Although the evidence supported a finding that a barge was not operated with reasonable care, the Oregon rule was erroneous applied in an admiralty lawsuit to create a presumption with respect to causation because the burden remained on landowners to establish that the allision resulting from such negligence was the cause of their damages.
ZEREGA AVENUE REALTY CORP. and FRED TODINO & SONS, INC., Plaintiffs-Counter-Defendants-Appellees, v. HORNBECK OFFSHORE TRANSPORTATION, LLC, Defendant-Counter-Claimant-Cross-Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2009 U.S. App. LEXIS 14591
July 6, 2009, Decided
PROCEDURAL POSTURE:
Appellant tugboat owner and operator sought review of a decision of the U.S. District Court for the Southern District of New York, which awarded damages to appellee landowners for an allision between the operator’s barge and a bulkhead on the landowners’ property abutting a certain creek. At a bench trial, a magistrate judge found the operator liable for negligently causing damage to the bulkhead and an office building.
OVERVIEW:
The operator’s barge, while being pulled by its tug, struck the bulkhead on the landowners’ property, which resulted in the weakening of the bulkhead, causing it to collapse two weeks later and damaging an office building. In determining liability, the district court applied the Oregon rule, which provided an inference of negligence in a collision between a moving vessel and a stationary object, which the vessel owner had to rebut this. The district court also precluded the operator’s expert for its failure to comply with a pretrial orders. On appeal, the court held that the district court erred in applying the Oregon rule to create a presumption with respect to causation. Although the evidence supported the finding that the barge was not operated with reasonable care, the burden remained on the landowners to establish that the allision resulting from such negligent operation of the barge caused their damages. The court further found that the district court erred in precluding the operator’s expert testimony. The district court abused its discretion because both parties failed to comply with a pretrial order regarding witnesses, but only the operator was sanctioned.
OUTCOME:
The court reversed the decision, vacated the damage award, and remanded the case with directions that the judge should retry the factual issue of whether the allision occurred as well as the issue of causation, with the burden of proof on the landowners. In doing so, the judge was directed to make distinct determinations as to whether the allision, if it occurred, was shown to have caused damage to the bulkhead and to the office building.
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District court’s order vacating maritime attachment was affirmed. If entities were alter egos, then entity one’s registration immunized entity two’s property from attachment. If entities were not alter egos, then plaintiff failed to state prime facie claim as underlying dispute was between plaintiff and entity one, not plaintiff and entity two.
TRANSFIELD ER CAPE LTD., Plaintiff-Appellant, -v.- INDUSTRIAL CARRIERS, INC., also known as ICI, and WEAVER INVESTMENTS, INC., Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
571 F.3d 221; 2009 U.S. App. LEXIS 14938
July 8, 2009, Decided
PROCEDURAL POSTURE:
The United States District Court for the Southern District of New York granted, pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B (Rule B), a process of Maritime Attachment and Garnishment sought by plaintiff in the amount of $ 6,414,791.86 against defendants, two entities. The district court vacated the attachment and plaintiff filed a timely notice of appeal. Plaintiff was granted a temporary stay.
OVERVIEW:
Entity one was registered with the New York Department of State but entity two was not. In light of the principles of alter ego jurisdiction and service of process, if a corporation was registered with the New York Department of State–and was therefore found within the district for the purposes of Rule B–that corporation’s alter egos were also found within the district and therefore the property of those alter egos was not subject to maritime attachment. To the extent that plaintiff further asserted that entity one’s presence within the district could not immunize entity two from maritime attachments unless both entities stipulated that they were alter egos, or the district court made a finding of fact as to the alter ego status, the appellate court disagreed. The question of whether the entities were in fact alter egos was irrelevant in the circumstances presented. If the entities were indeed alter egos, then entity one’s registration immunized entity two’s property from attachment. If the entities were not alter egos, then plaintiff’s complaint failed to state a prime facie claim because the underlying dispute was between plaintiff and entity one, not plaintiff and entity two.
OUTCOME:
The order of the district court vacating the attachment was affirmed.
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ELEVENTH CIRCUIT COURT OF APPEALS HELD An arbitration clause in a cruise ship employee’s contract was void, as against public policy, with regard to his claim for wages under the Seaman’s Wage Act, 46 U.S.C.S. § 10313, because the clause called for arbitration in the Philippines under Panamanian law, which completely barred the § 10313 claim and would thus also bar later review.
