The “Law of the Sea” as a concept generally only comes across our bow when it has to do with international boundaries, fishing and mineral rights, and, well, maybe on International Talk like a Pirate Day, but the reality of maritime law is much more complex and far-reaching. John Giffin, a shareholder with Keesal, Young & Logan since 1984, is the senior maritime lawyer in the firm’s San Francisco office.
Lawdragon: Tell us a bit about maritime law – what is it and what range of matters do you handle on a daily basis?
John Giffin: Maritime law involves virtually any legal matter affecting a ship, its passengers, its hull and machinery, and cargo as well as people and the environment around it. The maritime law extends beyond activities which take place on the sea and includes the inland carriage and storage of goods carried on ships or booked for carriage on ships.
The maritime law includes disputes (whether in court, commercial arbitration or otherwise) involving personal injuries, including injuries to longshoremen as covered by the federal Longshore and Harbor Workers Compensation Act, injuries to seaman covered by the Jones act and by the general maritime law of the U.S.; and passenger and visitor injuries. Additional disputes and claims may arise from damaged, delayed or mis-delivered cargo, groundings, collisions, allisions (contact with a fixed object) oil spills and air pollution.
There is also a criminal component to maritime law as oil spills and other incidents may lead to the criminal prosecution of vessel owners, operators and crew by both state and federal authorities.
Shipping and the carriage of passengers is a highly regulated industry. Regulations may be in the form of local, state and federal laws such as the Oil Pollution Act of 1990 (OPA 90), California Department of Fish and Wildlife regulations pertaining to the carriage of crude oil and oil products, California Air Resources Board air emission regulations, California State Lands Commission Regulations concerning ballast water exchange and treatment, Coast Guard port and flag state safety and compliance regulations, Customs Regulations, Immigration law and local ordinances concerning wharfage, anchoring etc.
Also maritime law includes the interpretation of and compliance with international conventions, many of which are codified into U.S. law. They include the International Maritime Organization SOLAS Convention (Safety of Life at Sea), The Hague Convention on the Carriage of Goods by Sea, MARPOL (IMO Maritime Pollution Convention), The International Salvage Convention, IMO Standards for Training, Certification and Watchkeeping (STCW), the International Safety Management Code (ISM), IMO Emission Control Regulations and designated areas and many others.
The maritime law also includes general business matters such as preparing and negotiating labor contracts, bills of lading, charter parties, service contracts, shipbuilding and repair contracts and litigating disputes involving those documents and activities. I also provide coverage opinions to marine insurers.
A unique feature of maritime law is the concept that a vessel may be sued in its own name, in rem, and arrested by U.S. marshals or authorities in other countries for debts arising from the operation of the ship. This includes damages from collisions, groundings, oil spills, personal injuries, unpaid crew wages, failure to pay for necessaries etc. I have dealt with many arrests both for the defense and as counsel for the plaintiff arresting the ship.
In short, the maritime is a very broad and wide ranging area of the law with local, state, federal and international components.
LD: Keesal Young & Logan started in the Long Beach Harbor. Is that what attracted you to the firm when you joined in 1979? And were you one of the first to move to San Francisco when the firm opened that office?
JG: I started with KYL in 1979 when there were eight partners in the firm. I was the only associate. At the time the firm had been in business since 1970, having changed its name to Keesal Young and Logan in 1978. I began working at the firm’s sole office, located at Pier F Berth 203, Long Beach. The firm’s office was a former steamship headquarters building located deep in the Long Beach Harbor. To get to the office one had to enter the harbor and drive past the bulk steel piers, the salt dock and container terminals. I was attracted to the firm because of its relatively small size, the collegiality of the lawyers, and its location and practice areas. Also, even though the firm was small, it paid associate salaries competitive with the large San Francisco and Los Angeles firms.
In April, 1984, the day I became a shareholder in the firm (partner), I opened our San Francisco office. At the time there was just me, one associate and a secretarial assistant in the office. We were joined by another shareholder from Long Beach four months later and a year later by another Long Beach associate. Since then we have grown the San Francisco office mostly from our clerk program and with lateral hires.
LD: Can we back up and talk about your journey from growing up in Newfoundland to serving in the U.S. Navy as a Deck Officer and Chief Engineer? Did you grow up with dreams of becoming a sailor?
