By Land and By Sea

S4.E6 - Captain's Log Edition (FMC Rulemaking Roundup // Final Rule Petitions Updates // ILA & USMX Updates // Global Alliances Updates)

• Lauren Beagen, The Maritime Professorᵀᴹ • Season 4 • Episode 6

Topic of the Week (11/1/24):

Breaking down the top stories of the week in the 🚢 Captain's Log!

⚓ The Maritime Professorᵀᴹ presents By Land and By Sea Podcast 🎙️ - an attorney breaking down the week in supply chain

with Lauren Beagen (Founder of The Maritime Professorᵀᴹ and Squall Strategiesᵀᴹ)

Let's dive in...

1 - Federal Maritime Commission - Rulemaking Round-Up

2 - FMC Final Rule Petitions Updates

3 - INTERNATIONAL LONGSHOREMENS ASSOCIATION and UNITED STATES MARITIME ALLIANCE LIMITED Recent Updates

4 - Global Alliances Update for 2025 - Premier Alliance filed at FMC


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Speaker 1:

I got soul coming through, flying free. Skies are blue, all the waves it makes a room. I got soul coming through, won't stop. Feel the beat On top of the world when you see me come. Oh, everywhere I go, I'm in the spotlight. This is a good life. Oh, I'm living for it. This is what it looks like. I'm addicted to the world.

Speaker 1:

It's been a while since we've just done a top stories roundup, so let's do just that. We like to call it the captain's log. Hi, welcome to, by Land and by Sea, an attorney breaking down the weekend supply chain presented by the Maritime Professor. Me. I'm Lauren Began, founder of the Maritime Professor and Squall Strategies, and I'm your favorite maritime attorney. Join me every week as we walk through both ocean transport and surface transport topics in the wild world of supply chain. As always, the guidance here is general and for educational purposes only. It should not be construed to be legal advice and there's no attorney-client privilege created by this video or this podcast. If you need an attorney, contact an attorney. So normally we go into our top three stories of the week, but this week every story is a top story, so let's get into it.

Speaker 1:

Story number one we always start here. Let's check in on the FMC rulemakings. We have some that have finalized, some that we're waiting on, some forthcoming for 2025. Already there's a lot going on. So, as we know, defining billing practices of detention demurrage went into effect May 28th 2024. Notable developments on this was that the commission issued a correction to the final rule preamble text clarifying the rules application to the carrier-trucker relationships. We also saw that the World Shipping Council filed a petition against the D&D billing requirements final rule and we've seen some initial filings happening on the petition side. We'll talk about that in a minute. But what does all this mean? May 28th was the rule's effective date, so there has been no word otherwise. So the entire rule went into effect May 28th. What could happen? Well, there's a petition on file against this final rule. The court could decide to somehow modify the rule based on that petition, but that hasn't happened yet. They're still going through kind of the jurisdictional proceedings or not jurisdictional, the legal procedural stuff that happens usually when it's over at a court. So I'm going to keep watching that. We're going to talk about that again in a minute here.

Speaker 1:

The other rule that we're watching defining unreasonable refusal to deal or negotiate with respect to vessels space accommodations provided by an ocean common carrier. This rule went into effect September 23rd. The final rule that they published out was in July 2024, but the effective date of this rule was September 23rd 2024. I keep talking about this rule because it kind of felt like it got snowed in with the strike that happened on October 1, right, that was about a week, a little over a week, before that strike happened. So make sure that you go pay attention to this one. Make sure you take a minute to review defining unreasonable refusal to negotiate with respect to vessel space accommodations provided by an ocean common carrier.

Speaker 1:

I'm trying to put together perhaps I've been talking about these e-courses for a while now and I've been trying to figure out what angle or what content you might enjoy as users of this service. I think I'm going to put together kind of an overview of what this unreasonable physical negotiate rule is, just so that you have a quick stop of. This is what it is in plain language, if you follow this. I've often talked about this rule in kind of varying ways. An e-course would allow me to dive into it as though I were teaching one of my adjunct professor classes. So that's the. That's, I guess what I'm kind of thinking. Would you find that valuable? Is that something that you might find good use of? I think that's where I'm going to go. I think that's going to be, uh, maybe one of the first things that I pushed out. So, but this rule, uh, that the FMC has provided the final rule, for it went into effect September 23rd 2024, a petition was filed on September 18th, um, just about a week before it went into the effective date. We're going to talk about that in a minute too, but just know, as we know, right now there hasn't been any other information coming out. It went into effect in its entirety September 23rd 2024. We're also waiting on.

