Law Office of Steven J. Shamburek

Law Office Of Steven J. Shamburek
425 G Street, Suite 610
Anchorage, Alaska 99501
shambureklaw@gci.net
www.shamburek.com

Direct:            (907) 522-5339
   Cell:              (907) 250-0044 

 
    The practice focuses on certain admiralty, aviation, business and commercial transactions and litigation, collection, construction, creditor bankruptcy, employment, real estate and transportation law.  An "Overview", "Areas of Practice", "Firm Philosophy", "Articles and Organizations; Other Activities", and "Cases" are discussed below.

Overview

Steven J. Shamburek was graduated from the University of Virginia in 1978 with a major in economics and a minor in political and social thought and from the University of Virginia School of Law in 1984. Certificate from the Federal Executive Institute for undertaking the Senior Executive Education Program in 1977.

Worked in Washington, D.C. and New York with a wide variety of public and private political and economic organizations and other activities, 1974-1984.  Worked with Washington, D.C. law firms.  Judicial Law Clerk for two Federal Judges and a Magistrate Judge of the U.S. District Court for the District of Alaska, 1984-1988.  Partner in Law Firm, 1989-1999.  Solo practice since 2000.

Admitted to practice before all Courts in the State of Alaska (State and Federal), the U.S. Court of Appeals for the Ninth Circuit, the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court.
 

Areas of Practice

Admiralty - all matters involving preferred ship mortgages; wage, necessaries and other maritime liens; injury claims; collision; salvage; pursue and challenge limitations of liability; insurance disputes; crew contracts; Coast Guard license suspension and revocation hearings and other matters.  Shipping Act of 1984 as amended matters before the Federal Maritime Commission.  Involved in some capacity in 100 cases and matters.

Aviation – selected matters involving FAA civil penalty actions; loan documentation in Oklahoma City and state UCC requirements; selected aviation accidents.

Bankruptcy, Creditor – all matters related to creditor representation in bankruptcy.  Involved in some capacity in 150 main cases, adversary proceedings, objections to discharge and preference actions.  

Business and commercial transactions and litigation – all matters related to commercial transactions and litigation; UCC issues; loan documentation for real estate, personal property and unusual collateral such as vessels and aircraft; business form and formation including partnerships, corporations, and LLCs with concern for the liability, tax, management and transferability considerations; all contract matters.

Collection - selected collection matters; lis pendens; pre-judgment attachment; claim and delivery; FED actions; post-judgment execution; domestication of foreign judgments in state and federal court.

Construction – all matters related to construction contracts and litigation; readily familiar with
the legal interpretations of standard AGC and AIA construction contracts; Miller Act and Alaska Little Miller Act surety actions; licensing and bonding requirements.

Employment – selected matters involving wage and hour issues under the FLSA and the AWHA and general contract issues; preparation and litigation of non-competition and confidentiality agreements.  Avoid sexual harassment, wrongful discharge and ADA matters.

Federal Practice – cases involving actions against the U.S. government, admiralty and maritime matters, ANCSA, ANILCA and FLPMA, aviation, bankruptcy appeals, civil rights, copyright, domestication of foreign federal judgments, federal employment, forfeiture of vessels and property, insurance matters, Miller Act and construction issues, and mining and public lands issues.

Real Estate – all matters related to real estate law; loan documentation and litigation; title matters; easements; public land issues; condemnation cases; foreclosure actions; ANCSA, ANILCA and FLPMA issues.

Transportation - Carmack Amendment claims and defense of claims; selected transportation contracts and BLs.

The firm avoids practice in criminal, family law, debtor bankruptcy, taxation, and workers' compensation law.  However, all of these areas of law intersect and overlap at times with the primary areas of practice noted above.  Thus, a conscious and concerted effort is made to follow developments in these areas of law including attending many meetings of the Family, Taxation, Workers' Compensation, and Corporate Counsel Law Sections of the Alaska Bar Association.

