A PERCENTAGE OF ACTIVITY TEST FOR JONES ACT SEAMAN STATUS

ALEXANDER v, EXPRESS ENERGY SERVICES OPERATING  LP, (Federal Fifth Circuit 2015 Case: 14-30488  Document: 00513035192  Date Filed: 05/07/2015  http://www.ca5.uscourts.gov/opinions/pub/14/14-30488-CV0.pdf

OUR GHOSTLY LEGAL COMMENTATOR REPORTS ON A PRECEDENT MAKING CASE

 Greetings Justice Brandeis here. It's been a while, but as you know I've been dead for quite some time, a sort of ultimate retirement and it really takes  a corking good precedent making case to motivate me to write. As always thanks to my pal NAMAZU for the transcription services. Being dead, not just anyone can hear me. But I definitely received an earful while listening to oral argument in the Fifth Circuit Federal Appeals Court down in New Orleans recently. In a maritime personal injury case it is important early on to accurately determine the "seaman status" of the injured party. If someone working on the water is not a seaman their prayer for recovery from injury is pretty much going to be limited to that provided for in the Longshoremen and Harbor Workers Act. If an injured party is declared a "seaman" within the meaning of the Jones Act the initial potential for recovery may seem even more limited than in a Longshoremen and Harbor Workers Act case, but under the Jones Act a "Seaman" in aggravating circumstances may receive additional and even punitive damages.

 The U.S. Gulf Coast offshore oil and mineral industry is serviced by many workers who spend significant time aboard vessels traveling to or from various drilling or production structures. These workers are engaged in the maintenance and repair of such structures. The vessels they commute on are generally utility craft serving as a sort of maritime version of the pick up truck and crew van.  Other workers may serve aboard vessels such as lay barges which have as a mission of the vessel the creation, maintenance, or repair of offshore oil and mineral industry structures. The service technicians who live and work aboard these larger "industrial vessels" designed to have as a mission the construction, service, or repair of offshore structures are generally considered "Jones Act seamen" under the law as "crewmen" who contribute to the mission of the vessel. Those who are brought to work on crew boats and utility craft, and especially when they also perform similar services on occasion to shore based oil industry structures, often are not classed as Jones Act Seamen.

Traditionally, the seaman status test has two elements. First the claimant of seaman status must demonstrate that their duties contribute to the function of a vessel or the accomplishment of its mission. Secondarily the seaman status claimant must have an employment connection to a vessel or an identifiable group of vessels, in navigation.. In Alexander v. Express Energy Services the Federal Fifth Circuit Court of Appeals applied a test devised by the Federal Fifth Circuit as a partial indicator of seaman status.  The test is meant for situations where technicians travel aboard crew boats and utility craft, often owned by their employer, operated by a a Coast Guard licensed boat operator, and where they occasionally handle mooring lines or other simple chores related to the maneuvering of the vessel. However, in these cases the worker's primary tasking is the service of the oil industry structures. In such cases the Fifth Circuit applied a percentage of  time aboard test. The apparent Fifth Circuit rule was that if 30% of an employees time was spent aboard a vessel then Jones Act seaman status might be awarded for such workers. In the instant case (Alexander  v. Express Energy. Supra) the Appeals court considered evidence demonstrating that the plaintiff employees spent about 65% of their on the job time working on a fixed platform without any need for or contact with an adjacent vessel. Based on the evidence that the employees did not spend 30% or more of their time aboard vessels the appeals court upheld an earlier fifth circuit trial court ruling granting the defendants a motion for dismissal. This case moves the percentage of time test developed at the Fifth Circuit trial level to acceptability at the appeals level making the concept much stronger precedent. 

Well, stay dry and stay alive until next time.

Editor's note this and all previous comments by our lead legal analysts are in our ADMIRALTY LAW SECTION

                                                       

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WHY KURDISH WOMEN FIGHT THE ISIS

"Her War: Women vs. ISIS" (RT Documentary)
  https://www.youtube.com/watch?v=uqI0a4VgEs8&feature=youtu.be

 Here is the story of the Kurdish Women Soldiers who frighten the ISIS terrorists to death. They have learned to deal out death and per ISIS beliefs if one kills you, you go straight to hell. More power to you ladies! To watch the video on Youtube click HERE

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ISIS IN RUSSIA !

ISIS Declares Governorate in Russia�s North Caucasus 

Region -

 Map CIA WORLD FACT BOOK

 Important new article from the

 INSTITUTE FOR THE STUDY OF WAR:

Jun 23, 2015 - Harleen Gambhir

ISW assessed in early June 2015 that one of ISIS�s most likely courses of action during the Islamic holy month of Ramadan would be to declare a governorate in Russia�s North Caucasus. ISIS indeed announced the creation of a new governorate, called Wilayat Qawqaz (Caucasus) in the region on June 23, 2015, after several senior militants in the area pledged allegiance to ISIS.

INSTITUTE FOR THE STUDY OF WAR

 Not so long ago we wrote a post on our worst nightmare, an Islamic state with a powerful navy. Basically we saw two scenarios where such a state and navy might emerge in the "near term future", such as by mid century. First we speculated that if Europe didn't get a grip on its immigration /Islamofascists aggression problem; France , Britain, the Netherlands and  one or more of the Scandinavian countries could become Islamic states. The contributions of these states, thankfully still self governing, and democratic to the "NATO Navy", are substantial. If their naval forces fell into Islamic hands, there would be an instant and regionally (North Atlantic) powerful Islamofascists navy able to reach the U.S. to combine with our own internal 5th column Muslims to turn America into the kind of battle ground Syria and Iraq are today. The other even more scary scenario would be if the Russian Islamic minority   ( a whopping 29% of the population today and growing) , took over Russia placing a powerful nuclear force as well as an invasion capable Navy in Islamofascists hands. 

