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PIRATES ARE SUBJECT TO "UNIVERSAL JURISDICTION" BECAUSE BAD GUYS ARE "ENEMIES OF ALL MANKIND" ______________________
U.S. Statutes Applied to Pirates' Foreign Negotiator Regarding German and U.S. Vessels
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A foreign individual who did not personally take part in pirates' capture of German and U.S. vessels on the high seas, but who aided and abetted the pirates as a shoreside negotiator for ransoms after vessels were captured, was convicted of piracy and conspiracy under various U.S. statutes.
The extraterritorial application of U.S. piracy statutes for crimes committed overseas against German and U.S. vessels and crews by non-nationals was upheld by the Fourth Circuit Court of Appeals because "universal jurisdiction" allows any nation's jurisdiction to prescribe punishment for certain offenses recognized by the community of nations.
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SUPREME COURT SPLITS OVER MEANING OF "VESSEL"
The word "vessel" appears in practically every maritime decision and is usually a basis for admiralty jurisdiction. Because under maritime law a vessel is given personification, it can be sued, arrested, and put up a bond to be released, like a person. This is important because when the owner cannot be found in the jurisdiction, a claimant can sue the vessel as security. What qualifies as a "vessel" under maritime law may be anything from a rowboat to an ocean liner and all sorts of contrivances that float in navigable waters and are capable of transportation-but not all. For example, a floating casino permanently tied to a dock is not a "vessel." A motorized houseboat is a "vessel." A vessel loses its personality while in a floating dry dock, and the dry dock is also not a "vessel." Continue Reading... |
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FIRM HOSTS EIGHTH ANNUAL INTERNATIONAL MARITIME LAW SEMINAR IN LONDON
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| Partner Alfred J. Kuffler |
More than 300 people attended the half-day event held at Gibson's Hall. Fifteen well-respected lawyers from 14 countries around the globe spoke on developments in their respective countries. Partner
Alfred Kuffler,
acting as anchor speaker, discussed several U.S. cases, including the recent decision by the Third Circuit in the Athos I which for the first time found that a warranty of safe berth between a terminal and charterer is impliedly warranted to a vessel and its owner. He also spoke about the M/V AKILI decision from the Second Circuit which holds that a sub-sub charterer has a lien for cargo loss against a vessel even though there is no privity of contract with the Owner, the bill of lading acts only as a receipt and the sub-charterparty prohibits direct action against the vessel. The
in rem
action was permitted because of the way COGSA was incorporated into the charter.
The London Seminar was modified this year to add a panel of industry speakers at the end of the session. Partner
Vincent DeOrchis,
founder of the London Seminar in 2005
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moderated that panel, which included executives from the North of England, the American Club and Gard, as well as the in-house counsel to Enterprises Shipping. The speakers at this panel covered issues ranging from Club correspondents, to piracy, to bunker quality and government interference.
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| Partner Vincent M. DeOrchis |
The substantive program was followed by a cocktail party which provided guests with an opportunity to network. Next year's London Seminar is tentatively scheduled at Gibson's Hall in London for September 27, 2014.
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| MONTGOMERY MCCRACKEN MARITIME ATTORNEYS ENJOY NOVEMBER MEETING OF THE VESSEL OWNERS' AND CAPTAINS' ASSOCIATION
On November 6, partners
John Levy and
Alfred Kuffler and associate
Melanie Leney attended the November meeting of the Vessel Owners' and Captains' Association. The more-than-500 attendees enjoyed a "shore-style" lobster dinner as well as a lovely evening of socializing and networking.
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| CONNECT WITH MONTGOMERY MCCRACKEN: 
 
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| VESSEL MOORED IN NARROW WATERWAY FOUND 70 PERCENT AT FAULT WHEN STRUCK BY A PASSING VESSEL ____________________________
The "Pennsylvania Rule" Applied
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In common law tort cases, contributory negligence of the plaintiff, no matter how small, can bar any recovery from the party who may have been more negligent in causing the loss. In contrast, maritime law will apportion the loss among the parties in proportion to the percentage of negligence the court attributes to each party. Moreover, the burden of proof may change where a party is in violation of a statutory rule established by law.
