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Thursday, January 21, 2010

Longest UP Cargo Train Ever Causes Awe, Ire

The details are in on the recent mega cargo train that ran from Dallas, Texas to the Port of Long Beach and as mega trains go, it was a whopper.

"In the 30-plus years that I have been chasing steel I have never seen a train that long," said rail enthusiast Joe Perry who runs the railroad blog Chasing Steel at chasingsteel.com.

The Union Pacific train, the longest ever put together by the railroad, had 295 loaded double stack cars and came in a 18,061 feet in length– just over 3.4 miles. Moving at a maximum speed of 65 miles per hour, with power provided by nine locomotives, the train took nearly five minutes to pass by spectators and rail enthusiasts that lined key lookout positions along the train's route.

According to the railroad, the train was a test of field equipment and that there are no plans to run such trains regularly.

While there are no state or federal limits on the length of trains or requirements to notify government officials, UP said it did notify federal authorities that monitored the train. At least one member of the California Congressional delegation, Rep. Grace Napolitano (D-San Gabriel) was not happy to find out that the train moved through her district without prior notification. The state Public Utilities Commission, which oversees rail safety in the state, also was not pleased and rushed a team of commission staffers to the Inland Empire to monitor the train's progress.

The train left Texas on January 8 and arrived at the Intermodal Container Transfer Facility near the Port of Long Beach on the evening of Jan. 10.

Rail enthusiast Perry caught up with the train as it moved across the eastern California desert communities on Jan. 10.

"I heard the train before I could see it," he recounted on his blog. "The train was massive. It stretched out far beyond what my naked eyes could see."

Perry, who has videoed and photographed thousands of trains over the years, believes he is the only person to capture a single picture of the entire train--a shot featured on his blog along with other pictures and video of the mega train.

Oakland Port Kicks Off New RFID Rules, Turns Back 10% Of Truckers Calling At Terminals

Truckers reported scenes of chaos at the Port of Oakland on Tuesday as new environmental rules took effect requiring electronic tags on all trucks entering the port facilities.

While downplaying the incidents, Port officials confirmed that about 10 percent of the drivers that turned up at terminal gates on Tuesday were turned back for various reasons.

The new tag requirement is part of plan that kicked off on Jan. 1 that requires trucks to have retrofit pollution catching devices on their trucks. Drivers were required to have the small radio frequency identification device tags attached to their vehicles to allow electronic readers at the gates to download information on the truck's environmental status and compare it to a statewide database overseen by the California Air Resources Board.

Drivers reported that many of the problems on Tuesday centered on the RFID tags, which were provided to the drivers over the past several months. CARB blamed the majority of the problems on the rainy weather and "first-day jitters." Some drivers were still allowed to continue into the terminals Tuesday if they had proper paperwork.

The new emission rules went into effect on Jan. 1, but a deal reached in late December 2009 gave some drivers two weeks to apply for grants to upgrade their trucks and avoid the ban.

During the negotiations, a pool of $11 million in state Proposition 1b funds was identified for the truck upgrades. An original pool of $22 million was essentially used up by the early part of 2009, leaving many drivers with no way to pay for the retrofit devices, which typically cost between $15,000 and $20,000. Even with the potential $5,000 grants, drivers are still being required to pay for the remaining cost of the upgrades.

In the initial $22 million round of funding last year, about 1,000 trucks received funds. However, another 1,300 were rejected for grants in the initial round.

Port estimates suggest that between 2,000 and 3,000 trucks make up the port-servicing truck fleet.

Dellums Breaks City Council Deadlock, Approves Lighty to Oakland Port Board

City of Oakland Mayor Ron Dellums– using his City Council tie-breaking power for the first time in his three-year tenure in office– broke a deadlocked City Council vote on Tuesday, sending Michael Lighty to the Port of Oakland governing board.

In the past, Dellums had refused to break such deadlocked Council votes saying that the city's executive and legislative branches should be separate.

Lighty was appointed by Dellums to the port board on Jan. 5, but the appointment required the approval of the City Council. On Tuesday, the council deadlocked 4-4 on the vote to approve Lighty's appointment, opening the door for Dellums' tie-breaking vote.

