Monday, November 30, 2009
Tying pirates in knots
The idea of using lines to foul props is probably as old as mechanical propulsion. Now a BCB International is marketing a device to protect ships from pirate skiffs by, you guessed it, fouling their props. The Engineer has the details.
Somali Pirates Capture Oil Tanker Bound for US
From the AP:
The Greek-flagged Maran Centaurus was hijacked Sunday about 800 miles (1,300 kilometers) off the coast of Somalia, said Cmdr. John Harbour, a spokesman for the EU Naval Force. Harbour said it originated from Jeddah, Saudi Arabia and was destined for the United States. The ship has 28 crew members on board, he said.
The Maran Centaurus is by far the largest Greek-flagged veseel to be attacked and captured by pirates. Ironically the Sunday Times is reporting that last Wednesday a Greek warship, which is part of the EU’s anti-piracy operation, successfully captured pirates suspected of attacking a French cargo vessel only to release them later.
The Greek-flagged Maran Centaurus was hijacked Sunday about 800 miles (1,300 kilometers) off the coast of Somalia, said Cmdr. John Harbour, a spokesman for the EU Naval Force. Harbour said it originated from Jeddah, Saudi Arabia and was destined for the United States. The ship has 28 crew members on board, he said.
The Maran Centaurus is by far the largest Greek-flagged veseel to be attacked and captured by pirates. Ironically the Sunday Times is reporting that last Wednesday a Greek warship, which is part of the EU’s anti-piracy operation, successfully captured pirates suspected of attacking a French cargo vessel only to release them later.
Thursday, November 26, 2009
LHWCA & State Claims
The preemption issue is addressed in a case out of New York. Hawaii Ocean Law has the story.
Happy Thanksgiving
A happy Thanksgiving to eveyone out there. Our regularly scheduled programming will resume to tomorrow.
Wednesday, November 25, 2009
Naval Officers Commended by IMO for Anti-Piracy Work
The Secretary-General of the International Maritime Organization awarded Certificates for Exceptional Services Rendered to Shipping and Mankind to the Commanding Officers, Officers, Petty Officers and Crews of navy ships that have participated in the international efforts to repress piracy off the coast of Somalia and in the Gulf of Aden, thanking them "for their dedication, their courage, their commitment and for the sacrifices they make".
Certificates were presented to Commanding Officers (or their representatives) of ships from Australia, Canada, China, Denmark, France, Germany, Greece, India, Islamic Republic of Iran, Italy, Japan, Malaysia, Netherlands, Portugal, Republic of Korea, Russian Federation, Saudi Arabia, Singapore, Spain, Sweden, Turkey, United Kingdom and the United States.
Certificates were presented to Commanding Officers (or their representatives) of ships from Australia, Canada, China, Denmark, France, Germany, Greece, India, Islamic Republic of Iran, Italy, Japan, Malaysia, Netherlands, Portugal, Republic of Korea, Russian Federation, Saudi Arabia, Singapore, Spain, Sweden, Turkey, United Kingdom and the United States.
Rotterdam Cuts Harbor Dues
From The Journal of Commerce
The port of Rotterdam said it will give ocean ships and inland river barges a 7 percent "once-only crisis rebate" on harbor dues in 2010, the first reduction in tariffs in over 20 years.
...
"The economic recession played an important role in the determination of the reduction as well as the competitive positions within the Le Havre-Hamburg [port] range," the Authority said.
...
Rotterdam's container traffic fell 13 percent in the first nine months of 2009 from a year ago to 7.2 million 20-foot equivalent units and total cargo volume shrunk 11.9 percent to 283 million metric tons.
The port of Rotterdam said it will give ocean ships and inland river barges a 7 percent "once-only crisis rebate" on harbor dues in 2010, the first reduction in tariffs in over 20 years.
...
"The economic recession played an important role in the determination of the reduction as well as the competitive positions within the Le Havre-Hamburg [port] range," the Authority said.
...
Rotterdam's container traffic fell 13 percent in the first nine months of 2009 from a year ago to 7.2 million 20-foot equivalent units and total cargo volume shrunk 11.9 percent to 283 million metric tons.
The World's Only Blog to Combine Thanksgiving and Admiralty Law
It took a little research but I think I've discovered the perfect case for Thanksgiving. In A. Levatino & Sons Fruit & Produce Inc. v. Steamship Athinai, 388 F.Supp. 888 (1975) a consignee of chestnuts brought action against ship and shipowner for damage to the chestnuts during transit. The District Court held that evidence demonstrated that much of the damage suffered by chestnuts after they were received by the consignee was due to the handling of the chestnuts by the consignee so that consignee could recover only for damage shown to be in existence at the time that consignee received the chestnuts from the ship; and that consignee was entitled to recover market value of chestnuts lost during reconditioning plus the cost of reconditioning.
This opinion is packed full of holiday goodness but here are some highlights:
The 974 bags of chestnuts were stowed in the No. 3 lower hold of the vessel ATHINAI, which constituted the reefer space. The bill of lading indicated that the temperature was ‘to be kept centigrades 1/2.’ However, according to the deposition of the chief engineer of the ATHINAI and the ATHINAI's refrigerator log book, the temperatures for the voyage were mostly 3 to 4 degrees...
On Friday, November 17, 1972, the ATHINAI berthed at Hellenic Lines' terminal in Brooklyn. Sylvester Levatino, who was an officer of the plaintiff, testified that plaintiff expected the vessel to arrive around November 3, in time to sell the chestnuts for the Thanksgiving holiday. Levantino stated that the lateness of the vessel caused plaintiff to lose orders. However, there is no evidence that defendant had agreed to deliver the chestnuts before Thanksgiving or that the vessel was diverted during the voyage. ...
