LAWYER NAVIGATES ROUGH LEGAL SEAS

LAWYER NAVIGATES ROUGH LEGAL SEAS

How convenient for the officers of the Taxiarhis that the tanker was chartered in November 1983 to deliver a shipment of home heating oil.

At the time, world oil prices were hitting an all-time high, so to avoid paying the resulting high price of bunker fuel, the ship's officers simply siphoned heating oil from the cargo tank to power the ship's engines. Home heating oil is nearly identical in composition to diesel fuel.The on-board seller's representative didn't notice the makeshift conduit between the cargo tanks and the ship's fuel tank, but he became suspicious when the oil began to be pumped back and forth between cargo tanks.

"That's how we found out the crew was nicking the cargo," said Tom Willoughby, an admiralty lawyer with Hill Rivkins Loesberg O'Brien Mulroy & Hayden.

To give the appearance of a full cargo tank when at least half the oil had been used up, the officers pumped thousands of gallons of seawater into the cargo tank and then tried to mix it in by shifting the oil between tanks, much like a bartender mixes a drink.

Savoring his cigarettes like they were fine Cuban cigars, Mr. Willoughby tells the story of the Taxiarhis in his trademark, matter-of-fact tone. The case he considers the most memorable and successful in his 15 years as an admiralty lawyer ended on a satisfying note.

He and his firm, rejecting the adulterated cargo, seized the ship with a maritime lien shortly after it arrived in New York, and had it auctioned off two months later. The cargo owners received an education, and a fat check.

Friends and associates say that while obtaining a big settlement for a client is always rewarding, there is nothing like "the moment when you realize, as Tom did, that you got the bastards by the you-know-what," said Dick Webber, who has worked with him since Mr. Willoughby joined Hill Rivkins out of Fordham Law School in 1977.

"Profit margins on an honest deal are low to begin with, but they are vastly expanded if they get their bunkers for free," Mr. Willoughby said.

Tom Willoughby is a modern incarnation of a practitioner whose profession goes back until least 1200 B.C., the date to which the oldest known maritime laws are traced. With the exception of oil pollution, the early laws dealt with practically the same issues that arise today: cargo lost or stolen, personal injury or death, collision or war.

Yet for someone with a reputation as a leading advocate for cargo owners, and a willing combatant in the rough-and-tumble world of shipping disputes, he is relaxed, congenial and seemingly always available to talk about ships and what happened to them.

"He is a well-mannered fellow, and that is important in today's world

because not all people are. He is going to be a strong advocate, but he is a gentleman about it," said Mark Jaffe, a lawyer at Hill Betts and Nash in New York, who has worked with Mr. Willoughby on several cases.

Get Tom Willoughby talking about his profession and how he feels about it, and he is characteristically understated.

"It is rarely dull," he said matter-of-factly. "And it has some urgency to it when casualties occur because you have to be able to respond immediately.

But get him talking about ship and cargo disputes, and prepare to receive enough material to write a book about the colorful ways that shipping contracts go unfulfilled. Ships and the fates they and their cargo met at sea he'll bring to life in what would be a never-ending monologue but for the need to get back to work.

Mr. Willoughby and Mr. Jaffe recently represented creditors in the case of the East Trader, a small freighter whose captain refused to enter New York harbor for three weeks last year, knowing that with several million dollars of debt hanging over the ship, it would be immediately seized and sold, and with the crew not necessarily being paid.

The two lawyers were horrified when the ship pulled anchor one night and fled to the Bahamas, out of reach of its U.S. creditors.

Then there was the Ocean Blessing and the Nagasaki Spirit, which collided off Indonesia with large loss of life and cargo in 1992, and smaller cases he and the firm get involved with, like that of the multipurpose Takoradi, which got caught in a vicious gale off South Africa this fall and lost 18 containers overboard.

