuring

Several of the Firmrsquos offices also received high rankings in other practice areas including bankingfinance and corporateMampA and private equity which have been working closely with the shipping industry these past several years

We here at Blank Rome are both honored by and proud of this notable recognition and I wanted to personally recognize this achievement not only for our readership but also for our ranked individual attorneys and practice areas

Bravo Zulu (well done)

Recognition goes to the following maritime attorneys

Transportation Shipping LitigationJohn D Kimball bull Thomas H Belknap Jr Richard V Singleton bull Lauren B Wilgus Jeremy A Herschaft

Transportation Shipping RegulatoryJeanne M Grasso bull Jonathan K Waldron

For more information on our 2015 Chambers USA rankings for our Maritime Industry Team members please see page 9thinspp

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JONATHAN K WALDRON

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BY JOhN D KiMBALL

Following is an excerpt from a speech presented to the International Congress of Maritime Arbitrators on May 11 2015 in Hong Kong

The importance of maritime arbitra-tion in New York has never been greater In many cases the stakes are high and the matters to be resolved

are complex both factually and legally In this respect mari-time arbitration has undergone a sea change over the past decades When I began my law practice most of the arbitra-tions involved relatively small demurrage or off-hire claims They were disputes that could be fairly dealt with by short hearings held at lunch time or in the evening Most of the arbitrators had full-time jobs and agreed to sit as arbitrator only part-time when they had time to do so I have memories of many late night hearings

That has all changed

Today most of the leading arbitrators in New York are full-time and arbitration is their main occupation It is common for arbitrations to involve 10 or even many more hearings It is not unusual for legal fees and expenses together with arbi-tratorsrsquo fees to be in substantial six and even seven figures

Which raises the main question I would like to address Is maritime arbitration still a viable concept For a ship owner charterer shipper or buyer of commodities does it make sense to have disputes resolved by arbitration bearing in mind the following key factors

ensp1 Arbitratorsrsquo fees The fees charged by arbitrators depend on the scope and complexity of the case Often the fees are modest but they can be substantial especially when we consider that highly regarded courts are readily avail-able and paid for by the taxpayers rather than the parties

ensp2 Fee shifting At this stage virtually every maritime arbi-tration in New York carries the risk that attorneysrsquo fees costs and arbitratorsrsquo fees will be assessed against the losing party This is generally perceived as a very positive aspect of arbitration and it contrasts very plainly with the well-settled American Rule followed in most court cases by which each side bears its own legal fees and costs In maritime arbitrations in NY the prevailing party very

likely will recover its attorneysrsquo fees and costs including arbitratorsrsquo fees For example in some recent New York maritime arbitration awards fees of over $800000 were awarded Of course most cases involve smaller amounts

ensp3 No appeal A third factor to bear in mind is there is no right of appeal such that when the arbitration award is issued for all practical purposes it is final While a right exists to petition the court to have an award set aside the grounds for doing so are limited and United States courts observe a strong public policy in favor of arbitra-tion This rule again contrasts very plainly with court cases where there always is a right of appeal

ensp4 Rules of evidence The proceedings are conducted by the tribunal without any formal evidence rules and the panel has broad discretion whether to accept evidence and what weight and credibility it should be given

ensp5 Pre-hearing disclosures There is no right to pre-trial discovery as in US court cases The panel can order disclosure however or the parties can make disclosures by agreement Arbitrators also have the power to issue subpoenas

When these factors are taken into account does maritime arbitration make sense and if so why

I think the answer clearly is ldquoyesrdquo My own view is that the aforementioned factors weigh strongly in favor of using arbi-tration as a method to resolve disputes A key reason is the commercial experience and knowledge of the arbitration panel In my view it not only is appropriate for arbitrators to use their own commercial knowledge and experience in deciding cases but it is also a main reason to appoint them It makes a huge difference to the dispute resolution process when you are sit-ting down with people who know the industry and understand the commercial context of the claims they are asked to resolve To my mind this is a key reason to use arbitration

But the other factors I mentioned are important as well The possibility of recovering attorneysrsquo fees and expenses is a significant element as is the risk of losing and having to pay such costs We always caution clients to consider the poten-tial downside as well as upside

JKim

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JOhN D KiMBALL

(continued on page 3)

Navigating the South China Sea Dispute through UNCLOS BY StEFANOS N ROULAKiS

the South China Sea has historically been an area of competing maritime claims as well as a key area for inter-national shipping currently carrying more than half the worldrsquos international trade China to the consternation of its neighbors has been undertaking a variety of construction activities in the South China Sea such as constructing

artificial islands on top of reefs rocks and other formations The United States and several of Chinarsquos neighbors particu-larly the Philippines have objected to these practices This dispute may lead to problems for vessels transiting the South China Sea Additionally it may lead to an opportunity for sup-porters of the United Nations Convention on the Law of the Sea (ldquoUNCLOSrdquo) to put pressure on the US Senate to ratify particularly since the USrsquo stance on the South China Sea issue is supported by UNCLOS

While the policy debate surrounding the dispute in the South China Sea is defined by strategic military and foreign policy considerations the legal framework for any path forward ulti-mately finds its basis in UNCLOS Although the United States has signed UNCLOS the US Senate has not provided the ldquoadvice and consentrdquo needed to ratify the treaty under the US Constitution UNCLOSrsquo proponents argue that UNCLOS goes a long way to bolstering the USrsquo position on the South China Sea particularly in limiting the claiming of a territorial sea around islands and protecting rights of innocent passage and freedom of navigation Given these facts the current dis-pute over the construction of islands in the South China Sea may give further attention for the USrsquo ratification of UNCLOS

BackgroundWithin the South China Sea there are hundreds of reefs rocks atolls cays and other outcrops which are subject to several potentially competing maritime claims from the surrounding countries of Vietnam the Philippines Malaysia Brunei and China among others Since early 2014 China has quietly undertaken land reclamation and construction activi-ties on some of these outcrops heightening tensions between the United States and China and leading America to condemn these activities in official statements While China maintains that it is merely asserting its sovereign rights in accordance with international law the United States and other countries have cited concerns relating to the militarization of these outcrops China counters that its actions are not novel under international law and asserts that it has the right to develop its territory without interference

At the time of writing China has announced that it will complete its land reclamation activities in some islands ldquoas plannedrdquo China also emphasized that it respected inter-national law with respect to freedoms of navigation and overflight Despite these developments tension remains

Opponents are concerned that China has taken the position that these outcrops are ldquoislandsrdquo under international law Under UNCLOS a state is afforded 12 nautical miles of ter-ritorial sea and a 200-mile ldquoexclusive economic zonerdquo (ldquoEEZrdquo) extending from the ldquolow-water line along the coastrdquo If China were able to assert that these outcrops met the definition of islands under UNCLOS it would have the effect of dramati-cally extending Chinarsquos territorial sea and EEZ hundreds of miles beyond the countryrsquos mainland This would effectively turn some of the busiest shipping lanes in the world into an area largely under Chinese jurisdiction

While the Philippines has filed for arbitration with the Permanent Court of Arbitration (ldquoPCArdquo) China has claimed it is not bound by the arbitration and has released a legal brief to this effect The United States has called for a resolution to the dispute under international law but the USrsquo own check-ered past with UNCLOS has made this call less credible

UNCLOS in the United StatesPresident Clinton signed the convention in 1994 but it was never ratified by the US Senate US practice seems to sup-port the notion that America considers itself at least partially bound by UNCLOS In establishing the maritime boundaries of the United States both Presidents Reagan and Clinton noted that they were acting in accordance with UNCLOS President Reagan noted ldquoThe United States will recognize the rights of other states in the waters off their coasts as reflected in [UNCLOS]rdquo United States Ocean Policy state-ment by President Reagan 22 ILM 464 (Mar 10 1983) In signing the Convention President Clinton noted that the USrsquo policy is ldquoto act in a manner consistent with [UNCLOS]rsquo provisions relating to traditional uses of the oceans and to encourage other countries to do likewiserdquo Presidential Letter of Transmittal of the Law of the Sea Convention Oct 6 1994 Sen Treaty Doc No 103-39 at iii (1994) The administrations of George W Bush and Barack Obama have also supported UNCLOS and urged the Senate to ratify it but to no avail Curtis Tate ldquoSenate Action on Treaty Could Unlock Arctic Riches Panel Toldrdquo The News Tribune July 28 2011 More recently current US Secretary of State John Kerry acting in his previous role as Senate Commerce Committee chairman held hearings regarding ratification of UNCLOS

Further US courts have applied the principles of UNCLOS since it was signed by President Clinton The courts either used UNCLOS under the principle that it was applicable as a signed (but unratified) treaty or that UNCLOS reflected customary international law In the contexts of UNCLOS as a signedmdashbut

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The finality of arbitration awards is also a plus and brings matters to an end usually sooner than a court case will when appeals are taken into account