PULIYURUMPIL MATHEW THOMAS, Plaintiff-Appellant, versus CARNIVAL CORPORATION, d.b.a. Carnival Cruise Lines Inc., Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2009 U.S. App. LEXIS 14406; 21 Fla. L. Weekly Fed. C 1989
July 1, 2009, Decided
PROCEDURAL POSTURE:
Plaintiff former cruise ship employee sued defendant former employer under the Jones Act, 46 U.S.C.S. § 30104, for slip and fall injuries, and alleged unseaworthiness, failure to provide adequate maintenance and cure (M&C), and failure to pay wages under the Seaman’s Wage Act, 46 U.S.C.S. § 10313. He appealed the United States District Court for the Southern District of Florida’s grant of the employer’s motion to compel arbitration.
OVERVIEW:
The employment contract was commercial for purposes of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The injuries giving rise to all of the claims occurred before the new contract (NC) containing an arbitration clause (AC) was executed. The unseaworthiness and Jones Act negligence claims involved only events that happened before the NC existed and had no connection to it. Attempts to return to work and signing the NC had no bearing on the pre-existing M&C claim from the initial injuries; it did not terminate the employer’s existing obligations or create multiple claims. The Jones Act, unseaworthiness, and M&C claims were not arbitrable. Wage claims under older contracts were not arbitrable, as the NC did not state it was retroactive. But wages due under the NC would have been arbitrable, except that the NC called for arbitration in the Philippines under Panamanian law, which completely barred the United States (U.S.) statutorily-created claim under § 10313. The employee would have nothing to enforce in a United States court and would be deprived of any later review. Thus, the AC was void as to the wage claim. The district court had erred.
OUTCOME:
The district court’s decision to compel arbitration was reversed and the case was remanded for further proceedings.
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Pursuant to the Limitation of Liability Act, 46 U.S.C.S. § 30505, a vessel owner was properly denied limitation of liability for injuries sustained in a collision involving an inner tube being towed by a jet ski because the owner did not establish that he had verified that the jet ski operator had previously towed people with an inner tube.
In the Matter of the Complaint of KEVIN MESSINA, as Owner of the Wave Runner Sunset Runner, for Exoneration from and Limitation of Liability. KEVIN MESSINA, Petitioner-Appellant, – v. – JOHN A. WHITE, MICHAEL MURRAY, Claimants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2009 U.S. App. LEXIS 16995
July 31, 2009, Decided
PROCEDURAL POSTURE:
Appellant vessel owner sought review of a decision of the U.S. District Court for the Eastern District of New York, which after a bench trial denied his request under the Limitation of Liability Act, 46 U.S.C.S. § 30505, for exoneration from, or limitation of, liability for appellee claimants’ injuries suffered in a maritime collision between an inner tube, which was towed by a jet ski operated by one claimant, with the other claimant.
OVERVIEW:
One claimant was operating the jet ski, while towing the owner on an attached inner tube. The other claimant was standing next to a beached ski jet, when the inner tube carrying the owner struck him, knocking him into the beached jet ski. The district court found that the accident was the result of negligence and unseaworthiness, of which the owner did not lack privity or knowledge under § 30505(b). On appeal, the court upheld the district court’s finding that the owner did not show that he had an objectively reasonable basis for believing that the operator was competent to operate the jet ski while towing him. Although the owner asserted that he verified that the operator had previously towed people with an inner tube, there was no record evidence supporting this assertion. Further, the district court properly found that the accident was caused by acts of negligence and conditions of unseaworthiness, including the operator’s directing the inner tube toward an area where there were people and operating the jet ski at a speed greater than was prudent, as well as the owner’s directing the operator to increase the jet ski’s speed and instructing him to guide the inner tube ashore.
OUTCOME:
The court affirmed the district court’s decision.
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Ship owner’s strict products liability and negligence-based claims against builder and designer for indemnity and contribution for settlement paid to injured captain failed, as ship construction contract stated that owner could not recover consequential damages or other indirect damages, and such clause was enforceable under Fla. Stat. § 672.715.