Speaker 1:

This is the third rule that ASRA 22 directed the FMC to undertake, and this is defining unfair, unjustly discriminatory methods. Chairman Maffei said that this would get folded into the unreasonable refusal to deal and negotiate rule, and it did. But I'm still wondering if this will have a standalone rulemaking come out. There was no mention at the last commission hearing or the last commission meeting, so this will be. I'm just going to keep watching. I think that there probably will be some standalone discussion here, just because it's so important this unfair, unjustly discriminatory methods. But we'll see. We'll see it might have just been satisfied by that unreasonable result to deal and negotiate. But again, they had said that they were independently working on it at the FMC through kind of a different track, was my understanding and that this might be presented as a standalone rule. So we'll see. I'll keep watching Charge complaints this was announced at the commission meeting that in 2025, they would take this interim process.

Speaker 1:

That was created pretty quickly. Osra 22 created charge complaints and said basically, as of the signing of Osra 22, june 16, 2022, charge complaints were a thing, but they didn't have any direction to it. So the FMC had to work pretty quickly to create an interim process. So they kind of have interim guidance on how to approach a charge complaint, mostly on what documentation, what arguments need to be presented and by arguments I mean you need to identify which violation of the Shipping Act you're pointing to. So that is what currently exists.

Speaker 1:

The commission last week said, or two weeks ago said, that charge complaints would be part of a formal rulemaking in 2025. Some of the things that I think we're going to see in this charge complaints is do these charges cover things beyond just detention and demurrage? Chairman Maffei at one point early on, right after OSRA 22 was released, said this might be more than just charge. This might be more than just detention and demurrage charges. I think the intention felt like it was detention or demurrage, but the title is charge complaints, right? So that's any surcharge, as you would think, and so I think that that might be something that's discussed. There was also a question at the last commission meeting, talking about the statute of limitations, on how long can it be from the original date for a charge complaint to be filed. It wasn't exactly clear. The FMC General Counsel, at the hearing, the meeting the other day, kind of talked about this a little bit and said it's unclear, but that that would likely also find its way into this rulemaking in 2025.

Speaker 1:

So, you know, pretty interesting, right, this one? I'm excited to continue to see this come out. I mean, obviously, as you know, I love all the things that are happening, I love keeping up with it, and somebody's got to right, somebody's got to pay attention to what's going on at the FMC, and that's, I think, why you tune in to figure out what's going on. All right, story number two this is where we're going to talk a little bit about the petitions. We will eventually dive into this in a more full, thorough discussion, but I want to provide you some updates, as we get them, on the petitions that are filed in front of the two final rules. So the detention to merge final rule and the unreasonable result to negotiate final rule.

Speaker 1:

So on the detention to merge billing practices final rule, on October 16th the World Shipping Council filed their opening brief. So what we learned and we talked about this a little bit last week what we learned in that was some of the arguments that they are presenting since they initiated this matter and filed the petition. This was pretty interesting to read because they outlined five issues presented for review as part of their argument here, and I'm just going to kind of paraphrase, pull from their language, but also just move quickly, not read the entire section. But the five issues essentially were whether the final rule is contrary to OSRA Ocean Shipping Reform Act of 2022, because the commission exceeded Congress's limited grant of authority to initiate a rulemaking. And then they define or they quote the language from Oswald there, but they're saying, look, the FMC went too far. Congress told them to do this and the FMC did this. So that's the first argument right off the bat with their petition whether the rule exceeds the FMC statutory authority because the commission lacks authorization to ban a billing practice, absent of finding that the practice is unjust and unreasonable, and so this is kind of, you know, nodding to the carrier motor carrier billing. That was an issue toward the right before the final rule was released.