A notable point about maritime arbitration in New York is the comparatively large number of people who make up the pool of arbitrators One of the comments we sometimes hear about New York arbitration is that the same small group of people get appointed over and over and in case after case To the extent that is a criticism blame the lawyers and clients who prefer an arbitrator who has an identifiable track record Since almost all New York maritime arbitration awards are published by the Society of Maritime Arbitrators (ldquoSMArdquo) it is easy to know how a particular arbitrator has decided prior cases The awards can be accessed online through Lexis or Westlaw But it is fair to say that the arbitrators in New York have done a good job of bringing new people into the pro-cess so that over the past three years at least 38 different people served as an arbi-trator in maritime cases that resulted in a published award Of course there were numerous other cases that were resolved before an award was issued This is a very good sign of a healthy arbitration system

Let me offer some examples of cases in which the commercial knowledge and experience of the panel was a significant factor In the past three years there were a number of arbitrations involving claims for cargo loss or cargo contamination The cases involve issues ranging from stand-ing to assert a claim to the application of Hague Rules or US Carriage of Goods by Sea Act (ldquoCOGSArdquo) defenses and burden of proof The cases involving burden of proof are especially telling because they highlight the importance of commercial knowledge in maritime arbitration

But before discussing the cases let me focus on ping pong Some in the audience will recall the significance of ldquoping pongrdquo diplomacy in the early 1970s in opening up diplomatic relations between the United States and China Those ping pong matches gave many Americans their first glimpses of China So it seems fitting at this ICMA conference in China for me to briefly focus on what I call the ldquoping pong rulerdquo This rule concerns the shifting burdens of proof in cases for cargo loss damage or contamination We are all familiar with it For the first stroke the cargo claimant has the initial burden of establishing a prima facie case by showing that the cargo was loaded in good order and condition and discharged in dam-aged condition or lost As some of the cases to be discussed indicate however proving good order and condition can be

very difficult and this is an area where commercial knowl-edge can play a key role

Going back to our ping pong match for the second stroke the carrier has to prove a COGSA exception such as errors in navigation in order to avoid liability If it does so the cargo can still impose liability by a further stroke of showing that an unseaworthy condition or negligence in the care and custody of the goods caused the loss If unseaworthiness is proved to be the cause the carrier can still avoid liability by hitting a final shot proving that it exercised due diligence to make the vessel seaworthy

Because there are no rules of evidence in arbitration the level and type of proof arbitrators may take into account certainly is different from a court case The arbitrators may consider evidence that a court would exclude and it is up to the arbitrators to decide how much or how little weight to

give it In that context it is very important for the arbitrators to consider not only what evidence is sub-mitted to them but also what evidence has not been submitted and why Adverse inferences may have to be drawn When important evidence is in the custody of a third-party what access do the parties have and can the panel issue a subpoena

In the United States arbi-trators have the power to issue subpoenas to third-parties to produce documents or testify The panel also has the clear power to order parties to produce documents or witnesses within their control The arbitrators also will decide whether testimony witness declarations or other evidence is cred-ible All of these points must be considered when the panel is deciding whether a party has met its burden of proof

In numerous cases SMA Arbitrators in New York were asked to allocate risk and liability for cargo contamination under COGSA and the Canadian Water Carriage of Goods Act (ldquoCOGWArdquo)

The shifting burden of proof analysis mentioned above was employed in The MV SITEAM EXPLORER SMA 4216 (2013) The shipper commenced arbitration against the owner seeking damages for alleged contamination of a cargo of Acrylo-nitrile (ldquoACNrdquo) Pre- and post-loading tests indicated that the vessel loaded the ACN at Houston in apparent good order and condition and discharged the same quantity at

Inmyview it not only is appropriate for arbitrators to use their own commercial knowledge and experience in deciding cases but it is also a main reason to appoint them

The Chandris test consists of two parts First the claimant must prove that his or her duties contributed to the function of the vessel or to the accomplishment of its mission This does not necessarily require that the claimant aid in naviga-tion or contribute to the transportation of the vessel but it does require that he or she be doing the shiprsquos work

Second a claimant must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature The fun-damental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based mari-time employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic con-nection to a vessel in navigation and therefore whose employment does not regularly expose them to the perils of the sea

In Chandris the Supreme Court emphasized that a maritime worker who spends only a small fraction of his or her working time onboard a vessel is fundamentally land-based and there-fore not a member of the vesselrsquos crew regardless of what his or her duties are The Supreme Court explained that although the inquiry is fact-specific where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connec-tion to vessels in navigation courts may take the question from the jury by granting summary judgment or a directed verdict The Supreme Court adopted the Fifth Circuitrsquos rule of thumb to aid courts in making this determination A worker who spends less than about 30 percent of his or her time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act

In the Alexander case Express argued that Mr Alexander did not meet the first prong of the seaman test because he did not contribute to the function of a vessel or the accomplishment of its mission based on the fact that he worked on non-vessel fixed platforms With respect to the second prong Express argued that even though Alexander had shown that approximately 35 percent of his plug and abandonment jobs involved the use of an adjacent liftboat he had failed to demonstrate that he spent at least 30 percent of his total work time on the adjacent liftboat

The district court granted Expressrsquo motion for summary judg-ment on the first prong It concluded that Alexanderrsquos duties in this case were similar to those of the plaintiff in Hufnagel v Omega Serv Indus Inc 182 F3d 340 346 (5th Cir 1999) which the Fifth Circuit held did not contribute to the function of a vessel because those duties related to the fixed platform

not the vessel In a footnote at the end of the opinion the district court opined that Alexander had also failed to meet the second prong Alexander appealed

Without assessing whether Alexanderrsquos duties contributed to the function of a vessel or the accomplishment of its mission the court of appeals affirmed the judgment of the district court based on Alexanderrsquos failure to produce sufficient evidence under the second prong of the seaman test which is the tempo-ral connection requirement Cognizant of its duty to follow clear and controlling Supreme Court precedent the court of appeals

reasoned that Chandris made it clear that a seaman must spend a substantial amount of time ordinarily 30 percent actually working on a vessel In the present case the undisputed summary judgment evidence showed that approximately 65 per-cent of Alexanderrsquos jobs involved a fixed platform only without the help of an

adjacent vessel And even on the other jobs involving a vessel adjacent to the platform Alexanderrsquos work occurred mostly on the platform Thus the court of appeals emphasized that it was not sufficient under Chandris that Alexander was merely near a vessel on more than 30 percent of his jobs or that he per-formed some incidental work on a vessel on those jobs Rather to be a seaman he had to show that he actually worked on a vessel at least 30 percent of the time Because Alexander failed to produce sufficient evidence to prove that point summary judgment in favor of his employer was proper

The Fifth Circuitrsquos opinion is a reminder that when dealing with on-the-job accidents and injuries in the maritime context the details of the involved employeersquos job duties along with the actual circumstances of the employeersquos work are critical issues to consider Not only do they go to making a determination as to what type of benefits the employee might be entitled to recover (ie maintenance and cure versus federal or state workersrsquo compensation) they also are key to being able to evaluate strategies for handling subsequent claims andor law-suits While each case is very fact-specific taking an early and proactive lead on gathering the necessary evidence needed to assess these issues has a significant amount of potential benefit for employers and insurers and is something that companies should consider including as part of a standard protocol for han-dling workplace accidents and incidentsthinspp

1ensp Alexander v Express Energy Services Operating LP 14-30488 2015 WL 2151773 (5th Cir May 7 2015)2 A seaman has a claim under the general maritime law for injuries caused by the unseaworthiness of a vessel

and this claim is independent from a claim under the Jones Act for an employerrsquos negligence A claim for maintenance and cure concerns the employerrsquos obligation to provide food lodging and medical services to a seaman injured while serving the ship Subject to certain defenses this obligation arises without regard to fault and benefits must be provided until the seaman reaches maximum medical recovery or improvement (ldquoMMIrdquo) Maintenance benefits provide the equivalent of a seamanrsquos food and lodging on the ship and recent court opinions have approved daily maintenance rates from $30 up to $45 per day

NewYorkMaritimeArbitrationUpdate(continuedfrompage2)

theFifthCircuitrsquosopinion is a reminder that when dealing with on-the-job accidents and injuries in the maritime context the details of the involved employeersquos job duties along with the actual circumstances of the employeersquos work are critical issues to consider

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Ulsan also in apparent good order and condition The ship-per alleged that six weeks after discharge the ACN was found to have ldquoyellowedrdquo beyond its maximum permitted resale specification and the cause of the yellowing occurred from an external source while the cargo was still aboard the ves-sel The owner denied responsibility for the alleged loss The majority held that the fact that the cargo was found to be ldquoon-specrdquo for color at the time of discharge precluded the shipper from benefiting from the usual presumptions of fault associated with a prima facie claim presentation The major-ity found that the shipper had not succeeded in showing by a preponderance of evidence or otherwise that the alleged contamination took place while the cargo was in the custody of the vessel or that the nature of the contamination was so unique that it could only have taken place aboard the ves-sel The panel majority therefore denied the claim in full and awarded the owner its fees and costs This case is an example of the panel bringing commercial knowledge to bear

