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Appellate Court News

25 Mar 2024

US Dredging: Plenty of Issues, New WRDA on the Way

(Photo: Janet Meredith / U.S. Army Corps of Engineers)

2024 marks another year for development of a biennial WRDA bill—Water Resources Development Act, critical legislation for the Nation’s waterways, ports and harbors. WRDA encompasses a range of issues, from environmental regs to energy use to agriculture and, of course, a focus on projects critical for economic growth.Because these are dynamic and timely issues, Congress and the maritime sector like to keep WRDA on a two-year reauthorization timeline. Indeed, the House Transportation & Infrastructure Committee, December and January, held three WRDA information hearings.

23 Feb 2016

Maritime Cybersecurity: What Next?

The maritime community is no more immune from cyber threats than any other entity that relies on computers and the internet. The maritime industry, though, constitutes part of the world’s critical infrastructure. Thus, the consequences of a successful cyber-attack on a maritime entity could be far greater than a successful cyber-attack on, for instance, a bakery. Consequently, it is important that the maritime sector and its numerous constituents adopt reasonable measures to deter, detect, and recover from cyber-attacks. Currently, much of the world’s attention is focused on terrorism. Cyber-attacks by terrorists are a real threat and steps must be taken to counter them. More commonly, though, cyber-attacks are launched by criminals, nation-states, and corporate spies.

08 Jun 2015

Eurotunnel Sells Ships to Danish DFDS Group

Eurotunnel reluctantly sold to its subsidiary, the Calais-to-Dover ferry business, MyFerryLink the Danish DFDS, the competitor of the Channel Tunnel reports Le Monde. The company is a forced seller of the service because of antitrust action. It said it had wanted to sell the business to a workers' cooperative, SCOP SeaFrance, rather than to DFDS. "The group, regretting that SeaFrance SCOP did not have the necessary support to make a takeover offer, ads engaging accept the tender submitted by DFDS for leasing ships Berlioz and Rodin," the group said in a statement. On January 9, the British appellate court for Competition (Competition Appeal Tribunal) upheld the position of the authority of the British competition (competition and markets authority…

21 May 2013

Managing Jones Act Personal Injury Litigation

Even the safest, most careful marine operator will, at some point in time, have an accident aboard one of their vessels. And, despite the best of intentions, sometimes employees gets hurt. Once an employee is injured, the likelihood of employee filing a lawsuit because of it, especially on Jones Act tonnage, becomes a real possibility. The effective management and outcome of such a case lies in preparing for litigation. An understanding of how personal injury litigation under the Jones Act works will help you position your company for a positive outcome – or in other words…

19 Oct 2012

Signed Confessions

Convictions have been obtained for false entries in garbage record books and ballast water management records. What’s Next? Some years ago, I wrote an article lamenting the fraudulent entries made in many oil record books and the increasing use of those entries as signed confessions in the prosecution of ship owners and operators and senior shipboard personnel (particularly chief engineers) for making false statements to the US Coast Guard. Oil record books are required records on commercial vessels and must be presented to Coast Guard boarding officers on demand.

23 Aug 2012

Salvage & Recovery: Treasure and Artifacts

Jim Shirley, legal counsel to the American Salvage Association.

The recent dispute between Odyssey Marine Exploration and the Kingdom of Spain over the treasure and artifacts Odyssey recovered from the Nuestra Senora de las Mercedes has recently been given considerable coverage in the popular press as well as in the maritime press. This has probably reinforced the belief of some people that marine salvage, by definition, is the recovery of sunken treasure. Actually, of course, that is only a small component of marine salvage. It has nonetheless…

16 Dec 2010

The Bisso Doctrine

A tug pushes a dredging platform on Lake Erie near Pointe Mouillee, Mich. (Photo courtesy USACE)

The Bisso Doctrine takes its name from the 1955 U.S. Supreme Court case, Bisso v. Inland Waterways Corp., in which it was established in a majority opinion of the Court that exculpatory clauses in towing contracts are invalid as a matter of public policy. That decision has had serious impact on the United States towing industry, and has affected decisions on whether to make U.S. choice of law and forum applicable to towing contracts where there were other options. It nonetheless remains the law of the land.

29 Apr 2010

Marine Exhaust Systems Wins Patent Lawsuit

(L to R) Marine Exhaust Systems VP Darrin Woods, president Angela Woods, VP Sheila Prieschl and inventor and chairman Woodrow Woods (Photo courtesy Martin Flory Group)

On April 21, the United States District Court for the Southern District of Florida found that DeAngelo Marine Exhaust willfully infringed on two of Marine Exhaust Systems, Inc.'s U.S. patents and that these patents are valid and enforceable. The court also awarded Marine Exhaust $92,804 in damages and agreed to consider additional losses, as well as possibly tripling the final amount. In response, DeAngelo Marine Exhaust said it is appealing this decision to the Court of Appeals for the Federal Circuit, which is the sole appellate court for reviewing patent infringement decisions.