JAMESON COOPER, Plaintiff, versus MERIDIAN YACHTS, LTD., a British Virgin Islands corporation, in personam, The M/Y Meduse, a 198 foot Fedship registered in the Cayman Islands with Official Number 729007, her engines, tackle, apparel and other appurtenances, in rem, VULCAN, INC. a Washington corporation, VULCAN MARITIME, LTD., a foreign corporation, in personam, Third-Party Plaintiffs-Appellants, DE VRIES SCHEEPSBOUW, B.V., d.b.a. Feadship, F. DE VOOGT, NA, d.b.a. Feadship, FEADSHIP AMERICA, INC., d.b.a. Feadship, DE VOOGT NAVAL ARCHITECTS, B.V., Third-Party Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2009 U.S. App. LEXIS 16604; 21 Fla. L. Weekly Fed. C 2058
July 21, 2009, Decided
PROCEDURAL POSTURE:
Appellants, a ship, its owner and manager, and the employer of the ship’s captain, sought review of a judgment from the United States District Court for the Southern District of Florida, which ruled against appellants on their third-party indemnity, contribution, and subrogation claims to recover from appellees, a ship builder, a ship designer, and an American affiliate, for sums appellants paid to settle the captain’s personal injury suit.
OVERVIEW:
The captain was injured when the ship’s food lift fell on his leg. The court held that (1) Dutch law applied to the products liability and negligence theories of recovery because the builder and designer were Dutch companies, the ship was constructed in the Netherlands, and the wrongful act–the alleged improper installation of the lift–occurred in the Netherlands; (2) regardless of whether Dutch law applied to the owner’s claims regarding the builder and designer’s liability under a theory of strict products liability, the ship construction contract specifically stated that the owner could not recover consequential damages or other indirect damages, and such clause was enforceable under Fla. Stat. § 672.715; (3) the manager and employer’s claims based on strict products liability were barred under the Netherlands’ 10-year limitations period for such claims; (4) the manager and the employer could proceed with their claims based on general tort liability because the five-year statute of limitations provided under Dutch law for such claims had not expired; and (5) the affiliate, which was not a signatory to the contract, could not benefit from the limitation of liability provision.
OUTCOME:
The court affirmed the decision insofar as it dismissed the owner’s claims against the builder and designer. The dismissal of the claims of the ship, the manager, and the employer against the builder and designer was affirmed in part and reversed in part; the claims could proceed under Dutch law on a general tort theory. The dismissal of appellants’ claims against the affiliate was reversed; those claims could proceed under federal maritime law.
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Writ of attachment was limited to electronic fund transfers where bank was acting as a beneficiary bank of defendant and no further transfer was contemplated. Fed. R. Civ. P. 64 directed court to apply state law, and under New York UCC law, attachment was allowed where a bank was acting as receiving bank, and no further transfer was contemplated.
ARMADA (SINGAPORE) PTE LTD., Plaintiff, -against- NORTH CHINA SHIPPING CO. LTD., (BVI), Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2009 U.S. Dist. LEXIS 60250
July 6, 2009, Filed
PROCEDURAL POSTURE:
Plaintiff won a judgment in a foreign court. Plaintiff sought an ex parte writ of attachment under Fed. R. Civ. P. 64(a) and New York state law. Plaintiff sought to attach defendant’s assets, including electronic fund transfers (EFTs), held for defendant or transferred for defendant’s benefit.
OVERVIEW:
Fed. R. Civ. P. 64 authorized a federal court to borrow relevant state law on provisional remedies. State law determined when and how a provisional remedy was obtained. Limitations and other state law provisions about the circumstances and manner in which provisional remedies could be used had to be honored by the federal court. Property rights in EFTs were governed by the Uniform Commercial Code. Under Article 4-A of New York Uniform Commercial Code (UCC), an order of attachment was entirely appropriate where a bank was acting as the receiving bank of an EFT, and no further transfer was contemplated. Here, plaintiff sought a writ to attach EFTs regardless of whether the bank was the originating bank, the beneficiary bank, or the intermediary bank. But New York law was clear that an attachment order could not intercept EFTs at intermediary banks. Sensing this hurdle, plaintiff asked the court to apply federal maritime law, which allowed even transitory EFTs to be attached. However, the plain language of Rule 64 directed the court to apply state law. Thus, Article 4-A of the UCC applied.
OUTCOME:
Plaintiff’s motion for an ex parte order for issuance of a writ of attachment and garnishment was granted in part and denied in part. Plaintiff could obtain a writ of attachment that was limited to EFTs where a bank was acting as a beneficiary bank of defendant and no further transfer was contemplated.