Barkus testified and indicated in his written report that many of the bags and their contents were wet, that some chestnuts were sticky and that the wet bags emitted a musty odor. According to Barkus' report, the pulp temperatures of the chestnuts ranged from 38 degrees F to 41 degrees F and the chestnuts were: ‘Fairly well formed and shaped. Fairly well sized to some irregular and small for graded size. Fairly good color. Medium to dark brown color.’ Barkus also found that 2 to 6 percent, average 3 percent, of the chestnuts were snowballs, i.e. chestnuts covered with a heavy or wet mold; that 4 to 16 percent, average 7 percent, showed moderate to heavy surface mold; that 10 to 40 percent, average 25 percent, showed light surface mold; that 2 to 6 percent, average 3 percent showed worm injury; and that 2 to 8 percent, average 4 percent, showed decay....
On November 20, the chestnuts were transported by plaintiff's trucker in an unrefrigerated truck from the Hellenic Lines' pier to plaintiff's premises in the Bronx. Levatino testified that when the chestnuts arrived at plaintiff's premises they were moldy, of dull color, and internally decayed. The chestnuts were placed in refrigeration at a temperature of 42 degrees to 44 degrees F. On the night of November 20 or the morning of November 21, the chestnuts were taken by unrefrigerated truck to the New York Fruit Auction (‘Fruit Auction’) for reconditioning, a process by which the bad chestnuts are picked out and the remaining chestnuts are rubbed to bring back the shine. On November 21, Phil Pepper of the Port Entry Expeditors, Inc. began reconditioning the chestnuts. The process took at least two or three days and resulted in the loss of 158 bags of chestnuts. While at the Fruit Auction, where some chestnuts remained at least until November 24, the chestnuts were not refrigerated....
The testimony of Levatino as to the events following the reconditioning is unclear. Levatino testified that after the chestnuts were reconditioned, plaintiff tried to sell them. However, he stated that since Thanksgiving was on November 23, plaintiff's customers had already brought their supplies for the holiday and plaintiff's chestnuts had to be carried past the holiday. Levatino further testified that on Friday, November 24 or Monday, November 27, some or all of the chestnuts were transported back from the Fruit Auction to plaintiff's premises where they were again placed in refrigeration....
People often ask me why I love admiralty law, it's because of cases like this. With so much of the world's commerce transported by ship admiralty reaches into our lives now more than ever, even if you just want to buy some chestnuts.
This opinion is packed full of holiday goodness but here are some highlights:
The 974 bags of chestnuts were stowed in the No. 3 lower hold of the vessel ATHINAI, which constituted the reefer space. The bill of lading indicated that the temperature was ‘to be kept centigrades 1/2.’ However, according to the deposition of the chief engineer of the ATHINAI and the ATHINAI's refrigerator log book, the temperatures for the voyage were mostly 3 to 4 degrees...
On Friday, November 17, 1972, the ATHINAI berthed at Hellenic Lines' terminal in Brooklyn. Sylvester Levatino, who was an officer of the plaintiff, testified that plaintiff expected the vessel to arrive around November 3, in time to sell the chestnuts for the Thanksgiving holiday. Levantino stated that the lateness of the vessel caused plaintiff to lose orders. However, there is no evidence that defendant had agreed to deliver the chestnuts before Thanksgiving or that the vessel was diverted during the voyage. ...
Barkus testified and indicated in his written report that many of the bags and their contents were wet, that some chestnuts were sticky and that the wet bags emitted a musty odor. According to Barkus' report, the pulp temperatures of the chestnuts ranged from 38 degrees F to 41 degrees F and the chestnuts were: ‘Fairly well formed and shaped. Fairly well sized to some irregular and small for graded size. Fairly good color. Medium to dark brown color.’ Barkus also found that 2 to 6 percent, average 3 percent, of the chestnuts were snowballs, i.e. chestnuts covered with a heavy or wet mold; that 4 to 16 percent, average 7 percent, showed moderate to heavy surface mold; that 10 to 40 percent, average 25 percent, showed light surface mold; that 2 to 6 percent, average 3 percent showed worm injury; and that 2 to 8 percent, average 4 percent, showed decay....
On November 20, the chestnuts were transported by plaintiff's trucker in an unrefrigerated truck from the Hellenic Lines' pier to plaintiff's premises in the Bronx. Levatino testified that when the chestnuts arrived at plaintiff's premises they were moldy, of dull color, and internally decayed. The chestnuts were placed in refrigeration at a temperature of 42 degrees to 44 degrees F. On the night of November 20 or the morning of November 21, the chestnuts were taken by unrefrigerated truck to the New York Fruit Auction (‘Fruit Auction’) for reconditioning, a process by which the bad chestnuts are picked out and the remaining chestnuts are rubbed to bring back the shine. On November 21, Phil Pepper of the Port Entry Expeditors, Inc. began reconditioning the chestnuts. The process took at least two or three days and resulted in the loss of 158 bags of chestnuts. While at the Fruit Auction, where some chestnuts remained at least until November 24, the chestnuts were not refrigerated....
The testimony of Levatino as to the events following the reconditioning is unclear. Levatino testified that after the chestnuts were reconditioned, plaintiff tried to sell them. However, he stated that since Thanksgiving was on November 23, plaintiff's customers had already brought their supplies for the holiday and plaintiff's chestnuts had to be carried past the holiday. Levatino further testified that on Friday, November 24 or Monday, November 27, some or all of the chestnuts were transported back from the Fruit Auction to plaintiff's premises where they were again placed in refrigeration....
People often ask me why I love admiralty law, it's because of cases like this. With so much of the world's commerce transported by ship admiralty reaches into our lives now more than ever, even if you just want to buy some chestnuts.
IN RE KATRINA CANAL BREACHES
By now you’ve probably heard that Judge Stanwood R. Duval of the Eastern District of Louisiana found that the Army Corps of Engineers liable for damage caused by flooding during Hurricane Katrina. The 156-page opinion is better understood when you know the history of the Katrina Canal litigation. Luckily the District Court has provided us a timeline of the major events and decisions in the this litigation.
