Sea Change

How Vince DeOrchis helped update 80-year-old maritime law

Published in 2010 New York Metro Super Lawyers — September 2010

In 1968, an 18-year-old deckhand aboard the Swedish cargo ship the M/V Grunsundra was working furiously at one of the vessel’s bulkheads—removing old paint and rust with a hammer and chisel in anticipation of repainting and rust prevention—when the Norwegian boatswain who had given him the task approached.

“There’s no race here,” the boatswain said. “You’ve got the whole bulkhead to yourself and it’s a long voyage. Just do it carefully. Make sure you do it right.”

Midway through that four-month journey, a new boatswain came aboard. He asked the deckhand to repeat the task—this time commanding him to throw on a new coat of paint as quickly as possible so he could show the captain fresh steel walls.

“That was an interesting lesson in life,” Vincent M. DeOrchis, the deckhand, says today. “There are some people who take pride in what they do and they want it to last forever. And there are others who just want to impress somebody else and couldn’t care less whether the ship would rust out from under them.”

DeOrchis, now of DeOrchis & Partners, has followed the former course while building a lasting maritime career. So much so that, in 2002, when the United Nations Commission on International Trade Law (UNCITRAL) was updating maritime conventions, some of which were more than 80 years old, the U.S. State Department chose DeOrchis as one of two maritime lawyer delegates.

The chance to be a part of something so monumental—a document that would replace all previous international conventions—was something he couldn’t pass up.

“I think every maritime lawyer who practiced significant cargo work had been frustrated with the state of maritime law,” DeOrchis says. “It was designed back in 1924, enacted in the U.S. in ’36, but it was so very, very old. There had been so many changes and improvements in the technology and operations of commercial shipping that you were constantly going into court trying to fit a square peg into a round hole.”

As example, he adds, “Back in the 1920s, 1930s, cargo was carried ‘break-bulk,’ which means that it was barrels or boxes or chests of cargo, or just loose cargo. Today, most of those goods are put into containerized vessels, an invention of the 1960s.”

Containerization meant that cargo owners didn’t have to go to the dock to pick up the goods themselves. “The result has been a tremendous struggle for both lawyers and courts, not only in the United States but around the world,” DeOrchis says. “If a loss occurs inside of a container, which has been moved [in global transit], the question is: Whose law applies? [Do] we have to go look for the situs of where the accident occurred? Do we look to the terms of the ocean bill of lading? Do we look to how far a particular convention reaches out? It became very confusing not only factually to determine where the loss occurred, but also what law to apply.”

His task was to help fix all that.

 

DeOrchis grew up in Queens and was introduced to maritime law by his father, M.E. DeOrchis, who became a maritime lawyer by happenstance. Assuming he would go into tax law, M.E. was hired by a maritime firm in 1949 because he knew Italian and the firm needed post-World War II documents translated. In 1956, M.E. used his Italian again to interview survivors of the Andrea Doria, the Italian luxury ship that collided with the MS Stockholm on its way from Genoa to New York.

The sea more than the law interested his young son. “I’ve always had a close connection with the sea,” says DeOrchis. “With sailing and boating.”

He mowed lawns to buy his first sailboat at age 10—a plastic model costing $99. He raced sailboats, including his own Rhodes 19, during college, and the summer after his freshman year at Fordham he sailed on the Grunsundra among Spain, Africa, Italy and the United States. Along with the dirty work—greasing cables and bolts (he lost count at 2,500)—his primary duty was to watch the cargo operations in the ports. DeOrchis, as a lawyer, is skilled in the art of negotiation and compromise, and he needed those qualities on this trip. In Portugal, he dealt with stevedores who, in the summer heat, purposely dropped boxes of wine onto the deck every few hours. “The bottom of the cases would crack and break open, and these guys would run underneath with their skin flasks and fill it up with wine,” DeOrchis says. Knowing loading would take three days, and knowing he would be reprimanded for the broken boxes, DeOrchis told the winch operator, “Look, go put six boxes aside and you guys can do whatever you want with them. But whatever you do, don’t drop anymore on the deck, because you’re going to get me into trouble.”

No more boxes were broken.

While studying law at Fordham, DeOrchis worked at a small boutique firm near City Hall, and dabbled in criminal law, tort work and divorce work. It didn’t stick.

“I toyed with those areas, but I must say there’s something about maritime law which is a little bit romantic and mysterious,” DeOrchis says. “You’re dealing with laws that go back literally thousands of years. It’s not really taught in law schools and there tends to be a very close bond with other maritime lawyers around the world.”

After graduating in 1974, DeOrchis took an offer from Haight, Gardner, Poor & Havens. It was, at the time, the largest maritime firm in the country. It was also where his father worked.

“It was difficult,” he says. “One never seems to meet the expectations as a son of a partner. Everyone always has their eye on you, always wondering whether you’re entitled to the position. The flipside of it for me is I got to work with 18 very good, very talented gentlemen.”