Lighty, a former city planning commissioner, said after the vote that he was honored to receive such a public show of support from the mayor.

tags: Port of Oakland, Michael Lighty

Los Angeles Port Plans to Test Hybrid Big Rigs

The Southern California Port of Los Angeles is negotiating with an El Segundo, Calif.-based manufacturer for the purchase of eight plug-in electric/hydrogen fuel cell hybrid Tyrano big rigs.

The eight zero-emission Tyrano trucks– a design that has been under development for more than four years by maker Vision Industries– will be used as part of a year-long test to determine the hybrid trucks' suitability for short- and medium-distance cargo-hauling applications.

The hybrid Tyrano trucks– each costing about $250,000 and running on a combination of lithium batteries and hydrogen fuel cells– reportedly generate 450 horsepower and feature a range of up to 400 miles.

The test of the eight rigs will be conducted by several local drayage firms with data from the testing being overseen by an environmental team from the University of California, Riverside.
The neighboring Port of Long Beach is also reportedly in talks with Vision regarding the Tyrano trucks.

Resolving Maritime Disputes

By Marilyn Raia, marilyn.raia@bullivant.com

It is not unusual for parties to a maritime contract such as a towage agreement or vessel charter, to have a dispute. This article addresses the alternatives for resolving such disputes in ascending order of cost and inconvenience.

Face-to-Face Meeting

The least expensive and perhaps least used means of resolving a dispute is a face-to-face meeting between the parties. Some maritime contracts actually contain a provision requiring the parties to make a “good faith” effort to informally resolve any dispute before resorting to other dispute resolution methods.

The parties should select a neutral meeting place (i.e. not one party’s office), and bring all relevant documentation including invoices, logs, photos, charts and/or statements, as appropriate, to the meeting. Ample uninterrupted time should be allowed for the face-to-face meeting to permit an adequate review of the disputed issues and the documentation each party has brought.

A dispute is more likely to be resolved when the issues can be addressed with specifics not merely discussed in the abstract. The agenda for a face-to-face meeting should always include a realistic assessment of the costs and delay associated with the alternative means of resolving the dispute.

The advantages to a face-to-face meeting are the minimization of attorneys’ fees and costs and the opportunity for a prompt resolution of the dispute, perhaps preserving the parties’ business relationship. The disadvantage is the potential disclosure of information that might not otherwise have been disclosed.


Mediation

Mediation involves the participation of a neutral third party, such as a mediator or facilitator, in the dispute resolution process. The parties must, of course, jointly choose the mediator. The parties are usually represented by counsel in the mediation process.

There are different types of mediators. A mediator can be an attorney who maintains a law practice as well as a mediation practice. However, practicing attorney mediators cannot have a professional relationship with any party to the dispute because such relationship would present a conflict of interest. Some attorneys work as full time mediators and no longer actively practice law. Occasionally, non-attorneys act as mediators in resolving certain types of disputes, for example, labor disputes, and are chosen by the parties for their expertise in a particular industry.

Mediators usually have special training in mediation techniques. Some specialize in the mediation of certain types of cases, such as maritime cases. Mediators generally are paid by the hour, with fees and expenses split equally among the parties.

There are also businesses that provide mediation services. Those businesses employ retired judges and attorneys as mediators. Their fees are based on an hourly rate and their fee schedules often specify a half-day or day minimum as well as non-refundable administrative charges.

Mediation procedures vary depending on the mediator. Usually the mediator requires counsel to submit a mediation statement before the mediation session. The mediation statement gives the mediator the fundamentals of the dispute. It may contain legal authorities supporting the party’s position. Relevant documents may be attached. The mediator consults with counsel and decides whether mediation statements are to be exchanged or kept confidential.