 The  INSTITUTE FOR THE STUDY OF WAR has published a report indicating that Southern Russia is already under Islamic assault, and the only thing that has allowed Russian forces to not become strained in attempting to reclaim control of the region is that al Qaeda and ISIS are engaged in a civil war within the region to see who will dominate their new self declared Emirate. In other words Russia is not  facing a clearly unified enemy in the region just yet, despite the fact that the region is clearly in Islamic inspired rebellion against Russia. We urge our readers to use one of the links to cross over to the  INSTITUTE FOR THE STUDY OF WAR to read this article in its entirety. You probab;ly won't be getting anything on this amazing and frightening development from U.S. net work news sources any time soon. 

                                  

-http://understandingwar.org/backgrounder/isis-declares-governorate-russia%E2%80%99s-north-caucasus-region

Ihttp://understandingwar.org/?utm_source=ISIS+Declares+Governorate+in+Russia%27s+North+Caucasus+Region&utm_campaign=What%27s+Next+in+Syria%3A+A+Six+Month+Forecast&utm_medium=email#sthash.PKSGoMaR.dpuf

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CHINA's INVISIBLE FORCE IN THE SOUTH CHINA SEA

HOW FAR WILL THE DRAGON SWIM? IS IT BREEDING UNDERWATER?


Photo: USN

We recently reported that China has apparently slowed down or even halted their construction of artificial islands in the South China Sea. In that post we noted that we didn't really think it was an overture of peace with the Dragon's neighbors. Rather we believe the Dragon has built enough of these outposts to serve its purpose of wresting the exclusive economic zones of its neighbors and pocketing the potential revenues. Artificial islands are expensive to build. But they do lend a certain near credibility to Chinese claims of soverignity over the watery turf of neighboring states like the Philippines. Now we have to wonder, were the artificial islands in fact not ever part of a "lawfare" scheme to win in an international legal contest decided by an international tribunal? Perhaps the Dragon always intended to take the area by naval force? Perhaps the artificial islands are part of a quite different scheme that not only involves stealing the fisheries and offshore mineral rights of neighbors but also "pushing the U.S. Navy back to Pearl Harbor". What is happening or could be happening under water near these artificial islands claimed by China smacks of a naval war plan.


Photo USN


 The Dragon has a growing fleet of nuclear propelled ballistic missile submarines. In addition to the economic reasons the Dragon always puts forth for wanting all of the South China Sea, and the Dragon;s bogus historical claims, it probably also wants a hideout for this strategic submarine fleet. In the waters near the artificial islands the Dragon may be constructing a deep water haven for its strategic submarine fleet, where a large portion of the fleet could avoid detection. The sea floor in much if the south China sea is characterized by underwater canyons, a perfect hideout for a submarine.


 China's land grab in the South China Sea is expected to be a major bone of contention in upcoming meetings between the U.S. Secretary of State and Chinese Vice Premier Wang Yang. China is coming into the talks claiming that it has wound down its construction of artificial islands. This may be true and we might even see some willingness to make minor compromises with their neighbors like moving the line of their claims a little farther offshore of the Philippine main island beaches. Presently their claims virtually run right up the low water mark on some Philippine beaches. Nothing like the appearance of an olive branch and and an apparent cessation of obviously hostile activity to lull an incredibly inept U.S. administration into not looking too carefully at the Dragon's real objectives. We think they are trading almost meaningless concessions on their land grab to mollify a hair brained U.S. administration into not looking into the mouth of a trojan horse. The real goal is an undisturbed, if not undiscovered submarine base well out to sea from the Chinese mainland. 

 The U.S. goal of late has been solely focused on getting China to ease its reclamation efforts and its militarization of the artificial islands it has created. China now says its through building islands but intends to "develop those it has finished. " This literally gives China fortified naval installations and a major hidden submarine base smack in the middle of one of the world's  busiest and important shipping lanes of vital interest to Japan and the U.S. West Coast trade. But going into the new talks the U.S. Secretary of State appears to have only one agenda, stop island construction. Thus our bogus administration gets an assured win that will be lauded by the U.S. lap dog media and this will all go down without mention of the submarine threat. 

The South China Sea is  bounded by Vietnam, China, Taiwan, Japan, the Philippines and Malaysia.  The area is one of the world�s most important international shipping lanes. Under codified (UNCLOS) international law much of it is "international waters. Yet, China claims that  it holds maritime rights to about 80 percent of the sea, and not as the usual international right of ways such as exclusive economic zones but as the territorial sea of China China's claim is  vigorously contested the neighboring states and international shipping interests.

Beijing views the South China Sea as a strategic holding as  it guards China�s southern flank. That flank includes  a submarine base in Sanya, on China�s Hainan island. The People�s Liberation Army Navy (PLAN)  has constructed  underwater entrance ways  there to quietly dock some of its submarines, including those that carry ballistic missiles. In recent years , China has built  up a nuclear deterrence or attack  capability in of lesser size than that of the United States or Russia. But its still enough  to blow up the world. The Dragon's  submarine program is a major part of that nuclear weapons program.. Because  submarines can often avoid detection, especially with such obvious preplanning, they are less vulnerable to a first-strike attack than land-based intercontinental ballistic missiles or nuclear bombers. 

At the moment, China�s JL2 submarine ballistic missiles can't reach the United States from the South China Sea.   But the Dragon seeks to improve the range of those missiles in the near future.  But their subs forward deployed many may be able to put the U.S. West Coast at risk from positions in the Pacific beyond what China calls the "First Island Chain". It is far easier a nuclear sub to slip away from an underwater haven hundreds of miles from the obvious Chinese submarine pens and reposition in the Pacific than to slip out of a mainland port undetected. 

