Marine Link
Tuesday, October 24, 2017

Us Court Of Appeals News

Salazar Statement on Leasing Court Ruling

U.S. Department of the Interior Secretary Ken Salazar issued the following statement regarding the U.S. “I am pleased with the Court’s decision. Consistent with the Department’s request, the Court clarified that its prior ruling only applies to the Chukchi, Beaufort and Bering Seas. On April 17, 2009 the U.S. Court of Appeals for the District of Columbia Circuit vacated the entire 2007-2012 Outer Continental Shelf oil and natural gas leasing program, ruling that Bush Administration officials did not conduct sufficient scientific and environmental analysis before scheduling oil and gas lease sales on the Outer Continental Shelf off Alaska. The ruling came two years after lease sales had begun under the 2007-2012 OCS oil and natural gas leasing program.

Appeals Court OKs Navy Use of Sonar

A federal appeals court on Friday said the U.S. Navy could use high-power sonar during exercises off the Southern California coast despite the technology's threat to whales and other marine mammals. A majority on a three-judge panel of the 9th Circuit U.S. Court of Appeals said the Navy can use the high-power sonar in 11 planned training exercises in its reversal of a lower-court order banning the practice. Source: AP

Appeal By Pilot Association Disallowed

In another chapter (or paragraph) of the long-running disagreement between the association of U.S. pilots operating on the Great Lakes and the U.S. Coast Guard, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the pilots’ association may not appeal a lower court decision to remand a rate dispute to the agency. Lake Pilots Association, Inc. v. U.S. Coast Guard, No. 03-5152 (D.C. Cir., March 9, 2004). (HK Law)

Concurrence in Dismissal Dooms Appeal

The U.S. Court of Appeals for the First Circuit ruled that a party who concurs in the trial court’s dismissal of an action may not appeal that dismissal. In the instant case, plaintiff yacht owners brought suit against the carrier after the yachts were damaged during a voyage. The trial court directed that the matter be arbitrated in accordance with the contract of carriage. The trial court also denied plaintiffs’ motion to allow an interlocutory appeal. After an extended period, plaintiffs moved for dismissal of the action in favor of defendants. The motion for dismissal was made “in the interest of finality” and included no indication that plaintiffs intended to appeal. After the trial court granted the motion, plaintiffs filed an appeal.

Engineer in Dredge is Jones Act Seaman

The U.S. Court of Appeals for the First Circuit ruled that an engineer employed on a dredge in navigation is a seaman for purposes of the Jones Act. This decision was rendered when the court’s earlier decision was reversed and remanded by the U.S. Supreme Court. Stewart v. Dutra Construction Company, Inc., No. 99-1487 (1st Cir., August 9, 2005).

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.

Stolt-Nielsen Seeks Supreme Court Review

The AP has reported that Stolt-Nielsen will seek a Supreme Court review of a federal appeals court reversal of a decision that would allow the company to be prosecuted for antitrust activity. Previously, Stolt-Nielsen cooperated with the government in criminal antitrust prosecutions of the international carrier industry. The Department of Justice kicked Stolt-Nielsen out of the government's corporate leniency program for allegedly continuing illegal anticompetitive activity longer than it acknowledged. In January 2005, a district court judge issued an injunction stopping the Department of Justice from prosecuting Stolt-Nielsen. However, in March, a federal appeals court reversed the injunction. Earlier this month, the U.S.

Excavator May be LHWCA Harbor Worker

The U.S. Court of Appeals for the Ninth Circuit ruled that an excavator was a harbor worker under the Longshore and Harbor Workers’ Compensation Act (LHWCA) when he was killed while excavating a utility line trench as part of a project to renovate three submarine berths at Pearl Harbor. The work was being done ashore, but directly adjacent to, the berths. The court held that the term “harbor worker” includes workers directly involved in the construction of a maritime facility, even though their specific job duties are not maritime in nature. Source: HK Law

FMC Upheld on Claim of Unreasonably Refusing to Deal or Negotiate

In an unpublished decision, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review sought by a stevedoring company of a decision of the Federal Maritime Commission (FMC). In a matter before the agency, the FMC had ruled that a marine terminal operator had not unreasonably refused to deal or negotiate with the stevedoring company. In its decision, the court ruled that the FMC decision was supported by substantial evidence and was consistent with past precedent. Source: HK Law