At the mediation session, the mediator may first meet with counsel and the parties jointly. During the joint meeting, counsel will explain their clients’ positions and address the evidence supporting those positions. The mediator will then meet separately with each side. If mediation statements were exchanged, the mediator may dispense with the joint meeting. In what is often described as “shuttle diplomacy”, the mediator may meet with each side many times relaying demands and offers. During the process, the mediator helps the parties recognize the strengths and weaknesses of their positions and hopefully negotiates a satisfactory resolution of the dispute. Many mediators say the mediation has been successful if the dispute is settled and the parties are unhappy with the mediator. That is, the mediator convinced one side to pay more than it wanted to pay and the other side to accept less than it wanted to accept.

The advantage to a mediation is a more prompt resolution of a dispute for a relatively small cost. The disadvantage is the lack of a decision on the parties’ claims and defenses leaving the legal issues unresolved for the future.


Arbitration

Many maritime contracts contain an arbitration clause requiring the parties to arbitrate any disputes arising under the contract. The contract may specify the number of arbitrators (usually one or three) and who they will be. It may also specify where the arbitration will take place. Courts regularly enforce arbitration clauses unless they are the result of overreaching by one party.

There are two types of arbitration, non-binding and binding. The parties to non-binding arbitration have recourse to other dispute resolution methods if they are unsatisfied with the award. The parties to binding arbitration have no recourse if they are unsatisfied with the award except under very limited circumstances such as an arbitrator’s non-disclosed conflict of interest or an award exceeding the arbitrator’s authority.

There are different types of arbitrators. Like mediators, arbitrators customarily are lawyers or retired judges. However, arbitrators also can be non-lawyers. For example, many contracts require arbitration before members of the Society of Maritime Arbitrators of New York. The members, who conduct countless arbitrations of maritime disputes, are not lawyers but have a wide range of maritime experience and are considered “learned men of the sea” or “commercial men”.

Unlike mediators, arbitrators decide factual and legal issues after the presentation of evidence in accordance with the governing arbitration rules. Some arbitrators strictly follow the rules of evidence in determining what is admissible at the hearing and others adopt a more relaxed approach permitting the introduction of evidence not otherwise admissible in court. Sworn testimony from percipient and expert witnesses may be presented at the hearing. The arbitrators then apply the relevant substantive law to the facts and render an award. Some arbitration awards are published and can be cited as precedent.

The advantages to arbitration are a lesser cost than litigation and a more prompt resolution of the dispute. The disadvantage may be the lack of discovery to enable the parties to learn about the bases of their opponents’ position. Non-binding arbitration may give rise to significant fees and expenses if the case must be presented twice, first at the non-binding arbitration hearing and later at trial if a party is unsatisfied with the arbitration award. Further, a favorable decision after non-binding arbitration gives the prevailing party a psychological advantage and may impede settlement discussions. The disadvantage to binding arbitration is the lack of recourse from an unfavorable award.


Litigation

Litigation should be the last resort in resolving a maritime dispute. The expense, inconvenience, and delay associated with litigation can be disproportionate to the amount in dispute. Moreover, litigation is unlikely to preserve the business relationship.

In their maritime contract, the parties can select the place for their litigation. The parties may also be able to select what law they want to apply to their dispute. The courts usually enforce the parties’ choices.

When a matter is litigated, the parties cannot select their judge; judges are assigned by the court clerk randomly. Accordingly, the judge making rulings in the case may have no experience with maritime law or the maritime industry, which, in turn, may lead to an unsatisfactory result and the cost and delay associated with an appeal. An equally unsatisfactory result may occur if the matter is tried to a jury, a group of diverse community members who also are unlikely to have knowledge of maritime law or experience in the maritime industry. Years may elapse before a dispute is finally brought to trial and taken through appeal. Those years translate into significant fees and costs.

Litigation involves the presentation of percipient and expert witnesses either for deposition and/or trial. They may not be located in the place where the litigation is pending. Their personal appearance at deposition and/or trial may involve significant cost and disruption of business. Moreover, by the time a deposition is taken or the case is actually tried, the witnesses may no longer be available to testify, making it difficult to prove or disprove a point.

Even if the dispute is litigated, the parties may be required to mediate or arbitrate it before being allowed to start trial. Many state and federal courts in the United States mandate the parties’ participation in an “ADR” (Alternate Dispute Resolution) process. A very high percentage of cases are resolved through the ADR process but only after significant litigation expenses have already been incurred.