JG: I grew up in a military family and we moved quite often, living multiple times in California as well as in Canada, Italy, Oklahoma and Colorado. My father was a career Air Force officer and so I had little knowledge of the Navy until I lived in Naples, Italy, in my teens. Although my family lived in the City of Naples and not on a military base, I became familiar with the U.S. 7th Fleet which operated out of Naples. I also went to high school with students from NATO countries such as Turkey, Greece, Italy and Denmark and became somewhat familiar with their navies and militaries. I did not seriously consider joining the service until College at the University of Oklahoma (where my Father obtained his undergraduate and post graduate degrees and where he briefly taught). During my undergraduate days the Vietnam War was going on and I drew a very low draft number in the first Vietnam War draft lottery in 1969. In my junior year in college I decided to enlist in the Navy officer candidate training program in Rhode Island, partly to avoid being drafted when I graduated. I attended training in Newport, R.I., between my junior and senior years of college and then completed my training after graduating from OU, leading to my commission as an ensign in the Navy. In Newport I received training in both deck and engineering and was commissioned with an unrestricted line officer designator, which qualified me for any naval officer position at my rank. I took some flight training in Newport but opted for the surface fleet as I did not want the six-year active duty commitment that flying required.
After moving back to the U.S. in my late teens, I worked summers as a ranch hand in Colorado which involved some farming. As a result I became familiar with diesel mechanics from working on tractors, combines and other diesel-powered equipment.
After I was commissioned in the Navy I attended additional training schools including firefighting, communication and surface warfare, and then was assigned to a 6th Fleet ocean class minesweeper home-ported in Pearl Harbor. A week after I joined the ship the Chief Engineer rotated to a larger ship and I was assigned as the Chief Engineer, becoming, at 23 either the youngest or one of the youngest chief engineers in the Navy’s fleet. As the Chief Engineer I managed between 25 to 40 petty officers and sailors in the engineering department depending on the ship’s deployment. I also managed the ship’s dry docking and overhaul which took place at two civilian shipyards in Honolulu.
In addition, I was a Fleet Officer of the Deck and I became a fully qualified Surface Warfare Officer. After a year and a half operating from Pearl Harbor, the ship shifted to San Diego for degaussing and repairs, and then ultimately moved to a new home port in Seattle. After 2 1/2 years on the ship, I left the ship and active duty in Vancouver, B.C. and two weeks later started law school in San Francisco. In law school I continued in the Navy Reserve serving on an LKA (supply vessel) and later on two ocean mine sweepers of the same class I served on when on active duty.
LD: And then what led you to law school at UC Hastings after attending University of Oklahoma for your undergraduate education?
JG: I chose to attended law school as I believed then and still believe that law is an honorable and worthwhile profession. I only knew a few lawyers growing up and then only casually. I am the only person in my family (that I am aware of) who has ever been a lawyer. Also, because of my active service I became eligible for full GI Bill benefits and through those benefits, working as a reserve officer on an active ship and working 20-25 hours a week as a law clerk, I was able to afford to attend law school in San Francisco. I chose to attend Hastings because, in my opinion, it was the best law school that would admit me. Also, I liked the idea of going to school in San Francisco. Growing up, I had lived in Sonoma, Novato and Monterey and my ship had called at the Treasure Island Navy Base so I was familiar with the Bay Area, but I had never lived in San Francisco.
Hastings was and is a very fine law school. I learned the law so that I can competently practice in California. I have remained in contact with some classmates but none that I know practice maritime law. Also none went into the maritime business. Most of my professional contacts come from my work with people and companies after graduating from Hastings.
LD: While maritime law seems a bit of a natural with your background, can you talk a bit about your formative years as a lawyer becoming an expert in this area? What was the first case you remember, and what led to it?
JG: As a new associate at KYL I immediately took on active maritime cases which included not only lawsuits and arbitrations but also investigations. Virtually all matters which I handle which arise from an incident such as an injury, collision etc., I investigate myself. Early on I routinely investigated accidents and incidents which included injuries, deaths, groundings, collisions, oil spills, cargo damage etc. My background at sea has been helpful and allowed me to get off to a fairly quick start, with very little supervision as a marine casualty lawyer and as a trial lawyer.