 We actually seen this "submarine bastion" strategy before used by the Soviets during the Cold War. There are U.S. naval analysts who are convinced that the Chinese are adopting a submarine bastion strategy but who will not speak out forcefully due to administration opposition. There is no doubt that the goal of the Submarine bastion strategy is to position missile subs where their ordinance can reach the United States. China is waving the olive branch over the artificial islands for two simple reasons. First the Dragon wants to protect its submarine bastion. Second it wishes to convince the Philippines to not allow rotational U.S. armed forces into its territory. The utter incompetence of the U.S. Secretary of state and his boss will pretty much insure that the Dragons lair is safe. However the Philippines is not so willing to give in to the Dragon. They have recently begun to warm up to Japan, their invader and occupier in WWII in the hopes of mutual defense. Why would they throw out their long time friend the U.S. when we are bound by formal defense treaties and they are looking for allies? We don't see much coming out of these talks but bluster and a delay in the commencement of open hostilities. The Dragon is still swimming towards the Philippines and the U.S. continues asleep at the switch, but so latently powerful that the Dragon wants to approach slowly. Meanwhile back at the White House the administration works daily to further diminish the remaining power of the United States. 

     


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RUSSIANS LIMITING ARCTIC OIL CARGOES TO RUSSIAN FLAG TANKERS

PD Non Russian Tanker in the High Arctic in Summer

 This will probably not be good news for Russian tanker operators, most of them operate under flags of convenience. 

New Russian regulations by the Ministry of Transport propose to severely restrict shipping with petroleum products in Russian Arctic waters. This gets really sticky when we stop to consider that Russia claims all of the Arctic Ocean from their Arctic shoreline to the North Pole. If adopted, companies will be prohibited from exporting Russian Arctic oil and gas with foreign-registered ships. As is common in cabotage law, the ministry is also considering banning Arctic oil shipping via vessels that are not Russian built, even if Russian registered. 

The regulatory proposal is largely seen as a negative response to western  sanctions against the Russian Arctic oil industry. Those sanctions are severely impacting Russian operators Rosneft and Gazprom both of which are highly dependent on western technology and consultants for Arctic field developments.

Rosneft has announced the postponement of several projects. Apparently the ministry is deadly serious about limiting oil transport to Russian tankers regardless of negative impacts on Russian related business. In partial mitigation, the ministry has extended field license terms for Rosneft. Given the present world oil glut and consequent low prices the Russian operators may not be as damaged by the delay in bringing the oil to market as it at first appears.  

The new rules however are likely to create far more damage to Russian shipowners than to foreign shipping competetion.  Most Russian tanker companies are using flags of convenience like Liberia and Panama including  Russia�s biggest shipping company Sovcomflot. Sovcomflot's  most recently planned LNG carriers are all planned to be registered foreign. Western maritime analysts believe that the  Russian shipbuilding industry is not yet ready to service the construction of the number of ships needed.

Russia won't have a major tanker yard capable of VLCC or ULCC production until the new Zvezda yard near Vladivostok is complete in 2018. We don't see the issues with the proposed new regulations as a deal killer for the Russian government. They will simply grant exceptions and exemptions to keep the oil moving as soon as it is profitable to do so, and rigidly enforce the policy once they have the fleet they want. Russia is not going to kill off their tanker building or operating sectors. Russia is a crony capitalists state the government and the firms in favor will do all right.

 

Big Oil Playground, Russian Bear Preserve or European Periphery?: The Russian Barents Sea Region towards 2015Paperback � May 15, 2005

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HOW MUCH OF A DIRECT THREAT TO AMERICA IS ISIS?

ISIS DIRECTLY THREATENS THE U.S. MOSTLY BY INFORMALLY ATTACHED "LONE WOLFS". http://nationalinterest.org/feature/how-much-does-isis-really-threaten-america-12993?page=show


U.S. Navy Photo by PO-2 Eli J. Medellin, USN


 We also have ISIS word for it that they have planted probably an exaggerated number of trained and formally affiliated terrorists agents into U.S. society. They have also attempted to encourage lone wolf assinations of individual American military personnel by identifying such individuals on their website  http://americanadmiraltybooks.blogspot.com/2015/03/isis-urges-sympathizers-to-kill-us.html  . Their active recruitment of Muslim Americans is obvious, even spreading to the incident that we recently reported  of coming onto a U.S. Marine Base in the continental United States and spreading recruitment style brochures .http://americanadmiraltybooks.blogspot.com/2014/11/isis-presence-on-quantico-marine-corps.html. We believe that ISIS poses a direct threat to the U.S. mostly through its efforts to recruit and motivate lone wolf agents, much as the general media does, but we also are concerned with real trained agents who are in America and their ready access to our country through our uncontrolled southern border. We recently came across an article in the online version of the magazine THE NATIONAL INTEREST by Alex Ward. Mr. Ward makes some very valid points about why ISIS presently isn't worth a lot of paranoia. Like us he identifies our porous southern border as a major concern not only because the wave of illegals is flooding us with welfare claimants, illegal voters, criminals, drugs and other problems but because it the major avenue of invasion by groups like ISIS. http://nationalinterest.org/feature/how-much-does-isis-really-threaten-america-12993?page=show

 We disagree with his over all assessment that ISIS isn't much of a threat to the U.S. at the moment. We see it as a threat that is constantly increasing. We are concerned with reports of ISIS "cells" just over the border in Mexico, ISIS claims of having formally affiliated and trained agents in the U.S. and their claims that they want to and know how to smuggle a nuclear device into our country. We agree with some of his suggestions for dealing with the threat but disagree with his basic sense of a lack of urgency. We need a coherent strategy to deal ISIS a decisive death blow now. We also need a decisive strategy for dealing Wahhabi influenced Islam , the source of Islamic violence against each other and the Western societies a decisive death blow. This has gone on long enough. Those who want to live in the seventh century should be pushed back into the desert so far and become so isolated that is exactly how the remnant of of the Islamofascists of every stripe are forced to live.