Firm Philosophy

The practice of law is a profession and a calling.  Sound timely legal advice and thoughtful planning often can avoid or minimize a problem.  The litigation work informs the transactional work.  Some members of the profession and of the public embark on protracted and expensive litigation without pause or reflection.  Every reasonable effort is made to resolve a matter short of litigation and then if litigation is necessary to conclude a matter as justly, speedily and inexpensively as possible.

Articles and Organizations; Other Activities

Authored "Nets and the Internet: Commercial Fishermen and Cable Companies: Applicable International Law," 12 Submarine Telecoms Forum 24 (January 2004) (www.subtelforum.com); authored and delivered papers on "Alaska Admiralty Practice And Procedure" (1987); "Property And Vessel Forfeiture: Navigating In The Ninth Circuit" (1992); "Admiralty And Bankruptcy: When The Twain Collide" (1992); "Admiralty Lawyers Are From Mars, Bankruptcy Lawyers Are From Venus: The Interplay Of Admiralty And Bankruptcy" (1995); and "Mechanics' And Materialmen's Liens" chapter in "New Construction And Land Development: An Overview Of Common And Current Issues" (1994); other topics. Wrote chapters of Admiralty, Real Estate, and Natural Resources Law Section annual updates on recent legal developments.  Member of the Alaska Bar Association and of the Admiralty (Co-chair), Bankruptcy, Business, Employment, Estate Planning and Probate, and Real Estate Law Sections of the Alaska Bar Association.  Member of the Local Admiralty Rules and the Local Bankruptcy Rules Committees.

Proctor (emeritus) in the Maritime Law Association of the United States.  Member of the Alaska Airmen's Association, the Lawyer-Pilots Bar Association, the Aircraft Owners and Pilots Association, the Experimental Aircraft Association, the William H. Seward Yacht Club, the Kenai Fjords Yacht Club, and the Homer Yacht Club.  Owner and pilot of a 1959 Cessna 172.   Steward  and operator of a 1964 BMW R60/2 motorcycle (sans side car) and a 1974 Toyota Chinook, the sports car of motor homes.  NAUI-certified scuba diver.  Passed the Foreign Service Officers Examination on the first try and enjoyed the test.  Semi-retired part-time commercial fisherman (long line halibut and drift net salmon).  Constructing the good American novel.  Top finisher, age category, 1991 Talkeetna Moose Dropping Festival 5K Fun Run. Red Lantern, all age categories, 2008 Fur Rondy Frostbite Footrace 5K Run.  SCBW - Charter member.  Other
interests and activities.  References available.

Cases

Most legal cases result in settlements or resolutions rather than published decisions.  These written decisions represent some of the victories and defeats, the ties and the travesties. 

Admiralty, Maritime and Fisheries:  1991 AMC 2002 (D. Alaska 1991) (Rule E(7) security for counterclaim); 1993 AMC 447 (D. Alaska 1992) (lien status of federal tax claim); 1995 AMC 1322 (D. Alaska 1991) (interplay of admiralty and bankruptcy); 1996 AMC 2478 (D. Alaska 1996) (limitation of liability proceeding); 1997 AMC 288 (D. Alaska 1996) (maintenance and cure and unearned wage claim); 1997 AMC 1880, 203 B.R. 297 (D. Alaska 1996) (interplay of admiralty and bankruptcy); 1998 AMC 2978 (D. Alaska 1998) (maintenance and cure and unearned wage claim); 974 F.2d 1343 (9th Cir. 1992) (admiralty wages and lien status) (unpublished); 30 F.3d 1123 (9th Cir. 1994) (wages); 56 F.3d 75 (9th Cir. 1995) (admiralty seaman status) (unpublished); 95 F.3d 23 (9th Cir. 1996) (jurisdiction).

