Thursday, November 24, 2011
Thursday, November 17, 2011
Friday, October 7, 2011
CFR.org - U.S. Trade and Investment Policy
CFR.org - U.S. Trade and Investment Policy
The Council on Foreign Relations Independent Task Force Report on U.S. Trade and Investment Policy is a great read if you want a view from above the tree tops. Opening trade relations brings greater ability to sell "Made in America" goods worldwide. I've said it before and I'll say it again: more trade = more exports = more jobs. Pass the Korean, Colombian and Panamanian Free Trade Agreements now!
The Council on Foreign Relations Independent Task Force Report on U.S. Trade and Investment Policy is a great read if you want a view from above the tree tops. Opening trade relations brings greater ability to sell "Made in America" goods worldwide. I've said it before and I'll say it again: more trade = more exports = more jobs. Pass the Korean, Colombian and Panamanian Free Trade Agreements now!
Tuesday, October 4, 2011
new-jersey.pdf (application/pdf Object)
new-jersey.pdf (application/pdf Object)
The Korea -U.S. Free Trade Agreement is nearing completion. It will be a boon for US industry and, specifically, New Jersey industry. NJ businesses need to begin planning how to get their goods into Korea now. A trade mission would be a great step and there is money available to fund trade missions provided through the SBA to the states.
The Korea -U.S. Free Trade Agreement is nearing completion. It will be a boon for US industry and, specifically, New Jersey industry. NJ businesses need to begin planning how to get their goods into Korea now. A trade mission would be a great step and there is money available to fund trade missions provided through the SBA to the states.
Tuesday, September 13, 2011
Canadian "Sale Of Goods Act" Defendants Have Some Explaining To Do: Defect Inferred, Even In The Face Of Spoliation - Insurance - Canada
"Sale Of Goods Act" Defendants Have Some Explaining To Do: Defect Inferred, Even In The Face Of Spoliation - Insurance - Canada
Very interesting case. I will review and prepare my thoughts on how this case would have been handled under US law.
Very interesting case. I will review and prepare my thoughts on how this case would have been handled under US law.
Friday, September 9, 2011
Addressing Maritime Piracy
Today the the International Chamber of Shipping (ICS), BIMCO, INTERTANKO and INTERCARGO, who together represent approx. 90% of shipowners, transmitted a "hard-hitting letter" to UN Secretary General Ban Ki-Moon calling on the UN Security Counsel to establish an international armed UN Force to accompany merchant vessels transiting the Indian Ocean to protect against pirate attacks.
We believe that an important element in this approach would be the establishment of a UN Force of Armed Military Guards that can be deployed in small numbers onboard merchant ships. This would be an innovative force in terms of UN peacekeeping activity but it would do much to stabilise the situation, to restrict the growth of unregulated, privately contracted armed security personnel and to allow those UN Member States lacking maritime forces - including those in the region most immediately affected - to make a meaningful contribution in the area of counter-piracy.
I reject this "micro" level approach.
First, the maritime piracy situation is horrible indeed, especially in the Indian Ocean. Without question, the situation is extremely bad and not improving. Many companies now have their vessels travel by convoy or, in increasing numbers, with an armed contingent of private contractors on board to defend the vessel. These tactics have had some success. Generally, the costs for these are passed along to the cargo owners whose goods are at risk.
Additionally, the navies of many countries are patrolling the region to intercept and intercede in piracy operations. Protecting merchant shipping from piracy on the high seas is, in fact, one of the founding reasons for the raising of a navy. The U.S. Navy is a prime example of this with a history of anti-piracy operations in the West Indies, the Aegean Sea, and most recently in the Gulf of Aden. It's operations should continue. Other national navies are also participating in these efforts.
All of these tactics are the best that can be done under the current circumstances.
Placement of UN "peacekeeping" forces on merchant ships is not the answer. The first problem are its Rules of Engagement. Often UN peace keepers have a very high threshhold to be authorized to use deadly force. These barriers do not exist with national navies or with private security forces. I would not want to create a situation where the UN is providing nothing more than additional hostages for pirates.
Second, a UN force would absolutely require highly specialized training. Members of national forces and private security companies have the training necessary to carry out the job, including weapons and negotiation skills. Those people are already where they need to be and operate best within the groups they train and work. Amateurs comprised of nationals from the various countries lacking maritime forces are not the right people for the job.
Third, the shipowners' proposal simply transfers the costs of security to an international governmental body. I believe that the shipowners, not the UN, should bear these costs, especially since they are in the best position to assess risks, and spread risks and costs through insurance and cargo owners.