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NVOCC IS PROTECTED BY COGSA $500 LIMITATION ALTHOUGH AUTOS WERE STOLEN FROM ITS FACILITY AND A BILL OF LADING WAS NOT ISSUED
A federal court in New York has held that a Non-Vessel Operating Carrier (NVOCC) is entitled to the
U.S. Carriage of Good by Sea Act (COGSA)'s $500 limitation although the autos were stolen from its facility before they were delivered to the loading pier and before a bill of lading was issued by the carrier.
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| FORUM SELECTION CLAUSE IN AN OCEAN BILL OF LADING IS ENFORCEABLE UNLESS UNJUST OR UNREASONABLE ______________________ Courts Apply Three-Part Test
Maritime bills of lading usually contain a forum selection clause dictating where claims or suits are to be filed. Sometimes they are challenged by shippers because the forum specified in the printed contract is convenient only for the carrier that issued the bill of lading. However, a forum selection clause is
prima facie
valid unless the shipper can prove that it is unreasonable or unjust.
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SHOULD OWNERS BUY SEPARATE INSURANCE TO COVER GENERAL AVERAGE EXPENDITURES IN CONTAINERSHIP CASES?
Although litigation growing out of the July 2012 explosion and fire onboard the M/V MSC Flaminia while in transit from Charleston, S.C. to the UK is just beginning, it has already produced a significant decision involving security to be posted in favor of salvors and for general average (GA) expenditures. The salvage arbitrator ordered that security representing 65 percent of the value of the cargo be posted while the GA adjuster demanded 100 percent of that same value.
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| A STEVEDORE HIRED BY BOTH THE SHIPPER AND CARRIER IS STILL PROTECTED BY BILL OF LADING THAT WAS NEVER ISSUED A stevedores company was hired by the shipper to unload 143,200-pound boiler from a railcar, store the boiler until the ship arrived, and then move the boiler to shipside for loading. The stevedore also had an exclusive contract with the ocean carrier. The stevedore company received the boiler and stored it. When the ship arrived, the stevedore loaded the boiler onto the stevedore's trailer and moved it to the vessel's side. While maneuvering the trailer into proper location for loading, as directed by the vessel's Port Captain, the boiler fell off the trailer and sustained significant damage. The shipper sued the stevedore for $284,415 in damages, as well as fees, interest and cost. Continue Reading... |
| JURISDICTION IN LHWCA CASES DEPENDS ON SITUS In order to be covered by the Longshoreman and Harbor Workers' Compensation Act (LHWCA), an employee must prove that his injury occurred in an "area adjoining navigable waters customarily used by the employer in loading or unloading a vessel," such as a dock or pier. When an employee of a stevedore was injured in a facility in New Orleans about 300 yards from the Intracoastal Canal, near a radiator shop, an auto repair shop and other manufacturers, the injury was not covered by the LHWCA. (New Orleans Depot Services v. Director, Office of Worker's Compensation Programs).
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COGSA "FAIR OPPORTUNITY" DOCTRINE DEPENDS ON THE BILL OF LADING TERMS Under the "Fair Opportunity" doctrine of the U.S. Carriage of Goods by Sea Act (COGSA) §4(5), the $500 per package limitation is inapplicable if the shipper does not have a fair opportunity to declare higher value of his goods and pay the corresponding higher freight rates. In determining whether the shipper received a fair opportunity, the carrier bears the initial burden of offering prima facie evidence, usually found in the terms of the covering bill of lading. If the carrier is able to cite the appropriate language in the bill of lading, the burden of proof then shifts to the shipper to demonstrate that a fair opportunity was not in fact provided. Continue Reading...
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| U.S. GOVERNMENT CANNOT CHALLENGE A LIMITATION PROCEEDING WITHOUT FIRST FILING A PROOF OF CLAIM __________________________________ Even if a U.S. Claim is Not Subject to Limitation
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A party who does not first file a claim in response to a petition for exoneration from a limitation of maritime liability has no standing to contest the petition, according to the Eighth Circuit Court of Appeals. The owner of a towboat that lost four barges on the Mississippi River, causing extensive damage to a lock and dam, filed a petition for exoneration or limitation of liability and notified the federal government of its action. The government did not file a proof of claim or answer as required by the rules, but instead appeared in the proceeding and filed a motion to dismiss. It argued that its claims were not subject to limitation under the Rivers and Harbors Act. Continue Reading... |
PARTY IS SANCTIONED FOR DESTRUCTION OF ELECTRONIC DOCUMENTS AFTER RECEIVING A CLAIM
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U.S. Law Presumes Prejudice Even If Data Is Protected by Law of a Party's Country
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Destroying electronic records relevant to a pending claim or lawsuit is never a good idea, even when emails are destroyed or deleted without malevolent intentions. A federal court in New York has ruled that, "When evidence is destroyed willfully or through any gross negligence, prejudice to the innocent party may be presumed," as a matter of law.