Bankruptcy, Commercial and Real Estate:  1 ABR 243 (B. Alaska 1990) (unperfected security interest); 1 ABR 311 (B. Alaska 1991) (discharge action); 2 ABR 30 (B. Alaska 1991) (transactions costs of real estate sale); 2 ABR 32 (B. Alaska 1991) (timeliness of filing); 4 ABR 1 (BAP Alaska 1994) (constructive trust, unjust enrichment, equitable lien, reclamation claim, mechanic’s lien); 5 ABR 65 (B. Alaska 1997) (lien status of federal tax claim component of seaman’s wage lien); 6 ABR 256 (B. Alaska 1999) (non-recourse claim related to real estate lease); 8 ABR 193 (B. Alaska 2006) (liability insurance, settlement agreement); 8 ABR 282 (D. Alaska 2006) (liability insurance, settlement agreement); __ F.3d __, 2007 WL 2565063 (9th Cir. 2007) (liability insurance, settlement agreement)(unpublished). 

Construction, Surety and Contract:  80 P.3d 216 (Alaska 2003) (registration of construction contractor and jurisdictional issues); ___ F.3d ___, 2001 WL 1153243 (9th Cir. 2001) (Miller Act and status of subcontractor) (unpublished); 126 F.3d 348 (9th Cir. 2005) (Miller Act and other contract causes of action) (unpublished).

Contract, UCC and Internet:  107 P.3d 884 (Alaska 2005) (contract interpretation, Internet auction service and the UCC).

Employment; Wage and Hour:  26 P.3d 1082 (Alaska 2001); 17 F.3d 634 (Fed. Cir. 2003) (Two forlorn attempts for overtime payments and other claims).

 

Professional, Reasonable and Diligent Representation

This website is designed for general information only.  The information presented at this site should not be construed to be formal legal advice nor to create the formation of a lawyer/client relationship.

__________________________________________________

Printed at the request of a colleague. 

In re nets and the Internet:
Cable Companies And Commercial Fishermen:  Applicable International And United States Law

(c) 2013 Steven J. Shamburek All Rights Reserved

I. Introduction

     Cable owners claim to own the sea.  Commercial fishermen claim to own the sea.  Neither of them own the sea.  Cable owners and commercial fishermen have an equal interest in and right to use and enjoy the sea subject to limitations and protections.

     International law involving submarine cable owners and commercial fishermen is fundamentally simple.  One major treaty recognizes "freedom of the seas" including both "Freedom of fishing" and "Freedom to lay submarine cables and pipelines"[1] or, as stated in the subsequent major treaty, "freedom to lay submarine cables and pipelines" and "freedom of fishing."[2]  

     Cable owners and commercial fishermen are equal tenants of the sea.  Among the consistent provisions in the applicable treaties is a requirement that when one tenant sacrifices to protect another tenant, the benefited tenant must recompense the sacrificing tenant.  Thus, if a commercial fisherman sacrifices a net to protect a cable, the cable owner must compensate the fisherman.  The treaties acknowledge the resolution they would conclude if they could negotiate before an interaction or incident.  In most other respects, cable owners and commercial fishermen are left to accommodate their shared rights to use and enjoy the sea.

II. Discussion

A.  Sources Of International Law

     The sources of international law are generally accepted in the international community.  Section 102 addressing the "Sources of International Law" in the Restatement (Third) of the Foreign Relations Law of the United States ("Restatement (Third)") states:

     (1)     A rule of international law is one that has been accepted as such by the international community of states

          (a)     in the form of customary law;

          (b)     by international agreement; or

          (c)     by derivation from general principles common to the major legal systems of the world.

     (2)     Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.

     (3)     International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.

     (4)     General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.

(Emphasis added).  The Reporters' Notes at 1 state:

     Statute of International Court of Justice and sources of law.  This section draws on Article 38(1) of the Statute of the International Court of Justice, a provision commonly treated as an authoritative statement of the "sources" of international law.  Article 38(1) provides:

     1.          The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

         a.     international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

         b.     international custom, as evidence of a general practice accepted as law;

         c.     the general principles of law recognized by civilized nations;

         d.     subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

         The Statute of the International Court of Justice does not use the term "sources," but this Restatement follows common usage in characterizing customary law, international agreements, and general principles of law as "sources" of international law, in the sense that they are the ways in which rules become, or become accepted as, international law.