Similarly in The MV STOLT PERSEVERENCE SMA No 4244 (2015) (Berg (dissenting) Ziccardi Martowski) the panel majority ruled that the char-terer failed to meet its burden of proving that the cargo was loaded in good order and condition and denied its cargo contamination claim This case also was a ldquobattle of the expertsrdquo as to whether the alleged contamination of Hexa-methylene-diamine (ldquoHMDrdquo) a sensitive inter-mediate chemical used in the manufacture of nylons and polyurethanes was due to inherent vice or whether it was damaged during shipment The owner asserted that the cargo damage resulted from a pre-shipment condition and once demonstrated the bur-den shifted to the charterer to show by a preponderance of the evidence that the cargo was delivered to the owner in a condition fit for transport The majority found the ownerrsquos expertrsquos testimony to be per-suasive and therefore held that a pre-existing impurity in the cargo when heated prior to shipment triggered a reaction that contaminated the cargo The majority therefore accepted the ownerrsquos position and held that the charterer did not meet its burden of establishing that the cargo was loaded in good

order and condition The dissent disagreed with the majorityrsquos view as to the cause of the cargo contamination

In In re Arbitration between Grandi Molini Italiani SpA and Orion Ship Trade SA SMA 3849 (2013) (Clark) a sole arbitra-tor was asked to consider a cargo damage claim pursuant to COGWA The claimantmdashthe receiver of wheat transported from Canada to Italymdashalleged freshwater wetting damage to approximately 417 metric tons of wheat carried on board the vessel MV ANTIKERI The claimant had the burden of show-ing that the cargo was loaded in good order and condition and discharged in a damaged condition Under Canadian law an ocean bill of lading can be offered as prima facie evidence of receipt by the carrier of the apparent good order and con-dition of the goods However where the apparent good order and condition cannot be seen because the damage is caused by a hidden condition such as moisture a clean bill of lad-ing is not sufficient to support a shipperrsquos prima facie case The claimant identified several theories of how the cargo sustained freshwater damage including rain and snow affect-ing the feeder vessels rain leaking into the holds through a

manhole cover and leaking ventilator ducts The sole arbitra-tor found that neither party had conclusively identified the source of the freshwater wetting and therefore the claimant failed to establish its prima facie case under COGWA

These cases are just a few examples of the benefit of having commercial expertise in maritime arbitrationsthinspp

EU on environmental and energy issues That is to say both individual states and the EU have authority to legislate and implement energy and environmental policies But in practice member states largely are permitted to determine their own appropriate renewable energy policies This has led to an equi-librium whereby EU environmental policies are paramount and although the EU cannot directly shape energy in its member states per se environmental concerns have influenced energy policies that otherwise would be contrary to EU principles such as the free movement of goods amongst states

EU courts have consistently held that renewable energy is a more pressing concern than its founding principle namely the free movement of goods In a landmark decision the European Court of Justice (ldquoECJrdquo) decided in 2000 that Germany could pass a law mandating energy supply companies to purchase energy from domestic renewable sources at inflated prices PreussenElektra AG v Schhleswag AG 2001 ECR I-02099 On its face it seemed that the law violated laws on the free move-ment of goods as well as competition laws Id However the ECJ found that reducing greenhouse gases was a pressing inter-est that outweighed the disruption to commerce because the mandatory sales at inflated prices were the ldquoleast restrictive wayrdquo for Germany to accomplish its goals Id

Similarly in a recent case the EU Court of Justice ruled that a Swedish Energy Agency did not have to subsidize a Finnish power company that was providing the Swedish power grid clean energy even though the agency provided subsidies to Swedish companies Aringlands Vindkraft AB v Energimyndigheten 2014 ECLIEUC20142037 However like in the PreussenElektra case above the ECJ ruled in favor of the public interest objective of promoting the use of renew-able energy sources in order to protect the environment and combat climate change It is hard to imagine US voters and courts allowing anti-competitive behavior that violates the commerce clause especially given the litigation that has ham-pered offshore resources

Conclusions Despite the lack of a complete commitment to offshore wind in the United States divided jurisdiction and uncertain tax policies new OSW development off the Atlantic Coast is on the horizon 2015 is the year for the first project to begin actual construction In 2017 we anticipate this clean energy resource will be provided to consumers through new and existing power gridsthinspp

This article was first published in the ABArsquos Marine Resources Committee Newsletter (Vol 18 No 2) May 2015 It was also reprinted in Law360 as ldquoBraving the Headwinds Hitting US Wind Energyrdquo on June 9 2015


By DAVID G MEyER

In Alexander v Express Energy Services Operating1 the Fifth Circuit Court of Appeals once again addressed a critical issue facing businesses (and their insurers) whose operations have maritime connections When is an employee considered a seaman

The underlying case involved MichaelAlexander a lead handoperator in Express Energy Services Operating LPrsquos plug and abandonment department which specialized in plugging decommissioned oil wells on various platforms off the coast of Louisiana for Expressrsquos customers Mr Alexanderrsquos duties included ensuring that everything was set up and running properly on the deck of the platform so that the plugging operation was successful

At the time of the incident at issue in the lawsuit Mr Alexander was working on a plug and abandonment project on a platform owned by Apache Corporation that had four wells on it A liftboat owned by Aries Marine Corporation was positioned next to the Apache platform with a catwalk con-necting the vessel to the platform (A liftboat is a self-propelled self-elevating vessel with a relatively large open deck capable of carrying equipment and supplies that has the capability of rapidly raising its hull clear of the water on its own legs so as to provide a stable platform from which maintenance and con-struction work may be conducted They are commonly used in Gulf of Mexico oil and gas operations) The liftboat had a crane that was being operated by an Aries employee for the benefit of the plug and abandonment crew Other equipment including wireline equipment was located on the platform Mr Alexander who along with other workers had set up the equipment on the platform before work began was on the platform not the liftboat when the work was underway As he was working on the platform a wireline from the liftboatrsquos crane snapped causing a plugtool combination suspended approximately a foot above the platformrsquos deck to fall and roll onto Mr Alexanderrsquos foot

Mr Alexander subsequently filed a lawsuit in Louisiana federal court against Express his employer and other companies alleg-ing that he was a seaman and asserting claims for negligence under the Jones Act and general maritime law as well as claims for unseaworthiness and maintenance and cure2 Express the employer subsequently filed a motion for summary judgment challenging Alexanderrsquos seaman status arguing that he was a platform-based worker who failed to satisfy either prong of the seaman status test laid down by the US Supreme Court in Chandris Inc v Latsis 515 US 347 (1995)

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A S S O C I AT E

DAVID G MEyER

Will 2015 Finally Fulfill the Promise for Development of US Offshore Wind (continued from page 14)

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Blank Rome LLP is pleased to announce that 23 attorneys and additional staff from the intellectual property law firm of Wong Cabello Lutsch Rutherford amp Brucculeri LLP (ldquoWong Cabellordquo) have joined the Firm in its new downtown Houston office on June 9 As a result of these additions Blank Rome significantly bolsters its IP practice to more than 60 attorneys and broadens its service offering to clients All five name partners have joined the Firm with J David Cabello serving as co-chair of Blank Romersquos Intellectual Property and Technology group They bring with them an addi-tional 6 partners 3 of counsel 9 associates and professional staff

The Wong Cabello national IP practice aligns with Blank Romersquos existing intellectual property practice including litiga-tion patent prosecution licensing and trademarks Wong Cabello has been lead counsel on more than 100 patent lawsuits in all key jurisdictions conducted more than 35 inter partes review proceedings and won numerous litigation matters across the country and the district courts of Texas They represent clients in a number of technology areas including computer science electronics manufacturing semi-conductors Internet technology nanotechnology petro-leum services chemical processing fiber optic switches financial services telecommunications communications hospitality consumer products and biotechnology

Blank Rome Welcomes 23 Attorneys of Wong Cabello

ANNOUNCEMENTgoals At a conference in Washington DC in December 2014 the executive director of the IEA complained that ldquo[y]et another short-term extension of the PTC under-mines investor confidence and contributes to the volatile pattern of annual wind growthrdquo Reported in Forbes at httpwwwforbescomsitesjeffmcmahon20141218iea-scolds-u-s-for-waffling-on-wind-tax-credit

US Shipyards and Foreign Interests Stand to Gain from OSW ProjectsThe lack of investment in OSW in the United States has hurt US mariners and the companies that employ them Montco Offshore a Lafourche Parish LA-based liftboat company has built the LB ROBERT which is the only US-flag vessel capable of doing wind installation work Despite this the LB ROBERT has yet to work on any offshore wind projects Additionally Blount Boats in Rhode Island has invested heav-ily in building five windfarm support vessels and has recently inked a deal with Deepwater Wind and Rhode Island Fast Ferry to build and supply a vessel to ferry personnel and equipment to the Block Island Wind Farm