Lastly, the proposed approach ignores the root cause of the problem: A complete lack of government in Somalia. The pirates exist because there is no real government to impose law and order. It is a system of anarchy.
The UN's efforts are best served at solving the political end, to establish a proper government to handle the needs of the country. Yes it will take many years, but it has to start now.
In my opinion, the UN should be involved on a "macro" level." For example, by UN resolution establishing shipping lanes for the area that would be patrolled by national navies and vessels move in convoy. I would also agree with a UN resolution authorizing national military forces, under a concerted single command, to sweep and clear land positions held by pirate leaders who are living large on million dollar ransoms they received for the release of vessels and people.
We are kidding ourselves if we think the piracy problem can only be addressed at sea. Until pirate leaders are captured or killed, it will continue.
Cargo owners--best to pay for those SR & CC and War Risk Endorsements!
We believe that an important element in this approach would be the establishment of a UN Force of Armed Military Guards that can be deployed in small numbers onboard merchant ships. This would be an innovative force in terms of UN peacekeeping activity but it would do much to stabilise the situation, to restrict the growth of unregulated, privately contracted armed security personnel and to allow those UN Member States lacking maritime forces - including those in the region most immediately affected - to make a meaningful contribution in the area of counter-piracy.
I reject this "micro" level approach.
First, the maritime piracy situation is horrible indeed, especially in the Indian Ocean. Without question, the situation is extremely bad and not improving. Many companies now have their vessels travel by convoy or, in increasing numbers, with an armed contingent of private contractors on board to defend the vessel. These tactics have had some success. Generally, the costs for these are passed along to the cargo owners whose goods are at risk.
Additionally, the navies of many countries are patrolling the region to intercept and intercede in piracy operations. Protecting merchant shipping from piracy on the high seas is, in fact, one of the founding reasons for the raising of a navy. The U.S. Navy is a prime example of this with a history of anti-piracy operations in the West Indies, the Aegean Sea, and most recently in the Gulf of Aden. It's operations should continue. Other national navies are also participating in these efforts.
All of these tactics are the best that can be done under the current circumstances.
Placement of UN "peacekeeping" forces on merchant ships is not the answer. The first problem are its Rules of Engagement. Often UN peace keepers have a very high threshhold to be authorized to use deadly force. These barriers do not exist with national navies or with private security forces. I would not want to create a situation where the UN is providing nothing more than additional hostages for pirates.
Second, a UN force would absolutely require highly specialized training. Members of national forces and private security companies have the training necessary to carry out the job, including weapons and negotiation skills. Those people are already where they need to be and operate best within the groups they train and work. Amateurs comprised of nationals from the various countries lacking maritime forces are not the right people for the job.
Third, the shipowners' proposal simply transfers the costs of security to an international governmental body. I believe that the shipowners, not the UN, should bear these costs, especially since they are in the best position to assess risks, and spread risks and costs through insurance and cargo owners.
Lastly, the proposed approach ignores the root cause of the problem: A complete lack of government in Somalia. The pirates exist because there is no real government to impose law and order. It is a system of anarchy.
The UN's efforts are best served at solving the political end, to establish a proper government to handle the needs of the country. Yes it will take many years, but it has to start now.
In my opinion, the UN should be involved on a "macro" level." For example, by UN resolution establishing shipping lanes for the area that would be patrolled by national navies and vessels move in convoy. I would also agree with a UN resolution authorizing national military forces, under a concerted single command, to sweep and clear land positions held by pirate leaders who are living large on million dollar ransoms they received for the release of vessels and people.
We are kidding ourselves if we think the piracy problem can only be addressed at sea. Until pirate leaders are captured or killed, it will continue.
Cargo owners--best to pay for those SR & CC and War Risk Endorsements!
Thursday, September 8, 2011
Irene Clean Up
Hurricane Irene did a good job of destroying life and property along the US East Coast. Here in Cranford, I am fortunate to report that mine is one of two homes with no damage on our street. I cannot say the same for others on Willow Street, most of whom had extensive water damage to their homes and personal property. Clean up was exacerbated by the lack of electricity. After 4 days, county owned generators appeared at the hardest hit areas. Clean up and recovery is well under way and, hopefully, everyone will be back on their feet shortly.