06 Oct 2009

Arbitration, Foreign Seaman’s Wage Claim

The US Court of Appeals for the Ninth Circuit ruled that a wage claim by a foreign seafarer against his employer for service on a foreign vessel is subject to arbitration. In the instant case, plaintiff Philippine seafarer brought suit against defendant cruise line alleging violation of the Seamen’s Wage Act. Defendant cruise line’s motion to compel arbitration in the Philippines was granted by the federal district court and plaintiff appealed. The order compelling arbitration was upheld by the appellate court, which ruled that federal law favors arbitration and that the collective bargaining agreement between with seamen’s labor union and the cruise line comported with the requirements of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards and federal law.

13 Feb 2009

Legal Alert, Maintaining an Oil Record Book

Chris Myers, John Rowley, and John Irving of the Holland & Knight firm have authored a Client Alert on the recent decision of the US Court of Appeals for the Second Circuit rejecting a challenge to vicarious corporate criminal liability. The case involved the criminal prosecution of a ship owner/operator for failure to properly maintain an oil record book (ORB) as required by Coast Guard regulations. Members of the engineering department on the ship had utilized a by-pass pipe to route oily wastewater directly into the ocean. The ORB was falsified to omit this activity. The owner/operator contended that its policies prohibited such activity and that the government should be required to prove that the company did not have an effective compliance program.

25 Nov 2008

MI Ballast Water Statute Upheld

The US Court of Appeals for the Sixth Circuit has upheld the permit requirement of the Michigan Ballast Water Statute as a valid exercise of state authority. Plaintiff ship owners, shipping associations, port terminal, and port association had challenged the permit requirement and treatment system requirement of the state statute, asserting that they were preempted by federal law and violated the United States Constitution. The federal district court disagreed with these contentions and dismissed plaintiff’s complaint. Plaintiff’s appealed. The appellate court looked first at the standing of each of the plaintiffs. It recognized that the ship owners and shipping associations were directly impacted by the state law…

09 Sep 2008

EPA May Inspect a Ship for PCB

The US Court of Appeals for the Fourth Circuit ruled that the Environmental Protection Agency (EPA) has authority under the Toxic Substances Control Act (TSCA) to obtain and exercise an administrative warrant to inspect ships containing regulated chemical substances. In the instant case, the owner of an obsolete US Navy ship announced plans to have the ship towed to a foreign port for renovation and conversion. The EPA learned that the ship probably had polychlorinated biphenyl (PCB) on board in quantities subject to regulation and might well be scrapped rather than renovated. The agency sought permission from the owner to inspect the ship, but was denied. It then sought an administrative warrant from the local federal district court.

08 Sep 2008

Implications of the Jho Doctrine

On June 30, 2008, in the case of United States v. Jho, the United States Court of Appeals for the Fifth Circuit reversed a ruling of the US District Court for the Eastern District of Texas and held that it was not a violation of international law for the federal government to prosecute an owner of a foreign ship and a chief engineer for violation of the Act to Prevent Pollution from Ships (APPS) by failing to correctly maintain the ship's oil record book (ORB). The court went further and ruled that each time the ship called on a US port with the falsely maintained ORB constituted a separate offense. The sentencing aspects of those separate violations were remanded to the district court for consideration. The implications of that decision are only beginning to be understood.

07 Jul 2008

Liability when Both Vessels Violate COLREGS

The US Court of Appeals for the Ninth Circuit upheld the determination of the federal district court regarding allocation of liability in a collision case where both ships had violated the International Regulations for Preventing Collisions at Sea (COLREGS). In the instant case, defendant’s tanker was entering Puget Sound. In accordance with federal law, it hired two of plaintiff’s vessels to provide escort service. In accordance with the pre-arranged transit plan, one of the escort vessels was to be tethered to the stern of the tanker and the other escort vessel was to position itself on the tanker’s port shoulder. Plans called for the two escort vessels to rendezvous with the tanker by proceeding on a course of 058 degrees true at 12.5 knots while the tanker…

02 Jul 2008

Maintain Your ORB

The US Court of Appeals for the Fifth Circuit ruled that the federal government may prosecute a ship owner and chief engineer, under the Act to Prevent Pollution from Ships (APPS), for failure to properly maintain an oil record book (ORB) when the ship entered a US port with an ORB onboard that the chief engineer knew to contain false material entries. In the instant case, defendant chief engineer on a ship owned by defendant shipowner, allegedly directed the discharge of oily waste water from the ship on the high seas without making entries in the ORB required by MARPOL. The ship entered ports of the United States on eight separate occasions before the US Coast Guard discovered the fraudulent entries.