More steel in the water would also benefit tug and other ves-sel service companies by providing projects to which these vessels can contribute Perhaps most importantly OSW proj-ects will allow companies like Montco and Blount to create jobs for US mariners and skilled shipyard workersmdashcreating a new industry for this vital maritime sector

Additionally non-US interests also stand to gain from OSW which ultimately benefits the United States OSW is an area where European firms are generally technologically ahead of US firms This has given rise to mutually beneficial foreign direct investment from firms like Renexia providing value to foreign investors and creating jobs and clean energy in the United States

The Success Stories and Future of OSW in the United States Despite the long list of impediments described above BOEM has leased 403405 acres in the WEAs and has more lease sales planned for 2015 off of MA possibly NC and NY

Deepwater Wind the successful bidder for the 2013 MA and RI lease sales has also begun to develop the OSW project off of Block Island Rhode Island Since Block Island has no independent source of energy it is an ideal test bed for OSW Construction on the RI project is expected to commence this year as well As noted above the Block Island Wind Farm is now ldquofully permittedrdquo Supra

In Virginia BOEM completed an Environmental Assessment for the Virginia Offshore Wind Technology Advancement

Project (ldquoVOWTAPrdquo) See httpswwwdomcomcorporatewhat-we-doelectricitygenerationwindvirginia-offshore-wind-technology-advancement-project The VOWTAP project will consist of two turbines in an area adjacent to the Virginia WEA and allow testing of turbines to take place over the next two years in an effort to bring costs down and test whether turbines can withstand hurricane force winds The state has also received federal approval for a research lease which will go a long way to providing answers to key questions about maximizing production while limiting visibility of turbines from shore (Id)

Finally the Department of Energy (ldquoDOErdquo) awarded VOWTAP a $47 million four-year grant to help fund the construction of this OSW demonstration project The DOE awarded grants to two other wind projects in 2014 including Fishermanrsquos Energy off Atlantic City NJ and Principle Power off the coast of Coos Bay OR See httpenergygoveerewindoffshore-wind-advanced-technology-demonstration-projects

Why Has the United States Lagged Behind EuropeItrsquos no secret that US offshore wind development lags behind Europe In European countries like Germany voters have accepted that initial public spending will exceed immedi-ate return on investment for green projects for decades Jan Hromadko ldquoWind Power Hopes for Sea Changerdquo The Wall Street Journal August 7 2014 Despite some recent NIMBY-related setbacks in Europe renewables including offshore wind clearly are entrenched in European energy schemes and receive broad support Melissa Eddy ldquoGermans Balk at Plan for Wind Power Linesrdquo The New York Times December 25 2014

Europeansrsquo support has translated into a wide variety of pub-licly supported debt financing such as public bond measures and loans from state run banks totaling approximately $100 billion The results are unmistakable Ireland and Denmark now predict that they will obtain over 30 percent of their energy from wind In contrast recent examples in the United States show that the American public even in progressive states like Maine Massachusetts and New York does not have the stomach for the high startup costs and subsidies required for clean energy projects

Two other factors have also impacted the growth of OSW in Europe EU member states have feed-in tariffs to level the play-ing field and Europe also lacks supplies of natural gas which has been a focus of US clean-energy policies because of the increase in supply through enhanced production techniques

European ldquofederalismrdquo has also worked in favor of clean energy Under Article 4 of the Treaty on the Functioning of the European Union member states ldquoshare competencerdquo with the


Blank Rome Houston Downtown 717 Texas Avenue thinspSuite 1400 thinspHouston TX 77002 +17132286601

To accommodate the expansion on June 1 Blank Rome moved into new office space at

Russell WongPartner

Russell Wong concentrates his practice on intellectual property litigation intellectual property licensingopinions and general intellectual property counseling including patent portfolio strategy and develop-ment He combines his law firm experience with his past experience as chief IP counsel of a Fortune 50 company and at a nationally recognized intellectual property law firm to provide his clients with business-focused legal advice

Lou BrucculeriPartner

Lou Brucculeri concentrates his intellectual property practice on patent disputes and counseling in the electronics and software fields with a particular focus on litigation licensing technology agreements and counseling regarding the strategic implementation of corporate patent programs and policies He also performs patent prosecution and opinion drafting in the areas of his technical background

Keith LutschPartner

Keith Lutsch concentrates his intellectual property practice on electronics computer and network-ing hardware and software patent prosecution standards organization activities patent program development management and strategy and the technical aspects of patent litigation and analysis

Keith RutherfordPartnerKeith Rutherford concentrates his intellectual property practice on patent litigation IP strategy pre- litigation conflict resolution licensingdeal negotiations analysis of patent portfolios both for offensive and defensive purposes opinion work and prosecution management

J David CabelloPartner and Co-Chair of Blank Romersquos Intellectual Property and Technology Practice Group

David Cabello concentrates his intellectual property practice on patent copyright and trademark liti-gation software and patent licensing patent portfolio development and exploitation and patent infringement and validity analysis and is well-versed in a range of technologies in the computer field and energy sector

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Billy C Allen III Partner Linh Bui Associate Sarah R CabelloAssociate Octavio T DaCosta Associate Stephen E Edwards Of Counsel Katherine FrancoAssociate

James H Hall Partner Marilyn Huston PhD Of Counsel Michael Jenney Associate Christopher Keirs PhD PartnerAzadeh Khadem Of Counsel Domingo M LLagostera Associate

Sean P McDermott PartnerCoe F Miles PhD Partner Daniel R Peterson Associate Richard A Schafer Partner Keana T Taylor Associate Stephen D Zinda Associate

been rejected earlier in 2014 by the BPU on the grounds that the project did not demonstrate a net economic benefit to the state and that the project would be too costly to ratepay-ers Fishermenrsquos Energy filed suit asserting that BPUrsquos denial was both unreasonable and in violation of New Jersey law BPUrsquos failure to issue regulations and work with Fishermanrsquos Energy has left critics questioning the statersquos commitment to the OWEDA

On May 29 2015 the Appellate Division of the Superior Court of New Jersey ruled against Fishermenrsquos Energy The court found that it could not conclude that BPUrsquos decision was arbitrary or not supported by evidence While some industry analysts have characterized this as a significant blow for Fishermenrsquos Energy the company has vowed to appeal and continue on with the project

In Rhode Island the state adopted an ocean management plan for state waters and deter-mined where compatible ocean uses including offshore wind siting could exist See Rhode Island Ocean Special Area Management Plan at 9 Deepwater Wind is scheduled to build its wind farm three miles southeast of Block Island Rhode Island in state waters and has received all of its federal permits according to the companyrsquos web-site Because Deepwater has all its permits and financing it expects to have ldquosteel in waterrdquo for this project by the summer of 2015 The project will include 15 wind turbines purchased from Alstom in Denmark and produce power for over 17000 homes

In Massachusetts Cape Wind one of the first US offshore wind projects was dealt a major setback at the end of 2014 when two utilities rescinded purchase agreements citing missed financial deadlines by the company Cape Wind imme-diately and publicly pointed to force majeure clauses in their contracts citing more than a decade of litigation and fight-ing public opposition as justification for not meeting initial benchmarks

In July 2013 BOEM auctioned off a combined MA-Rhode Island WEA and Deepwater Wind New England LLC was declared the winner of both lease areas for an auction bid of $38 million In an early test of the staying power of OSW a lease sale for four new WEAs off the coast of MA total-ing 742000 acres was held on January 29 2015 and RES America Development Inc and Offshore MW LLC were declared the provisional winners for total winning bids of (only) $448171


In Virginia the state created a Virginia Offshore Wind Development Authority to encourage offshore wind devel-opment but has not enacted a law mandating a renewable energy standard or establishing a system of ORECS as Maryland and New Jersey have done The major utility in Virginia Dominion Virginia Power was the successful bidder for the VA WEA in 2013 at a bid of $16 million Dominion plans to install its first turbine in the WEA in ten years after

completing its research and demonstration project called VOWTAP (See below for further discussion However its demonstration project has been put on hold due to escalating construction costs)

Lack of Consistent IncentivesThe wind industry has historically depended on federal tax incentives to support the requisite upfront investment needed to construct the offshore projects It is likely that once construction is completed costs will level out and become more competitive with other energy sources

At the end of the 113th Congress in December 2014 Congress passed a one-year-only extension of the Production Tax Credit (ldquoPTCrdquo) which seeks to provide fiscal incentives for private companies to return electricity to the grid through renewable sources of energy This extension did little good because the year was almost at an end when the extension was enacted The wind industry has asked for a level-playing field to be able to compete with traditional energy sources The American Wind Energy Association (ldquoAWEArdquo) has noted that extending the PTC will improve energy security as well as provide economic benefits

In 2014 the International Energy Agency (ldquoIEArdquo) issued a comprehensive report on US energy policy which praised the United States for its growth in renewable energy That praise notwithstanding the IEArsquos report decried the lack of an ldquoexplicit national policy mecha-nismrdquo to ensure that America meets its renewable energy

