Navigating International Waters: Arresting Ships and Managing Crises on the Seas

Kyle McEntee:

We're joined today by Molly Henry, a senior litigator specializing in maritime law, a field that deals with everything from oil spills in the water to international shipping disputes. Molly, I want to start by talking about how you got into this niche. You grew up on an island in Washington State but then went to law school in landlocked Ohio. How did you find your way back to the ocean?

Molly Henry:

I really, despite growing up on the water and around the water and seeing the maritime world every day, it was not top of mind for me. After law school—so I graduated in 2008, which was a terrible year to graduate because of course it was a big market crash. My husband at the time had accepted a position at a law firm in Seattle, so we moved from Ohio back out to Seattle. I had summered at the ACLU, which was fantastic, great experience, but not a source of a job for a first-year lawyer out of law school.

I hit the pavement and handed out resumes and ended up getting a couple of job offers from firms in Seattle. The one that really felt right to me was a midsize firm with major practice areas in maritime and securities. I was hired right out of law school by a King's Pointer, which is a merchant marine academy. The maritime jokes are going to abound, but he showed me the ropes and has been a mentor to me for coming up on 20 years now.

Kyle McEntee:

For those less acquainted, maritime law brings to mind images of pirates and ships on the high seas. What does modern maritime practice actually look like?

Molly Henry:

I mean, that's still a real thing, piracy. We don't get a lot of those cases on the West Coast of the U.S., but in my world, piracy is a thing. I mean, piracy insurance is being issued every day out of Lloyd's of London on vessels. And I've certainly been involved in drafting some contracts where vessels were going to be traversing waters where piracy is an issue. We've even had a mutiny case.

Everything that touches navigable waters really can and often does fall under the umbrella of maritime law. So it can be anything from oil spills and pollution incidents to cargo problems, heavy weather incidents, personal injury, death on the high seas, collisions, elusions, which is when a boat hits a stationary object, coverage disputes, and then commercial disputes over charter parties, which is basically like a rental of a boat in international parlance. So no two cases are the same, and it's really a very, very broad practice. There's nothing cookie cutter about maritime law.

Kyle McEntee:

What's interesting to me about maritime is that it is very much an industry, and there are lots of ways that in different industries, different matters all get connected just in virtue of being part of the same industry. But it's kind of uncommon for the industry also to have its own set of laws. Can you talk a little bit about some of the maritime specific laws that you deal with?

Molly Henry:

Admiralty law is probably the oldest law that we have in the United States. And for many, many, many years, admiralty courts were separate. So admiralty is actually one of the few areas where you can be deemed a specialist.

So for example, I have my proctor and admiralty from the Maritime Law Association, which is something you can apply for after I think it's 10 years of practice or something like that. And maritime law is at its origins is international law. So it comes together through treaties, but we also inherited a lot of our maritime common law from England.

So it dates back centuries. And a lot of the doctrines that we deal with date back centuries. I mean, when we're citing to U.S. court cases, we're not citing to 29 U.S. two, we're citing to Howes and books that no longer exist anymore. So it's a conglomeration of treaties and federal common law and international law. You know, when we're dealing with international ships, we're often dealing with the flag states law.

Kyle McEntee:

Do you have a particular set of clients that you work with? Or is it all over the place like individuals, corporations?

Molly Henry:

For the most part, I would say my client base consists of international ship owners and tug and barge owners and operators. I do some fishing vessel work as well. But my client base is almost all vessel owners and operators. I do some port work as well where there's no conflict.

Kyle McEntee:

So you were talking earlier about sometimes there's personal injury. That means that when you're working on those cases, you're on the defense side.

Molly Henry:

Yeah, I would be defending the ship owner in those cases. There are plaintiffs lawyers who specialize in marine personal injury because, of course, the law is different than standard personal injury. It's regulated different. It's federal law. It's a different beast than the lawyers who are representing slip and falls in parking lots.

Kyle McEntee:

For anyone who's interested, episode 12 of this podcast with Marissa Olsen is with a maritime lawyer who does personal injury.

Molly Henry:

I know Marissa well.

Kyle McEntee:

Oh, you know Marissa?