Speaker 1:

Issue number three is whether the rule is arbitrary and capricious because it departs from the commission's incentive principle. So that's something that they're bringing up as something that they would like the court to review. Issue four whether the rule is arbitrary and capricious because it fails to meaningfully respond to crucial comments submitted during the rulemaking process. Now, that's part of what happens in rulemakings, right? So you have a notice and comment period, meaning the agency provides notice that they're looking at something in a rulemaking. So that might be the advanced notice of proposed rulemaking, just regular notice of proposed rulemaking. We saw those come out. The supplemental notice of proposed rulemaking that was something that the unreasonable refusal to deal or negotiate had an extra opportunity, and so every time an agency has one of those moments they invite comments in. I've talked about that many times before. This is your opportunity to have a conversation with the agency through this rulemaking process. So they're saying that basically, and part of the requirement is, is the agency isn't just doing this just to check the box and sometimes they do but but? But in this situation they're saying that the agency Well, this is a requirement, the agency has to respond, especially to crucial comments submitted during the rulemaking process.

Speaker 1:

And they're saying, look, the FMC didn't meaningfully respond to crucial filed comments during the rulemaking process and therefore perhaps this rule is arbitrary and capricious because of that failure to meaningfully respond to crucial comments. That one's going to be an interesting one to follow because that's going to be how much did the FMC, through the preamble, through the discussion in that final rule, address and properly identify those comments filed and provide explanation on why they accepted those comments went a different way from those comments. Anything that has a meaningfulness to it or is an important comment is something that the FMC would have had to have responded to. And sometimes they bucket them and that's usually fine. But this is going to be an interesting discussion because I think the court will also talk about perhaps which comments need to be responded to, which comments are just kind of general support and perhaps some of the delineation and discussions there. That's going to be an interesting issue raised.

Speaker 1:

And the fifth one is whether the FMC violated the NEPA Act so this is the National Environmental Policy Act by failing to issue an environmental impact statement. This one's a little bit funky, right, because you're like, what does detention to marriage have to do with EIS or environmental impact or NEPA National Environmental Policy Act? They're saying that because the FMC underestimated the increased congestion and attendant reduction in air quality that the final rule will cause. This one is going to be interesting as well. I'm interested to see how the FMC responds to this, but more how the agency addresses this, because I think we'll also start to probably have some discussion in the excuse me, the court. I think we'll find we'll probably have some discussion in the court. I think we'll probably have some discussion in the court filings and the court opinion on when environmental impact statements kind of those nuances of when they should be included when they do have impacts on environment, versus when they are purely administrative or paperwork not related to environmental impact. This one's interesting. Yeah, that one will be interesting to follow too. So those are the five issues that they raised in their initial filing for the petition. That said, the FMC hasn't responded on that petition yet. This is the D&D one. The FMC has not responded there, so I'm going to continue to watch.

Speaker 1:

I don't want to do a deep dive until we have a response from the FMC, because I really want to be fair in how I present this, because I want to see both sides of it right. I want to talk about both sides. I think that there are facts on both sides that are important pieces to consider, facts on both sides that are important pieces to consider, and I don't mind petitions generally filed against final rules, other than they are a significant resource drain for the agency, especially this small agency who runs very lean anyways, we've talked about this many times but they're about 120, 130, trying to get up to about 140 people and that's not just 140 people working on these substantive matters here. They have administrative staff, they have everything kind of surrounding that. So really you're down to like 100 or less people that are working on all of these major global ocean shipping, regulatory and competitive issues. It's not a lot, and so if three or four of them get tied up into petitions, that's a significant drain from the Office of the General Counsel, which they probably have seven to nine attorneys working there. But I still like petitions because I think that they provide really good deeper dive discussions on probably the most critical areas of final rulemaking. So I think that they're interesting, right?

Speaker 1:

So the other rule that has a petition against it is the other final rule. This is the unreasonable refusal to deal and negotiate with respect to vessel space accommodations. I've said this a million times. I've always expected a petition on this one. When I couldn't find a petition right off the bat, I was so surprised I thought, oh my gosh, there's no way this didn't have a petition. Sure enough, it did, and I've always expected it, mostly because it just feels like this rule parlays a little too far into operational discussions. And maybe not too far, maybe just it was interesting that they started discussing operational or rate based things. I mean, they're they're looking at competitive effects and the decline or the impeding of of natural competition.