07 Mar 2008

Failure to report oil discharges and the False Claims Act

The US Court of Appeals for the Fifth Circuit ruled that an assertion by an employee that the employer failed to report illegal discharges of oil does not establish a right of action under the False Claims Act. In the instant case, plaintiff employee alleged that defendant employer, which operated offshore drilling units in the Gulf of Mexico under leases from the federal government, illegally dumped oil and other waste into waters of the Gulf and failed to report those discharges in its oil record book. The federal government declined to prosecute defendant for the alleged violations. Plaintiff filed an action against defendant under the False Claims Act, which allows a prevailing claimant to recover a portion of the false claim.

24 Jan 2008

Washington Court Will Not Hear Alaska Dispute

The Court of Appeals of the State of Washington affirmed the dismissal of a lawsuit on the basis of comity. In the instant case, plaintiff seaman was allegedly injured while working as a crew member on an Alaska state ferry. When the state started handling the injury as a workmen’s compensation issue in accordance with state law, plaintiff filed a declaratory judgment action in Alaska state court. After losing at the trial level, plaintiff appealed in Alaska and brought this separate action in Washington State seeking recovery against the State of Alaska under the federal Jones Act. The Washington appellate court noted that the dispute arose in Alaska, is based on Alaska law, and is being separately litigated in Alaska.

12 Nov 2001

Owner Liable For Tendering Unseaworthy Barge

The U.S. Court of Appeals for the Eighth Circuit, in an unpublished decision, has ruled that the owner of a barge may be wholly liable for damages resulting from its tendering to a tug company a barge that is unseaworthy. In a case reported on the Holland & Knight website, the US Army Corps of Engineers time-chartered a tug to tow its barge up the Mississippi River. The corps personnel didn't lower the boom on the barge, having miscalculated the clearance necessary to get under a bridge on the intended route. The tug master briefly inspected the barge, but did not notice that the boom was in the fully raised position. The boom hit the bridge. The bridge owner sued the tug company, which impleaded the corps.

22 Aug 2003

Cruise Ship Doctor Subject to Local Law

The District Court of Appeal of the Florida Third District ruled that the state courts have personal jurisdiction over a doctor employed on a foreign cruise ship for alleged malpractice that occurred on the high seas where the doctor was served with the complaint while the ship was in a local port. In the instant case, the doctor allegedly failed to properly treat a woman passenger who prematurely went into labor while the ship was at sea near the Cayman Islands. The infant died shortly after birth. After suit was filed by the parents in state court in Miami, arrangements were made for personal service of the summons and complaint on the doctor onboard the ship while it was docked in Miami, its homeport and where the parents had originally embarked on the cruise.

27 Aug 2003

Courts Rule on Lost Profits

The U.S. Court of Appeals for the Fifth Circuit ruled that a ship owner whose vessel was damaged due to negligence is entitled to recover lost profits for the period the vessel was out of service if the vessel was active in a market ready for its services. In the instant case, plaintiff's barge grounded in the Pascagoula channel. The trial court found the government to be partially negligent because the channel as marked was inconsistent with the channel as dredged. The appellate court ruled that it is not necessary for a ship owner to show that it lost particular charters in order to recover lost profits. Maritrans Operating Partners, LP v. Port of Pascagoula Source: HK Law

03 Sep 2003

News: Salved, Salving Vessels Entitled to Salvage Award

The U.S. Court of Appeals for the Ninth Circuit ruled that a company that owns both the salved vessel and the vessel performing salvage may be entitled to share in the salvage award. In the instant case, a tug owned by the company caught fire while towing a barge in the Gulf of Alaska. The company diverted another one of its tugs to the scene. This second tug had been equipped with salvage gear. The second tug brought the first tug and the barge under tow and they eventually reached port. The crew of the second tug sued for a salvage award. In addition to resisting the suit, the company contended that it was entitled to share in any award the court might make. The trial court awarded salvage to the crew, but denied any proceeds to the company.

26 Feb 2004

Eleventh Amendment and removal of admiralty case

The U.S. Court of Appeals for the Tenth Circuit ruled that the Eleventh Amendment to the U.S. Constitution does not prevent removal of an admiralty case to federal court where the state involved is the plaintiff. In the instant case, the State of Oklahoma brought suit in state court against the owner of the tugboat that allided with a highway bridge, resulting in severe damage to the bridge and the deaths of various persons. Defendant tugboat owner removed the case to federal court. The state’s motion to remand back to state court was denied and the state appealed. The appellate court held that the Eleventh Amendment only applies in cases where the state is the defendant, so as to avoid states being involuntarily involved in federal court proceedings.

05 Mar 2004

Ferry Owners Beware … and Be Clear

By James P. Nader, Esq. Joseph A. Poblick, Esq. It is common in today's litigious environment for businesses to attempt to limit their liability through contracts. Courts have struggled with the "boilerplate" language used in many contracts today. This is true even in the admiralty and maritime world. Although lawsuits involving maritime injuries generally must be filed within three years, passenger vessels such as ferries and cruise ships may stipulate a shorter time frame. Federal maritime law allows a passenger vessel to limit its liability to lawsuits which are filed within one year of the accident. Passenger vessels may stipulate time limitations for filing claims and commencing lawsuits on their tickets.