Molly Henry:

Oh, of course I know Marissa. Yeah, it is, the Maritime Bar internationally, it's very small, but locally, it's even smaller. So we all know each other. It's very collegial. And that's probably because it's small. Your reputation really matters. And we're all pretty friendly.

Kyle McEntee:

Yeah, I was actually just going to ask if because it's so small, are you incentivized to play nicer? Or does that have any implications for how you advocate for your clients?

Molly Henry:

I think for any lawyer, your reputation within the area that you practice is really important because your credibility really matters. And every lawyer develops their own style of practice. There are certainly maritime lawyers out there who are chest beaters, and that works for them. But I think it's important to develop your own style as you come into your practice. And for me, I think my reputation is very important to me. Honesty is very important. One of my early mentors used to have a saying, we don't pick the horses, we just ride them. So we don't create facts. We don't change the facts. The facts are the facts. And we argue them in the best light to our client. I have never personally gained anything by having an adversarial relationship with opposing counsel.

I find that it just raises costs for my client and doesn't get me anywhere. So and I found that to be mostly true in the maritime bar as well. We can agree to disagree on things, but we're always cordial and work together where we can.

Kyle McEntee:

Speaking of your early days in maritime practice, you worked on some fascinating cases. One of them involved the shipping of a demilitarized Ukrainian military jet. Can you tell me that story? What was going on and what was your role?

Molly Henry:

It was my first and second year of practice. It was really early on in my career. So I came in after the trial court had already kind of dealt with the case and it was on appeal to the Ninth Circuit. And it involved the shipment of a demilitarized airplane from, I think it was the Ukraine. And it was being brought over to be put in a museum in the U.S. And while it was coming over from overseas, it was transhipped in, I believe it was Hong Kong. This is stretching my memory a long ways back. But transhipped basically means it gets moved from one ship to another. And it's sort of like you change airplanes at an airport, but for cargo. And when it was taken off one ship to be put on the other ship, the government seized it as militarized cargo. It was a paperwork issue at its core. And so a lawsuit ensued because it was held up for many years. And one of the issues in the lawsuit was whether the ship owner could limit its liability under something called the Carriage of Goods by Sea Act. And that allows, in certain circumstances, the carrier to limit its liability to $500 per package. And there's lots of case law about what is a package. Well, in this case, we'd argued that the plane itself was a package. And the trial court had agreed. So it was an interesting case. I think we won some and lost some on appeal. But really interesting legal issues.

Kyle McEntee:

Yeah, it really raises some interesting jurisdictional questions for me. And I don't know if these were in dispute at all. But we're talking about a Ukrainian jet stuck in Hong Kong. And yet the case is heard in the Ninth Circuit, which is a federal court and a federal appeals court. Why? Why was it in the Ninth Circuit?

Molly Henry:

Well, because the cargo should have ended up here. And ultimately, I think it did. Yeah, I mean, the jurisdictional questions that come up in maritime law are really interesting because ships, of course, are peripatetic. They're traveling around the world. They're nomadic. And oftentimes with many ships, you'll have big carriers that own and charter a number of ships.

But you also have what we call trampers, which are often just a small company, maybe out of Greece or that maybe just own a couple ships. And they time charter those vessels out to companies that need to move maybe grain or cement. And so that particular vessel, it's not on a liner route going from Asia to the West Coast and back and back and back like you'll see with a lot of the container ships. These trampers just get sent wherever they happen to be time chartered for. And so they're moving all over the world. And they may call at a port in the US once in 10 years, once in 20 years. And then five times in one year. And the ship itself is maybe flagged, and I'm going to make this up, but Greece. So the ship itself is subject to Greek jurisdiction. But who knows where the cargo is coming from and who owns it? And so you have all these different parties from around the world with different jurisdictional issues. And so a lot of it will come down to the contracts to determine where a suit needs to be brought. And the maritime courts have developed a special subset of admiralty rules to deal with this jurisdictional issue. So a ship is personified at law. It's considered to be almost like a person who you can file suit against. So in federal court, you can file suit against a ship in rem.

Kyle McEntee:

So it's no wonder we named these ships, right?

