State Court News

This article examines 10 structural safeguards in Coast Guard Suspension and Revocation (S&R) Proceedings that ensure Coast Guard Administrative Law Judge (ALJ) decisional independence. These safeguards separate potential agency influences from the ALJ decision making process and are critical to mariner due process and fundamental fairness. We will start with an overview of Coast Guard S&R proceedings, followed by brief discussions of the Administrative Procedure Act, Administrative Law Judges, and U.S. Office of Personnel Management oversight.

For centuries, riverside communities, including the "quilombola" descendants of enslaved Africans who escaped from plantations and ranches, have shared Xingu Island in Brazil's Amazon Basin.Its inhabitants live in brightly painted wooden houses overlooking rivers where small boats crisscross between islands and Abaetetuba city on the mainland to trade fish, seeds and fruits gathered from the Amazon forest in their backyard.In 2016, however, strangers docked on Xingu Island, in Para state…

A U.S. Merchant Marine Academy (USMMA) midshipman who shook the maritime industry last year when, under the moniker "Midshipman-X," publicly described how she was raped by her superior officer while serving as an engine cadet aboard a Maersk cargo ship, has been revealed as Hope Hicks.Hicks is one of two USMMA students being represented by Sanford Heisler Sharp and Maritime Legal Solutions, who said Tuesday they filed two related complaints in New York state court against Maersk Line, Limited alleging that company, a subsidiary of Danish shipping giant A.P.

In 1875, the General Moultrie was the first suction dredge built in the United States and was used in the Charleston River — until it sank within a year. During the same era, the city of Houston and other port towns formed companies like the Buffalo Bayou Ship Channel Company to build special-purpose vessels to clear and connect waterways for commercial vessel traffic. Toward the end of the 19th century, the cutter suction dredge made its appearance and effectively dug and maintained water channels.

Around midnight on February 23, Eulalio Bravo, a marine electrician, was dozing in his rack aboard the San Ramon, an oil tanker anchored off the coast of Venezuela.Suddenly, he heard footsteps pounding along the passageway outside. His captain, Jaime Herrera, cried for help."Be still!" an unfamiliar voice ordered.A gun fired.By the time Bravo and eight other shipmates emerged to see what had happened, the captain lay dead, a gunshot in the back of his head. Herrera's stateroom had been pillaged, drawers flung open, his bunk overturned. The killers were gone, as were thousands of dollars the captain kept under lock and key, according to crew members interviewed by Reuters.The murder…

“An ounce of prevention is worth a pound of cure.” – Henry de Bracton, DeLegibus, ~1240Often clients or prospective clients come to me with a commercial contract issue perched on the precipice of full-blown litigation or arbitration. When I ask to see the contract, often times I see errors in drafting that either (1) give rise to the problem before me or (2) could create a bigger problem for the client in the future.The risk of drafting error is higher for Europeans looking to contract with American companies.

Federal Pilots to appeal. Local spat has regional and national implications. The Galveston-Texas City Pilots and the five-member Board of Pilot Commissioners for Galveston County are facing a serious legal challenge from five pilot applicants and their local attorney. In a nutshell, local, federally licensed and similarly qualified pilots want to compete for business in a previously closed space. In Texas, like virtually every other U.S. state, a local group of pilots – so-called ‘state pilots’ are given the privilege of providing all marine pilot services for deep draft registered (foreign) traffic. In essence, it amounts to a legal monopoly.

Whether voluntarily or as required by the International Safety Management Code, the American Waterways Operators’ (AWO) Responsible Carrier Program, or some other rule or regulation, investigations of accidents and near-miss situations are routinely conducted by companies in the maritime industry. This is due to the widespread recognition that careful examination of the root causes of such incidents can help to prevent future occurrences. Faulty procedures, defective equipment, and inadequate training can all be identified in the investigation exercise.

Presiding over busy waterways and airspace that serve as unofficial highways of an inhospitable state twice the size of Texas, the federal government has a looming presence over Alaska and its famously live-and-let-live residents. And Uncle Sam considers marijuana illegal over every inch. This poses unique hurdles for entrepreneurs hoping to capitalize on an Alaska move to legalize recreational marijuana, and who seek to grow and process products to be marketed across the state, much of which is accessible only via transport links policed by U.S. agencies and governed by federal law. To get around such obstacles, some investors say they plan to launch location-specific seed-to-sale businesses…

More than once, I have been asked to resolve a dispute in which my client was surprised to learn either that it could not force the other side into arbitration, or that arbitration was very different from its expectations. Many companies devote hours (if not weeks and months) to negotiating what they consider to be the “substantive” terms of a contract, yet they pay little attention to the dispute resolution clause often included among boilerplate terms at the end. This is a risky practice, for rights that are carefully bargained for may effectively be lost if the “right” dispute resolution procedure is not negotiated at the outset. When it comes to dispute resolution clauses, there is no one-size-fits-all solution.