Friday, August 19, 2011
Time to Pass Long Overdue US - Korean Free Trade Agreement
Focus On Export Bright Spot To Boost Jobs | The New Republic
Dear Congress,
Welcome back from your vacations. I hope you enjoyed your rest. While you were catching up on sleep following your complete failure to get our economy under control, more jobs have been lost. Increasing exports means new jobs here. Pass the US - Korea FTA already!! Similar agreement has increased exports from Europe while we are missing out on the opportunity. Focus on the people, not the partisan maneuvering. US production of goods + exports = jobs in the USA. Pretty simple stuff folks.
Sincerely,
Your Constituents
Dear Congress,
Welcome back from your vacations. I hope you enjoyed your rest. While you were catching up on sleep following your complete failure to get our economy under control, more jobs have been lost. Increasing exports means new jobs here. Pass the US - Korea FTA already!! Similar agreement has increased exports from Europe while we are missing out on the opportunity. Focus on the people, not the partisan maneuvering. US production of goods + exports = jobs in the USA. Pretty simple stuff folks.
Sincerely,
Your Constituents
Thursday, August 18, 2011
Mid-August Intermodal Outpaces 2010 Levels
Mid-August Intermodal Outpaces 2010 Levels
Glad to see this in the news today. Just back from Port Newark a little while ago too. Lots of action!
Glad to see this in the news today. Just back from Port Newark a little while ago too. Lots of action!
Tuesday, August 16, 2011
Who is the "Public Enemy?"
In one of my LinkedIn groups today, an attorney posted the question of whether there were any cases explaining what is the "public enemy" as it is one of the few enumerated defenses to a motor carrier's liability under the Carmack Amendment. No one found any cases explaining what it is in that context, so I turned to US COGSA and anything else I could get my hands on. Below is my response.
The best I can synthesize is that the "public enemy" must be one that is an enemy of the sovereign itself, not of the owner of the goods.
I did not find any Carmack cases on the subject. For an analogous view, I looked at the admiralty side, and the Carriage of Goods By Sea Act (TITLE 46, App. Ch. 28 § 1304(f), wherein "Acts of Public Enemies" is an enumerated defense.
See International Harvester Co. v. TFL Jefferson, 695 F. Supp. 735, 739 (SDNY 1988), ("the common law provided an exception to a carrier's absolute liability for the safe arrival of goods when the loss was caused by "the public enemy" or "the King's enemy" and the carrier was not at fault. See G. Gilmore & C. Black, supra, § 3-22 at 139-40; 1 Carver's, supra para. 20.").
Referring to my own treatisies, "[A]n act performed in the prosecution of war might be the act of an enemy of the carrier's country, though the term might be equally well applied to the actions of military or naval forces of a nation at war with some country unconnected with either the carrier or the goods." G. Gilmore & C. Black, supra, § 3-34 at 164. And, in Schoenbaum, Admiralty and Maritime Law Hornbook, Carriage of Goods, § 8-29 at 589 (2d Ed. 1994), "Act of war need not be declared war in the international sense. Act of public enemies refers to enemies of the sovereign of the shipowner. Russel v. Niemann, [1864] 17 C.B. (N.S. 163). Any bellicose act including terrorism would appear to be covered. Scrutton, Charter Parties, 222.
And back in ancient history--Coggs v Bernard (1703) 2 Ld.Raym 909, by Lord Holt:
"As to the fifth sort of bailment, viz., a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, common hoyman, master of a ship, &c.; which case of master of a ship was first adjudged, 26 Car. 2, in the case of Mors v. Slew, Raym. 220. 1 Vent, 190, 233. The law charges this person thus entrusted to carry goods, against all events, but acts of God, and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c, and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." See <http://www.lawandsea.net/List_of_Cases/C/Coggs_v_Bernard_1703_2_LdRaym_909.html>.
More recently, in New York Marine & Gen. Ins. Co. v. M/V "RAUTEN", 1999 U.S. Dist. LEXIS 1513 (S.D.N.Y. Feb. 11, 1999), a COGSA case wherein CSAV moved for summary judgment based on the "acts of public enemies" defense, Judge Chin denied the motion in part because there was not a clear definition of what are acts of piracy or public enemy (citing to David Crystal).
As an example, in a post 9-11 Carmack world, I would argue that a truck load of ammonium nitrate moving interstate hijacked by a terrorist cell connected with al Queda would rise above the level of mere hijacker and would be an act of a public enemy, assuming of course that the intention that the goods would be used in carrying out an attack on the government and/or the public.
I am all ears for any input on this very interesting topic.
--Tom
The best I can synthesize is that the "public enemy" must be one that is an enemy of the sovereign itself, not of the owner of the goods.