 Despite, our fundamental disagreement with Mr. Ward's lack of urgency, we found his article interesting and containing many nuggets of truth. We link you to it and urge you to read it because it illustrates that at least a few members of the general American media are starting to see things that we have been reporting for months, even years. We've also linked a few of our related previous posts so that you may read our related views as well as this latest assessment by a professional journalists , compare and make up your own mind. We think "alarm" is perhaps unjustified, but the need for immediate effective action is apparent while the worst of the threat which is very real is still a bit into the future. Here is the link to Mr. Ward's article: http://nationalinterest.org/feature/how-much-does-isis-really-threaten-america-12993?page=show

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CHINA RECALLS SELECTED NAVAL RESERVISTS FOR POTENTIAL CONFRONTATION WITH THE UNITED STATES

THE DRAGON IS FLEXING MUSCLE

Photo: U.S.Navy

THE PEOPLE'S LIBERATION ARMY'S NAVY IS RECALLING  MANY OF ITS RECENTLY RETIRED SENIOR PETTY OFFICERS TO ACTIVE DUTY TO MAN AN EXPANDED FLEET AGAINST U.S. FORCES

 

 You won't read about this is our national media, but it's no state secret in China, and if you happen to have someone who reads Mandarin with native fluency and monitor such Chinese media; the evidence of this is as clear as a bell. Between June 16 and 17, 20015 Chinese naval authorities have been putting out the call for the return to active duty of a large number of recently retired naval senior petty officers, just the sort of people who operate and maintain navigation, propulsion, and weapons systems. There are no "90 day wonders" in the senior petty officer corps you have to have an amazing skill set of proven value and the proven ability to perform when the chips are down. If you are going to have a rapid naval build up the only way to build up this capacity fast is call up reserves or retirees. That is exactly what the dragon is doing today. 

 The PLAN has recently recalled nearly all of its senior petty officers (non commissioned) who have retired over the last two years. The PLAN make no secret about the fact that the call up is for a potential military confrontation with the United States over the South China Sea. Our unique sources tell us that the order for recall was issued by political bureaus of their original naval units and or the local "People's Armed Forces Departments". Part of the urgent need is simply to man the greatly expanded fleet which has grown in ship numbers faster than the lengthy apprenticeship programs can produce petty officers. As any navy institutionally knows, senior petty officers require time and experience to build, the alternative of intensive rapid training never produces the desired results and there are casualties involved to men and material when the operators and maintainers training is compressed. Of course the massive fleet has many functions other than confronting the United States. China has its own legitimate exclusive economic zone and territorial waters to defend plus it is busy attempting to seize the exclusive economic zone waters and water bottoms of neighboring states. The recent story we carried yesterday (June 18, 2015) of China's backing off commitments to build more artificial islands in the South China Sea looks a bit like a bone tossed toward the U.S. and its regional partners. But as we noted China has built over 2,000 acres of artificial island land in the disputed areas and intends to keep up military development on these parcels. 

 So does the recall of the PLAN's senior petty officer corps mean war over the Spratly Islands? We don't think so in any immediate fashion. First despite superior numbers China would be highly unlikely to emerge victorious just now. They would likely face combined U.S., Japanese, Philippine, and Australian naval units with many being technologically and tactically superior. If facing a combined force China's numerical superiority over the U.S. Seventh Fleet shrinks. China is hemmed in by the "First Island Chain"which are actually off shore nations like the Philippines. Not only can these nations offer naval resistance but they can direct weaponry out to sea from shore. The U.S. Navy has a very long reach and may be able to largely stay in the relative safety of the open Pacific and conduct a naval air war with the Chinese fleet and not even enter the South China Sea until there has been serious attrition to China's fleet. In other words, at this moment in history China could be setting up to become "fish in a barrel". 

 But make no mistake about it. The build up continues and the avowed goal of China about which it makes no denial is to "push the U.S. Navy back to Pearl Harbor" and to occupy and administer the South China Sea out to the "first Island Chain  as the virtual territorial waters of China. If it is not about to happen this month or this year it is still the long term goal. The recall of the retired petty officers is a step in that direction. 

 

 

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ARGUMENT: The South China Sea Could Become a Dangerous Contest of Military Might Here�s How the United States Can Prevent That.

At least Howard French Thinks So. http://foreignpolicy.com/2015/06/05/south-china-sea-dangerous-contest-military-united-states-navy/

HOW FAR WILL THE DRAGON SWIM? 

 The famous 9 dash line that China claims encloses the south China Sea as the private property of Beijing first appeared in 2008 according to an article in Foreign Policy Magazine which appeared June 5, 2015 by Howard W. French. Here is a link to the article:
http://foreignpolicy.com/2015/06/05/south-china-sea-dangerous-contest-military-united-states-navy/   
Be forewarned that if you don't have a subscription you may not be able to read it. 

Howard French writes for the Foreign Policy Magazine which is a subscription publication on the Internet. We link it for you above. You may be able to read this single article without a subscription if you use our link to copy down the URL and then link to it on your own. They frequently allow one time reviews of articles of special interest.  We have a few selected quotes below. 

"The United States became a global power in two steps. First, it achieved supremacy in its own hemisphere. And second, beginning with the end of the 19th century Spanish-American War, by projecting its strength overseas via a navy that could dominate either of the world�s two largest oceans � by setting out at its leisure from either the east or the west coast (plus the notable additions of Alaska, Hawaii, and Guam).

