Because defendants’ consent to personal jurisdiction was obtained both constructively, through registration to do business, and explicitly on the record in the proceedings, defendants were “found within the district,” and the requirements of Supp. R. Certain Adm. & Mar. Cl. B had not been met; accordingly, the attachment had to be vacated.
MARIMED SHIPPING INC., Plaintiff, – against – PERSIAN GULF SHIPPING CO. INC. a/k/a PERSIAN GULF SHIPPING CO. LTD. a/k/a PGSC and PGSC MARINE LTD., Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 50901
July 1, 2008, Decided
Plaintiff shipping company applied ex parte for an order for process of a maritime attachment against defendants pursuant to Supp. R. Certain Adm. & Mar. Cl. B(1). The court granted the order. Defendants moved to vacate the attachment pursuant to Supp. R. Certain Adm. & Mar. Cl. E(4)(f).
A defendant’s registration as a foreign corporation authorized to do business in New York State, with a designated agent for service of process in the district, satisfied both prongs of the Seawind test for “found within the district.” Defendants, prior to commencement of the action, had registered to do business in New York State and designated an agent for the service of process, and had consented to the personal jurisdiction of the court on the record. Thus, defendants’ consent to personal jurisdiction had been obtained both constructively, through registration to do business, and explicitly on the record in the proceedings. Therefore, defendants were “found within the district” for the purposes of the Seawind test and the requirements of Supp. R. Certain Adm. & Mar. Cl. B for a maritime attachment had not been met. Accordingly, the attachment had to be vacated.
Defendants’ motion to vacate the attachment was granted.
In 33 U.S.C.S. § 905(b) action, because defect in cargo stow was open and obvious to stevedore, vessel had no turnover duty to warn against defect or to correct unsafe condition. Consequently, vessel has no liability for breach of either turnover duty to warn or to furnish reasonably safe ship.
PATRICK KIRKSEY, Plaintiff-Appellee v. TONGHAI MARITIME; COSCO BULK CARRIER COMPANY LTD., DOING BUSINESS AS COSCO BULK, Defendants-Third Party Plaintiffs-Appellants, V. PAN OCEAN SHIPPING CO., LTD.; STX PAN OCEAN CO. LTD., Third Party Defendants-Appellants.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 15032
July 15, 2008, Filed
Before the instant court was an appeal of a judgment of the United States District Court for the Southern District of Texas in a 33 U.S.C.S. § 905(b) action in favor of plaintiff longshoreman against defendants, the owner, operator, and charterer of a vessel, following a bench trial.
The district court concluded that the unstable stow of cargo made the vessel dangerous to unloading longshoremen and that the vessel owner failed to exercise reasonable care to turn the ship over to the stevedore in such condition that a reasonably competent stevedore could safely unload it. The record was uncontradicted that the dangerous condition in the cargo stow found by the district court was open and obvious to the stevedore. The merits of this case turned on the longshoreman’s rights under § 905(b) against the vessel owner and charterer. The suit against the vessel owner was predicated solely upon its breach of the turnover duty. Consequently, the only issue before the instant court was whether the district court erred in concluding that the shipowner breached that duty. Because the defect in the cargo stow found by the district court was open and obvious to the stevedore, the vessel had no turnover duty to warn against the defect or to correct the unsafe condition. Consequently, the vessel has no liability for breach of either the turnover duty to warn or to furnish a reasonably safe ship.
The instant court reversed the judgment and rendered judgment in favor of defendants.
In a maritime negligence action by a vessel owner against a dredging company following an allision between the owner’s vessel and the company’s submerged dredge spoil pipeline, the district court did not err in finding that the company was only ten-percent at fault; the company had properly placed and marked its pipeline involved in the allision.
EVERGREEN INTERNATIONAL, S.A., Plaintiff-Appellant, v. NORFOLK DREDGING COMPANY, Defendant-Appellee, and MARINEX CONSTRUCTION COMPANY, Defendant. EVERGREEN INTERNATIONAL, S.A., Plaintiff-Appellee, v. NORFOLK DREDGING COMPANY, Defendant-Appellant, and MARINEX CONSTRUCTION COMPANY, Defendant.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2008 U.S. App. LEXIS 13378
June 25, 2008, Decided
Appellant, a vessel owner, sued, inter alia, defendant, a dredging company, alleging negligence under general maritime law following an allision between the owner’s vessel and the company’s submerged dredge spoil pipeline. The United States District Court for the District of South Carolina, at Charleston, found that the owner was ninety-percent at fault for the allision, and that the company was ten-percent at fault. The parties cross-appealed.