While this is clearly a win for the plaintiffs; it remains to be seen how they will fare before the 5th Circuit Court of Appeals. Consider that just a few weeks ago the 5th Circuit in an unpublished decision held that a group of Katrina plaintiffs failure to exhaust administrative remedies under the Federal Tort Claims Act (FTCA) was sufficient to uphold a summary judgement in favor of the defendants. However, Tulane Law Professor Oliver Houck quoted in the New York Times expressed the opinion that the opinion would be difficult to reverse:
While this is clearly a win for the plaintiffs; it remains to be seen how they will fare before the 5th Circuit Court of Appeals. Consider that just a few weeks ago the 5th Circuit in an unpublished decision held that a group of Katrina plaintiffs failure to exhaust administrative remedies under the Federal Tort Claims Act (FTCA) was sufficient to uphold a summary judgement in favor of the defendants. However, Tulane Law Professor Oliver Houck quoted in the New York Times expressed the opinion that the opinion would be difficult to reverse:
The United States Court of Appeals for the Fifth Circuit in New Orleans, where the case would go, has a record of hostility to plaintiffs in environmental cases, said Oliver Houck, a law professor at Tulane University. But, he said, Judge Duval’s decision is so technical and packed with details — it came with a 33-page appendix of graphs, charts and maps — that there are only a few areas where it would be exposed to a reversal.
“For an appellate court to reverse him on the facts is unthinkable,” Professor Houck said.
Tuesday, November 24, 2009
Originalism, Foreign Affairs, and Admiralty
The Legal History Blog points us to a fascinating paper by Eugene Kontorovich of Northwestern University Law School. Originalism and the Difficulties of History in Foreign Affairs St. Louis University Law Journal 53 (2008), examines some of the idiosyncratic features of admiralty law at the time of the founding and how those features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations.
A great article that's worth your time to read.
A great article that's worth your time to read.
Is Santa Clara University a Vessel?
In what can only be described as a very patient opinion, Federal Magistrate Judge for the Northern District of California Richard Seeborg tackles this question. The Plaintiff Aubree Guancione alleged that she injured herself by falling down a negligently maintained staircase on the campus of defendant Santa Clara University. The Plaintiff filed a pro se action in Federal Court on the theory that Santa Clara and defendant Spherion Staffing are vessels and that other associated individual defendants are masters and owners of these vessels.
Judge Seeborg noted: that [the Plaintiff] repeatedly refers to herself as “plaintiff/seaman” and “Seaman Guancione,” and she alleges that SCU and Spherion, as the “vessels in question in this lawsuit,” are “dry-docked in Santa Clara County, as are the warehouses where their cargo is placed.” She uses similarly imaginative, pseudo-nautical language to describe the alleged events leading up to the injury underlying the lawsuit. Finally, she invoked “international maritime law regarding personal injury to a seaman or employee” as the basis for relief.
Fortunately Judge Seeborg was having none of it, pronouncing the Plaintiff's argument a misguided attempt to establish federal jurisdiction.
So for the record:
Judge Seeborg noted: that [the Plaintiff] repeatedly refers to herself as “plaintiff/seaman” and “Seaman Guancione,” and she alleges that SCU and Spherion, as the “vessels in question in this lawsuit,” are “dry-docked in Santa Clara County, as are the warehouses where their cargo is placed.” She uses similarly imaginative, pseudo-nautical language to describe the alleged events leading up to the injury underlying the lawsuit. Finally, she invoked “international maritime law regarding personal injury to a seaman or employee” as the basis for relief.
Fortunately Judge Seeborg was having none of it, pronouncing the Plaintiff's argument a misguided attempt to establish federal jurisdiction.
So for the record:
Not a vessel!
Icebergs Head Toward New Zealand
SYDNEY (AFP) – More than 100, and possibly hundreds, of Antarctic icebergs are floating towards New Zealand in a rare event which has prompted a shipping warning, officials said on Monday.
An Australian Antarctic Division glaciologist said the ice chunks, spotted by satellite photography, had passed the Auckland Islands and were heading towards the main South Island, about 450 kilometres (280 miles) northeast.
HT: Bitter End
Monday, November 23, 2009
British hostages say pirates will kill them
From CNN
The Somali pirates have demanded $7 million for Paul and Rachel Chandler, taken from the 38-foot Lynn Rival just days after the couple set sail from the Seychelles islands for Tanzania.
"Our kidnappers are losing patience," said Paul Chandler, 59. "They are concerned that there has been no response at all to their demands for money."
The first nine months of 2009 saw more pirate attacks than all of 2008. Pleasure boaters are urged to avoid the horn of Africa and the Western Indian Ocean. Freedom of Navigation is currently under threat by piracy in many parts of the world.
As we enter the second decade of the 21st Century, piracy promises to remain a concern to both the current maritime powers and emerging nations. What remains to be seen is how the current legal system responds and changes to meet this threat.
The International Maritime Bureau provides a Live Piracy Map that better illustrates the scope of the problem.
The Somali pirates have demanded $7 million for Paul and Rachel Chandler, taken from the 38-foot Lynn Rival just days after the couple set sail from the Seychelles islands for Tanzania.
"Our kidnappers are losing patience," said Paul Chandler, 59. "They are concerned that there has been no response at all to their demands for money."
The first nine months of 2009 saw more pirate attacks than all of 2008. Pleasure boaters are urged to avoid the horn of Africa and the Western Indian Ocean. Freedom of Navigation is currently under threat by piracy in many parts of the world.
As we enter the second decade of the 21st Century, piracy promises to remain a concern to both the current maritime powers and emerging nations. What remains to be seen is how the current legal system responds and changes to meet this threat.
The International Maritime Bureau provides a Live Piracy Map that better illustrates the scope of the problem.