Speaker 1:

But, yeah, this one was always going to be a tricky rule. Look, it might not be a bad thing that they're entering into this area, but it's certainly a new area to dive into under the purview of ensuring the fair and efficient movement of goods. Right, that's what they're supposed to be doing. So this seems a little bit of a newer corner, I guess. I've just always, like I said just now, I've always wanted to see continued dialogue, and particularly on this one. I think Chairman Maffei agrees on the sentiment of the continued dialogue and I don't want to put words in his mouth by any means but this rule was supposed to be buttoned up in six months. It was ultimately not turned in for two years and at one point he said it's better to get it right than get it fast. And so I think, my point being that continued dialogue is something that is important, especially when it's such an important rule and perhaps a newer area that you're shining a light in of this unreasonable refusal to negotiate, to finding that.

Speaker 1:

So I think, in the same vein of that statement, I like that there's a petition filed against it and for the same reasons that I like it and I don't like it, right the fact that this takes away very valuable resources for the FMC, but that's more of a call for Congress to increase the FMC's budget. Right, I mean as a budget statement it's only in like the $30 million, $40 million range. I mean that's a line item for most other places. There are grants going out in the $200 plus $300 plus million world, and here we are talking about the FMC having only a $30 to $40 million budget for their entire agency. I mean, that's their entire agency and most of that is eaten up by salary of the 140 people that work there, so it's just a very lean agency. So I think that they are hitting a point where they need to be effective. They need to be watching everything, but they also need perhaps more resources, because this as we've learned from especially the strike, but just all of the things that have been happening over the past four to five years their agency and their mission is incredibly important on just making sure that there's anti-competitive effects or that there are competitive effects, that they are watching the anti-competitive effects and the monopoly just something that they have been given the mission to protect. So okay, so I've gone way off here.

Speaker 1:

The unreasonable refusal to negotiate the petition was filed on September 18th. We went through the normal back and forth through procedural filings and now, just yesterday, we have a filing from the FMC. Now this is a little bit strange because we don't have the issues presented for the petitioner yet, but we do have a motion to dismiss. Not surprising that we have a motion to dismiss generally but we didn't have one on the other side. I don't think I'll have to go double check that, but this is a motion to dismiss the case for lack of standing, which essentially means that if a party cannot show direct harm, the party does not have the right to appear before the court. So this one is interesting because it wasn't raised, or certainly not that I recall in the detention and demurrage. But here we have it same company, same council, world Shipping Council filing a petition against the same agency, the Federal Maritime Commission.

Speaker 1:

So who is World Shipping Council? Right From their website they say they're the United Voice of International Liner Shipping. And if we look back at the comments filed because I want to take their specific words on this, looking back at the comments filed under the unreasonable result to negotiate rulemaking, they present their comments saying the World Shipping Council is a nonprofit trade association that represents the liner shipping industry, which is comprised of operators of container ships and roll-on, roll-off row-row vessels, including vehicle carriers. Together, the World Shipping Council's members operate approximately 90% of the world's liner vessel services, including more than 5,000 ocean-going vessels, of which approximately 1,500 vessels make more than 27,000 calls at ports in the United States each year. World Shipping Council's container liner members are the parties that will be regulated under the proposed rule. World Shipping Council files these comments in the spirit of assisting the commission in creating a final rule that is consistent with the Shipping Act, provides predictable guidance to all parties and recognizes the operational commercial realities of the liner shipping industry.

Speaker 1:

So the question then will in the immediate become do they have standing? So, taking in the alternative, who should have brought it, if not the World Shipping Council? Maybe the individual Ocean Common carriers? But it probably would be something that all of the ocean carriers would probably be interested in, the same petition and issues that will ultimately be presented here. So maybe the World Shipping Council does have standing and perhaps I mean, I don't know, but it kind of feels like perhaps they do.