While BOEM can offer the states incentives they cannot preempt local land use or utility rate regulations Each affected state has taken its own approach to offshore wind Some have been aggressive and passed supportive legislation and some have just taken a wait-and-see approach

Joining from Wong Cabello

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com

PArtNEr

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CHu

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OF COUNsEL

CHrIstOPHErkHU

TBel

knap

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PArtNEr

tHOMAsHBELkNAPJr

Patenttrollsmdashthosewhoseektoenforcepatentrightsbut do not actually manufacture or supply services based on the patentsmdashare a problem in all industries including the shipping industry And as the pace of innovation in shipping continues to accelerate in areas such as environmental compliance elec-tronic navigation vessel design construction and operation offshore construction and exploration and cargo logistics man-agement claims by patent trolls are sure to rise

It is not just companies who design and sell products in the maritime sector who are at risk Your company can be sued by a troll (or by a ldquolegitimaterdquo patent owner) if it makes uses sells offers to sell or imports an item or practices a method for conducting business (for instance a method for manag-ing the routing and stowage of containers on a liner service) that is covered by a US patent Your company can be sued for patent infringement even if it does not directly infringe but rather induces others to infringe or contributes to their infringement Retailers manufacturers financial services com-panies investment funds and companies at every step of the supply or service chain are exposed

Defending a patent case against trolls is expensive and depending on where the suit is pending the median time to trial is 23 years though in some instances a patent case can take 10 years or more from start to finish Damages for patent infringement usually take the form of a reasonable royaltymdashwhat you would pay for a license to the patent knowing that the patent is valid and infringed One study of royalty rates awarded in litigation over a 23-year period concluded that the average rate was about 13 percent of the price of the infringing product Another study reveals that inexplicably

MEET BLANK ROME

the median damages awarded to trolls are twice the median award for practicing entities In addition increased damages (up to three times the award) are available if the infringement is ldquowillfulrdquo and attorneysrsquo fees can be awarded in ldquoexcep-tional casesrdquo

HowtodealwithatrollA trollrsquos business model is simply to get as much money as possible as quickly as possible Since trolls do not produce anything (they cannot be counter-sued for patent infringe-ment as competitors often can be) and are often bank-rolled by investors whose sole purpose is to engage in litigation or by law firms that work on a contingency trolls do not have the business motives of a competitor Conventional wisdom of how best to defend a patent case therefore does not always apply as it is often the most conservative expensive and time-con-suming approach Winning a case means little if your company does not survive

While many claims of patent infringement brought by trolls are frivolous and may even be made with the hope that the target will settle quickly for the sole purpose of avoiding the costs associated with defending the claimmdasha classic strike suitmdashthat does not mean that a claim made by a troll always lacks merit It is important to keep in mind that a patent asserted by a troll has gone through the same examination procedure in the US Patent Office as patents owned by non-trolls Moreover patents asserted by trolls are often acquired from reputable multinational corporations that sell patents they no longer need to the highest bidder

While settling a frivolous case presents philosophical issuesmdashDo I want to pay off extortionmdashquickly settling a non-frivolous claim may be a sensible exercise of business judgment to avoid disruption uncertainty and the risk of a significant damages award Critical to this decision is making a prompt and candid assessment of the validity and scope of the patent claim so that management can make a sound judgment about how best to respond

HowtodefendagainstPatent trollswithoutBreakingtheBank

BYkENNEtHLBrEssLErCHrIstOPHErkHUANdtHOMAsHBELkNAPJr

the development would be compatible with other uses of the ocean including endangered species and critical habitats marine mammals birds and fisheries

In 2010 the Bureau of Ocean Energy Management (ldquoBOEMrdquo) the lead agency in the Department of the Interior identi-fied four WEAs off the Atlantic Seaboard and began both the environmental review and stakeholder involvement process BOEM also had to comply with the National Environmental Policy Act (ldquoNEPArdquo) before beginning the leasing process In 2012 BOEM issued a final programmatic EIS covering the four WEAs and began to qualify interested developers and to set the rules of the roadmdashor the seamdashfor wind farms BOEM decides whether there is competitive interest in the lease areas and after qualifying interested companiesbidders auctions the areas to the highest bidder This has resulted in 403405 acres leased to five companies

dividedUsFederal-stateJurisdictionoverOffshorewindProjectsComplicatestheProcess A patchwork of uneven state laws and policies has left developers largely on their own to negotiate agreements with adjacent coastal states utilities and state utility regulators A unique aspect of OSW development in the United States compared to Europe is the divided jurisdic-tion between the federal government and the states on the Atlantic Seaboard While the Department of the Interior can lease the WEAs on the OCS because it is beyond state waters it cannot force statesmdashor utilitiesmdashto bring the wind-generated power onshore and to sell the wind to consumers

The fact that states and local jurisdictions have the power to decide has complicated the development process greatly as each adjacent state has had to negotiate its own terms with developers and stakeholders There is no single model for bringing OSW to the shore and ultimately to consumers While BOEM can offer the states incentives they cannot preempt local land use or util-ity rate regulations Each affected state has taken its own approach to offshore wind Some have been aggressive and passed supportive legislation and some have just taken a wait-and-see approach

For example in Marylandthe legislature passed and Governor OrsquoMalley signed into law the Maryland Offshore Wind Energy Act of 2012 The law creates a mechanism

to incentivize the development of up to 500 megawatts (ldquoMWrdquo) of offshore wind capacity at least 10 nautical miles off Marylandrsquos coast A target project size of 310 MW would require the installation of between 50 and 100 wind turbines Marylandrsquos new law also creates a system of Offshore Wind Renewable Energy Credits (ldquoORECsrdquo) which would subsidize the cost of the renewable energy for Maryland ratepayers The ORECs are capped at two dollars per month for residen-tial ratepayers and 25 percent on annual bills for commercial ratepayers

In August 2014 BOEM auctioned the WEA off the Maryland coast US Wind Inc a subsidiary of the Italian renewable energy company Renexia won the auction with a bid of $87 million

In NewYork the New York Power Authority (ldquoNYPArdquo) the Long Island Power Authority (ldquoLIPArdquo) and Consolidated Edison initially worked together to propose an offshore wind project south of Long Island BOEM determined that NYPA was qualified to hold a lease and Deepwater Wind submitted an application to LIPA to sell 280 MW from its Deepwater ONE project In 2014 LIPA turned down the application in

favor of buying solar power which LIPA believes may be less costly The total energy LIPA is planning to pur-chase amounts to only 122 MW far less than the 280 MW of renew-able energy the utilities had initially planned

In 2010 theNewJersey legislature passed and Governor Christie signed the Offshore Wind Economic Development Act into law The law requires the New Jersey Board of Public Utilities (ldquoBPUrdquo) to establish an OREC program and requires that a percentage of

electricity sold in the state be from offshore wind energy The BPU has yet to issue final regulations to implement the act which has frustrated developers For example Fishermenrsquos Energy announced that it would be building the onshore por-tion of its proposed wind farm in state waters despite having


will2015FinallyFulfillthePromisefordevelopmentofUsOffshorewindBYJOANMBONdArEFFANdstEFANOsNrOULAkIs

thedevelopmentofoffshorewindprojects in the United States has been a story of high hopes and many setbacks Thus far 2015 has perpetuated the same story line with major setbacks plaguing two major US offshore wind proj-ects Cape Wind and Fishermenrsquos Energy and with Deepwater Wind set to put steel in the water near Block Island this year This article reviews the state of US offshore wind develop-ment the hurdles this development has had to overcome and the barriers to further development The article closes by offering a comparison with the European success story for offshore wind

BackgroundUS commitment to developing the wind resources of the Outer Continental Shelf (ldquoOCSrdquo) in the Atlantic Coast began in 2010 with the launch by former Secretary of the Interior Ken Salazar of the ldquoSmart from the Startrdquo program The former secretary noted that the ldquoinitiative for Atlantic wind will allow us to identify priority Wind Energy Areas (ldquoWEAsrdquo) for potential development improve our coordination with local state and federal partners and accelerate the leasing processrdquo While the program may not have fulfilled all of the secretaryrsquos expecta-tions the initiative did promote leasing of wind farms off the Atlantic Seaboard and has led to the prospect for the first off-shore wind (ldquoOSWrdquo) farms in the United States

The statutory basis for this program is contained in Section 388 of the Energy Policy Act of 2005 (ldquoEPActrdquo) which autho-rizes the secretary of the interior to develop renewable energy resources (including wind tidal and kinetic energy) on the OCS While the act granted the US Department of the Interior similar leasing authority to what it possessed for oil and gas in the OCS the law did not grant sole permit-ting authority to the secretary of the interior Instead EPAct continued to allow federal resource agencies including the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration (ldquoNOAArdquo) to regulate whether