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| INTERN PROGRAM OPEN TO FOREIGN LAWYERS AND LAW SCHOOL GRADUATES Montgomery McCracken continues to sponsor an intern program for foreign lawyers and law graduates. During the last two years, the firm has hosted young lawyers from Russia, Italy, the Republic of Georgia, the United Kingdom and Belgium. A new trainee from France will be arriving shortly. The program allows foreign lawyers to be exposed to the American legal system, and observe court hearings, trials, arbitration proceedings, depositions and other events in the course of routine cases handled by the firm. The program is an outreach by the Maritime and Transportation practice of the firm, but interns can also be exposed to other areas of the law. Interns are generally assigned to the New York office, but may have an opportunity to work in the Philadelphia and New Jersey offices as well. Anyone who may wish to participate in the three-month program should contact Kaspar Kielland at kkielland@mmwr.com. |
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DO NOT TEXT SOMEONE WHO YOU KNOW IS DRIVING TO REPLY IMMEDIATELY
The Appellate Division of the New Jersey Superior Court ruled for the first time that "a person sending text messages has a duty not to text someone who is driving if the textor knows...the recipient will view the text while driving."
The textor can be held liable for injuries caused by the distracted driver to a third party. The plaintiff has the burden of showing that the textor "actively encouraged" the recipient, such as by asking for an immediate reply.
In the New Jersey case, where a teenager sent several texts to her boyfriend who was driving, there was no evidence that she required an immediate response. The accident occurred less than 30 seconds after the driver received her l
ast text.
(Kubert v. Kyle Best, et al.).
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NEWS AND MEDIA
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- Partner John Levy was quoted in Los Angeles Times' "Second phase of BP Deepwater Horizon Oil Spill Trial Begins"
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Partner
Vincent DeOrchis
was named to The Best Lawyers in America's 2014 "Best Lawyers in the New York Area" in the category of Admiralty & Maritime Law
- Partner John Levy was quoted in Chicago Tribune's "Analysis: BP's Legal Gamble May Trim Spill Bill By Billions"
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Montgomery McCracken's Maritime and Transportation practice serves all sectors of the maritime industry including ship owners, charterers, pilots, cargo owners, shipyards, terminals, commodities traders, non-vessel operators and non-vessel operating common carriers. The multifaceted practice includes cargo and products claims; bankruptcy and restructuring; corporate and finance matters; sustainable growth; and defense of criminal investigations, including corporate compliance matters.
Articles in this newsletter were prepared with assistance by
M.E. DeOrchis.
A
PDF format
of the newsletter is also available. For additional information, please contact any of the attorneys within the firm's
Maritime and Transportation
practice group.
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| Attorney Advertising This publication should not be considered legal advice and should not be relied upon without consultation with appropriate professional advisers. This publication is intended to provide general information only and nothing in it should be acted upon without consultation with legal counsel. Receipt of this publication does not create an attorney-client relationship between the recipient and Montgomery McCracken.
Montgomery McCracken Walker & Rhoads LLP is a Pennsylvania Limited Liability Partnership. The firm is headquartered at 123 S. Broad Street | Philadelphia, PA 19109. R. Montgomery Donaldson is the firm's responsible partner for the Delaware office. Louis A. Petroni is the firm's responsible partner of the New Jersey offices. Pursuant to applicable U.S. Treasury Regulations (Circular 230), we must advise you that this communication is not intended or written to be used, and cannot be used, by a recipient for avoiding tax penalties that may be imposed on the recipient under U.S. federal tax laws. For more information on Circular 230, visit our website and click on "Publications." Under New York's Rules of Professional Conduct, this material may constitute attorney advertising. © 2013 Montgomery McCracken Walker & Rhoads LLP |
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