Good news is that clients have been recently seeking more guidance on the Maritime Labor (or Labour for our English friends) Convention 2006 ("MLC"). It would appear that my continued ramblings on the MLC, which comes into effect on August 20, 2013, has garnered some mild attention.
The MLC consolidates most existing International Labor Organization maritime conventions into one document. It sets minimum standards for conditions of employment, hours of work and rest, accommodation, recreation, food and catering, health protection, medical care, welfare and social security protection. Some 35 flag states, covering more than 70% of the world fleet, have ratified the convention to date. They include major flags such as the Marshall Islands and Panama, and maritime nations Australia, Canada, Denmark, Greece, Norway, Singapore and Spain. MLC member nations issue maritime labor certificates to vessels under their flag, which are prima facieevidence of the vessel compliance with the convention.
The big problem is that the US has not ratified MLC 2006. The US Coast Guard ("USCG") has urged voluntary self-compliance, but my fear is that US-flag owners are asleep to the looming problem. Despite the US having one of the world’s most robust seafarer protection regimes and strong maritime unions, US-flag ships risk being inspected from bow to stern in foreign harbors and even detained, because of its failure to ratify the convention.
What makes these certificates crucial is that Port State Control ("PSC") inspectors in foreign ports normally do not look beyond them for evidence of compliance. Ships from non-member nations will not have this convenience. Recognizing the possibility of US ships being harassed or detained overseas for failure to have the compliance certificates, the USCG issued a draft Navigation and Vessel Inspection Circular, providing guidance on how US-flag vessels can prepare for the post-MLC 2006 era. The USCG intends to implement a voluntary inspection programme for such vessels before the enactment date, so US-flag vessels may document compliance. To this end, the USCG has authorized a select group of classification societies to conduct compliance inspections on ships and to issue Statements of Voluntary Compliance ("SOVC") on behalf of the USCG.
Ships are encouraged to post these SOVCs in a conspicuous place on board, easily visible to the crew and to inspectors, to serve as de facto MLCcertificates in foreign ports. However, this has sparked a bit of a debate. On the one hand, it is believed that most foreign PSC regimes would not differentiate between a US-flag ship with an SOVC and a ship with a certificate from a signatory nation and would be likelier to target ships that have no certificate at all. So, the view is that the SOVC system would be a good one. On the other hand, the MLC requires ratifying governments to impose MLC requirements even on vessels from a non-ratifying government when calling on their ports. This clause may make foreign PSC inspectors feel almost duty-bound to inspect US-flag ships vigorously, since they do not have the necessary MLC certificate on board.
This is food for thought. The post-MLC world is a big unknown. Clients are learning that some flag states are requiring compliance certificates for vessels that fly their flag, regardless of tonnage, if they are utilized commercially and internationally. So those in the yacht sector, wake up! No matter what flag their vessel flies, no owner today can guess precisely what kind of enforcement to expect with MLC. This is why it is important to become educated and be prepared for this new, forth pillar of shipping.
If you are interested in receiving a copy of the MLC, need more information on the countries that have ratified the MLC or wish to reach me, you may do so by writing to me at mov@chaloslaw.com.
Carnival's Woes Continue with Unacceptable Health Grade
My week at Cruise Shipping Miami had me socializing with the cruise shipping set, including various "worker bees" at Carnival Cruise Lines. I am unable to divulge their private comments as to what is going on within the company and their ships, but their woes have been heard not only by me as the sympathetic ear, but U.S. cruise passengers...
As reported in the Daily Business Review and every television station in South Florida recently, federal inspectors cited Carnival's FASCINATION cruise ship in February for flies, dried food waste and a roach nymph, U.S. health officials said.The Centers for Disease Control and Prevention said inspectors with the agency's Vessel Sanitation Program gave the 2,056-passenger ship a score of 84. Anything below 86 is considered unacceptable, the CDC said on its website.
The CDC conducts surprise inspections twice each year on cruise ships that dock at U.S. ports. Carnival spokesman Vance Gulliksen said it is rare for a Carnival ship to fail an inspection. The violations included low levels of chlorine in the ship's water park and a missing sneeze shield over the salad bar, the newspaper reported Thursday. A fly was spotted at the hamburger grill and dried food waste was found under a kitchen counter. Four to six small flies and a "roach nymph" — or larva — were found around the drain below the room service juice dispenser, the report said.
Guliksen said all issues were resolved within 24 hours of the inspection.
Disabled TRIUMPH being towed to harbor off Mobile Bay, Ala. (AP Photo/Gerald Herbert, file)
This latest news has come out after a year of damage control for Carnival Cruise Lines. Foregoing further discussion of the COSTA CONCORDIA disaster, Carnival's passengers and crew this year faced the "cruise from hell" aboard CARNIVAL TRIUMPH after an engine room fire left the vessel adrift in the Gulf of Mexico with 4,200 passengers aboard, resurrecting stories of the CARNIVAL SPENDOR's 2010 debacle.