Divided Damages Following Collision

The U.S. Court of Appeals for the Fifth Circuit upheld the equal division of damages in a collision case where both vessels were at fault. In the instant case, an inbound tanker collided with an outbound dredge in the Houston Ship Channel. The trial court found both vessels to have been at fault and divided the damages equally. The tanker owner appealed, asserting that the primary cause of the collision was the steering failure on the dredge as the two vessels were about to pass. On appeal, the court held that the trial court found various faults on the part of both vessels, including regulatory violations by the tanker. The decision of the trial court was found not to be clearly erroneous. Stolt Achievement, Ltd. v. Dredge B.E. Lindholm, No. 04-20773 Source: HK Law

Decision on Foreign Seaman's Wage Claims

The U.S. Court of Appeals for the Fifth Circuit ruled that wage claims brought by foreign seamen for work on foreign ships are subject to the Foreign Arbitral Awards Convention, even where the claims are based on U.S. law. In the instant case, plaintiff Philippine seamen brought suit in federal court in Louisiana against the shipowner, alleging violation of the U.S. Fair Labor Standards Act (FLSA) for failure to pay federal minimum wage and overtime. Defendant asserted that plaintiffs’ employment contracts were controlled by Philippine law and required arbitration of wage disputes in the Philippines. The trial court refused to order arbitration, citing a Louisiana law expressing the state’s strong public policy against forum selection clauses in employment contracts.

FMC – Petition for Stay Denied in PRPA Case

The Federal Maritime Commission (FMC) released the order of an Administrative Law Judge (ALJ) denying the petition of Puerto Rico Ports Authority (PRPA) for a stay pending its appeal to the US Court of Appeals for the District of Columbia Circuit. The issue involves the claim by PRPA that it is an arm of the Government of the Commonwealth of Puerto Rico and, thus, entitled to sovereign immunity. The Commission ruled against PRPA on that issue. The PRPA has appealed to the federal appellate court and sought a stay of the FMC enforcement action pending a decision from the court. The ALJ has now denied the petition for a stay, but has authorized PRPA to immediately appeal that denial to the Commission. Source: HK Law

Jones Act – State and Federal Proceedings

In an unpublished decision, the US Court of Appeals for the Fifth Circuit ruled that it is inappropriate to dismiss an employer’s federal court action against an employee for breach of contract merely because it relates to a state court action brought by the employee against the employer for damages under the Jones Act. In the instant case, the employee was injured while working on the employer’s vessel. Following medical treatment, the employee signed a release and was paid $4,000. A year later, the employee brought suit in state court under the Jones Act. The employer then filed suit in federal court for breach of the release contract. The employee filed a motion to stay the federal litigation in favor of the state action, which the federal district court granted. The employer appealed.

All Three Ships at Fault, Court Finds

The US Court of Appeals for the Second Circuit reversed the trial court’s finding that one ship was solely at fault in a collision and remanded the case to the trial court to apportion the fault, directing the trial court “to consider the relative culpability of each vessel and the relative extent to which the culpability of each caused the collision.” In the instant case, two ships collided in the English Channel and another ship was involved in the incident, although not in the physical contact. The trial court determined that one of the three ships was so largely at fault that the court assigned full liability to it for damages arising from the collision. On appeal, the court held that all three ships had been negligent to some extent.

Second Circuit Found Three Ships at Fault in Collision

The US Court of Appeals for the Second Circuit reversed the trial court’s finding that one ship was solely at fault in a collision and remanded the case to the trial court to apportion the fault, directing the trial court “to consider the relative culpability of each vessel and the relative extent to which the culpability of each caused the collision.” In the instant case, two ships collided in the English Channel and another ship was involved in the incident, although not in the physical contact. The trial court determined that one of the three ships was so largely at fault that the court assigned full liability to it for damages arising from the collision. On appeal, the court held that all three ships had been negligent to some extent.

Court Interprets Settlement Agreement

The U.S. Court of Appeals for the First Circuit interpreted a settlement agreement between an insurance company and a shipowner in order to determine whether the insurance company was entitled to share in the shipowner’s subsequent settlement with a third party in a claim relating to loss of the ship. Home Insurance Company v. Pan American Grain Manufacturing Co., Inc., No. 03-2625 (1st Cir., February 4, 2005)(HK LAW)

When is a Deckhand not a Seaman?

