Corporate Counsel Business Journal (CCBJ) | July-August Edition
CCBJ: You're one of the very few judges in the nation who has been a proctor member of the Maritime Law Association of the United States. Please tell us about your 30-plus year career as an admiralty lawyer, including your education, training, license and shipboard experience.
Hon. John G. Ingram (Ret.): I graduated from the Maritime College in New York and shipped out as a third mate and second mate aboard U.S. flagged container ships, cargo ships and passenger liners. Following that, I attended St. John's Law School in New York and worked part-time and summers shipping out on merchant ships and also acting as a port relief officer when ships docked in the Port of New York. After graduating from law school, I joined the preeminent admiralty law firm of Burlingham, Underwood, Wright, White & Lord. As a litigator, I represented ship owners and towing companies in all types of marine-related incidents, including oil spill cases, cargo claims, personal injuries, and wrongful deaths of seafarers, passengers and longshore harbor workers. In addition, I represented owners in charter party disputes, and served as an arbitrator in maritime matters, including a small boat salvage case. And I served in the U.S. Navy Reserve for 31 years retiring as a Captain USN (Line).
I was also a Pilot Commissioner for the State of New York for six years. As a member of the Commission, I regulated pilots, conducted investigations and made findings into maritime casualties involving state-licensed pilots. I rendered decisions on the culpability of those involved and prescribed remedial measures as appropriate.
In addition, after my term as a Commissioner, I represented pilots in New Jersey who were involved in casualties such as groundings, collisions and damages to barges and facilities. I was also involved in marine insurance coverage disputes. I was lead counsel in the sinking of a passenger liner with over 600 passengers and crew, and I have represented a major cruise line in passenger injury and death claims. In 2003 I sat as the chairperson of a three-arbitrator panel in connection with the issue of runoff on a marine insurance policy.
I've taught Admiralty law at New York Law School and St. John's Law School. I'm currently an adjunct faculty member at the State University of New York Maritime College where I lecture in Admiralty law.
So in 34 years at the maritime bar, I've touched on just about everything in the admiralty world,
What drew you to NAM, and how will you bring your legal and practical experience to your new role as the arbitrator or mediator in maritime cases for the organization?
NAM is actually the only alternative dispute resolution (ADR) entity that I considered. I had spoken to some of my colleagues from the State Supreme Court in New York, and they strongly recommended NAM and consider them the top name in ADR. They're not only known as a top ADR provider, but also for great customer service. They have case managers that handle all of the logistics for the hearings. In other words, NAM's personnel do all of the scheduling and related matters, which makes it much easier for the arbitrator/mediator. We don't have to deal with the administrative details of setting up the arbitration/mediation time, the place, number of rooms, etc. I've visited their New York and Garden City offices and conference facilities and could see firsthand how the cases were being handled, and the services and amenities provided to counsel and their clients. I'm very impressed with the whole organization.
In addition, NAM has both a national and international presence, administrating cases throughout the United States, London, Monaco, France, Panama and the Philippines. I have a European Union passport. That's something that could benefit our clients and the parties who retain NAM. I'm sure that if the parties want to have an arbitration in a different location other than where NAM has an office, the company and myself would surely accommodate the request. NAM has the ability to administrate cases in most major cities around the world.
NAM is designated as the administrator for arbitrations in many of the passenger ticket contracts used by various cruise lines throughout the industry, including Carnival and its affiliates, Norwegian Cruise Lines and Royal Caribbean. In addition, NAM is the designated administrator of seafarer arbitrations pursuant to the Carnival's Seafarer Employment Agreements
How is it useful for a maritime arbitrator to come from the maritime bar?
The maritime bar in the United States consists of about 1,200 lawyers who belong to the Maritime Law Association of the United States. I was a Proctor member of that organization until I went to the bench, and then I became a Judicial member of the Maritime Law Association. Now I'm transitioning back to being a Proctor member. In other words, the maritime bar is very small, and people know each other and speak the same language. So in maritime disputes, it is extremely helpful to have an arbitrator or mediator with a maritime background.
People think of maritime law as a specialty practice, and indeed it is, but it does encompass all types of legal issues. For example, product liability to construction of ships, repairs of ship claims, personal injury and wrongful death, contractual issues and insurance matters that sometimes result in arbitration or mediation.
One of the benefits of arbitration and mediation is that the parties can expect an expedited hearing and a prompt decision/result. I recently read a U.S. Supreme Court case that dealt with an important issue in maritime law called safe berth warranty. The incident happened in 2004 on the Delaware River and involved the puncture of the ship's hull by the fluke of an anchor that was in the channel. The case involved a claim for over $150 million dollars in damages. The case was pending in the Third Circuit, and there was a conflict in the applicable law between the Second and Fifth Circuits, It was argued in the U.S. Supreme Court in November 2019, and was finally decided in March 2020. Ultimately, the Supreme Court decided the issue that a safe berth was a guarantee, not a promise to exercise due diligence to provide a safe berth. It took 16 years from the date of the incident to finally have it resolved by the Supreme Court. Point being, cases such as these can be resolved in a more cost-effective, time efficient manner through ADR.
Maritime matters often require considerable time to resolve in court, but how does NAM administer and manage these types of cases?