China, by contrast, is surrounded by historically troublesome, terrestrial neighbors, and its one coastline, in the East, is bottled up North to South by a long string of countries from the Korean Peninsula to Indonesia, which it refers to as the �first island chain.� Moreover, since World War II, the United States has maintained military alliances with many of the key nations off China�s coast, most notably Japan and the Philippines. For over seven decades now, American bases throughout the region have helped make the U.S. Navy the preeminent force in the seas off China." From the June 5,2015 article by Howard French in Foreign Policy Magazine

"At bottom, the unfolding dispute between Beijing and Washington is about two tightly intertwined issues that will go further than most realize in determining the future of the international order. The first is how major powers should interpret maritime law � and China and the United States take radically different positions on this, befitting their very different geographic circumstances." From the June 5,2015 article by Howard French in Foreign Policy Magazine

 We have been warning that the China Seas (East and South) have the potential for starting WWIII. The quote above is spot on, the world must decide how the international law of the sea is to be determined. The present international law  of the sea convention is weakened by the lack of U.S. ratification yet we find ourselves constantly arguing that various provisions of  the United Nations Law Of The Sea Convention (UNCLOS) should be applied in this and that controversy. We go right down the line in arguing for application of certain convention provisions in the island disputes of the South China Sea. Yet we have not ratified this convention. 

  We should first ratify the convention taking specific exception to as few of the provisions as possible. We have not yet  ratified it though it codified many U.S. / British long held positions as codified international law. There were some provisions that appear to somewhat restrict our naval movements  under certain circumstances , but even our U.S. naval leadership  more recently have taken a position in favor of adoption of the convention. If UNCLOS becomes more widely adopted it takes on the power of codified international law and makes China's views of a closed sea much more difficult to legally defend. 

 China is acting like a thug state in all of this, but simultaneously and selectively is entering international legal forums  attempting to sell their idea of a closed sea. The United States already urges sympathetic states in the Western Pacific to take their cases against China to the Law of the Sea tribunal, like the Philippines has done.  But we have not done anything to underpin the present consensus in maritime international law, a consensus that bodes well for the Philippines and Vietnam, and our commerce moving through the area.  The article cited in this post notes; " If China continues to build artificial islands and equip them militarily, it may be necessary to steam into waters claimed by Beijing on dubious grounds." Fortunately as we published yesterday, (June 17, 2015) the Chinese have recently ceased building artificial islands in the region as a sort of olive branch  to neighboring states, but they continue to fortify and militarize the existing 2,000 plus acres they have already built. Calling China out legally allows a range of smaller countries to take a stand and shipping interests including the U.S., to stand on a rules-based international order  rather than managing the situation solely as a dangerous contest of military might. We appreciated the appearance of Mr.French's article since we are not only largely in agreement but have in fact been advocating the same thing for nearly three years in these pages. Nice that a conventional media outlet is publishing along the same lines on the issue. 

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CHINA APPEARS TO BE SLOWING ARTIFICIAL ISLAND DEVELOPMENT IN THE SOUTH CHINA SEA

CHINA APPEARS WILLING TO HALT CONSTRUCTION OF ARTIFICIAL AND ENHANCED ISLANDS BUT UNWILLING TO STOP DEVELOPMENT PROJECTS ON THOSE ALREADY CONSTRUCTED

Chinese Artificial Island Construction in The South China Sea, Photo Philippine Dept. of Foreign Affairs

BEIJING � China announced on Tuesday June 16, 2015 that it will soon stop building artificial islands and island like enhancements around submerged and semi submerged reefs and shoals in the South China Sea but that the dragon would continue military and civilian development on the already completed projects.

The announcement may have been intended to ease tensions with the United States. The U.S.  has strongly criticized the building of the artificial  islands and has sent surveillance flights close to the sites. , The whole point to the sights is to enhance China's illegal claim to vast parts of the exclusive economic zones of the Philippines, Vietnam and other maritime neighbors. Under international law effective settlement is the most weighty evidence in a dispute over uninhabited territory. Strategic island ownership can dramatically affect the drawing of exclusive economic zones by international tribunals. The construction of facilities, on the existing but illegally created sites would further establish the sites as islands that China could claim as its territory. There are probably three reasons why the dragon has decided to cease building new islands. First it probably has enough now to dramatically affect its claims in international tribunals. Second constructing artificial islands is very expensive. Third ceasing artificial island construction would probably silence U.S. criticism while doing nothing really to change the Chinese position. 

According to an announcement of China's Foreign Ministry web site some land reclamation projects now under construction will be completed in the Spratly archipelago in the �coming days.� 

According to the website  the sites in the Spratlys would be used for �military defense needs� as well as �civilian demands,� including maritime search and rescue efforts, disaster prevention and mitigation, scientific research, meteorological observation, navigational safety measures and fishery services. The website, of course, didn't mention aiding in legal claims of watery territory once clearly part of  the EEZs of China's neighbors. 

According to the website; �After the land reclamation, we will start the building of facilities to meet relevant functional requirements,�

A foreign ministry spokesman  repeated  earlier remarks defending the building of islands, saying that it fell �within the scope of China�s sovereignty,� was not targeting any other country  (except of course the previous holders of the exclusive economic zones in which the islands or shoals were located) and "would not affect freedom of navigation or overflights allowed by international law". 

In some instances the word garrison was used to describe some of the islands. In April,  a Foreign Ministry spokesman used the same term for some sites and said military defense would be one of the uses of the sites. 

U.S. sources  say that  China has built over 2,000 acres of land around reefs and shoals over the last 18 months. American officials and leaders of Southeast Asian nations began criticizing the moves in early 2014. The dragon didn't appear to be impressed with the protest then and actually began accelerating construction. It is not out of good will that the Dragon stops now. Their goals have simply been accomplished. . 

