Maritime Litigation and Arbitration in the US and New York during the Coronavirus Pandemic

Categories : Coronavirus

Types : Alerts

April 16, 2020 – UPDATE: The SMA has now published a message concerning coronavirus and maritime arbitration proceedings. The message can be found here.

The coronavirus pandemic has spread throughout the world and hit New York particularly hard. The federal courts, which have jurisdiction over most maritime litigation, initially closed for all but “essential” matters. Many parties in maritime litigations and arbitrations requested indefinite adjournments and stays not knowing when proceedings might resume. However, the federal courts and arbitration institutions, like the Society of Maritime Arbitrators of New York, are open for business. In some respects, they were well-prepared for any disruption; in other respects, they quickly adapted to virtual proceedings. The following is a brief summary of the status of maritime litigation and arbitration in the US and New York during the coronavirus pandemic.

The Supreme Court of the United States initially postponed oral arguments, but it is now conducting oral arguments for some cases by teleconference. The Court extended deadlines to file some petitions for writ of certiorari and is reportedly liberally granting other motions for extensions of time. Meanwhile, the Court continues to publish opinions, including those recently published in significant maritime cases like the Queen Anne’s Revenge and ATHOS I.

The United States Court of Appeals for the Second Circuit has extended some filing deadlines. And, like the Supreme Court, the Second Circuit is now conducting oral arguments by teleconference. Usually, parties’ requests to adjourn oral arguments are, pursuant to the Second Circuit’s rules, granted only upon showings of “extraordinary circumstances.” However, recent coronavirus-related requests to adjourn oral arguments until such times when oral arguments can be conducted in-person have been denied. For example, following a federal trial win for owners by Eugene J. O’Connor and Timothy Semenoro in the MSC FLAMINIA case, an appeal was filed by certain cargo interests. The Second Circuit has ordered the oral argument proceed by phone. The appellant’s recent request to adjourn oral argument until it could be conducted in-person was promptly denied in a two-sentence order.

The United States District Court for the Southern District of New York has substantially restricted in-person access to its courthouses. Unlike the Supreme Court and the Second Circuit, the Southern District authorized individual judges to issue orders concerning extensions of time in civil cases. Many judges are, in fact, now conducting proceedings like pretrial scheduling and case management conferences by telephone (a procedure sometimes used before the coronavirus pandemic).  Notably, the “Part I” emergency judge remains available for civil matters requiring immediate attention, likely including maritime applications for relief under Rule B (attachments) and Rules C (arrests).

The Society of Maritime Arbitrators of New York is still conducting arbitrations. The SMA was well-prepared for virtual proceedings, having amended its rules in 2016 to receive evidence and conduct hearings by videoconference. Specifically, Section 23 of the SMA’s Arbitration Rules states in pertinent part:

“In those circumstances it deems appropriate, the Panel has the discretion to direct that the testimony of witnesses be taken by video conference or such other electronic means. Should a party object to taking testimony by such means, the Panel will hear the objection and make a ruling which will be final and binding.”

Additionally, the SMA has organized a committee, chaired by its Vice President LeRoy Lambert, to develop guidelines for conducting maritime arbitrations during the coronavirus pandemic.

Montgomery McCracken’s Maritime & Transportation Practice Group is experienced and engaged in all aspects of maritime litigation and arbitration. We are working remotely and remain available to assist you. Please contact Robert O’Connor at roconnor@mmwr.com or +1 (516) 993-4471 if you have any questions or comments. Visit the firm’s Coronavirus (COVID-19) Resource Center for more information and updates on this constantly evolving situation.