The newly assembled Los Angeles Board of Harbor Commissioners held its first meeting, with four of the five-member panel newly appointed by Los Angeles Mayor Eric Garcetti. Three of the commissioners are Harbor Area residents. The Harbor Commission is expected to elect its president and vice-president at the next Board meeting on December 12 th. “Spurring investment and creating job opportunities at our nation’s No. 1 Port is critical to Los Angeles and the entire country,” said Mayor Garcetti.

I propose that the Legislative, Executive, Judicial Branches of the federal government should cooperatively work toward the rebuilding of the presumption in favor of federal preemption with respect to all matters related to maritime commerce. I also propose that maritime stakeholders undertake measures to make this a reality. The Constitution already allows for such preemption – and it has been implemented with regard to various issues over time, particularly in the early days of the Republic.

K&L Gates LLP welcomes Michael D. Bryan and Julius H. “Sam” Hines as partners in the corporate/M&A & commercial disputes practices respectively. Bryan joins K&L Gates from Nelson Mullins Riley & Scarborough LLP, where he chaired the firm’s sustainable energy group, while Hines arrives from Womble Carlyle Sandridge & Rice, LLP, where he was a leader of the firm’s admiralty and maritime practice group. A maritime lawyer and proctor in admiralty, Hines assists shipping clients in investigating and handling marine incidents such as oil spills…

Survivors of the Costa Concordia grounding win a huge victory in the United States District Court for the Southern District of Florida. The District Judge ordered the claims of 104 survivors remanded to the Florida State Court for continued litigation. The court's February 15, 2013 order concerned two cases, Denise Abeid-Saba , et al., v. Carnival Corporation et al., (USDC-SDFla Docket No.: 12-CV-23513) and Scimone v. Carnival Corp., (USDC-S.D.Fla Docket No.: 12-CV-23505), together representing the claims of 104 plaintiffs injured when the huge ship capsized after grounding on rocks just off the shore of Isola del Giglio . Both cases were initially commenced in the Florida State Court against Carnival Corp. as the parent corporation as well as ship designers and the architect.

Here is a multiple choice question:  which of the following contracts is considered to be a “maritime contract” under U.S. law? You will be forgiven if you simply tried to apply logic in answering this question and guessed that all four are maritime contracts. If you know your maritime law, however, then you should have answered that “c” and “d” are maritime contracts whereas “a” and “b” are not. Or, at least, that is the current state of the law. Why might this matter? In the first place…

Accidents happen. That comes as no surprise to those in the insurance industry, but what may be a surprise is the fact that the majority of maritime accidents occur in good weather with perfect visibility. In the following Q&A, Joseph McNulty, founding member of Carroll McNulty & Kull, joins Richard Furman and John Orzel, members of the same law firm, in a discussion on the key elements of marine insurance and what underwriters and claims professionals need to know about federal laws governing the maritime industry. Q. Let's start at the beginning. What is marine insurance?

The Supreme Court of Texas ruled that a state law respecting a procedural framework for claims for personal injury allegedly caused by silica and asbestos is not preempted by the federal law regarding claims for personal injury of crewmembers (the Jones Act). In the instant case, the plaintiff alleged injury from asbestos and silica while employed by defendant corporation aboard a vessel. He brought suit in state court under the Jones Act. Plaintiff failed to comply with certain procedural requirements of the state law and the defendant moved to have the case transferred to another court in accordance with the state law. Plaintiff opposed the transfer, arguing that the Jones Act preempted the state law. The court hearing the motion agreed with the plaintiff and the defendant appealed.

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.

The U.S. Court of Appeals for the Tenth Circuit ruled that the Eleventh Amendment to the U.S. Constitution does not prevent a ship owner from pursuing a limitation of liability claim where one of the claimants is a state. In the instant case, the State of Oklahoma brought suit in state court against the owner of a 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 contended that, under the Eleventh Amendment, a state cannot be prohibited from pursuing its claim in state court and cannot be forced to pursue its claim in federal court. The federal appellate court held that the Eleventh Amendment is a shield, not a sword.

The U.S. Court of Appeals for the Fifth Circuit ruled that a vessel owner filing a federal action for exoneration from or limitation of liability cannot prevent a state court action from going forward if the state claimant stipulates that: (1) federal jurisdiction controls limitation of liability; (2) he waives any claim of res judicata regarding a state court decision relating to limitation of liability; and (3) he would not seek any judgment or recovery in excess of the limitation fund. The vessel owner contended that, since the Limitation of Liability Act also addresses exoneration from liability, its action prevailed over any state court action regarding liability.

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.

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.

The Supreme Court of the State of Alaska ruled that a state-employed seaman injured on job may not recover against the state for alleged personal injuries in an action under the federal Jones Act. In the instant case, plaintiff was employed as a crew member on an Alaska state ferry. He was allegedly injured while working when the vessel was underway. When the state handled the injury under the state’s worker’s compensation system, plaintiff brought a declaratory judgment action in state court, asserting that the state law asserting sovereign immunity in these type cases violated the Alaska Constitution and the United States Constitution.