Georgia Case Addresses Concurrent Jurisdiction Issue
It has been established that under the "saving to suitors" clause, state courts have concurrent jurisdiction with the admiralty jurisdiction of federal courts to entertain in personam claims based on maritime causes of action. See Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207 (1986). However, in Norfolk Southern R. Co. v. Kirby, 543 U. S. 14 (2004) the Supreme Court clearly states that "[w]hen a contract is a maritime one, and the dispute is not inherently local, federal law [rather than state law] controls the contract interpretation."
In the recent decision, Cooper/T. Smith Steve Doring Company, Inc. v. Georgia Ports Authority, the Georgia Court of Appeals concluded that the trial court (Fulton County Superior) did not consider the application of federal maritime law. The result is the trial court's ruling on the motions for partial summary judgment was vacated and the case was remanded to be reconsidered to determine the proper application of state and federal law.
Unfortunately the opinion is light on facts, so I'll be updating this post as more information becomes available.
In the recent decision, Cooper/T. Smith Steve Doring Company, Inc. v. Georgia Ports Authority, the Georgia Court of Appeals concluded that the trial court (Fulton County Superior) did not consider the application of federal maritime law. The result is the trial court's ruling on the motions for partial summary judgment was vacated and the case was remanded to be reconsidered to determine the proper application of state and federal law.
Unfortunately the opinion is light on facts, so I'll be updating this post as more information becomes available.
The Best Job in the Navy JAG Corps?
According to CDR Jon Peppetti it's Carrier Strike Group Staff Judge Advocate. Read his story from JAG Magazine to discover some of the unique challenges and rewards of being the sole attorney to an entire carrier strike group.
Friday, November 20, 2009
Admiralty Jurisdiction on Lake of the Ozarks??
Charles Meyer of TowboatU.S. Lake Ozark, Marine Towing & Salvage presents an interesting case of a maritime lien being placed on a boat on Lake of the Ozarks. Charles writes, "It has been said (and written) on many occasions, pointed out by numerous legal types and lawyers that "Admiralty Jurisdiction" DOES NOT APPLY on Lake of the Ozarks - - well - - - lets toss that one up in the air again - - - - there's a FEDERAL JUDGE in the Western District who thinks otherwise??????????"
So does Lake of the Ozarks fall under Admiralty Jurisdiction? And if not how could a maritime lien or an in rem action under Admiralty take place?
It turns out the question of Admiralty Jurisdiction on Lake of the Ozarks has been addressed by the 8th Circuit Court of Appeals. In Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775 1990 the court concluded that because Lake of the Ozarks is contained entirely in the borders of Missouri and lacks any connection to interstate or foreign commerce, it is not a navigable waterway subject to Admiralty Jurisdiction. However as so often is the case, the law gives us another way to approach the problem.
Under the Federal Maritime Lien Act 46 U.S.C.A. § 971, Congress established another basis for admiralty jurisdiction independent from those bases available at common law. Applying the FMLA Admiralty Jurisdiction for of the purpose of a maritime lien can be established by showing that the creditor (1) it provided necessaries; (2) to a vessel; (3) by order of the owner or a person authorized by the owner. See Ventura Packers v. F/V Jeanine Kathleen .
So for the purposes of maritime liens, a vessel on Lake of the Ozarks can be subject Admiralty Jurisdiction.
So does Lake of the Ozarks fall under Admiralty Jurisdiction? And if not how could a maritime lien or an in rem action under Admiralty take place?
It turns out the question of Admiralty Jurisdiction on Lake of the Ozarks has been addressed by the 8th Circuit Court of Appeals. In Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775 1990 the court concluded that because Lake of the Ozarks is contained entirely in the borders of Missouri and lacks any connection to interstate or foreign commerce, it is not a navigable waterway subject to Admiralty Jurisdiction. However as so often is the case, the law gives us another way to approach the problem.
Under the Federal Maritime Lien Act 46 U.S.C.A. § 971, Congress established another basis for admiralty jurisdiction independent from those bases available at common law. Applying the FMLA Admiralty Jurisdiction for of the purpose of a maritime lien can be established by showing that the creditor (1) it provided necessaries; (2) to a vessel; (3) by order of the owner or a person authorized by the owner. See Ventura Packers v. F/V Jeanine Kathleen .
So for the purposes of maritime liens, a vessel on Lake of the Ozarks can be subject Admiralty Jurisdiction.
Does the Shipping Corporation of India Rule on Attachment of EFTs Apply Retroactivelty
As you may know, the 2nd Circuit in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd. held that electronic funds transfer are not property attachable under a maritime attachment order in the district courts of New York pursuant to Rule B* of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure. Now the court in Hawknet, Ltd. v. Overseas Shipping Agencies has decided that the rule from Shipping Corporation of India applies retroactively and that failure to present that argument prior to the decision, does not constitute a waiver.
*Rule B(1)(a) states, in part:
If a defendant is not found within the district when a verified complaint praying for attachment and the affidavit required by Rule B(1)(b) are filed, a verified complaint may contain a prayer for process to attach the defendant's tangible or intangible personal property-up to the amount sued for-in the hands of garnishees named in the process.
*Rule B(1)(a) states, in part:
If a defendant is not found within the district when a verified complaint praying for attachment and the affidavit required by Rule B(1)(b) are filed, a verified complaint may contain a prayer for process to attach the defendant's tangible or intangible personal property-up to the amount sued for-in the hands of garnishees named in the process.
Thursday, November 19, 2009
Cruise Ship Rescues Seattle Couple In High Seas
www.kirotv.com
A Seattle couple in danger of drowning on the high seas was rescued by a cruise ship over the weekend.
Christopher Miller and Brandy Meissner were about 400 miles from Hawaii when bad weather, high winds and powerful waves all threatened to swamp their 38-foot boat.
They deployed their life rafts -- put on survival suits -- and sent out a distress signal.
As the couple huddled together with their two dogs in the middle of the ocean, the Carnival cruise line's Golden Princess appeared and hauled them on board.