Molly Henry:

Yeah, exactly. And in order to get jurisdiction over that ship, you have to arrest it. And so it's not uncommon for us to go out and arrest a ship that my client might have a claim against for a charter party dispute or damages, or my client's ship might get arrested and federal court will issue a warrant. And, you know, the marshal will go out and arrest that ship. And that's how you get jurisdiction over it.

Kyle McEntee:

What on earth does that mean? Like a cop goes up and arrests a person, they put handcuffs on them, put their hands behind their back, they put them into a car. I mean, are they like tethering it to the land to say you can't move?

Molly Henry:

Yeah, they'll send a marshal out and they will slap an order on this vessel on the bridge saying this boat is under arrest. It can't move without further order of the court. What often happens, at least in the shipping world, is that the insurer or the owner will post a bond in lieu of having that ship stay there, you know, at the cost of not being able to move its cargo.

Kyle McEntee:

And so a bond in this case means they're giving some amount of money and then they lose that money if they violate the agreement to not reappear.

Molly Henry:

The bond basically stands in the shoes of the ship. So they'd attached the ship or arrested the ship. And that means that they can assert their claim against the ship. And if they recover $100,000, they could, in theory, force the sale of the ship to pay damages. So in lieu of doing that, what often happens is that the ship owner will say, let my ship go to the extent you can recover on your claim. You can do it against this bond. And so they'll post a bond for the value of the ship that takes the place of the ship in the court's eyes so that the ship can continue on its way.

Kyle McEntee:

So what's your role in all of this?

Molly Henry:

Depends on who I'm on for. I've arrested plenty of ships. I have fought against the arrest of plenty of ships. I've arrested and sold ships where we get a judgment. So it can be on any side. It really depends on who my client is in any given circumstance.

Kyle McEntee:

All right. So let's go with the hypothetical where you want to arrest a ship. What's the first step you take?

Molly Henry:

It can only be done in federal court because federal courts have exclusive admiralty jurisdiction. So the first step would be to draft a complaint. And you have to, in that complaint, allege a claim in admiralty. So lots of rules around that. But a maritime claim against a ship might be like you have a lien against the vessel for delivery of fuel, let's say. So I would draft a complaint pleading an admiralty claim and file it in federal court. And then I would ask the federal court to essentially issue an arrest warrant. And I'd work with the marshal's office. They like donuts. It's hard to get them to arrest a ship on a weekend sometimes, especially when they're underfunded. That can be a real issue, getting them out to arrest the ship timely before it leaves port. I work with the marshal's office to get somebody out there to arrest the ship. And once it's arrested, that usually opens up lines of communications with counsel for the ship owner. And we try to negotiate a bond or something to get the ship moving again. But sometimes they won't post a bond and the ship sits there until you've resolved your dispute. But that's what gives the court jurisdiction to hear the dispute. Because otherwise, I mean, the owner's not here, so.

Kyle McEntee:

So you mentioned that you've arrested ships and then sold them afterwards. What leads to that? And how do you find a buyer?

Molly Henry:

So I've only gone through one sale. They're pretty rare, actually. In this particular instance, it was a ferry boat. We got a judgment against the owner for our damages and the owner wasn't going to pay. And so we asked the court for an order to sell the vessel to pay our judgment. And we got that order.

And there was quite literally a sale at the federal courthouse in the lobby where the marshal came in and announced the auction. We had buyers show up and they bid on the boat and someone walked in and bought it.

Kyle McEntee:

Did you have to write the contract yourself or someone at your firm?

Molly Henry:

No. For the sale? No, at that point, it's all through the marshal's office. So the marshal will issue a bill of sale and then the proceeds go to pay off our judgment and the rest go to the owner to the extent there aren't other lien holders. But it's like a foreclosure sale you would see on property in state court. You know, if you don't pay your mortgage, state courts can issue a foreclosure and the property on the courthouse steps, the bank gets paid and then any residue goes to the property owner. And it's the same thing in admiralty, but it's a ship. So a smaller buyer's market for sure. We were pretty worried we wouldn't get anybody to show up.