(Emphasis added).  Article 59 of the Statute of the International Court of Justice states:  "The decision of the Court has no binding force except between the parties and in respect of that particular case."  The United States Supreme Court states:[3]

     International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.  For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat.

International agreements/international conventions (treaties) and customary laws/international customs are the primary sources of international law.  There is a growing recognition that the "general principles of law recognized by civilized nations" incorporate many principles and doctrines of private law into international commercial and economic law. 

B.  Current International Law Governing The Legal Relationship Between Cable Companies And Commercial Fishermen

     The international law regarding the protection of undersea cables is generally established.  There are three applicable treaties and one enabling statute of the United States in addition to customary international law and traditional maritime tort law.[4] 

1.  Submarine Cable Convention

     The International Convention for the Protection of Submarine Cables, 24 Stat. 989-1000, T.S. 380, 1 Bevans 89, concluded at Paris on March 14, 1884 and proclaimed by the President of the United States on May 22, 1885, is the primary international treaty that establishes international law involving the protection of undersea cables.  The Cable Convention includes seventeen articles.  Article 1 states that the Convention shall be applicable "outside of the territorial waters" of the High Contracting Parties.  Article 2 states that the "breaking or injury of a submarine cable, done wilfully or through culpable negligence, and resulting in the total or partial interruption or embarrassment of telegraphic communications, shall be a punishable offense, but the punishment inflicted shall be no bar to a civil action for damages."  There is an exemption if the vessel owner is involved in "saving their lives or their vessels."  Id.  Article 7 states:  "Owners of ships or vessels who can prove that they have sacrificed an anchor, a net, or any other implement used in fishing, in order to avoid injuring a submarine cable shall be indemnified by the owner of the cable."  The Cable Convention has been adopted by over 40 nations.

2.  Geneva Convention On The High Seas

     The Geneva Convention on the High Seas, 13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82, was adopted at Geneva, Switzerland on April 29, 1958, entered into force on September 30, 1962 and proclaimed by the President of the United States on November 9, 1962 ("High Seas Convention").  Article 2 of the High Seas Convention discusses freedom of the seas and specifically protects "(2) Freedom of fishing" and "(3) Freedom to lay submarine cables and pipelines."  (Emphasis added).

     The High Seas Convention, particularly Articles 26-30, simply reaffirms the protection provided to submarine cables.  Article 27 states:  "Every State shall take the necessary legislative measures to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable shall be a punishable offense."  Article 29 states:  "Every State shall take the necessary legislative measures to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand."  Article 30 provides: "The provisions of this Convention shall not affect conventions or other international agreements already in force, as between States Parties to them."  Article 30 was included to ensure that the protections of submarine cables afforded by the Submarine Cable Convention of 1884 were still effective.

     The High Seas Convention has been adopted by over 62 nations.  The High Seas Convention is substantially superseded by the United Nations Convention on the Law of the Sea discussed below, although it is still in force for those nations such as the United States of America that are not signatories to the latter Convention.

3.  United Nations Convention On The Law Of The Sea

     The United Nations Convention on the Law of the Sea, 21 I.L.M. 1261 (1982), U.N. Pub. E.83.V.5 (1983), was adopted at Montego Bay, Jamaica on December 10, 1982 and entered into force on November 16, 1994 and establishes a basic framework for the regulation of the oceans, often described as the "constitution for the oceans" ("Law of the Sea").  The Law of the Sea addresses a wide range of issues.  Article 79 states that a nation is entitled to lay submarine cables and pipelines on the continental shelf.  Article 87 discusses freedom of the seas in particular "(c) freedom to lay submarine cables and pipelines" and "(e) freedom of fishing" each subject to other provisions and conditions in the Law of the Sea.  (Emphasis added).
     Article 112 states that a nation is entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf.  Article 113 states that any injury or obstruction of installations done willfully, through culpable negligence, or intentionally are to be treated as punishable offenses unless the act was done in a distress situation.  Article 115 provides that owners of ships who can prove that they have sacrificed an anchor, a net, or any fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline.  Article 116 protects the right of nationals to engage in fishing on the high seas subject to conditions.