"Average waves were 25-feet up to 40-feet… pretty bad for a 38-foot boat," Miller said.
“I knew the signal would go out. I knew someone would come out. I just didn’t know how long it would take or what it would consist of,” Meissner said.
The couple left the mainland two weeks ago to start a commercial fishing business.
They will now be jobless and homeless unless they can find and rescue the boat.
The Weather Channel has a video.
Hat tip:Cruise Ship Law
A Seattle couple in danger of drowning on the high seas was rescued by a cruise ship over the weekend.
Christopher Miller and Brandy Meissner were about 400 miles from Hawaii when bad weather, high winds and powerful waves all threatened to swamp their 38-foot boat.
They deployed their life rafts -- put on survival suits -- and sent out a distress signal.
As the couple huddled together with their two dogs in the middle of the ocean, the Carnival cruise line's Golden Princess appeared and hauled them on board.
"Average waves were 25-feet up to 40-feet… pretty bad for a 38-foot boat," Miller said.
“I knew the signal would go out. I knew someone would come out. I just didn’t know how long it would take or what it would consist of,” Meissner said.
The couple left the mainland two weeks ago to start a commercial fishing business.
They will now be jobless and homeless unless they can find and rescue the boat.
The Weather Channel has a video.
Hat tip:Cruise Ship Law
Not Admiratly Related But Still Interesting
In addition to Admiralty, I'm really passionate about Antiquities Law. So I was pleasantly surprised to see a New York Times story on the issue of ownership of antiquities. Dr. James Cuno of Northwestern and author of Who Owns Antiquity, argues for a return to a system of partage, the traditional system in which archeologists digging in foreign countries would give some of their discoveries to the host country and take others home. While this would solve the ownership problem for new discoveries it wouldn't address current disputes such as the Elgin Marbles.
For more on this topic visit Illicit Cultural Property.
For more on this topic visit Illicit Cultural Property.
Wednesday, November 18, 2009
1.3 Million In Punitive Damages For Failure To Pay Maintenance and Cure
The Maritime Injury Law Blog presents the case of Dana Clausen, a Louisiana fisherman suffered back injuries while serving aboard the fish processing Bering Star. Icicle disputed Clausen’s right to maintenance and cure.
During the course of trial Icicle was ordered to produce a secret medical report they had commissioned relating to Clausen’s need for further treatment. The physician had reviewed Clausen’s records had recommended further treatment for Clausen and noted the need for possible surgery in the future. Icicle ignored the report, and subsequently commissioned a second medical report from a different physician indicating that Clausen needed no further treatment.
The Supreme Court in Atlantic Soundings v. Townsend, held that punitive damages were available in maintenance and cure claims, however how does the court square the 1.3 million punitive award with Exxon Shipping Co. v. Baker? Well it seems from the majority opinion that Atlantic Soundings failed to argue that punitive maintenance and care awards were excessive. From the footnotes: Nor have petitioners argued that the size of punitive damages awards in maintenance and cure cases necessitates a recovery cap, which the Court has elsewhere imposed.
The dissent argues that because the Jones Act incorporates the Federal Employer Liability Act which did not allow for punitive damages, they should not be allowed in this case.
There's an interesting 5-4 split on this case with Thomas writing for himself, Ginsburg, Breyer, Stevens, and Souter, while Alito wrote the dissent which Chief Justice Roberts, Kennedy, and Scalia joined.
During the course of trial Icicle was ordered to produce a secret medical report they had commissioned relating to Clausen’s need for further treatment. The physician had reviewed Clausen’s records had recommended further treatment for Clausen and noted the need for possible surgery in the future. Icicle ignored the report, and subsequently commissioned a second medical report from a different physician indicating that Clausen needed no further treatment.
The Supreme Court in Atlantic Soundings v. Townsend, held that punitive damages were available in maintenance and cure claims, however how does the court square the 1.3 million punitive award with Exxon Shipping Co. v. Baker? Well it seems from the majority opinion that Atlantic Soundings failed to argue that punitive maintenance and care awards were excessive. From the footnotes: Nor have petitioners argued that the size of punitive damages awards in maintenance and cure cases necessitates a recovery cap, which the Court has elsewhere imposed.
The dissent argues that because the Jones Act incorporates the Federal Employer Liability Act which did not allow for punitive damages, they should not be allowed in this case.
There's an interesting 5-4 split on this case with Thomas writing for himself, Ginsburg, Breyer, Stevens, and Souter, while Alito wrote the dissent which Chief Justice Roberts, Kennedy, and Scalia joined.
Baltic Dry Index Reaches 2009 High
There's no doubt that it's been a tough year but today the BDI closed at a 2009 high of 4,643, shooting past the highs of this June and July. However, Reuters has quoted Arctic Securities as warning that “although we consider short-term momentum in the dry bulk freight market too strong to stop, we are worried that one of the underlying reasons behind the strength is a liquidity driven, unsustainable party in the Chinese real estate market. As such we maintain our negative view on the 2010 dry bulk freight market, as we consider current euphoria in the dry bulk market to disregard more challenging fundamentals regarding oversupply of vessels and a possibly inflated demand side”.
Monday, November 16, 2009
Is Reattaching an Air Conditioning Water Hose Worth $156,000?
Or more accurately what is the proper salvage award for a very basic task that prevents a sinking? That was the question at issue in Lewis v. JPI Corp., a slip opinion that comes to us from the Southern District of Florida. The controversy arose over a salvage claim against the M/Y Verona De Carida and her owner JPI Corporation.