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dealingwithFrivolousordefectiveClaimsMOtIONPrACtICEWhere the trollrsquos claim is frivolous or its complaint is proce-durally or jurisdictionally defective a motion to dismiss may allow a defendant to dispose of a case before engaging in expensive discovery If the frivolity of the claim is more seri-ous various types of sanctions can be sought While these sanctions are not unique to patent suits they can be particu-larly useful against trolls that file suits without adequately investigating the legitimacy of their claims or maintain suits after being apprised of why there is no infringement

Another pre-trial procedure that can help bring a trollrsquos claim to an early conclusion is a motion for summary judgment which is available where there is no dispute as to the mate-rial facts and the only issue is whether the moving party is entitled to judgment as a matter of law Summary judgment may be appropriate when there is prior art that invalidates the patent or where the facts clearly establish that the patent is not actually being infringed

CHALLENgEtHEVALIdItY OFtHEPAtENt

If there are arguments that the pat-ent at issue is invalid it may be better to challenge the validity of the patent before the US Patent Office This option was made more attractive when the America Invents Act (ldquoAIArdquo) was signed into law in 2011

In general the Patent Office pro-cedures provide a cheaper way to challenge patent validity than having to proceed in court litigation As courts will often stay an infringement action in deference to the Patent Office these procedures can be an attractive alterna-tive to litigation The procedures can result in patent claims being invalidated modified or affirmed If invalidated then you cannot of course be an infringer If the claims are substantively modified as they often are then infringementmdashand damagesmdashdo not start until the modification takes effect And in some circumstances you may even have interven-ing rights ie your right to continue with your product or method may be superior to that of the patent ownerrsquos

The procedures can take 18 months to three years to com-plete but even if the patent is ultimately upheld the process can often result in clarity as to the scope of the patent claims This will not only give you time to grow your business with-out the cost and disruption associated with litigation but it will also give you an opportunity to pin down the troll on its

interpretation of the scope of the patent allowing you to more effectively respond to the claims

dealingwithValidPatentInfringementClaimsIf a candid assessment of the trollrsquos claim leads to the conclu-sion that the patent claim has some meritmdashor if a challenge to the Patent Office proves unsuccessfulmdasha product or busi-ness method that is accused of infringing a patent can often be modified to avoid infringement While this will not absolve your company for past infringement depending on the length of time remaining before the patent expires and the amount of potentially infringing activity that already took place cutting off infringement by discontinuing the supposedly infringing activity may lead the troll to reevaluate the value of the case

Cost-savingstrategiesPatent litigation often involves ldquobet the farmrdquo issues as dam-ages for past infringement can be crippling and the threat of being prevented from selling your product daunting With so much to lose defendants often take a ldquono holds barredrdquo

approach spending whatever it takes to win but such an approach may not be feasible Following are a few cost-saving strategies that must generally be considered

Indemnification If you are sued based on a product or compo-nent that is made by someone else then

the party that provided the product to you may have a contrac-tual obligation to defend and indemnify you in the case

Insurance While not the norm some insurance policies cover claims for patent infringement You should check your policy and consult with appropriate advisors If you do not have insurance that covers patent infringement it may be worthwhile to look into its availability

teamupwithotherdefendants Trolls often sue mul-tiple defendants at the same time While separate cases may be filed they are often consolidated for discovery purposes Having your law firm work closely with the other defendantsrsquo law firms or hiring one law firm to rep-resent multiple defendants can substantially reduce your legal fees

Compelthetrolltoidentifyitsinfringementconten-tions A troll should be forced to identify its infringement theories with as much specificity as possible as early as possible Compelling a troll to provide specific infringe-ment contentions can help streamline the case andor limit the exposure and puts pressure on the troll by constraining its ability to change its contentions or more importantly by exposing a possible lack of a credible infringement theory

AvoidingPatentInfringementClaimsPatent lawyers can conduct ldquofreedom to operaterdquo (ldquoFTOrdquo) searches An FTO search compares your product or process to patents located through a search of the US Patent Office files in which patents are categorized by subject matter into classes and subclasses If there are no patent claims that appear to cover your product or process then you may be able to develop some level of comfort that you are free to proceed without infringing a patent Similarly if it appears that a potentially conflicting patent is invalid then it may be possible to establish that fact before proceeding with the proposed business Conversely if the FTO reveals a problem your company can forego the activity or design around the patent

ConclusionPatent trolls are an unavoidable business hazard but with some advance precautions and a nimble response the dam-age can often be minimized As with many problems advance preparation can often be the key to successthinspp

AspublishedintheJuly2015editionof Maritime Reporter amp Engineering News wwwMarineLinkcom

defendingapatentcase against trolls is expensive and depending on where the suit is pending the median time to trial is 23 years though in some instances a patent case can take 10 years or more from start to finish


HowtodefendagainstPatenttrollswithoutBreaking theBank(continuedfrompage8)

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AssOC IAtE

stEFANOsNrOULAkIs

Chambers 2015 Blank Rome Maritimersquos regulatory team is a ldquostrong practice offer-ing the full range of regulatory servicesrdquo The team has ldquosought-afterrdquo experience in ldquoareas including risk mitigation and government re-lations issues Clients benefit from its strong relationships with a range of agencies such as the US Coast Guard EPA and Federal Maritime Commissionrdquo

Sources say ldquoTheir folks are outstanding practitioners They have done a great job in responding to the changing marketrdquo

keyIndividualsforshippingregulatory

JeanneMgrasso ranked as abandtwoattorney Chambers USA states ldquoJeanne Grasso regularly advises vessel owners and charterers among others clients on compliance and pollution issues One interviewee notes lsquoWhen I think of her I think of Coast Guard matters and I think highly of herrsquordquo

Jonathankwaldron ranked as a bandone attorney Chambers USA states ldquoSources say [maritime] group co-chair Jonathan Waldron has a lsquodeep knowledge of maritime and environmental lawsrsquo and is lsquoiconic when it comes to DC regulatory mattersrsquo He handles a range of matters including maritime security and compliance workrdquo

AnthonyBHallerrankedasabandoneattorneyforLaborampEmploymentinPennsylvaniaChambers USA states ldquoAnthony Haller is a lsquocalming force in difficult circumstancesrsquo and is praised for strategic abilities He receives universal praise for his work in employment disputes and also regularly litigates on labor relations issuesrdquo

kevinJBruno rankedasabandtwoattorneyforEnvironmentlawinNewJersey Chambers USA states ldquoKevin Bruno frequently represents major chemical oil and petrol companies in a variety of environmental litigation concerns He impresses peers and clients with his lsquogreat client relationship skillsrsquo and exceptional strength in negotiating and litigatingrdquo

Chambers 2015 Blank Rome Maritimersquos shipping litiga-tion team outside of New York is a ldquoquality team that has a strong presence along the Atlantic and Gulf coastsrdquo The team ldquohandles a wide variety of domestic and internation-al dispute work advising oil companies underwriters and PampI Clubs among othersrdquo

Notable Practitioner JeremyAHerschaft ldquoworks with clients on a range of maritime litigation and arbitrations He is well-versed in issues pertaining to cargo damage maritime casualties and charter partiesrdquo

sHIPPINgLItIgAtION(OUtsIdENEwYOrk) BANdtwO

sHIPPINgrEgULAtOrY(OUtsIdENEwYOrk) BANdONE

Chambers USA 2015Honors BlankromeMaritimeAttorneys

Chambers 2015 Blank Rome Maritime is ldquoconsidered a go-to name for a range of contentious shipping matters thanks to a deep bench of experienced practitionersrdquo The Firm ldquohas strong ca-pabilities in domestic and international litigation and arbitration and regularly advises leading names in the sectorrdquo Notable experience ldquoincludes disputes centered around maritime casualties charter parties and cargo damagerdquo

Sources say ldquoWe have used them many times and they have always been exceptionalrdquo and ldquoThey have an extensive and diverse knowledge of the sectorrdquo

keyIndividualsforshippingLitigation

Johndkimball ranked as a bandone attorney Chambers USA states ldquoJohn Kimball is a knowledgeable shipping lawyer who has an lsquoexcellent reputationrsquo in the area according to intervieweesrdquo

thomasHBelknapJr ranked as a bandtwo attorney Chambers USA states ldquoSources say Thomas Belknap is lsquovery knowledgeablersquo and highlight his lsquoreally good connections in the Asian shipping arenarsquordquo

richardVsingleton ranked as a bandfour attorney Chambers USA states ldquoRichard Singleton is an experienced figure who handles matters such as bills of lading maritime casualty and insurance disputes Clients say lsquohe has been very thorough is very professional and has a very good knowledge of the lawrsquordquo

LaurenBwilgusrecognized as an associatetowatch Chambers USA states ldquoThe lsquothorough and organizedrsquo Lauren Wilgus is lsquoquick to grasp the relevant issues and factsrsquo according to a client She regularly advises on maritime issues including marine insurance disputes and charter party mattersrdquo

sHIPPINgLItIgAtION(NEwYOrk) BANdONE

LawrenceFFlickIIrankedasabandoneattorneyforBankingampFinanceinPennsylvaniaChambers USA states ldquoLawrence Flick heads the financial services team acting for financial institutions in a range of transactions including complex commercial lending One client notes lsquoHe is probably the best transaction-oriented businesspersonrsquos attorney that I knowrsquordquo