Speaker 1:

I understand and I have to dive into the motion a little bit further, to really dive into the FMC because it was just filed yesterday, but really dive into why the FMC says the motion to dismiss here. But I really think that I'd love to see this go to the issues right. I'd love to see a discussion on the unreasonable refusal to deal and negotiate. I hope this doesn't get kicked out on a motion to dismiss, because this one I've said it from the beginning when they first announced it requires more discussion because of those operational things that are included or because of those operationally they're really trying to capture the extreme examples. But where does the line start to fall into the delineation line of what's extreme and what's kind of a normal operational thing? And without going too far into the specifics of this rule, we've talked about this rule before. But this rule talks about perhaps blank sailings at being part of the unreasonable refusal to deal and negotiate. A non-binding example of something that's unreasonable refusal to you still negotiate. It's operational right. I mean, to me it just feels operational and so non-binding examples being included in a reg is a little bit strange anyways. And then to have it be in this operational-ish side of things, I mean it raises to the level of, you know, reasonableness of competition. But it's a tricky one and pretty much all the commissioners at some point have said that this is a tricky one. So I hope this doesn't get kicked out on emotion for the sake of. I'd like to see the issues discussed here. I'm going to keep watching. Don't worry about it. Don't worry, I'll keep watching, all right.

Speaker 1:

The story number three of the week is that I want to talk about the International Longshoremen's Association and the US Maritime Alliance a little bit right. So this temporary agreement was agreed to on October 3rd. As we know, we had a strike for three days. We got the temporary agreement in place and now we've been extended out to January 15th. So two recent announcements on this we had on October 25th, in a joint statement, it was announced that discussions will resume on the master contract in November. It didn't say when in November, but it said November. And that's great. But also, did you expect anything sooner? And I say that because there's something big happening this week. November 5th, that's where the United States is casting their vote for the next president, and we're talking about the International Longshoremen's Association right, the US-based association and the US Maritime Alliance, and so the employers related to the US. So of course the upcoming presidential election is going to be an important factor here. So when they said we're going to resume negotiations in November, of course they are. Of course they are. I'm happy to see that they have said that they will commit to sitting down. I'm not surprised that it was any sooner than November. They didn't say what day.

Speaker 1:

And then the other announcement that came out that was pretty interesting this week was from the Environmental Protection Agency. Again, I'm still talking about the ILA, usmx, but we're bringing in the EPA. They announced their selections for nearly $3 billion of investment in clean ports. This is a big win for ports and their ability to support the deployment of zero emission equipment. But I bring it up here in this discussion because the ILA also applauded this announcement. Now you may be thinking why is the ILA applauding new infrastructure development that undoubtedly has new technology associated with it? Because this is a push for zero emissions. Well, this is the interesting part. As part of the award, one key provision for ports to receive funding for new zero emissionemission port equipment and infrastructure to reduce greenhouse gases and air pollutants at our nation's ports is that the EPA will only fund zero-emission equipment that is human-operated and human-maintained. That was from their press release. The ILA feels supported in this moment and so they issued a press release. It was titled ILA Praises Acting US Labor Secretary Julie Hsu and EPA for Advocating for ILA Jobs as Part of EPA Funding for Zero Emission Port Equipment and Infrastructure. The quote human-operated and human-maintained clause there. I think that this is actually a good thing overall because this also gives me some hope, because the ILA, if they're feeling good moving toward this January 15th or certainly this negotiation in November I mean, at some point I teach an organizational behavior class At some point doesn't? Everybody just want to be heard and really actually heard. So having them feel heard in this moment that the EPA has now included human-operated and human-maintained in their grant announcement, I think they do feel pretty good about that and they seem to actually really like Labor Secretary Sue their messaging has been very positive when they bring her into the fold.

Speaker 1:

But look, the buzz is already starting about predictions on what January 15th looks like and if we're going to be having another strike at that time or if we're not. Let me just say something. I think that everything is essentially on pause until we learn who the next president will be next week, and I say that because they will likely both approach the situation. Whoever wins will likely approach the situation a little bit differently than current President Biden did, and certainly they're going to have different approaches than each other of the two candidates. So anybody in this moment, this week or even the past few weeks making predictions on how January 15th will go. I mean, that's like making a prediction as reliable as if New York City is going to have snow on Christmas this year. They might, they might not, who knows. We don't even know what the weather pattern is going to be because we're not even in the month of December. We have no way of knowing that, and our signals really aren't reliable either. And all of that is true for this discussion here, the ILA and the USMX. Even though we have signals back and forth, we don't know the biggest factor that will be next week. And I think that none of this is surprising so far to me.