One of those gentlemen was Chester “Chet” Hooper, and, in 1977, the two worked together on the Vana Trading Co. cases: defending the ship owner against the cargo owner, whose load of yams rotted during the voyage. “It tested the question of: When there’s multiple causations of damage to goods aboard a vessel—some of which are the ship owner’s responsibility and some of which are not the ship owner’s responsibility—how do you go about portioning those damages?” DeOrchis says. The law at the time attributed the entire loss to the carrier, even if only a fraction of loss was due to the carrier’s negligence.

The case went up to the 2nd Circuit, where it was ruled a victory for DeOrchis’ client, who didn’t have to pay for the damages; but the principle DeOrchis and Hooper challenged—pro-rating damages—remained unchanged. “We were trying to give the 2nd Circuit an excuse to change it,” he says. “They nibbled at the idea, they thought it was perhaps a very good idea to change it and pro-rate the damages between the different causes, but at the end of the day they ended up saying, ‘Well, the law has been around for a long time and we’re not going to change it.’”

In 1996, his mentor, Hooper, then president of the Maritime Law Association of the United States (MLA), appointed DeOrchis chair of the MLA’s Committee on the Carriage of Goods—the committee that was working to modernize the 1924 convention. “I knew he was diplomatic,” says Hooper. “I knew that we had to get along with various different interest groups and I knew that Vince was good at that.”

The committee went so far as to create the proposed Senate bill, but the industry didn’t want just another international-convention document. They already had three: the Hague Rules of 1924, its amended version, Hague-Visby Rules of 1968 and the Hamburg Rules of 1978.

Then in 2001 the Comité Maritime International (CMI) took an interest in the effort, and this attracted the attention of the United Nations Commission on International Trade Law (UNCITRAL).

From 2002 on, maritime advisers to UNCITRAL, including DeOrchis and Hooper, met two weeks each year, one in New York and one in Vienna, struggling to reach a consensus. Between sessions, back home, industry members held private meetings to confront issues, working to create a unified position to present to the State Department, which held public hearings in Washington, D.C.

DeOrchis saw many U.S. industries come together, including truckers, freight forwarder organizations, American waterway operators, railroads. Even two major lobbyists—The National Industrial Transportation League and the World Shipping Council—played nice. “It’s like fire and water having joined hands,” DeOrchis says with a laugh. “I think every organization recognized that they lost something they would have loved to see in the convention, but in exchange they achieved harmony with their counterparts.”

Don O’Hare, a maritime consultant based in Alexandria, Va., who was at the meetings in his capacity as the vice president of the World Shipping Council, and helped draft new rules for cargo liability, says, “[Vince’s] advice to the U.S. delegation on behalf of the MLA was always extremely helpful and well regarded by the government negotiators.” It didn’t hurt, he adds, that DeOrchis was able to secure great seats for Yankees and Mets games during the negotiating sessions. “Listening to Vince explain the fine points of the game of baseball to the international delegates was extremely entertaining,” O’Hare says.

The hard work paid off. In December 2008, the final convention, United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, was approved by the working group. After the U.N. General Assembly approved it, the signing ceremony was held in Rotterdam, Netherlands, on Sept. 23, 2009, where 16 countries signed their intent to make the convention, the Rotterdam Rules, the law for their nations.

Of course actually making it into law is another challenge. DeOrchis hopes that once the president signs and the Senate consents to the Rotterdam Rules, other nations will follow. A year after the 20th country ratifies the convention, the convention will become law.

The significant changes include a significant increase in the limitation liability (from US$500 per package to US$1,312), pro-rating damages (which DeOrchis and Hooper brought to the 2nd Circuit’s attention 30 years ago), and the acknowledgment of more sophisticated cargos (which mandates the exchange of information so all parties can be prepared for the worst). DeOrchis is currently finalizing a settlement in a case that demonstrates the wisdom of this last change. A ship owner wasn’t informed by Chinese shippers of the cargo’s contents—pool cleaner sensitive to high air temperatures—and the vessel blew up midvoyage. “You’re in real trouble if you’re out at sea and your vessel catches on fire,” DeOrchis says. “It’s not like the fire department can come running out to you.”

DeOrchis says the new convention isn’t perfect but its improvements are vast.

“It’ll be a uniform, predictable, singular law that’s going to apply from place of beginning to place of end,” he says. “This is an industry that is governed by insurance, relies upon insurance, and predictability is the hallmark of insurance. When you have predictability then you can cover those risks and you can calculate premiums. It was definitely something that was needed.”

These days, DeOrchis’ own sailing is mostly limited to charter boats on the Caribbean. In 1995, as his career became more demanding and as his children’s interests changed, he finally gave up his sailboat. “The happiest day in the life of a boat owner is the day he buys his boat and the day he sells it,” says DeOrchis. But he still loves sailing, particularly, he says, “the peace and serenity, the fine-tuned control over something that weighs more than six tons, and the competition with wind and sea.” 

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