MichaelBschaedlerankedasabandthreeattorneyforBankruptcyrestructuringinPennsylvania Chambers USA states ldquoMichael Schaedle is valued for his experience in advising creditorsrsquo committees and is also highlighted for his [experience] in maritime bankruptcy work Sources praise his lsquovery effectiversquo approach to mattersrdquo

JosephtgulantrankedasarecognisedpractitionerfortaxinNewYork

The quotes commentary and rankings referenced in this document are published in Chambers USA 2015

Blank Rome Honors Maritime Industry Team Members Recognized in Other Key Practice Areas by Chambers USA 2015






























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OF COUNsEL

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MEET BLANK ROME



















russellwongPartner


LouBrucculeriPartner


keithLutschPartner


keithrutherfordPartnerKeith Rutherford concentrates his intellectual property practice on patent litigation IP strategy pre- litigation conflict resolution licensingdeal negotiations analysis of patent portfolios both for offensive and defensive purposes opinion work and prosecution management

JdavidCabelloPartnerandCo-ChairofBlankromersquosIntellectualPropertyandtechnologyPracticegroup


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BillyCAllenIII Partner LinhBui Associate sarahrCabelloAssociate OctaviotdaCosta Associate stephenEEdwards Of Counsel katherineFrancoAssociate

JamesHHall Partner MarilynHuston PhD Of Counsel MichaelJenney Associate Christopherkeirs PhD PartnerAzadehkhadem Of Counsel susanknoll Of Counsel domingoMLLagostera Associate

seanPMcdermott PartnerCoeFMiles PhD Partner danielrPeterson Associate richardAschafer Partner keanattaylor Associate stephendZinda Associate



In rhodeIsland the state adopted an ocean management plan for state waters and deter-mined where compatible ocean uses including offshore wind siting could exist See Rhode Island Ocean Special Area Management Plan at 9 Deepwater Wind is scheduled to build its wind farm three miles southeast of Block Island Rhode Island in state waters and has received all of its federal permits according to the companyrsquos web-site Because Deepwater has all its permits and financing it expects to have ldquosteel in waterrdquo for this project by the summer of 2015 The project will include 15 wind turbines purchased from Alstom in Denmark and produce power for over 17000 homes



will2015FinallyFulfillthePromisefordevelopmentof UsOffshorewind(continuedfrompage12)



LackofConsistentIncentivesThe wind industry has historically depended on federal tax incentives to support the requisite upfront investment needed to construct the offshore projects It is likely that once construction is completed costs will level out and become more competitive with other energy sources



whileBOEMcanoffer the states incentives they cannot preempt local land use or utility rate regulations Each affected state has taken its own approach to offshore wind Some have been aggressive and passed supportive legislation and some have just taken a wait-and-see approach

JoiningfromwongCabello

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BlankromeLLPispleasedtoannouncethat24attorneysand additional staff from the intellectual property law firm of Wong Cabello Lutsch Rutherford amp Brucculeri LLP (ldquoWong Cabellordquo) have joined the Firm in its new downtown Houston office on June 9 As a result of these additions Blank Rome significantly bolsters its IP practice to more than 60 attorneys and broadens its service offering to clients All five name partners have joined the Firm with J David Cabello serving as co-chair of Blank Romersquos Intellectual Property and Technology group They bring with them an addi-tional 6 partners 4 of counsel 9 associates and professional staff


Blankromewelcomes 24AttorneysofwongCabello


UsshipyardsandForeignInterestsstand togainfromOswProjectsThe lack of investment in OSW in the United States has hurt US mariners and the companies that employ them Montco Offshore a Lafourche Parish LA-based liftboat company has built the LB ROBERT which is the only US-flag vessel capable of doing wind installation work Despite this the LB ROBERT has yet to work on any offshore wind projects Additionally Blount Boats in Rhode Island has invested heav-ily in building five windfarm support vessels and has recently inked a deal with Deepwater Wind and Rhode Island Fast Ferry to build and supply a vessel to ferry personnel and equipment to the Block Island Wind Farm



thesuccessstoriesandFuture ofOswintheUnitedstatesDespite the long list of impediments described above BOEM has leased 403405 acres in the WEAs and has more lease sales planned for 2015 off of MA possibly NC and NY





whyHastheUnitedstatesLaggedBehindEuropeItrsquos no secret that US offshore wind development lags behind Europe In European countries like Germany voters have accepted that initial public spending will exceed immedi-ate return on investment for green projects for decades Jan Hromadko ldquoWind Power Hopes for Sea Changerdquo The Wall Street Journal August 7 2014 Despite some recent NIMBY-related setbacks in Europe renewables including offshore wind clearly are entrenched in European energy schemes and receive broad support Melissa Eddy ldquoGermans Balk at Plan for Wind Power Linesrdquo The New York Times December 25 2014





BlankromeHoustondowntown 717 Texas Avenue thinspSuite 1400 thinspHouston TX 77002 +17132286601

toaccommodatetheexpansiononJune1Blankromemovedintonewofficespaceat

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Ulsan also in apparent good order and condition The ship-per alleged that six weeks after discharge the ACN was found to have ldquoyellowedrdquo beyond its maximum permitted resale specification and the cause of the yellowing occurred from an external source while the cargo was still aboard the ves-sel The owner denied responsibility for the alleged loss The majority held that the fact that the cargo was found to be ldquoon-specrdquo for color at the time of discharge precluded the shipper from benefiting from the usual presumptions of fault associated with a prima facie claim presentation The major-ity found that the shipper had not succeeded in showing by a preponderance of evidence or otherwise that the alleged contamination took place while the cargo was in the custody of the vessel or that the nature of the contamination was so unique that it could only have taken place aboard the vessel The panel majority therefore denied the claim in full and awarded the owner its fees and costs This case is an example of the panel bringing commercial knowledge to bear

Similarly in The MV STOLT PERSEVERENCE SMA No 4244 (2015) (Berg (dissenting) Ziccardi Martowski) the panel majority ruled that the charterer failed to meet its burden of proving that the cargo was loaded in good order and condition and denied its cargo contami-nation claim This case also was a ldquobattle of the expertsrdquo as to whether the alleged contamination of Hexa-methylene-diamine (ldquoHMDrdquo) a sensitive intermediate chemi-cal used in the manufacture of nylons and polyurethanes was due to inherent vice or whether it was damaged during ship-ment The owner asserted that the cargo damage resulted from a pre-shipment condition and once demonstrated the burden shifted to the charterer to show by a preponderance of the evidence that the cargo was delivered to the owner in a condition fit for transport The majority found the ownerrsquos expertrsquos testimony to be persuasive and therefore held that a pre-existing impurity in the cargo when heated prior to ship-ment triggered a reaction that contaminated the cargo The majority therefore accepted the ownerrsquos position and held that the charterer did not meet its burden of establishing that the cargo was loaded in good order and condition The dis-sent disagreed with the majorityrsquos view as to the cause of the cargo contamination

In In re Arbitration between Grandi Molini Italiani SpA and Orion Ship Trade SA SMA 3849 (2013) (Clark) a sole arbitra-tor was asked to consider a cargo damage claim pursuant to COGWA The claimantmdashthe receiver of wheat transported from Canada to Italymdashalleged freshwater wetting damage to approximately 417 metric tons of wheat carried on board the vessel MV ANTIKERI The claimant had the burden of show-ing that the cargo was loaded in good order and condition and discharged in a damaged condition Under Canadian law an ocean bill of lading can be offered as prima facie evidence of receipt by the carrier of the apparent good order and con-dition of the goods However where the apparent good order and condition cannot be seen because the damage is caused

by a hidden condition such as moisture a clean bill of lad-ing is not sufficient to support a shipperrsquos prima facie case The claimant identified several theories of how the cargo sustained freshwater damage including rain and snow affect-ing the feeder vessels rain leaking into the holds through a manhole cover and leaking ventilator ducts The sole arbitra-tor found that neither party had conclusively identified the source of the freshwater wetting and therefore the claimant failed to establish its prima facie case under COGWA





ConclusionsDespite the lack of a complete commitment to offshore wind in the United States divided jurisdiction and uncertain tax policies new OSW development off the Atlantic Coast is on the horizon 2015 is the year for the first project to begin actual construction In 2017 we anticipate this clean energy resource will be provided to consumers through new and existing power gridsthinspp

thisarticlewasfirstpublishedintheABArsquos Marine Resources Committee Newsletter(Vol18No2)May2015Itwasalsoreprintedin Law360asldquoBravingtheHeadwindsHittingUswindEnergyrdquoonJune92015

gulfCoastPersonalInjuryLawUpdate

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NewYorkMaritimeArbitrationUpdate