I did not find any Carmack cases on the subject. For an analogous view, I looked at the admiralty side, and the Carriage of Goods By Sea Act (TITLE 46, App. Ch. 28 § 1304(f), wherein "Acts of Public Enemies" is an enumerated defense.
See International Harvester Co. v. TFL Jefferson, 695 F. Supp. 735, 739 (SDNY 1988), ("the common law provided an exception to a carrier's absolute liability for the safe arrival of goods when the loss was caused by "the public enemy" or "the King's enemy" and the carrier was not at fault. See G. Gilmore & C. Black, supra, § 3-22 at 139-40; 1 Carver's, supra para. 20.").
Referring to my own treatisies, "[A]n act performed in the prosecution of war might be the act of an enemy of the carrier's country, though the term might be equally well applied to the actions of military or naval forces of a nation at war with some country unconnected with either the carrier or the goods." G. Gilmore & C. Black, supra, § 3-34 at 164. And, in Schoenbaum, Admiralty and Maritime Law Hornbook, Carriage of Goods, § 8-29 at 589 (2d Ed. 1994), "Act of war need not be declared war in the international sense. Act of public enemies refers to enemies of the sovereign of the shipowner. Russel v. Niemann, [1864] 17 C.B. (N.S. 163). Any bellicose act including terrorism would appear to be covered. Scrutton, Charter Parties, 222.
And back in ancient history--Coggs v Bernard (1703) 2 Ld.Raym 909, by Lord Holt:
"As to the fifth sort of bailment, viz., a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, common hoyman, master of a ship, &c.; which case of master of a ship was first adjudged, 26 Car. 2, in the case of Mors v. Slew, Raym. 220. 1 Vent, 190, 233. The law charges this person thus entrusted to carry goods, against all events, but acts of God, and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c, and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." See <http://www.lawandsea.net/List_of_Cases/C/Coggs_v_Bernard_1703_2_LdRaym_909.html>.
More recently, in New York Marine & Gen. Ins. Co. v. M/V "RAUTEN", 1999 U.S. Dist. LEXIS 1513 (S.D.N.Y. Feb. 11, 1999), a COGSA case wherein CSAV moved for summary judgment based on the "acts of public enemies" defense, Judge Chin denied the motion in part because there was not a clear definition of what are acts of piracy or public enemy (citing to David Crystal).
As an example, in a post 9-11 Carmack world, I would argue that a truck load of ammonium nitrate moving interstate hijacked by a terrorist cell connected with al Queda would rise above the level of mere hijacker and would be an act of a public enemy, assuming of course that the intention that the goods would be used in carrying out an attack on the government and/or the public.
I am all ears for any input on this very interesting topic.
--Tom
Monday, August 15, 2011
Welcome Aboard
Dear Readers,
Welcome to my new blog entitled, "It's All About the Goods." No esoteric or existential meanings intended. The purpose of this blog is to exchange ideas about all issues concerning the movement and care of Goods from Point A to Point B. Whether you call it cargo, freight, or just plain stuff. This is about "bread-and-butter" topics such as contracts, law, insurance, carriage, storage, distribution, warehousing, regulations, cold chain--you name it--about the ubiquitous "widget" (in the economic sense as some sort of manufactured device, not as a software platform). What kinds of goods? Everything from steel pipe to cotton shirts to viagra pills to liquid bulk gasoline to digital cameras to fresh fruit to frozen shrimp. Even works of art and precious metals. I will present issues that arise in my daily life as a "Goods Litigator," (please visit my About.me site http://about.me/edit/ThomasMGrassoEsq) and I invite you to share your ideas for discussion. Thanks again for visiting!
Best regards,
Tom
Welcome to my new blog entitled, "It's All About the Goods." No esoteric or existential meanings intended. The purpose of this blog is to exchange ideas about all issues concerning the movement and care of Goods from Point A to Point B. Whether you call it cargo, freight, or just plain stuff. This is about "bread-and-butter" topics such as contracts, law, insurance, carriage, storage, distribution, warehousing, regulations, cold chain--you name it--about the ubiquitous "widget" (in the economic sense as some sort of manufactured device, not as a software platform). What kinds of goods? Everything from steel pipe to cotton shirts to viagra pills to liquid bulk gasoline to digital cameras to fresh fruit to frozen shrimp. Even works of art and precious metals. I will present issues that arise in my daily life as a "Goods Litigator," (please visit my About.me site http://about.me/edit/ThomasMGrassoEsq) and I invite you to share your ideas for discussion. Thanks again for visiting!
Best regards,
Tom
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