One of my first cases was the investigation of an older breakbulk ship carrying bagged cement from Punta Arenas, Costa Rica, to Manta, Ecuador. Shortly after leaving Costa Rica the ship rolled over and sank with a loss of 18 of the crew of 24. I and a partner in the firm flew to Panama and interviewed the survivors who were picked up by a tuna boat from a life raft three days after the sinking. I handled the crew interviews while the partner attended the inquiry by the Panamanian maritime authority. After the Inquiry, the partner returned home and I stayed in Panama and negotiated and settled the damage claims by the six survivors including paying their claims in cash and obtaining signed releases approved by a Panamanian notary official. I then flew to Costa Rica and interviewed the longshoremen who loaded the ship and the pilot who took the ship out of the port.
After the investigation I issued a lengthy report which the ship owner turned over to the hull insurer. The report became subject to comment on the floor of the British Parliament because the ship was of Bahamian registry flying a British flag. The hull underwriter at Lloyds felt that the loss was suspicious and brought the matter to a Member of Parliament who discussed the loss and my report on the floor of Parliament. I issued a follow-up report addressing their suspicions. The matter was dropped in Parliament and the hull claim was ultimately paid by the underwriter.
LD: What are two or three of your most memorable maritime litigations?
JG: Most maritime litigation is memorable. One I can think of involved representing a major commercial fleet operator in a criminal prosecution by the U.S. Justice Department for alleged violation of MARPOL which as adopted in the U.S. is the Act to Prevent Pollution from Ships (APPS). A second was the trial of a death claim brought by the daughters of an Oakland longshoreman who was killed when he was crushed between shipping containers being placed on a containership by a dockside container crane. A third I can think of is the representation of a tankship management company in proceedings in Uruguay resulting from the grounding of a tank ship on an Island off the East Coast of Uruguay. There are many others such as defending ship owners in lawsuits involving explosions and dock damage claims in the U.S. and Mexico.
LD: You also handle regulatory matters. What is the range of what that entails? And has maritime regulatory work increased with global shipping and commerce?
JG: Regulatory work is extremely varied. As I noted above many government entities issue regulations relating to shipping. My firm tracks the regulations and periodically issues circulars to the industry. Further, we give talks and seminars to vessel owners and operators throughout the world. I have personally given seminars in the U.S., the UK, Singapore, Japan, Korea, Hong Kong, Canada, Denmark, Greece and elsewhere. The regulations we track and advise on relate to safety, air pollution, ballast water treatment, oil pollution, vessel reporting requirements, vessel manning etc. I routinely represent vessel owners and managers and their protection and Indemnity insurers in regulatory proceedings brought by the U.S. Coast Guard, the California Office of Spill Prevention and Response (Cal. OSPR), the U.S. Justice Department, the California Air Resources Board, local district attorneys and the California State Lands Commission. Also from time to time I audit ships and related marine equipment for compliance with U.S. and international regulations. In the past I have audited for compliance with MARPOL and other pollution-related regulations U.S. flag drill ships and drill rigs in the Gulf of Mexico, U.S. flag ships in dry dock in Singapore and foreign flag ships located in China and elsewhere. My firm’s regulatory work has increased mostly because of the increase in the number and complexity of regulations and because of more aggressive enforcement by government agencies and because of increasing fines levied by those agencies.
LD: Can you talk a bit about what you find interesting about maritime work now, and its evolution since you entered practice?
JG: My work has evolved from mostly seaman and longshore injury claims and cargo claims to a more varied practice involving casualties, criminal prosecutions, and civil penalties arising from regulatory actions. I still do injury and cargo work but it is a smaller part of our practice than in the earlier days. All of the work is interesting as it involves mostly foreign operators and issues which take place all over the world. The injury, casualty and regulatory work has taken me to many places including Korea, China, Hong Kong, Singapore, South America, Central America, North Africa, several countries in Europe, Canada and the Middle East.
LD: If you weren’t a lawyer what would you be doing now professionally?
JG: I honestly do not know what I would do if I were not practicing law. When I was contemplating leaving the Navy I considered working in shipyard. I have always enjoyed working in shipyards either as an engineer or as a lawyer.
LD: What do you like to do outside the office?
JG: Outside of work I enjoy Marin County where I live, and its proximity to the ocean, Sonoma, Napa and other parts of Northern California. I hike quite a lot in the open spaces near my home. I bicycle, travel some and occasionally I play high handicap golf with my brother who is a much better golfer than I am. When there is sufficient snow, I snowboard.
LD: Do you still sail? And if so, what was your last journey?
JG: I don’t sail. To me, it’s work.