On August 8, 2005 while walking her dog Mrs. Teresa Lewis noticed the Verona De Carida listing to her port side with her swim platform and attached wave runner underwater. Mrs. Lewis called her husband Clive, who upon arrival boarded the Verona De Carida and heard water gushing from the engine room. Mr. Lewis entered the engine room and found that the water level was up to his calves or knees and had filled the area between the port and the starboard side longitudinal stringers extending from the engine room compartment to the bulkhead. The water had not yet risen to the engines, the generators, or the fuel tank. Mr. Lewis, himself the owner of a 57' Bayliner, located the source of the incoming water, the hose from the air conditioning seawater pump to the air conditioning compressor had detached, the hose clamps were loose, and electrical power was pumping water into the Vessel from the hose. Mr. Lewis further testified that the water appeared to be flowing at the rate similar to that of a kitchen sink or garden hose.
Mr. Lewis instructed Mrs. Lewis to retrieve a screwdriver from their own boat, and with about 10 minutes worth of work reattached the hose and stopped the flow of water. Mrs. Lewis then telephoned the Water Management Group to request WMG pump the water out of the boat the next morning. Mrs. Lewis also tried to call Romero (the vessels primary user) but was unsuccessful. Later that night, the Lewises returned to the marina on two subsequent occasions to check on the vessel. WMG charged the Lewises $100 for the pump out for which they were reimbursed by JPI.
Approximately two months after the incident, Mr. Lewis contacted Mr. Neil MacLauren, a marine surveyor, about whether or not they had a viable salvage claim. MacLauren measured the depth of the water where the Vessel was docked and found it to be 10′2″. He then took into account the tide and estimated that, at the time of the incident, the depth of the water could have been anywhere between 8 feet and twelve 12 feet. Based on this, MacLauren opined that if the theVerona De Carida had continued to take on water, it would have settled on the bottom of the waterway, the water level would have been about five feet above the draft so that the engine room would have been completely flooded, the accommodations would have been completely destroyed, but the electronics in the pilot house would have remained in tact. MacLauren estimated that, if this had happened, then the vessel would have been a constructive total loss with a value of $40,000 to $50,000.
MacLauren also speculated that the bilge pumps on the vessel were not working as there was no reduction in the water level between the time the Lewises stopped the influx of water and the next morning. If the bilge pumps had been working, then one would expect there to be a noticeable reduction in the water level. According to MacLauren, bilge pumps normally pump out between 500 and 1,100 gallons of water per hour; therefore, these pumps should have pumped out at least 5,000 gallons over the ten-hour span between Mr. Lewis the stopping the influx of water and the next morning. This opinion is consistent with the independent survey that found that the bilge pumps in the engine room and hold aft of the engine room were inoperative at the time the survey was conducted on February 28, 2006. Based on these facts, the Court found that it was more likely than not that the bilge pumps in the Vessel were not working or at least working at a greatly reduced capacity at the time of the incident.
On October 6, 2005, JPI listed the Vessel for sale at an asking price of $675,000. Shortly thereafter on October 19, 2005, Mr. Lewis recorded a Notice of Claim Lien in the amount of $156,000 (30% of the Plaintiff's estimated post salvage value of $520,000) with the United States Coast Guard, National Vessel Documentation Center. Additionally, after filing their claim, the Lewises offered to purchase the Vessel for $300,000. Finally on October 16, 2006, the Vessel was sold on the open market at an arms length transaction for $434,000.
The court concluded that the Lewises had a valid salvage claim. However, when it came to amount of the salvage award the court concluded that the Lewises were entitled to only $21,700 plus prejudgment interest.
To determine the amount of the award the court applied the six Blackwell factors
1) the labor expended by the salvors in rendering the salvage service;
2) the promptitude, skill, and energy displayed in rendering the service and saving the property;
3) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed;
4) the risk incurred by the salvors in securing the property from the impending peril;
5) the value of the property saved; and
6) the degree of danger from which the property was rescued.
The court's award was based on the conclusion that the amount of labor provided by the Lewises was low, the only property they put at risk in the salvage was a screwdriver of low value, the Lewises were at low risk during the salvage, and that the vessel itself was only at low to medium risk.
The Court has also considered JPI's position that the amount of the award should be reduced due to the Lewises' inflated salvage demand and exaggeration of work performed. Although the Court did not agree that the record supported all of Plaintiffs’ claims, it did not find that those claims were made in bad faith and accordingly, declined to reduce the salvage award.
On August 8, 2005 while walking her dog Mrs. Teresa Lewis noticed the Verona De Carida listing to her port side with her swim platform and attached wave runner underwater. Mrs. Lewis called her husband Clive, who upon arrival boarded the Verona De Carida and heard water gushing from the engine room. Mr. Lewis entered the engine room and found that the water level was up to his calves or knees and had filled the area between the port and the starboard side longitudinal stringers extending from the engine room compartment to the bulkhead. The water had not yet risen to the engines, the generators, or the fuel tank. Mr. Lewis, himself the owner of a 57' Bayliner, located the source of the incoming water, the hose from the air conditioning seawater pump to the air conditioning compressor had detached, the hose clamps were loose, and electrical power was pumping water into the Vessel from the hose. Mr. Lewis further testified that the water appeared to be flowing at the rate similar to that of a kitchen sink or garden hose.
Mr. Lewis instructed Mrs. Lewis to retrieve a screwdriver from their own boat, and with about 10 minutes worth of work reattached the hose and stopped the flow of water. Mrs. Lewis then telephoned the Water Management Group to request WMG pump the water out of the boat the next morning. Mrs. Lewis also tried to call Romero (the vessels primary user) but was unsuccessful. Later that night, the Lewises returned to the marina on two subsequent occasions to check on the vessel. WMG charged the Lewises $100 for the pump out for which they were reimbursed by JPI.
Approximately two months after the incident, Mr. Lewis contacted Mr. Neil MacLauren, a marine surveyor, about whether or not they had a viable salvage claim. MacLauren measured the depth of the water where the Vessel was docked and found it to be 10′2″. He then took into account the tide and estimated that, at the time of the incident, the depth of the water could have been anywhere between 8 feet and twelve 12 feet. Based on this, MacLauren opined that if the theVerona De Carida had continued to take on water, it would have settled on the bottom of the waterway, the water level would have been about five feet above the draft so that the engine room would have been completely flooded, the accommodations would have been completely destroyed, but the electronics in the pilot house would have remained in tact. MacLauren estimated that, if this had happened, then the vessel would have been a constructive total loss with a value of $40,000 to $50,000.