Speaker 1:

Right off of the strike, I was very encouraged. The next week I felt a little less encouraged. I'm going to tell you we're all going to go through probably emotional ups and downs over the next few weeks. Hopefully we get a negotiation, a completed contract well before January, and that would be phenomenal. But I'm starting to hear people saying that perhaps we will have a strike in January and to say that now is. I mean, it's important to have discussions, it's important to have predictions, but it's a little bit irresponsible to make those predictions or certainly say that there will be a strike January 15th, I think to say that there might be or say that that's still a possibility, of course it is, but to insinuate that we will be going into a strike now, especially before the election, it's not quite there yet. So anything that you hear over the next few days, anytime before November 5th, I would say, take with a grain of salt, because we won't know more until we have the presidential election settled. And so once we get there, then we can start having real conversations about what it looks like, what are the signals saying on how this is all going forward and really we're going to get back into that phase where not a lot of information is going to be coming out of these negotiations. Hopefully so that they keep the integrity of the conversations to that negotiating room and therefore they stay out of the drama of everywhere else. They might and hopefully we don't get here again, but they might. They were only talking to each other through press releases, it felt like before. Hopefully they will keep those conversations in the room and the integrity of those conversations and negotiations will continue forward until an agreement is reached. But this EPA information certainly makes the ILA feel good, so I think that that's good.

Speaker 1:

The last story of the day is that there is a new alliance filed with the FMC, the Global Ocean Alliances that we have all around the world. We have the newest one on the books there. We've been hearing that this was coming. This is essentially the reshuffle of a previous alliance. Now we have the Premier Alliance. So the Premier Alliance was previously the Alliance T-H-E Alliance. Now it is HMM, hyundai Merchant Marine, o-n-e and Yang Ming. They make up the Premier Alliance, and so, to just kind of have a recap of where the other alliances are, we have the Gemini Cooperation For 2025, we'll have the Gemini Cooperation, which is Maersk Line and Hapag-Lloyd.

Speaker 1:

We'll have, as we just said, the Premier Alliance, the ONE HMM Yang Ming. We'll have the Ocean Alliance, which is Costco Shipping, cma, cgm and OOCL, and then now we're going to have some standalone carriers that have strategic partnerships, and so MSC is one of those. We've heard some messaging that they have collaborations with Zim, which is really encouraging, I think, and an interesting pairing, because Zim typically hasn't joined the Global Ocean Shipping or Global Ocean Alliances, certainly in recent history, and then they will be also partially collaborating with the Premier Alliance in Asia, europe and Asia Mediterranean services, and then also, as we just said, zim. They're going to be operating independently but they're going to be in partnership with MSC on select transpacific routes. So those are going to be some interesting things. I wonder if that's going to maneuver maneuver. I had heard when 2M first was considering or the news first came in about 2M breaking up, zim was being tossed around as a potential partner for either one of them. So when Maersk joined up with Hoppe-Lloyd, I think it was Dr Salmer Cagliano who actually called for or identified perhaps Zim and MSC might be a good or interesting matchup. So we'll see. They're not in an alliance, they're just kind of strategic partner or collaborating with however you want to say it. But that's the roundup of the alliances as we know it now.

Speaker 1:

I'm going to keep watching top stories generally right, and breaking it all down here on by Land and by Sea. As always, the guidance here is general and for educational purposes. It should not be construed to be legal advice directly related to your matter. If you need an attorney, contact an attorney, but if you have specific legal questions, feel free to reach out to me at my legal company, squall Strategies. Otherwise, for the non-legal questions, the e-learning and general industry information and insights, come find me at the Maritime Professor.

Speaker 1:

If you like these videos, let me know, comment, like and share. If you like these videos, let me know, comment, like and share. If you want to listen to these episodes on demand or if you missed any previous episodes, come check out the podcast by Landon by Sea. If you prefer to see the video, they live on my YouTube page by Landon by Sea, presented by the Maritime Professor. While you're at it, check out the website themaritimeprofessorcom. Like I said, I'm going to be working on an unreasonable refusal to negotiate e-course, I think. Let me know if that's what you want. I'm going to start recording for this stuff. So let me know what subject matter you might like to see on an e-course. But until then, until next week, this is Lauren Began, the Maritime Professor, and you've just listened to by Land and by Sea. See you next time. Bye.