China, Taiwan and several Southeast Asian nations make territorial claims or exclusive economic zone claims in the the South China Sea. The United States official position is that  it does not take sides in the sovereignty disputes, but it insists that all nations must refrain from interfering with freedom of navigation and from raising tensions. 

Vietnam and the Philippines have built on actual islands within their EEZs, and in some disputed waters, but that has largely consisted of constructing buildings vice land reclamation. Much Vietnam's and the Philippines' construction  took place before 2002. In 2002  China and several other claimants  signed a nonbinding agreement in which each vowed not to act provocatively. 

One source noted that Shi Yinhong, a professor of international relations at Renmin University in Beijing, said  that China�s announcement �could greatly reduce its strategic conflicts with the United States, at least at this stage.� Yinghong also added that it could  �generate an amicable atmosphere� before Xi Jinping, the Chinese president and head of the Communist Party, visits the United States in September. Of course they never mention that they have already built more than enough artificial islands and shoal to island conversions to materially support their claims to the maritime exclusive economic  zones of neighbors.

And of course,  Mr. Shi stated that  the announcement did not necessarily mean that China was permanently ending land reclamation efforts and regardless, the United States would remain unhappy with China�s behavior in the South China Sea. Of course we will be unhappy;  the Dragon intends to continue to violate international law at the expense of our regional allies. Despite the apparent olive branch we still see the swimming dragon as a fire breather who will eventually have to be stopped like all previous thug states by force of arms. 

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PIRACY IN NIGERIA TAKES AN UGLY VIOLENT TURN

PIRATES KILL A NIGERIAN NAVAL OFFICER IN BAYELSA STATE

 Pirates captured by USCG , U.S. Coast Guard photo by LCDR Tyson Weiner by  

According to American Admiralty Books private sources on June 14, 2015 pirates operating along the rivers and distributaries of the Niger River Delta shot and killed a Nigerian naval officer in the Akassa area of Brass local governmental unit in the Bayelsa State. According to our confidential sources the gunmen opened fire on a naval patrol craft. Naval patrols had been increasing in the area which is plagued by attacks on oil cargoes. According to our sources the pirates initially complied with commands from the patrol craft at a checkpoint then opened fire on the navy vessel while the crew was communicating with another civilian craft complying with the checkpoint protocol.  Reportedly the pirates numbered about three and sped off after delivering the attack. The as yet unidentified officer's body was recovered and as of this writing has been delivered to an unidentified morgue in Brass.

ANALYSIS:  The Nigerian Navy has been effective of late in reducing piracy but now seems to be coming under heavier fire from piratical forces. This is a new and violent turn for piracy in Nigeria. The small vessel that the pirates arrived at the checkpoint with did not attempt to push through to some objective beyond the checkpoint but appears to have made an attack on the Checkpoint itself for the express purpose of eliminating it or making a "mission kill" eliminating its effectiveness for some specific time frame. This seems a very military like move and may indicate some serious economic power behind the pirate population, that doesn't like having its profits interfered with. We wrote not long ago lauding the efforts of the Nigerian Navy at anti piracy. We think they will continue to hang tough but clearly they now face a well armed, well financed, trained enemy. Meanwhile the world's media still rarely reports on the situation. We will continue to monitor and publish on it until we see more media interest. As we have explained many times we are not a full blown journalistic organization usually we simply provide you with links to marine specialists news organizations in our NEWS AND INTELLIGENCE RESOURCES SECTION but we do have sources not enjoyed by every professional news source out there. When we become aware of an under reported area of interest we report independently until the usual media begins to provide coverage.

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NAMAZU'S PAL VIC'S THOUGHTS ON D DAY

JUNE 6Th, 1944:  THE PRICE OF FREEDOM


Photo by CPHOM Robert F. Sargent USCG (August 26, 1923 � May 8, 2012) : U.S. Coast Guard manned USS SAMUEL CHASE disembarking troops of Company E 16th Infantry at Omaha Beach. Photo available through the National Archives Administration under title "INTO THE JAWS OF DEATH"  Approximately 2,500 of the 60,000 U.S. Infantrymen and 2,500 paratroopers were injured, killed, captured, or missing in action in the first 24 hours of Overlord. 

 TODAY VIC SOCOTRA WROTE:

..:June 6, the anniversary of The Longest Day at Normandy, seventy-one years ago.  And the end of the Battle of Midway in 1942. If the Japanese had won at Midway, they would have eliminated American carrier-based airpower and established a new outer security perimeter for the Greater East Asia Co-Prosperity Sphere.�

"�Ike apparently wrote down some remarks about failure in case the weather went wrong or the beach-heads could not be held. It was something like: "Our landings in the Cherbourg-Havre area have failed to gain a satisfactory foothold and I have withdrawn the troops. My decision to attack at this time and place was based upon the best information available. The troops, the air and the navy did all that bravery and devotion to duty could do. If any blame or fault attaches to the attempt, it is mine alone. What a guy. We don�t have people like that any more."

"We talked about other things, and the difference between the wars we are fighting now and the ones we did then. But it is worth remembering what was given that day, and what those young people confronted afterwards in the hedgerows of France on the long walk to the Rhine that followed, don�t you think?"

FREEDOM ISN'T FREE.  READ ALL OF VIC's D DAY THOUGHTS AT : www.vicsocotra.com

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NAMAZU ON THE PAPAL RECOGNITION OF THE PALESTINIAN STATE

THERE IS A DIFFERENCE BETWEEN RECOGNIZING A STATE AND A GOVERNMENT. THAT DIFFERENCE CAN BE USEFUL.