Kyle McEntee:

Oh, that's so interesting. So your cases often take place on or around the water, sometimes even on the high seas. So before we kind of dive even further into the legal side, can you define that term? What exactly are high seas? Because I literally thought this was a rhetorical device, not like a legal term of art. But apparently that's not correct.

Molly Henry:

Yeah, it's statutory. So three nautical miles from shore is our state waters. And that means that both the state and federal government can regulate in there between three and 200 nautical miles from shore are considered the exclusive economic zone. So those are our territorial waters where the U.S. does have jurisdiction. And that's by treaty, which was adopted in the U.S. So 200 nautical miles out beyond that is the high seas.

Kyle McEntee:

What happens when another country is within 200 miles or their 200 mile economic zone is within that? How does that work?

Molly Henry:

Well, at that point, the U.S. does have some jurisdiction. So, for example, if there was an oil spill or something happened within the U.S. waters, that would give the U.S. jurisdiction over that vessel for purposes of that act.

Kyle McEntee:

Oh, so there can be overlapping jurisdictions. It's not like state lines where Utah and Nevada are completely separate.

Molly Henry:

Yeah. So if you have an oil spill, for example, within three miles, you're going to have state actors and the Coast Guard involved or NOAA. And they work cooperatively for the most part. But yeah, you can have multiple jurisdictions involved.

Kyle McEntee:

One issue you do see a lot in your practice is oil spills. So say there's an oil tanker owned by a company you represent. Who's calling you? And how does that initial conversation go?

Molly Henry:

First of all, when you when you get the first call as a lawyer, you always want to make sure you're free on conflicts. So you've got to make sure that no one at my firm is representing someone else. The first call in my world would normally either come in from the ship owner and its insurer or the charterer of that ship.

Kyle McEntee:

What's a charterer?

Molly Henry:

Ships can be rented out and they usually are just like a car would be rented out. And there are a number when you when you rent a ship, it's called chartering a ship. Like I'm sure you've heard of like, oh, we went we chartered a boat to go out fishing. So chartering is like renting in maritime parlance. And in my world, there are a few different types of charters. There's what's called a bareboat charter, which basically means the owner of the vessel just hands over the ship to the charterer. The charterer then mans it and has complete control over where it goes and what cargo it's bringing and where for a period of time. And then there's what's called a time charter. And if the time charter, the owner would still man the ship and have control, navigational control, but the time charter would get to load its cargo on there and tell the ship where it needs to go.

So there are different kinds of charters. And when there's oil in the water, we would either be on usually for the owners of the vessel or in some instances, the charterers. I mean, usually a time charter wouldn't get too involved with an oil spill because they're not involved with the navigation. But we have had that happen where they've been dragged into litigation even as a time charter over oil in the water. So always on vessel interest side, because your adversary for the most part in oil spills is going to be the government and they have their own lawyers.

Kyle McEntee:

So what's your role when that happens? Like, so there's the oil spill, regardless of who your client is, someone saying the government saying you're on the hook. What does that mean for you?

Molly Henry:

Yeah, so the call can come in in the middle of night, you know, because shipping's a 24 hour gig and the call would say we've got oil in the water. What do we do? And as legal counsel, our role is to be eyes and ears for owners or whoever our client has to be on the ground to report to them what's going on in real time, because, again, more often than not, they're not U.S. based. And we want to help them preserve, investigate and preserve any defenses they might have to liability. And so we start doing that early on. We assist with interviews. We provide representation during the Coast Guard interviews. We are not out there cleaning up oil out of the water. That's not what we as lawyers do. But we make sure that the vessel owner is doing necessary reporting to the agencies like state EPA, the U.S. Coast Guard. There are certain reporting requirements that ships have to make as soon as oil hits the water. And we want to help to make sure that they timely do that.

And then in the U.S., they're required to have an oil spill response plan in order to transit U.S. waters. And that gets activated. And they'll have a qualified individual under the plan whose job is to kind of jump in and start taking over and handling the oil spill response and cleanup.

Kyle McEntee:

Do you ever feel bad about defending a company that's spilled a lot of oil into the environment?

Molly Henry:

No, I mean, nobody intentionally spills oil. I mean, we're all working in loss mitigation at that point. And my clients want to do the right thing. Nobody wants oil to go in the water. No one benefits from that. And everybody benefits from cooperation and quick mitigation. So no, I feel like I'm helping the environment and I'm helping my clients.