The U.S. Court of Appeals for the First Circuit ruled that a deckhand might not be a seaman for purposes of the Fair Labor Standards Act (FLSA) and that the issue is a question of fact. In the instant case, plaintiff sued her employer, a commuter ferry, for failure to pay overtime as required by the FLSA. Defendant employer moved for summary judgment, contending a deckhand is a seaman and that seamen are exempt from the FLSA overtime requirement. The trial court granted the motion and plaintiff appealed, contending that she merely took passenger’s tickets, loaded and unloaded passengers, and ensured the safe exiting of passengers. The court held that regulations promulgated by the U.S.

USACE May Recover Reasonable Overhead

The US Court of Appeals for the Eighth Circuit ruled that, where the US Army Corps of Engineers undertakes to repair a lock and miter gate damaged by a tug and barge, it is entitled to recover its reasonable overhead in addition to its direct expenses. United States v. Capital Sand Co., Inc., No. 05-3405 (8th Cir., October 25, 2006). Source: HK Law

State-law tort claim not preempted by LHWCA

The US Court of Appeals for the Fifth Circuit ruled that a state-law tort claim by a shipyard worker against a vessel owner is not necessarily preempted by the Longshore and Harbor Workers’ Compensation Act (LHWCA). In the instant case, was injured while fabricating a pontoon extension for defendant’s vessel, which was moored 200 feet away from plaintiff’s worksite. After receiving LHWCA benefits from his employer, plaintiff sued defendant under state and federal law, alleging that defendant had assumed substantial control over work on the pontoons and had failed to exercise due care to ensure observation of proper safety practices. The trial court dismissed the actions against defendant as preempted by the LHWCA.

Expert Testimony in Maritime Products Liability Case

The U.S. Court of Appeals for the Third Circuit ruled that the trial court did not abuse its discretion when it limited the testimony of expert witnesses in a maritime products liability case. In the instant case, plaintiff’s decedent was killed while riding a jet ski. Plaintiff offered the testimony of three witnesses to testify as experts for the purpose of proving that the jet ski was improperly designed. The trial court prevented the witnesses from offering opinions on issues in which they had limited experience or had no formal training. On appeal, the court held that a witness proffered as an expert must possess specialized expertise in the particular issue of the testimony, based on knowledge, skills, and/or training. Source: HK Law

Reduction of attorney’s fee contract to protect seaman

The U.S. Court of Appeals for the Fifth Circuit ruled that a court sitting in admiralty has inherent authority to alter a contingent fee contract for legal services entered into by an uncounseled seaman. In the instant case, plaintiff foreign seaman retained an attorney to represent him in a personal injury suit against the owner of a ship on which he was injured. The contingent fee contract called for recovery (assuming success in the litigation) by the attorney of all expenses and advancements, as well as 40% of the gross recovery. In this case, the award was such that plaintiff seaman, who had long-since returned to his home in Bangladesh and could no longer work as a seaman due to his permanent injuries, would receive nothing in the final disbursement.

Vague Notice on Passenger Ticket Does Not Limit Liability

The U.S. carrier's liability for the death of a passenger. In the instant case, plaintiff's decedent and plaintiff purchased tickets in California for a Mediterranean cruise. Athens Convention). During the cruise in Greek waters, plaintiff's decedent fell overboard and drowned. Plaintiff sued in federal court for, among other things, wrongful death under the Death on the High Seas Act (DOHSA). The trial court granted the carrier's motion for partial summary judgment limiting its liability to that provided for in the Athens Convention and plaintiff appealed. The appellate court reversed, holding that a reference in a passenger ticket to the Athens Convention is too vague to justify limiting the liability of a claimant for wrongful death. Wallis v. Princess Cruises, Inc.

Ship Owner May Sue Injured Seaman

The U.S. Court of Appeals for the Fifth Circuit ruled that a ship owner may assert a negligence and indemnity claim against its seaman-employee for property damage allegedly caused by the seaman’s negligence. In the instant case, plaintiff mate was injured when his ship collided with another ship. Plaintiff was on watch and in command of the ship at the time and allegedly left the wheelhouse in congested waters to attend to personal business. Plaintiff brought suit against the other ship and against defendant employer under the Jones Act and general maritime law. Defendant settled with the other ship and then filed a counterclaim against plaintiff. The trial court dismissed the counterclaim and defendant appealed.

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