The advantages to litigation may be the precedential value of the judgment and the right to appeal an adverse ruling which right is not available after binding arbitration. The disadvantages are the cost, delay, inconvenience, and adversarial environment, which often ends a business relationship.

Any lawyer worth her salt should always recommend the client consider alternatives to litigation. And, the client should always ask the lawyer about alternatives to litigation. Litigation may not be the best alternative for resolving a maritime dispute. A face-to-face meeting, mediation, or arbitration may yield a less expensive and quicker resolution of the dispute with a better chance of preserving the business relationship.

Marilyn Raia is of counsel to Bullivant Houser Bailey and works in the firm’s San Francisco office. She specializes in maritime and transportation law and can be reached at marilyn.raia@bullivant.com.


Monday, January 18, 2010

Where Electronic Charts Fit in eNavigation

By Edward LaRue, January 2010

This feature will be a quick tour of the development of electronic charts, and particularly the Electronic Chart Display and Information Systems, or ECDIS. As I prepared this story, I used some words from various IMO documents. The intention of the Secretariat at IMO meetings is to have the members reach consensus and have all outcomes be positive. If you read IMO reports you might think that was the case. In order to put some of the diplomatic language in perspective, if I say there was prolonged discussion, it means blood was probably drawn.

The issue of electronic charting was first introduced at IMO by the International Hydrographic Organization at the 51st session of the IMO Maritime Safety Committee in May of 1985. IHO had noted the development of digital nautical charts and proposed that IMO should consider the user requirements and legal aspects of electronic chart display, with the objective of furnishing advice to those national and private activities concerned with the development, support and implementation of the system.

That’s IHO code for: “Let’s get those computer cowboys out in the sunshine so we can spank them for pretending to know hydrography.”

Actually, in the beginning, there was pretty broad recognition that electronic chart displays would come to pass; however, some were of the view that fully correctable digital chart systems, providing a service at least as reliable as the paper chart would not be available for a considerable time, and the systems available at that time were intended for specialist sections of the market, such as fishing and yachting.

Others believed that with appropriate international standards, an electronic chart display could be developed that would satisfy the existing paper chart requirements and ultimately be able to display radar image, ship’s position and perhaps even the characteristics of aids to navigation. Sounds like eNavigation to me.

The issue was referred to the Subcommittee on Safety of Navigation (NAV) at its 31st session in July 1985. After vigorous preliminary discussion, in which many representatives of national hydrographic offices and IHO took part, NAV reached its first conclusion regarding electronic charts– it should develop a Safety of Navigation Circular (SN/Circ.) warning mariners not to use them. Actually, that was only one side of the debate. The language finally agreed on was a warning to Administrations advising against accepting electronic charts as the equivalent of conventional charts, at least for the time being. On a more positive note, NAV agreed to undertake a study on electronic charts jointly with IHO.

At NAV 32 in March of 1986, the terms of reference for the study on electronic chart display systems were finalized and forwarded to MSC 53 for approval. The terms of reference established some definitions and identified aspects of the study within the competence of NAV, other IMO bodies and IHO. In addition, NAV agreed to establish a small group to work mainly by correspondence and in conjunction with IHO to review the results of studies by each body, which addressed aspects of electronic chart display systems to advise IMO and IHO whether they were compatible with the total system concept. Getting a hint of the enormity of the task at hand, NAV requested the target completion date be extended from 1987 to 1989.

MSC 53 approved the draft terms of reference and the group, which was named the IMO/IHO Harmonization Group on ECDIS (NAV-HGE). NAV 33 reviewed the terms of reference to determine what information required early submission and to ensure those matters noted as being within the competence of each organization were correct and not in conflict. As in all complex international negotiations, some serious bickering ensued. After much discussion, the terms of reference were amended. Two issues that received a great deal of attention at this session were means of updating and means of avoiding ECDIS being used at a scale other than that provided by the responsible hydrographic authority. With the latter, the fear was that manufacturer’s products would allow mariners to zoom in on chart features to the point where the display would be distorted. If a casualty were to occur, there was a concern that legal liability might be directed at the producer of the digital data.