NAMAZU GIANT JAPANESE CATFISH AND FORMER DEMIGOD, NOW MARITIME ANALYST

 Bipeds don't miss this opportunity. Recently my pal Pope Francis gave our editor Johnas Presbyter apoplexy when the Vatican states recognized the Palestinian State.   For a while old Johnas seemed more outraged by the Vatican recognition of the Palestinian State than  Obama's recent unilateral withdrawal of Hamas from the U.S. official list of terrorists organizations. Had the Pope lost his mind and was he drinking the same cool aid as Obama who Johnas is certain is a "Mussee/Commie"? I don't think so. Try to remember that the Catholic Church has had a pope since St. Peter, that's well over 2,000 years of an organized papacy. For hundreds of years the papacy has simultaneously been a governing authority for the world's largest religion and a state within the meaning of international law. I have been around in my giant catfish form for 3,000 years. I've seen it all. I've seen international law evolve and I've seen pope guys step up and intervene in worldly politics. Sometimes these pope guys have been pretty ham handed, but not so much in the last 400 years. The Vatican is very mature as a state, and a state it is, with all rights as such found in international law. The Vatican can send and receive ambassadors, address other heads of state and governments, address the United Nations, enter into treaties, and sue in international tribunals. Indeed the Vatican may well have the longest continuous practice of state craft of any other nation on earth and the longest time under an unchanged system of governance ever recorded.

NAMAZU'S PAL POPE FRANCIS

 In short Pope Francis has a pretty astute set of diplomatic and international legal advisers and a unique view point on world events. So why, why , why on God's green earth would Pope Francis recognize a state governed by a freely elected terrorist organization? Johnas Presbyter wasn't the only staffer totally baffled and disappointed by this turn of events.  Johnas nearly went protestant over the Vatican recognition of the Palestinian State. 

 However, I have a different perspective that I'd like to share with everyone. To understand what the Pope may be up to you have to keep in mind a couple finer points of international law. "States" exist separately from "governments". In Great Britain their view of "separation of powers" includes a very important division that the U.S. founding fathers ignored when drafting the U.S. constitution , so famous for its prudent "separation" of the executive, judicial, and legislative powers. In Britain the monarchy is head of state and the prime minister, himself a member of the legislature, is head of government. The Crown sends and receives ambassadors, hosts head of state diplomatic events, opens and closes Parliament. The people can and have on occasion ended a "government " very suddenly with a vote of "no confidence". During the reorganization of the legislative and executive branches of government the State remains active in the world and recognized by other states and governments. The duty of the Crown after a vote of "no confidence" is not to govern but to assure that a government is rapidly formed. This is pretty much how constitutional monarchies like Britain, and the Netherlands, or Japan work. Constitutional monarchs are important diplomatic players on the world scene and something of a straightening hand on the tiller of state. 

 Some nations divide the role of government and state into two elective officers; a President as head of state usually serving a longer term than the "prime minister" ,who heads "government" ( a mix of the legislative and executive functions). France, and Russia follow this pattern. Still others combine the role of head of state and head of government into one officer, most often called "the President" and commence worrying incessantly that the incumbent is becoming "an imperial president" . Most despots follow this model but minimize the separation or independence of the legislative or judicial branches. The United States has somewhat minimized the "imperial presidency" by maintaining a real element of separation between the judiciary and the legislative bodies, and the executive element which clearly has the President as head. But it is hard to master "Statecraft" when statesman like experience is a rare quality in a U.S. Presidential candidate. 

The Popes have always led a theocratic government of both the universal church organization and the Vatican State. The Pope is both head of state and head of government. However with over 2,000 years of institutional operational experience the Church and the Vatican may have the trappings of an absolute monarchy, but they are running something far more sophisticated and experienced.  The Pope and his adviser's, diplomatic corps, deliberative bodies, all have a distinct appreciation of the difference between "government, and state". At some level so do most western governments even that of the United States just not within the U.S. administration at the moment.

 When Germany was utterly defeated the Nazi government was utterly destroyed, Hitler had committed suicide. All executive functions and legislative functions had virtually ceased. Yet the allies still sought out someone in authority to sign the unconditional surrender document. The last element of the state left standing in Germany was the military so general and flag officers were sought out. These officers were the sole surviving organizational element of the German STATE. Germany was a defeated state , but a state nonetheless. The allies wished to make it clear to the German people that they continued to be part of a State which was about to be held accountable for unlawful and inhumane behavior. Some officers of the defeated Nazi government would be tried for violations of international law or crimes against humanity and imprisoned or executed. All of the German people however formed the state and would be held accountable for the reconstruction of the State, making war reparations, and preparing to enter anew into the discourse of nations.  

 In Japan the Emperor survived as traditional head of state and General MacArthur  recognized him as such and dealt with him as such even as he went about the business of putting on trial and even executing some of the emperor's generals. The emperor in fact had ceased being both head of state and government some years before WW II broke out. The American Army of occupation assured that the role of the Emperor was reduced officially to head of state. But by having the traditional head of state visible as an agent of the Japanese people obviously dealing with the occupying forces , the people of Japan were much more easy to pacify with the promise that they would emerge with a quite different government but with their state intact. 

"The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states. Montevideo Convention on the Rights and Duties of States ..."

When a government fails, the state generally remains possessing a permanent population, a defined territory, even if disputed and subjected to subsequent adjustments.Some remnant of government, and a recognized capacity to enter into relations with other states,even if it is limited to signing an unconditional surrender remain. The United Nations Charter makes war the exclusive province of nation states, and all signatories to the UN Charter have signed into codified international law the elimination of war making as a state prerogative except in response to attack. By codified international law, only states may conduct "war" and only in self defense. Present international law no longer recognizes "conquest" as establishing a right to expand the territory of the winning belligerent at the expense of the losing belligerent. So the violent actions of Hamas and other Islamic terror organizations are the unlawful acts of unlawful combatants. The present state of international law makes it very difficult to react to the mass destructive , paramilitary crimes of these organizations without a large element of "police tactics and considerations".