BYJOHNdkIMBALL

Followingisanexcerptfroma speech presented to the International Congress of Maritime Arbitrators on May 11 2015 in Hong Kong






ensp1 ArbitratorsrsquofeesThe fees charged by arbitrators depend on the scope and complexity of the case Often the fees are modest but they can be substantial especially when we consider that highly regarded courts are readily avail-able and paid for by the taxpayers rather than the parties

ensp2 Feeshifting At this stage virtually every maritime arbi-tration in New York carries the risk that attorneysrsquo fees costs and arbitratorsrsquo fees will be assessed against the losing party This is generally perceived as a very positive aspect of arbitration and it contrasts very plainly with the well-settled American Rule followed in most court cases by which each side bears its own legal fees and costs In maritime arbitrations in NY the prevailing party very


ensp3 Noappeal A third factor to bear in mind is there is no right of appeal such that when the arbitration award is issued for all practical purposes it is final While a right exists to petition the court to have an award set aside the grounds for doing so are limited and United States courts observe a strong public policy in favor of arbitra-tion This rule again contrasts very plainly with court cases where there always is a right of appeal

ensp4 rulesofevidence The proceedings are conducted by the tribunal without any formal evidence rules and the panel has broad discretion whether to accept evidence and what weight and credibility it should be given

ensp5 Pre-hearingdisclosures There is no right to pre-trial discovery as in US court cases The panel can order disclosure however or the parties can make disclosures by agreement Arbitrators also have the power to issue subpoenas




JKim

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JOHNdkIMBALL


NavigatingthesouthChinaseadisputethroughUNCLOsBYstEFANOsNrOULAkIs

thesouthChinaseahas historically been an area of competing maritime claims as well as a key area for inter-national shipping currently carrying more than half the worldrsquos international trade China to the consternation of its neighbors has been undertaking a variety of construction activities in the South China Sea such as constructing







UNCLOsintheUnitedstatesPresident Clinton signed the convention in 1994 but it was never ratified by the US Senate US practice seems to sup-port the notion that America considers itself at least partially bound by UNCLOS In establishing the maritime boundaries of the United States both Presidents Reagan and Clinton noted that they were acting in accordance with UNCLOS President Reagan noted ldquoThe United States will recognize the rights of other states in the waters off their coasts as reflected in [UNCLOS]rdquo United States Ocean Policy state-ment by President Reagan 22 ILM 464 (Mar 10 1983) In signing the Convention President Clinton noted that the USrsquo policy is ldquoto act in a manner consistent with [UNCLOS]rsquo provisions relating to traditional uses of the oceans and to encourage other countries to do likewiserdquo Presidential Letter of Transmittal of the Law of the Sea Convention Oct 6 1994 Sen Treaty Doc No 103-39 at iii (1994) The administrations of George W Bush and Barack Obama have also supported UNCLOS and urged the Senate to ratify it but to no avail Curtis Tate ldquoSenate Action on Treaty Could Unlock Arctic Riches Panel Toldrdquo The News Tribune July 28 2011 More recently current US Secretary of State John Kerry acting in his previous role as Senate Commerce Committee chairman held hearings regarding ratification of UNCLOS


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theCo-ChairofBlankromersquosMaritimePracticegroup




IslandsIssueunderUNCLOsWhile UNCLOS can provide the framework for resolving the issues in the South China Sea the application of these princi-ples is more complex Essentially the debate rests on two key issues The first issue is sovereignty Under UNCLOS states have the right to construct artificial islands within their sover-eignty even within their EEZ which extends 200 miles from a coastline Additionally states have the right to construct artificial islands on reefs or rocks that are considered sover-eign territory Thus the threshold issue in the South China






LookingForwardThe shipping industry and maritime community as a whole have benefitted from the freedom of navigation and growth in rule of law brought about by UNCLOS and other maritime treaties Indeed the maritime community has been a world-wide leader in advancing rules to facilitate a truly global industry The current dispute is an opportunity for states to recall the principles enshrined in UNCLOS as they resolve their disagreements particularly in areas of dispute resolution and ensure that the important shipping lanes of the South China Sea remain open to maritime commercethinspp

Iwantedtotaketheopportunitytoletourreadersknow how much we appreciate the feedback we receivemdashnot only from our clients but also from the general publicmdashwith regard to the





Several of the Firmrsquos offices also received high rankings in other practice areas including bankingfinance and corporateMampA and private equity and have been working closely with the shipping industry these past several years



recognitiongoestothefollowingmaritimeattorneys

transportationshippingLitigationJohndkimball bull thomasHBelknapJr richardVsingleton bull LaurenBwilgus JeremyAHerschaft

transportationshippingregulatoryJeanneMgrasso bull Jonathankwaldron


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The Co-Chair of Blank Romersquos Maritime Practice Group




Islands Issue under UNCLOSWhile UNCLOS can provide the framework for resolving the issues in the South China Sea the application of these princi-ples is more complex Essentially the debate rests on two key issues The first issue is sovereignty Under UNCLOS states have the right to construct artificial islands within their sover-eignty even within their EEZ which extends 200 miles from a coastline Additionally states have the right to construct artificial islands on reefs or rocks that are considered sover-eign territory Thus the threshold issue in the South China






Looking ForwardThe shipping industry and maritime community as a whole have benefitted from the freedom of navigation and growth in rule of law brought about by UNCLOS and other maritime treaties Indeed the maritime community has been a world-wide leader in advancing rules to facilitate a truly global industry The current dispute is an opportunity for states to recall the principles enshrined in UNCLOS as they resolve their disagreements particularly in areas of dispute resolution and ensure that the important shipping lanes of the South China Sea remain open to maritime commercethinspp

I wanted to take the opportunity to let our readers know how much we appreciate the feedback we receivemdashnot only from our clients but also from the general publicmdashwith regard to the





Several of the Firmrsquos offices also received high rankings in other practice areas including bankingfinance and corporateMampA and private equity which have been working closely with the shipping industry these past several years



Recognition goes to the following maritime attorneys

Transportation Shipping LitigationJohn D Kimball bull Thomas H Belknap Jr Richard V Singleton bull Lauren B Wilgus Jeremy A Herschaft

Transportation Shipping RegulatoryJeanne M Grasso bull Jonathan K Waldron


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JONATHAN K WALDRON

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BY JOhN D KiMBALL
















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JOhN D KiMBALL












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A S S O C i At E

StEFANOS N ROULAKiS

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By DAVID G MEyER





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A S S O C I AT E

DAVID G MEyER


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Russell WongPartner




Keith LutschPartner





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MEET BLANK ROME























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OF COUNsEL

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MEET BLANK ROME



















russellwongPartner




keithLutschPartner





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BYJOHNdkIMBALL
















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JOHNdkIMBALL












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JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










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BY JOhN D KiMBALL
















JKim

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PA R t N E R

JOhN D KiMBALL












SRou

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A S S O C i At E

StEFANOS N ROULAKiS

BLA

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By DAVID G MEyER





DMey

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A S S O C I AT E

DAVID G MEyER


BLA

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Russell WongPartner




Keith LutschPartner





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OF COUNsEL

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tHOMAsHBELkNAPJr




MEET BLANK ROME























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MEET BLANK ROME



















russellwongPartner




keithLutschPartner





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BYJOHNdkIMBALL
















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MAINBRACE

JUNE 2015 No 3



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By DAVID G MEyER





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A S S O C I AT E

DAVID G MEyER


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Russell WongPartner




Keith LutschPartner





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MEET BLANK ROME























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ankR

ome

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INS










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2

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9








11

BLA

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A S S O C I AT E

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INS










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2

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11

BLA

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Russell WongPartner




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PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










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2

5

7

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9








11

Russell WongPartner




Keith LutschPartner





BLA

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PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11

BLA

Nkr

OM

ELLP

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ankR

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kENNEtHLBrEssLEr

CHu

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m

OF COUNsEL

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MEET BLANK ROME























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PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11





BLA

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ankR

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PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11























































BLA

Nkr

OM

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ome

com

PArtNEr

kENNEtHLBrEssLEr

CHu

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m

OF COUNsEL

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MEET BLANK ROME



















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Wal

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ankR

ome

com

PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11

BLA

Nkr

OM

ELLP

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KBre

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ankR

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kENNEtHLBrEssLEr

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MEET BLANK ROME



















russellwongPartner




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ome

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PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

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9








11

russellwongPartner




keithLutschPartner





BLA

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PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11

BLA

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JKim

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PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11

BLA

Nkr

OM

ELLP

BLA

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OM

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BYdAVIdgMEYEr





DMey

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BYJOHNdkIMBALL
















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JUNE 2015 No 3



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JUNE 2015 No 3



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1

2

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7

15

17

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11

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PArtNEr

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JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11

BLA

Nkr

OM

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BLA

Nkr

OM

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Wal

dron

Bl

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PArtNEr

JONAtHANkwALdrON

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11

MAINBRACE

JUNE 2015 No 3



INS










1

2

5

7

15

17

9








11

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