NAV 34, in February of 1988, prepared draft user requirements for ECDIS. Around this time a number of Administrations were conducting studies, tests and national dialogues on various aspects of ECDIS and feeding the results to IMO and IHO. Our own Radio Technical Commission for Maritime Services (RTCM) developed electronic chart performance standards that were referenced as the IMO/IHO work progressed. IHO informed NAV that it intended to carry out a study on electronic navigational chart (ENC) updating. The Secretariat was instructed to bring the terms of reference to the attention of NAV 35.

At NAV 35, in February of 1989, the IMO/IHO Harmonization Group on ECDIS presented notes on, and provisional performance standards for, an ECDIS equivalent to the conventional nautical chart for consideration by the Subcommittee. The draft user requirements had formed the basis of the HGE report and the IHO “Draft Specifications for Electronic Chart Display and Information Systems (ECDIS) provided a significant input to the report. After much discussion, NAV 35 agreed to invite the MSC to approve the draft provisional performance standards for ECDIS and to circulate them to Member Governments requesting that they be brought to the attention of potential manufacturers of ECDIS as guidance for the development of the first generation systems.

NAV 35 also agreed that the performance standards should remain “provisional” until the ECDIS had been adequately demonstrated and proved to the satisfaction of IMO. Anticipating the various studies and evaluations being planned for ECDIS-based systems, NAV 35 decided that for the ensuing 3 years, the results of these activities should be reported to the HGE for yearly evaluation and updating of the provisional performance standards, as necessary. The Provisional Performance Standards for ECDIS were published as MSC/CIRC.515 in April 1989.

The period 1990 to 1992 (which coincided with NAV 36-38) was mainly a period of evaluation of trial results by the HGE and annotation of notes to the provisional performance standards for consideration when they would be finalized. The Subcommittee was given a target completion date of 1993 for finalizing the performance standards. At NAV 38, in August 1992 there was considerable discussion of non-equivalent electronic chart systems, which use data not compatible with WGS-84 datum and do not comply with the provisional performance standards. This was mainly a matter of official data not being widely available at the time and manufacturers eager to take advantage of a new technological application.

In September 1993, NAV39 reviewed the draft Assembly resolution developed by the fourteenth session of the IMO/IHO Harmonization Group on ECDIS and prepared a revised text, which was submitted, to the Committee for approval. The Maritime Safety Committee at its 63rd session approved a draft Assembly resolution on Performance Standards for ECDIS for submission to the nineteenth Assembly for adoption. The Committee also circulated the approved draft Performance Standards to Member Governments by means of the MSC/Circ.637. The Performance Standards were adopted by the nineteenth Assembly and were circulated as Assembly resolution A.817(19) in December 1995. The resolution stated that ECDIS is the equivalent to the paper nautical chart for the purposes of the charting requirement of the SOLAS Convention.

Although this was a major step in the development of electronic charting, much work remained. Digital data was relatively sparse at this point, and some Administrations used this as a reason to push for acceptance of raster charts, which were more widely available and much cheaper to produce. Others felt if raster charts were accepted, production of vector charts would fall behind. This debate is still not entirely settled. Much technical work was needed to support the performance standards and specify the equipment that would meet them. IHO and IEC were in the forefront of this effort.

As I mentioned early on, there were some who felt electronic chart systems could display radar, ship’s position, etc. Perhaps, since ECDIS will become a carriage requirement for many ships starting in 2012, now is the time to give the idea a final push.

Edward LaRue is a 1970 graduate of the State University of New York Maritime College at Fort Schuyler receiving a Bachelor of Science Degree in Marine Transportation. He sailed for nine years as deck watch officer on a variety of ships as a member of the International Organization of Masters, Mates and Pilots.