MacLauren also speculated that the bilge pumps on the vessel were not working as there was no reduction in the water level between the time the Lewises stopped the influx of water and the next morning. If the bilge pumps had been working, then one would expect there to be a noticeable reduction in the water level. According to MacLauren, bilge pumps normally pump out between 500 and 1,100 gallons of water per hour; therefore, these pumps should have pumped out at least 5,000 gallons over the ten-hour span between Mr. Lewis the stopping the influx of water and the next morning. This opinion is consistent with the independent survey that found that the bilge pumps in the engine room and hold aft of the engine room were inoperative at the time the survey was conducted on February 28, 2006. Based on these facts, the Court found that it was more likely than not that the bilge pumps in the Vessel were not working or at least working at a greatly reduced capacity at the time of the incident.
On October 6, 2005, JPI listed the Vessel for sale at an asking price of $675,000. Shortly thereafter on October 19, 2005, Mr. Lewis recorded a Notice of Claim Lien in the amount of $156,000 (30% of the Plaintiff's estimated post salvage value of $520,000) with the United States Coast Guard, National Vessel Documentation Center. Additionally, after filing their claim, the Lewises offered to purchase the Vessel for $300,000. Finally on October 16, 2006, the Vessel was sold on the open market at an arms length transaction for $434,000.
The court concluded that the Lewises had a valid salvage claim. However, when it came to amount of the salvage award the court concluded that the Lewises were entitled to only $21,700 plus prejudgment interest.
To determine the amount of the award the court applied the six Blackwell factors
1) the labor expended by the salvors in rendering the salvage service;
2) the promptitude, skill, and energy displayed in rendering the service and saving the property;
3) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed;
4) the risk incurred by the salvors in securing the property from the impending peril;
5) the value of the property saved; and
6) the degree of danger from which the property was rescued.
The court's award was based on the conclusion that the amount of labor provided by the Lewises was low, the only property they put at risk in the salvage was a screwdriver of low value, the Lewises were at low risk during the salvage, and that the vessel itself was only at low to medium risk.
The Court has also considered JPI's position that the amount of the award should be reduced due to the Lewises' inflated salvage demand and exaggeration of work performed. Although the Court did not agree that the record supported all of Plaintiffs’ claims, it did not find that those claims were made in bad faith and accordingly, declined to reduce the salvage award.
Wednesday, November 11, 2009
Bayou Steel Corp. v. Evanston Ins. Co.
Another interesting unpublished decision from the 5th Circuit:
At issue in Bayou Steel is whether or not an exclusion of coverage for claims brought pursuant to the Longshoreman and Harbor Workers Compensation Act (LHWCA) applies to a third party maritime tort suit brought against the insured by an injured worker covered by the LHWCA.
Bayou Steel began with a classic contract of affreightment to transport, hiring Kindra Marine Terminal, Inc., a stevedoring company, to unload the barge upon arrival in Illinois. While unloading the barge, Ryan Campbell, a Kindra employee, suffered substantial injuries. As a result, Campbell filed suit against Bayou in Illinois state court. Bayou's primary wharfinger insurer accepted coverage and defense for Campbell's claims against Bayou. However New York Marine & General Insurance Company, Bayou's excess wharfinger insurer, Evanston Insurance Company, Bayou's primary general liability insurer, and National Union Fire Insurance Company of Pittsburgh, Bayou's excess insurer, all initially denied coverage.
Evanston's denial of coverage was based on a exclusions from its policy. which stated:
Evanston argued, Campbell's claims were “pursuant to” the LHWCA. Bayou, however, maintained that Campbell's assertion against Bayou was not a claim or suit brought “pursuant to” the LHWCA but was a claim grounded in negligence under the general maritime law.
The district court granted Evanston's Motion for Summary Judgment, holding that Campbell's claims against Bayou were pursuant to the LHWCA and thus Evanston's policy provided no coverage to Bayou.
However the 5th Circuit distinguished this case from Beaumont Rice Mill, 948 F.2d 950 (5th Cir.1992) by noting that Evanston's policy excludes coverage for “claims made or suits brought against [Bayou] pursuant to the LHWCA” while in Beaumont Rice Mill the exclusion denied coverage for “any losses arising out of injuries covered under the LHWCA."
In reversing the order of the District Court the Court of Appeals also noted that the LHWCA makes it clear that the compensation remedy is the longshoreman's exclusive remedy against his employer; yet the Act also makes it clear that the longshoremen's historic general maritime law claim against third parties is unaffected.
At issue in Bayou Steel is whether or not an exclusion of coverage for claims brought pursuant to the Longshoreman and Harbor Workers Compensation Act (LHWCA) applies to a third party maritime tort suit brought against the insured by an injured worker covered by the LHWCA.
Bayou Steel began with a classic contract of affreightment to transport, hiring Kindra Marine Terminal, Inc., a stevedoring company, to unload the barge upon arrival in Illinois. While unloading the barge, Ryan Campbell, a Kindra employee, suffered substantial injuries. As a result, Campbell filed suit against Bayou in Illinois state court. Bayou's primary wharfinger insurer accepted coverage and defense for Campbell's claims against Bayou. However New York Marine & General Insurance Company, Bayou's excess wharfinger insurer, Evanston Insurance Company, Bayou's primary general liability insurer, and National Union Fire Insurance Company of Pittsburgh, Bayou's excess insurer, all initially denied coverage.
Evanston's denial of coverage was based on a exclusions from its policy. which stated:
This insurance does not apply to “Bodily Injury”, “Property Damage”, “Personal Injury”, or “Advertising Injury”, imposed upon you or assumed by you under contract with respect to claims made or suits brought against you or any indemnitee pursuant to the “United States Longshoremen & Harbor Workers Compensation Act” (Title 33 USCA, Sections 901-950) including any amendments or revisions thereto.