     The Law of the Sea has been adopted by 149 nations.  The United States of America is not a signatory.

C.  Enabling Statute In The United States

Submarine Cable Act

     The United States Congress enacted the Submarine Cable Act of February 29, 1888, 25 Stat. 41-42, codified at 47 U.S.C. Sections 21-33, to give effect to the Submarine Cable Convention of 1884 discussed above and to establish the law in the United States.  The Act was amended to add other provisions in the Act of May 27, 1921, 42 Stat. 8-9, codified at 47 U.S.C. Sections 34-39. 

     The Cable Act provides no express private right of action and is primarily criminal in nature.  Under the Act, it is a misdemeanor to "willfully and wrongfully break or injure, or attempt to break or injure, or who shall in any manner procure, counsel, aid, abet, or be accessory to such breaking or injury, or attempt to break or injure, a submarine cable in such manner as to interrupt or embarrass . . .  telegraphic communication."  47 U.S.C. Section 21.  It is also a misdemeanor to inflict the same injury "by culpable negligence."  Id. at Section 22.  There is an exemption if a person breaks or injures a cable in an effort "to save the life or limb" or to save a vessel provided that the person took reasonable precautions.  Id. at Section 23.  Other misdemeanors defined in the Cable Act include certain navigational errors, id. at Sections 24, 25; failure to present official papers on demand to officers of ships, id. at Section 27; and installation or operation of a submarine cable without a license.  Id. at Sections 34, 37.  The Cable Act also states that "penalties provided in this Act for the breaking or injury of a submarine cable shall not be a bar to a suit for damages on account of such breaking or injury."  Id. at Section 28.

     There are about two dozen reported judicial decisions involving damage to submarine cables in the United States.  Half of the decisions are more than fifty years old.  There appear to be only two published cases for civil damages that discuss the Cable Act in some detail.[5]  No published case involves charges pursuant to the criminal provisions of the Cable Act.

III. Conclusion

    Cable owners and commercial fishermen are on an equal footing under international law.  Although these laws establish some of the rights and responsibilities, cable owners and commercial fishermen are left to address and resolve their shared rights to use the oceans.     


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]     Geneva Convention On The High Seas.

[2]     United Nations Convention On The Law Of The Sea.

[3]     The Paquete Habana, 175 U.S. 677, 700 (1900).

[4]     See American Tel. & Tel. Co. v. M/V CAPE FEAR, 764 F.Supp. 97 (D.N.J. 1991), rev'd, 967 F.2d 864, 877 at n.15 (3rd Cir. 1992) (These two Cape Fear decisions address and discuss many of the critical legal issues including a private cause of action.).

[5]     The William H. Bailey, 100 F. 115 (D. Conn. 1900), aff'd without opinion, 111 F. 1006 (2nd Cir. 1901) (citing Section 3 now codified at 47 U.S.C. Section 23 but not citing Section 8 now codified at 47 U.S.C. Section 28, the court awarded civil damages); United States v. North German Lloyd, 239 F. 587 (S.D.N.Y. 1917) (citing Section 4 now codified at 47 U.S.C. Section 24 and Section 8 now codified at 47 U.S.C. Section 28, the court found that civil damages were appropriate); see also M/V CAPE FEAR, 763 F. Supp. at 102-03 (discussing these two cases) and 967 F.2d at 875 at n.13 (discussing these two cases and noting a third case).


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