Kyle McEntee:

Do you feel like you have to remind the government lawyers of that sometimes?

Molly Henry:

That's a good question. Maybe in litigation years down the road. Everyone is aligned right out of the gate. How do we stop this? How do we clean this up? The finger pointing comes long, long ways down the road in litigation. And yes, then you do.

Kyle McEntee:

So I think one of the more surprising aspects of your practice is that you sometimes have to conduct onboard vessel inspections yourself. I think one of your first inspections involved investigating the death of a crew member. It was an international vessel. And the crew member had died several weeks before the vessel returned to port. So the body got stored in the freezer for preservation. What was going through your mind when you got on board?

Molly Henry:

Well, it's not, you know, when you go to law school, it's not the kind of thing you think you're going to do. But life happens at sea. And I've been involved with a number of casualties. Many of them are just normal circumstances. You know, a captain of a ship is in his 60s, 70s. Maybe he or she has a heart attack. Some of them are natural circumstances. And then, you know, you have other casualties, rogue waves, heavy seas, just incidents. I mean, murder happens on ships, you know? I mean, stuff happens. And you don't think about that in law school as being legal. But your role as the representation of the owners is to get on there and figure out what happened, preserve evidence, and report to them and say, you know, we don't think anything's going to come of this, but make sure that you report to XYZ. Or maybe, ooh, we got some liability exposure here. Here's what we can do to minimize this. And here's what you should do going forward to make sure this doesn't happen again.

Kyle McEntee:

It's a lot of different laws, and I'm assuming contradicting or competing laws that you're dealing with. How did you get up to speed on all of this? Because I know your law school didn't really educate you on all of this because it's such a tiny niche.

Molly Henry:

Yeah, no, I didn't take maritime law in law school. There are a few schools that are maritime law focused or offer LLMs. Ohio State is not one of them. I think every five years they offer a half-credit course in maritime law. Didn't even cross my mind to take it. I would push back on the idea that I know all this law. I don't. I don't think any lawyer would be honest if they ever said that they knew everything. Every case presents unique facts and a unique area of the law, and the law is always changing. That's the nature of common law. We all operate in the gray area all the time. It's so rare that you get a case and you can say, I had this exact same case. This is how I know it should turn out. It's all in the gray area, and our job is to tell the best story within that gray area to our client's benefit.

Kyle McEntee:

How do you know where to look, and how do you know when you've looked enough?

Molly Henry:

Experience and time. The longer you're in the field, the better issue spotter you become, because you've seen things pop up, and you bring that experience to every new case.

Kyle McEntee:

So what's it like then for a new lawyer? What was your experience when you were coming up? And did you have this much humility at that point in time?

Molly Henry:

Oh yeah. I mean, don't we all suffer from massive imposter syndrome at all times? As a first-year associate, and maybe through your fourth, fifth year, you're really a task-based lawyer. And so you're working with partners who have the experience to see the long view in a case, and they're giving you specific projects to do to help move that case along. Maybe it's drafting a pleading, or a motion, or maybe it's researching, kind of a novel issue that has come up in that case. And by doing those tasks, you start to build that experience and knowledge over time. And there's a transition that happens somewhere between your fourth and sixth case where it starts to come together, and you start to see and understand the context for the work that you're doing. And so it's a transition over time of sort of stepping up and taking on more and more responsibility in a case, and having more and more of that long vision for your clients.

Kyle McEntee:

So that transition makes a lot of sense. And I think there's probably another later transition from understanding it to knowing how to assign the work to the junior associates.

Molly Henry:

What I'm still working on, yeah. Yeah, I mean, delegation is hard. It's hard to let go of things. And I think learning to become a good mentor is a real skill and something I think we all should be working on all the time.

Kyle McEntee:

What do you do to develop that skill?