Evanston argued, Campbell's claims were “pursuant to” the LHWCA. Bayou, however, maintained that Campbell's assertion against Bayou was not a claim or suit brought “pursuant to” the LHWCA but was a claim grounded in negligence under the general maritime law.
The district court granted Evanston's Motion for Summary Judgment, holding that Campbell's claims against Bayou were pursuant to the LHWCA and thus Evanston's policy provided no coverage to Bayou.
However the 5th Circuit distinguished this case from Beaumont Rice Mill, 948 F.2d 950 (5th Cir.1992) by noting that Evanston's policy excludes coverage for “claims made or suits brought against [Bayou] pursuant to the LHWCA” while in Beaumont Rice Mill the exclusion denied coverage for “any losses arising out of injuries covered under the LHWCA."
In reversing the order of the District Court the Court of Appeals also noted that the LHWCA makes it clear that the compensation remedy is the longshoreman's exclusive remedy against his employer; yet the Act also makes it clear that the longshoremen's historic general maritime law claim against third parties is unaffected.
Monday, November 9, 2009
Wednesday, November 4, 2009
Crew Members or Employees as Salvors
An interesting case out of the 5th Circuit recently examined whether or not employees or crew members are entitled to recovery as pure salvors.
The story of Solana v. GSF Development Driller I begins with Hurricane Katrina. In the summer of 2005, the semi-submersible Development Driller I (DDI) was anchored in Grand Isle Block 91 but had never performed drilling services because its cracked, submerged thruster housings were damaged and undergoing repair. As the hurricane approached the coast, GlobalSantaFe Hungary Services L.L.C. (GSF) evacuated the crew of the (DDI). After the storm had passed DDI had drifted several miles and was listing as much 12-15 degrees. GSF elisted its employees, Solana and co-plaintiff Lally, to attempt to save the vessel. Solona and Lally were admittedly at-will employees and neither had signed ships articles.
Through the efforts of Solana and Lally, power was restored to DDI, however the flooding continued and the situation grew worse. GSF then contracted with a professional salvage team who were able to stabilize the platform. However, the court accepted that the plaintiffs were successful in counteracting the flooding and improving the vessel's trim before the professional salvors arrived aboard.
Solana and Lally brought an action in rem against DDI and in personam against GSF claiming as pure salvors they were entitled to at least 1% of the $350,000,000 value of the DDI.
The court held that because GSF had agreed to pay Solana and Lally to attempt to save DDI, that "a binding agreement to pay for salvage services irrespective of the success of the enterprise will defeat a claim for pure salvage." However, it did find that Solana and Lally may be entitled to compensation beyond their normal wage as part of their agreement with GSF.
Perhaps more interesting is the fact that Solana and Lally argue that their claims are governed by International Convention on Salvage of 1989. GSF counters that the Convention is not self-executing and has not been implemented in its entirety by enabling legislation. They further argue that even if adopted, Article 3 of the Convention does not cover vessels such as the DDI.
The court punts on the Convention question, writing: It is unnecessary to reach the foregoing questions to resolve whether GSF was entitled to summary judgment. We will assume, but we stress that we are not deciding, that the Convention is enforceable in this nation's courts and that the DDI is not excluded by Article 3. Articles 6(1) and 17 of the Convention require us to conclude that each of the plaintiffs had an agreement with GSF that forecloses a pure salvage claim.
edit: A special thanks to Hugh Ramsay Straub of Phelps Dunbar LLP who caught some errors in the original version of this post and suggested a clarification.
The story of Solana v. GSF Development Driller I begins with Hurricane Katrina. In the summer of 2005, the semi-submersible Development Driller I (DDI) was anchored in Grand Isle Block 91 but had never performed drilling services because its cracked, submerged thruster housings were damaged and undergoing repair. As the hurricane approached the coast, GlobalSantaFe Hungary Services L.L.C. (GSF) evacuated the crew of the (DDI). After the storm had passed DDI had drifted several miles and was listing as much 12-15 degrees. GSF elisted its employees, Solana and co-plaintiff Lally, to attempt to save the vessel. Solona and Lally were admittedly at-will employees and neither had signed ships articles.
Through the efforts of Solana and Lally, power was restored to DDI, however the flooding continued and the situation grew worse. GSF then contracted with a professional salvage team who were able to stabilize the platform. However, the court accepted that the plaintiffs were successful in counteracting the flooding and improving the vessel's trim before the professional salvors arrived aboard.
Solana and Lally brought an action in rem against DDI and in personam against GSF claiming as pure salvors they were entitled to at least 1% of the $350,000,000 value of the DDI.
The court held that because GSF had agreed to pay Solana and Lally to attempt to save DDI, that "a binding agreement to pay for salvage services irrespective of the success of the enterprise will defeat a claim for pure salvage." However, it did find that Solana and Lally may be entitled to compensation beyond their normal wage as part of their agreement with GSF.
Perhaps more interesting is the fact that Solana and Lally argue that their claims are governed by International Convention on Salvage of 1989. GSF counters that the Convention is not self-executing and has not been implemented in its entirety by enabling legislation. They further argue that even if adopted, Article 3 of the Convention does not cover vessels such as the DDI.
The court punts on the Convention question, writing: It is unnecessary to reach the foregoing questions to resolve whether GSF was entitled to summary judgment. We will assume, but we stress that we are not deciding, that the Convention is enforceable in this nation's courts and that the DDI is not excluded by Article 3. Articles 6(1) and 17 of the Convention require us to conclude that each of the plaintiffs had an agreement with GSF that forecloses a pure salvage claim.
edit: A special thanks to Hugh Ramsay Straub of Phelps Dunbar LLP who caught some errors in the original version of this post and suggested a clarification.
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