Police in free societies are governed by "use of force policies", while military units conduct armed operations under the international law of armed conflict and locally prepared "rules of engagement". Hamas, the Muslim Brotherhood, al Qaeda, ISIS, et al have all declared 'war" on Israel, the United States,and much of the "West". No nation has yet responded by issuing a declaration of war on these non state organizations. But first ISIS and now the Pope are offering the Western alliance the opportunity to truly defeat the Islamofascists movement.

The codified international legal requirement that states can only declare war on other states and then only after attack doesn't limit the definition of "State" to those with a recognized and respectable government. The Nazi "government" was never considered "legitimate" by the allies. The Vatican may recognize a Palestinian State without recognizing or approving of its specific government of the day. In a similar vein the United States and others are not prohibited by present international law from qualifying a declaration of war by adding adjectives to the state named in the declaration. For example while no civilized nation will recognize ISIS as anything other than an organized gang of perpetrators of crimes against humanity their claim of "statehood" in conjunction with actual effective control of territory would allow any legitimate state to refer to them in a declaration as
a "de facto state" and incorporate such a description into a modern and acceptable declaration of war. The same goes for a"Palestinian State". There is only a need to name a state in a declaration of war,
the declaring state may add adjectives such as "de facto", "aspiring", "illegitimate" etc.and even declare disparaging remarks about the :government" of such states.What is necessary for a declaration of war is that it must be by a state against a state, This is important to the international community to help confine hostilities somewhat to the geographic territories of the belligerents and their vessels at sea and aircraft over their territories or within their seaward declared air defense zones.



Thus the Vatican's recognition of a "Palestinian State may well be a reminder to the Palestinian people that they comprise any Palestinian State and are responsible for the actions of its government. As long as there is no Palestinian State Israel has been forced to deal with the actions of HAMAS, the terrorist government much like a police action. If Palestine is a state it must act like a state and accept the liabilities of statehood. The declarations by the PLO and backed by Hamas that Israel shall be "pushed into the sea"become not the rantings of a family of non governmental organizations but the clearly unlawful war intention of an unlawful government of a state. Israel's forces have been responding within very restrictive use of force rules similar to law enforcement use of force policies. If Israel decides to follow the Vatican in recognizing "Palestine" as a state Israel is free to conduct operations under the international law of armed conflict. Here is how the situation on the ground changes.

Under the international law of armed conflict Israel may attack without "provocation" the entire war r making capacity of "Palestine" both tactical and strategic including most all industrial capacity, communications systems, and transportation infrastructure."Collateral damage" such as civilian deaths, damages to homes, and other unintended targets is to be avoided but is not unexpected, and usually not a "war crime". There are no equivalents to "Miranda warnings" . The enemy use of prohibited targets such as medical facilities, places of worship, hospitals relieves combatants largely of their obligation not to fire into these prohibited targets. Israel is constantly subjected  to Hamas fire from behind women, children, from school yards, hospitals. Because Israel has treated the Palestinians as an ethnic element within Israel borders that aspires to statehood IDF operates under some very restrictive rules of engagement. If Palestine was recognized formally as a state and the Palestinian declaration of war responded to formally the gloves could come off.

Hamas and the PLO before it has always maintained that Israel has no right to exist and that it is their intention to to "push Israel into the sea. As many have observed, if Israel put down its arms it would cease to exist. If Palestine put down its arms there would be peace. The rest of us who live outside the region but are affected by the constant violence don't really care if Palestine moves to a negotiated peace, allowing Israel to live in peace behind secure borders. or if Palestine becomes a glow in the dark parking lot. Recognition as a State with as yet to be determined borders allows the world and the IDF to hold Palestine to a responsible standard and allows the ultimate sanction, war to unconditional surrender" if they don't start acting responsibly.



In a similar vein recognition of ISIS as a de facto state at war with the United States would allow the "war clause" in many of our laws to be invoked. American Muslims giving financial aid and support directly to ISIS related entities could be held guilty of treason. No longer could the local mosque collect for ISIS money laundering "Islamic charities" invoking religious freedom arguments against close scrutiny. "Aiding and abetting the enemy" in war trumps such defenses. If you aid the enemy your motivation has no legally defensive weight, you've committed treason. A formal declaration of war does not commit a nation to a particular course of war or obligate it to even fire a single shot in anger. But provides us with stronger border and sea frontier controls, prevents enemy infiltration and communications with fifth columns, and cuts sympathetic funding of the enemy by traitors. Entire dangerous population elements can be identified and interned. Enemy aliens among us can be rounded up and detained for the duration.



So to Johnas and other Christians fear not. Yes, you are only too aware of the fact that Hamas is in fact an anti Jewish, anti Christian, Muslim terrorist organization. Hamas was freely elected as the government of "Palestine"and yet the Pope, the world's most visible Christian has chosen to diplomatically "recognize the "State of Palestine". This is not a recognition of any legitimacy for Hamas, or any other Muslim terror groups. This may well be a final offer for a chair at the peace table for Palestine. A responsible state would take that opportunity. But a state, any state must accept the consequences for their actions and the Palestinians have been conducting in one way or another acts of war since 1948. One view of Vatican recognition of Palestinian statehood is that it is meant as a gentle, face saving final warning that a mailed fist will descend upon them soon if they don't accept the reins of civilized behavior. Building access tunnels to Israel's kindergartens using humanitarian relief money was only the latest example of manifestly evil behavior by the people who want to be the "Palestinian State".

I'm NANAZU and I wrote this message.

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