As I previously mentioned, NAM has case managers and a scheduling department who handle the full administration of the case. For example, the amount of time needed for the hearing, the location of the hearing, the Dispute Resolution Agreements that the parties sign, etc. In the beginning of the case, the arbitrator and Counsel will engage in a pre-hearing telephone conference call so that disputed issues can be identified and narrowed, a schedule can be set that may include discovery, briefing, motion practice, and the time frame for the hearing, all in accordance with NAM's rules of procedure which are designed to move cases efficiently. The arbitrator as well as the case managers, continue to work with the parties and counsel to ensure that the deadlines are met and address any issues that may arise such as discovery disputes. Since the case manager and, in turn, the arbitrator, are easily accessible, disputed issues are often resolved with the scheduling of a phone call with the arbitrator, thus obviating the need for time consuming motion practice in the court system. The arbitrator also has the ability to block out continuous days for a hearing which will result in the case being concluded faster and in a time efficient manner, unlike a case being heard in court, where the presiding judge may not be available to hear a case each day until its conclusion because of pre-set motion days conference days / and other matters that are scheduled.
Since NAM has the technological ability to allow for witnesses to appear via videoconference, the undue delays that would typically occur in scheduling and coordinating parties, are avoided. There is more flexibility with scheduling hearing dates and party appearances in a NAM arbitration than in a courthouse.
What types of maritime disputes are most suitable for arbitration or mediation?
Marine insurance coverage and claim disputes are ripe for arbitration. Also, contractual disputes of all kinds ranging from a ship repair contract to a contract to build a ship are perfect for arbitration, particularly because of the technical aspects of these cases. Maritime injury and death claims are also very well suited for arbitration or mediation.
Salvage contracts are also ideal for arbitration and mediation. Small boat salvage – it's quite a field today, involving pleasure boats – and the fact that there are companies that do private salvage of pleasure boats, those types cases are ripe for arbitration and mediation. The parties like to go to arbitration because they can get a prompt resolution by an arbitrator who is familiar with the subject matter. And, as I mentioned previously, passenger cruise ship claims for contractual disputes between passengers and the cruise ship companies are ideal for arbitration and mediation as are foreign crew claims for personal injury. Most non-U.S. seafarer employment contracts provide for arbitration for those type of personal injury claims.
Let's talk about NAM's virtual hearings and the steps the organization has taken to provide security during a mediation or arbitration – and how does this work with maritime disputes in particular.
I recently attended a continuing legal education program given by one of NAM's prominent neutrals, who discussed how NAM's history of offering videoconference ability and how NAM was able to seamlessly transition to full time virtual hearings once coronavirus shut everything down. NAM has taken incredible steps to ensure that all of its hearings are totally secure, and offer 4 video platforms – Blue Jeans by Verizon, Skype, Webex by Cisco and Zoom – although the vast majority of clients select Zoom. In fact, NAM's customized videoconference technology through Zoom is HIPAA compliant meaning they meet or exceed the privacy and security specifications provided by The Health Insurance Portability and Accountability Act.
The virtual hearings are set up on the computer or a mobile device. There are separate virtual “rooms” for the parties and the witnesses, all controlled by the neutral. Then there's a joint room where the neutral and all of the participants can be present to see and hear the arguments of counsel and the testimony of witnesses. In mediations, the neutral has discussions with everybody, and then can separate the parties into different private rooms so their discussions cannot be heard by the other participants. If anyone enters that room, there's a chime that goes off to alert people. The mediator can talk privately with one party and their counsel and the other side cannot hear what is being said. NAM has an incredible IT department and technical personnel on standby, just in case anyone needs assistance or technical issues need to be addressed.
Virtual ADR is particularly good for maritime matters, because in many cases we may be trying to get the testimony of a ship's captain, who may be home on leave in Oslo, Norway, but he simply can go to a site, possibly even from his own home, and testify via Zoom. Virtual hearings are very common now because maritime cases often involve various parties in different locations, Virtual ADR is an ideal way to bring parties together from anywhere in the world and conduct a mediation or arbitration
What do you envision for arbitration and mediation in maritime disputes as we emerge from this pandemic?
The coronavirus has paralyzed courts. Until there is an effective vaccine, jury trials of civil and criminal cases will not be held. I just read an article about a federal judge who tried to conduct a jury trial in Arizona and had to use three separate courtrooms and have the courtrooms and restrooms cleaned between sessions. And there are real issues as to when jury trials will resume in New York and most other states. This has a great impact on the courts because in most federal courts, criminal trials take precedence over civil trials because of the right to a speedy trial and the fact that people's liberties are being affected in many cases. So I anticipate more of a demand for mediation and arbitration across the board, including maritime matters, because the parties want a prompt resolution of their matters, instead of waiting for what could be years to get a trial date.
Also, there are going to be issues regarding force majeure and contract claims as well as a greater need for a virtual ADR. Involved parties, such as ship passengers and crewmembers are not going to be able to be flown from all over the world. There will be an increased reliance on videoconferencing for the hearings. Personally, I'm excited by it. It's the future of ADR. I pray that we do get a vaccine and that the world returns to what we considered normal, but even when we do return. virtual ADR is still going to be part of our lives.
What are you most looking forward to about your new affiliation with NAM?
I'm looking forward to resolving all types of maritime matters – using both mediation and arbitration. During mediation, the neutral puts aside the judge hat and works with the parties to bring them to a resolution – it's all about working with the parties to get them to the number that's going to resolve their matter. As an arbitrator, you are more like a judge, because you render a binding decision.
It's a new challenge, a new chapter in my life, and I'm looking forward to it. I look forward to arbitrating and mediating with the foremost ADR company in the world, which is NAM. My life has been a maritime life. And now that I'm embarking on this new chapter, I look forward to using all of my maritime experience, both practical and legal, to resolve matters for parties who are involved in maritime disputes.