Then CARNIVAL ELATION had to be escorted by tug because of a problem in its steering system. CARNIVAL DREAM (a dream class ship at 128,000 tons, the largest ship yet built for Carnival Cruise Lines I have been on) experienced power interruptions at the island of St. Maarten, stranding more than 4,000 passengers. CARNIVAL LEGEND ended up limping home to Tampa at reduced speed because of an issue with one of its propulsion units. In the past few weeks alone, three of the cruise line's giant floating playgrounds have experienced embarrassing malfunctions that have at least inconvenienced, if not angered, many passengers.
Christopher Muller of Boston University's School of Hospitality tells CNN that the latest wave of issues at Carnival appear to be a management problem. "They are doing something wrong with preventative maintenance," he says. "Carnival has so many working ships that to say the fleet is in distress is maybe a little bit broad, but clearly something is not right."
Carnival has blamed the problems aboard the CARNIVAL DREAM on a malfunction that occurred in the ship's emergency diesel generator during a routine safety test. The CARNIVAL LEGEND's problems, though at sea not in port, appear to be more in the way of an inconvenience. One of the ship's two Azipods, a directional propulsion unit, was experiencing an unspecified "technical issue" that has forced the ship to reduce its speed. Even before the latest problems, questions have been raised about the cruise industry in general and specifically Carnival, the largest line in the industry.
These incidents are the latest in several headline-making issues for one of the world's leading cruise lines. Four of the company's 23 ships have had problems in recent months. The cruise line has offered affected passengers refunds and discounts on future cruises. It faces a class-action lawsuit related to the TRIUMPH's last cruise, when passengers reported that food was scarce, cruise goers sweltered in the heat with no air conditioning, toilets overflowed and human waste ran down the walls in some parts of the ship.
The problems have also prompted one U.S. lawmaker to propose a "Cruise Ship Passenger Bill of Rights." Sen. Charles Schumer, D-New York, said he was asking the cruise industry to voluntarily sign on to a list of guidelines, including the right to backup power if generators fail and the right to disembark a docked ship "if basic provisions cannot adequately be provided on board." Schumer also called on the International Maritime Organization to investigate whether cruise lines are following existing guidelines and whether existing standards are being enforced by countries where cruise ships that serve U.S. passengers are based. "Cruise ships, in large part operating outside the bounds of United States enforcement, have become the Wild West of the travel industry, and it's time to rein them in before anyone else gets hurt," Schumer said in a statement. "This bill of rights, based on work we've done with the airline industry, will ensure that passengers aren't forced to live in third world conditions or put their lives at risk when they go on vacation."
If you are interested in contacting me, please feel free to do so atmov@chaloslaw.com.
Lozman Wins Again! The Floating Home's Legacy Continues...
I have blogged on this case several times and after his U.S. Supreme Court win two months ago, Fane Lozman has won another victory before the U.S. Circuit Court for the Eleventh Circuit in Lozman v. City of Riviera Beach, Docket No. 11-15448 (Restani, J.).
Fane Lozman with his dog Lady in front of his houseboat at the Riviera Beach Marina (2006 Palm Beach Post file photo)
Lozman appealed from the district court's dismissal of his amended complaint asserting, inter alia, violations of his Constitutional rights, based on the Rooker-Feldman doctrine and res judicata principles. At issue was the preclusive effect of a prior state court eviction action initiated by the City against Lozman. The court concluded that the state court proceedings as to the First Amendment issues raised in the second amended counterclaim did not end prior to the commencement of the federal action and therefore, Rooker-Feldman did not divest the court of jurisdiction, regardless of whether the claims raised in state court were identical to those raised in federal courts.
Consequently, the court found that it need not address the City's arguments as to whether any of the claims asserted in the federal amended complaint were inextricably intertwined with a state court judgment. The court further concluded that none of the federal causes of action were barred by res judicata under Florida's transaction test; defendants have not specified what issues they believe were identical in the federal amended complaint and in the eviction action, but instead, defendants merely restated their res judicata argument as a collateral estoppel argument; and the Admiralty Action had no preclusive effect of any of the issues raised here. Accordingly, the court reversed the district court's dismissal of plaintiff's amended complaint and remanded for further proceedings.
So this case soldiers on...watch this space!
If you are interested in receiving a full copy of this decision, please feel free to contact me at mov@chaloslaw.com.
ReThink + ReUse Center Play Date for the Whole Family!
My daughter and I at the last ReThink + ReUse Center event in 2012
As you may be aware, I am the Chair of the ReThink + Reuse Center, an educational and environmental non-profit. The Center relies on funding from The Children’s Trust and from the community at large.
I am posting this blog because on Sunday, April 28th from 1 to 3 pm, the ReThink + ReUse Center is having its annual play date! They will have lots of creative and fun activities for the whole family. There will be a snack area with juices, fruit, and cheese with beer and soda for adults. If you are interested in attending, please feel free to sign up athttp://www.rethinkandreusemiami.org/events.html, or feel free to let me know if you have any questions at mov@chaloslaw.com.