Molly Henry:

I have a great group of associates that I work with, and I try to ensure that they are not just task-based, that I include them in every conversation and get their thoughts on broader picture strategies, explain concepts to them that they might not have had an opportunity to learn about yet, and then give them opportunities for growth. My first or second year in practice, the partner who I was working with on a marine casualty case, it was actually a class action for crab fishery damages, he looked at me and he said, you know, Molly, I think you should argue this one to the Ninth Circuit. And I just like, oh my gosh, it ruined my month. It was terrifying. I mean, that is a big deal. A federal appeal is a big deal, but it was also a huge opportunity. And I'm super grateful for that. I broke that boundary early on, and I've done a number of Ninth Circuit appeals first. But to get back to your point about mentorship and growing lawyers, I think it's important that we let go of stuff and give them those opportunities. And it can be hard because, you know, it depends on the case and the client. Clients want experience. But in the right circumstances, we need to be giving younger lawyers opportunities.

Kyle McEntee:

So how did that first case that you argued on appeal turn out for you? And I don't mean like, did you win or lose, because lawyers win, they lose. I mean more for you. How did you view yourself differently after having successfully completed the appeal?

Molly Henry:

It was a big confidence boost to get up there and do it and to know that I could do it. And to the credit of my mentor, this was really a case we couldn't lose. We just had a great record. And I think he knew that. And he liked the optics. You know, it was like a position of strength to have a first or second year get up there and do that. And he was right. But he also knew I'm a nervous person by nature, and I wasn't going to get up there and wing it. So I knew my record inside and out. And it was a big confidence boost, for sure.

Kyle McEntee:

It's interesting that this provided you a confidence boost. And I say that not because of what you've said about how you thought about it, but because the partner treated you as a tool for your client.

Molly Henry:

Absolutely. And this particular partner, and I'm still very good friends with him, we don't work together anymore, but he was a great mentor of mine. Demanding lawyer, a very good lawyer. It was one of those, when you give him a draft of a motion or something, it would often come back with more red than white left on the paper. But I learned so much from that. And he did it in a way that it never felt personal. It felt like, this is me giving you feedback on your work, and you get to learn from it. So he gave me that opportunity, I think, because he trusted me. And because there was a reason. There was a client-based reason to do it as well. And I had another case with him. Actually, a securities arbitration. He had me take the direct examination of the main witness. And it was, again, because he liked the optics of it. It was a display of strength. Not about me, but about our case. By using a young associate, it was like, we feel so good about this that we're going to give a younger attorney an opportunity here.

Kyle McEntee:

All right. So in dealing with international law, you're going to necessarily be affected by global politics. Sanctions, tariffs, conflicts. How do these geopolitical tensions ripple into your day-to-day legal work?

Molly Henry:

The administration has been threatening tariffs against Chinese-owned ships. I do quite a bit of work for Chinese ship owners. We get a lot of questions from vessel agents about what this is going to mean, when they're going to come into force. It's been a little bit whiplashy, because they are, they aren't, they are, they aren't. We see quite a bit of that. And of course, you know, a lot of my, since my clients are international, like when I go to visit clients, they love to hear the US gossip. What's going on here? How do we think this is going to affect shipping? Is it good for us? Is it bad for us?

Kyle McEntee:

All right. So after these years of navigating complex laws, unpredictable seas, global politics, I'm going to even get worse here. What keeps you anchored to this work?

Molly Henry:

So you know, I've got you doing maritime funds. So I think for me, relationships, my colleagues, my adversaries, the community that I work in, the maritime law community is really important. It can be a really stressful job. And for me, it has been more important to work with people I really enjoy working with than necessarily the work itself. So it's definitely the people.

Kyle McEntee:

What are your key sources of stress?

Molly Henry:

Oh, briefing deadlines, because my name and phone number is on the bridge of many, many ships that are coming into port. I could get a call at any time during the night. And sometimes that can be really stressful. It's a little bit like being on call as a doctor all the time, but maybe a little less important than that.

Kyle McEntee:

Maybe less important, but more frequent because doctors are on rotation. You're not on a rotation. It doesn't sound like.

Molly Henry:

I'm never off call. At the same time, I'm not getting calls every night, you know, or even close. It does seem to happen more around the holidays. I don't know if that's because the weather is worse and more things happen at sea when there are storm systems coming through, but we could always rely on a nice marine casualty right before the holiday parties.