The owner claimed that the district court erred in determining the parties’ respective fault, and that the company’s damages cap under 33 U.S.C.S. § 2704(a)(2) should be raised. The appellate court held that the district court’s findings as to the parties’ respective fault were not clearly erroneous. The company had properly placed and marked its submerged dredge spoil pipeline involved in the allision, and there was no evidence that the location of the vessel’s allision with the submerged dredge spoil pipeline was delineated as safe for vessels such as the owner’s. Further, the district court did not err in failing to afford the owner the application of the Pennsylvania Rule, and the district court did not err in concluding that the company was entitled to limit its liability to the owner for damages under § 2704(a)(2). The appellate court then held that the district court did not err by finding the company ten-percent at fault for the allision because it found that the company’s employee acted negligently in describing the layout of its vessels and equipment to a tug boat pilot. Finally, the district court did not err by calculating the company’s damages cap under § 2704(a)(2).
The district court’s judgment was affirmed.
The operator of a tug boat was primarily liable for a collision with an oil tanker under comparative fault, where the tug boat failed to adjust its trajectory and avoid the collision. The application of comparative fault was affirmed.
CROWLEY MARINE SERVICES INC., a Delaware corporation, Plaintiff-Appellant, v. MARITRANS INC., a Delaware corporation; MARITRANS TRANSPORTATION INC., a Delaware corporation; MARITRANS OPERATING COMPANY LP, a Delaware limited partnership; MARITRANS GENERAL PARTNER INC., a Delaware corporation, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
530 F.3d 1169; 2008 U.S. App. LEXIS 14183
July 3, 2008, Filed
Plaintiff, the operator of a tug boat, appealed from an order of the United States District Court for the Western District of Washington that reallocated the fault arising out of the collision of the tug boat with defendant shipping line’s oil tanker, finding the tug boat 70 percent responsible for the collision.
The tug boat was providing service to the tanker when they collided, resulting in the tug boat being pushed along by the tanker’s bow and nearly capsizing as she rolled to the tanker’s starboard side while heeling to port. The tug boat operator argued that a regulation which provided that one vessel overtaking another was responsible for avoiding a collision mandated that fault be primarily laid on the tanker. However, the court found that the regulation was overridden by the fact that the vessels were traveling in coordinated formation. Also, the tug operator reasonably should have investigated the risks stemming from the tug captain’s history of alcoholism and health problems, conditions that appeared to be related to a temporary loss of situational awareness shortly before and during the collision. It was the tug’s trajectory that placed her in an extremis position where an accident could have been avoided only by her own action. The district court did not err in determining that the tug violated another regulation by not taking action to avoid the collision.
The judgment apportioning fault was affirmed.
Under Pleason and Stewart, moored riverboat casino at issue was a “vessel” subject to admiralty jurisdiction. Plaintiff properly pleaded a maritime tort claim resulting from collision with a marina during hurricane, and properly requested attachment of riverboat pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B.
BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT, Plaintiff-Counter-Defendant-Appellant, versus M/V BELLE OF ORLEANS, Defendant-Counter-Claimant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2008 U.S. App. LEXIS 15869
July 25, 2008, Decided
Appellant, Board of Commissioners of the Orleans Levee District, challenged the U.S. District Court for the Southern District of Alabama’s order granting appellee riverboat’s motion to dismiss for lack of admiralty jurisdiction and from the order denying its Fed. R. Civ. P. 59(e) motion to alter, amend or vacate the order to dismiss. The Board, inter alia, sought damages from the riverboat’s collision with marina structures during a hurricane.
The district court found that the moored riverboat casino was not a vessel, that the lease between the Board and the riverboat’s owners was not a maritime contract, and therefore, it had admiralty jurisdiction over neither the Board’s tort claim nor its contract claim. However, under Pleason and Stewart, the instant court determined that the riverboat was a “vessel” subject to admiralty jurisdiction. The Board properly pleaded a maritime tort claim resulting from the collision with the marina under the court’s precedent in Bunge, and properly requested the attachment of the riverboat pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B. Therefore, the court concluded that the district court improperly dismissed the Board’s in personam tort claim for lack of admiralty jurisdiction and should attach the riverboat pursuant to Rule B. However, the Board had not established a maritime contract claim giving rise to a maritime lien enforceable in rem. The Agreement was not predominantly maritime and contained substantial non-maritime elements that could not be severed without injury to the parties. The district court correctly dismissed the in rem contract claims.
The district court was affirmed in part, reversed in part, and remanded.