Mr. LaRue joined the US Coast Guard in 1979 as a civilian Marine Safety Specialist and is presently Chief of the Navigation Standards Branch in the Office of Waterways Management. He has been a member of the US delegation to the IMO Subcommittee on Safety of Navigation in various capacities for more than 20 years. He has chaired the Technical Working Group of the IALA VTS Committee for the past eight years and was an original member of the IALA AIS (now E-Navigation) Committee.

Puget Sound Ports See Clean Air Programs Working

The Puget Sound ports' collaborative environmental program known as the Northwest Ports Clean Air Strategy has led to sizable reductions in Puget Sound ports-generated diesel emissions, according to a study released by the ports of Seattle, Tacoma and Vancouver BC last week.

The latest NPCAS report from the ports covers 2009 and found that NPCAS programs reduced sulfur emissions generation in the region by more than 68 tons and cargo-handling equipment retrofits reduced particulate matter emissions by 25 percent to 50 percent.

First released as a draft in 2007, the NPCAS seeks to reduce diesel and greenhouse gas emissions in the Puget Sound region by achieving early reductions in advance of, and complementary to, applicable government regulations related to cargo-handling equipment, ocean going vessels, trucks and rail vehicles. In addition, the NPCAS sets targets built the successes on current emissions reduction initiatives, and suggests a range of practical actions the ports and their industry stakeholders may choose from to achieve those targets.
Like many large ports on the West Coast, the ports of Seattle, Tacoma and Vancouver BC are all identified as major generators of diesel emissions in their communities.

VersaCold Starts Work on New Tacoma Port Cold Storage Facility

Vancouver BC-based cold storage firm VersaCold Logistics Services has begun construction of a 196,000-square-foot cold storage facility on a leased 17-acre parcel at the Port of Tacoma.

The new $30 million facility, according to the firm, will complement VersaCold facilities in British Columbia and California.

The $1.2 billion a year VersaCold, the second-largest cold storage firm in the world, with more than 120 temperature controlled facilities worldwide, predicts that the facility will be operating a near full capacity when it opens the first half of the facility in July. A second half of the facility is planned to open in mid-August. VersaCold officials declined to name customers signed on to the new facility.

The facility is being built by Burlington, Washington-based Fisher & Sons, which has built more than 100 cold storage facilities since 1954.

The project was facilitated by the Tacoma-Pierce County Economic Development Board, which worked as a liaison between VersaCold, the City Of Tacoma, and Pierce County to acquire the property and expedite the permitting process.

Deltaport’s Third Berth Officially Opens for Business.

On Monday the new C$400-million third berth at British Columbia’s Deltaport container terminal officially opened for business.

The major infrastructure project, which took two years to construct, increases Deltaport’s capacity by up to 50 per cent, and creates 356 new jobs.

“Every container that lands at the port generates approximately C$2,200 in economic output,” says Michael Moore, President and CEO of Global Container Terminals.

Construction of the new berth began in January 2007 and was completed in December 2009. The shared infrastructure investment was completed on budget and on time by port Metro Vancouver and Global Container Terminals, and created 640 “man-years” of employment during construction.

“Over the next ten years, container traffic through the West Coast is expected to double,” says Robin Silvester, President and CEO, Port Metro Vancouver. “The new berth at Deltaport is part of a long-term plan to strengthen Canada’s Pacific Gateway and ensure our ability to accommodate the growth in container trade, in particular with Pacific Rim economies like China.”

CBP Seizes $7.1 Million In Fake DVDs at SoCal Port Complex

Federal law enforcement officials on Friday announced the January 7th seizure of more than 250,000 pirated movie and music DVDs at the Long Beach/Los Angeles port complex. The DVDs, discovered in a cargo container from South Korea destined for a Los Angeles County importer, had a retail value of more than $7.1 million.

Officials from United States Customs and Border Protection, during an inspection of the container at the port complex, discovered the discs bearing counterfeit “DVD,” “Dolby,” and “DTS” trademark designs on the packaging. The shipment was seized for illegal importation of merchandise bearing counterfeit trademarks.

Last year, US Customs and US Immigration and Customs Enforcement seized more than $260 million worth of counterfeit items nationwide, with media-related items among the top items discovered.

The CBP said that the DVDs would be destroyed.