To defend creditors and injured cargo owners, he will often have to seize, or arrest, the ship involved, an ancient legal principle that holds the vessel itself accountable for its own obligations. Old as the idea is, the reasoning is no less persuasive today: Tracking the ownership and whereabouts of debt- ridden ships can be next to impossible.

"To be able to seize a ship is essential because the ship is moveable, that's basically what it comes down to," Mr. Willoughby said. "It may be the only asset you will ever have that you are able to seize."

A ship called the South Star, he recalled, tried to sneak out of New York harbor with unpaid debts in 1987, but was turned back with the threat of force by the Coast Guard after Hill Rivkins persuaded a judge that the ship, and the creditors' money, would never reappear if it were allowed out of the harbor.

Among members of the admiralty bar of New York City, still along with London one of the two leading world venues for resolving admiralty disputes, probably no one has affected the seizure of more ships than Tom Willoughby.

One of the few cases Hill Rivkins has taken to the U.S. Supreme Court, indeed one of the few admiralty cases ever to get there, according to Mr. Willoughby, involved a lawsuit brought by the shipowners and charterers of the tanker Hercules against the Argentine government, which had repeatedly bombed the tanker during the Falklands war in 1982.

The ship had to be scuttled because it contained an unexploded bomb lodged in one of its tanks, but the Supreme Court addressed the overall question of whether charterer or shipowner can recover from a foreign government that bombed a ship in times of war. The court said no.

Those who know him well say that Tom Willoughby, at 44, is in love with his work. He'll tell you he entered Fordham Law School, after spending three years on active duty with the Navy, with the full intention of going into admiralty work.

He still retains his connection to the Navy through the Naval Reserve, where he was commanding officer of a special warfare unit out of Brooklyn from 1989 to 1991. Now a commander in the Reserve, he is currently attached to a secretive unit out of Governors Island named COMUSMARDEZLAND, that is responsible for harbor defense.

Back at work, Mr. Willoughby labors daily at a profession which, like the shipping industry itself, goes through periods of boom and bust. Now times are tough for many in the admiralty bar.

Personal injury claims are down because ships are safer. Ship finance work is off because low shipping rates on many trade lanes are discouraging carriers from building. And London is attracting growing numbers of cases

because litigants feel they can get a case resolved faster than in New York, where disputes often drag through on for years at a time.

A workload that used to support several lawyers at many firms now barely supports one or two per firm.

But Hill Rivkins, along with a handful of other old-line New York admiralty firms like Bigham Engler Jones & Houston and Haight, Gardner, Poor & Havens still rely on ship and cargo disputes for over 75 percent of their work, and have plenty to do.

SNAPSHOT

Name: Thomas Earl Willoughby.

Position: Senior partner, Hill Rivkins Loesberg O'Brien Mulroy & Hayden, New York.

Responsibilities: A leading New York admiralty attorney representing mostly cargo owners in disputes with shipping companies. Cases often arise from cargo lost or damaged in transit. Specialty is maritime liens, used to seize ships in port for nonpayment of debts.

Busiest Period: Mid-1980s, when the bankruptcy of United States Lines caused several ships to be idled and gave rise to more than 500 claims against the company by cargo owners. Has been involved in between 2,500 and 3,000 cases in his career.

Age: 44.

Family: Married since 1974 to the former Susan Griffith. Two sons, Tom Jr., age 15, and Hugh, age 11. Lives in Irvington on Hudson, N.Y., and commutes daily to downtown Manhattan.

Education: Williams College, 1971; Fordham Law School, 1977.

Military Service: Active duty, U.S. Navy 1971-74. Served aboard the USS Columbus, a guided missile cruiser attached to the 2nd and 6th fleets. U.S. Naval Reserve, 1974 through present. Present rank: Commander.

Favorite Hangout: The Whitehall Club.

Accolade: "Tom has a reputation for being absolutely, scrupulously honest and straightforward. Either he will tell you that he cannot answer a question, or he will give you a straightforward answer, and that is very refreshing in the legal profession," said Dick Webber, another Hill Rivkins partner.