25 Apr 2008:Padre Shipping, Inc. v Yong He Shipping 553 F.Supp.2d 328 S.D.N.Y. 2008
19 Mar 2008:Novoship (UK) Ltd. v Ruperti. 545 F.Supp.2d 328 S.D.N.Y. 2008
19 Mar 2008: Great American Ins. Co. v U.S. 552 F.Supp.2d 703 S.D.Ohio 2008
22 Feb 2008:Sanko Steamship Co., Ltd. v China Nat. Chartering Corp. 536 F.Supp.2d 362 S.D.N.Y. 2008
24 Jan 2008: Compagnie Maritime Marfret v San Juan Bay Pilots. Corp. 532 F.Supp.2d 369 D.Puerto Rico 2008
2007
Sinochem International Co. Ltd. v Malaysia International Shipping Corp 127 S.Ct. 1184 [2007 AMC 609] 5 March 2007 PRACTICE & PROCEDURE - compensation for loss due to arrest of ship in China - claim that petition in Chinese court to arrest contained negligent misrepresentations - doctrine of forum non conveniens – whether the United Sates District Court must first conclusively establish jurisdiction before dismissing action.
2006
Addie Holmes v Atlantic Sounding Company Inc, et al USCA 5 th Cir [2006 AMC 182] 19 January 2006 MARITIME LAW – personal injury – Merchant Marine Act – definition of ‘vessel’ –water-borne structure capable of transportation is a ‘vessel’ – dormitory barge used in dredging operations considered to be vessel, despite not being intended for use as transport – definition of ‘seaman’ – worker’s duties must contribute to vessel’s mission or function and connection must be substantial in nature and duration.
America S/A Frutas E. Alimentos, et al v M/V Cap San Rafael, et al, 426 FSupp2d 312 (EDPa) [2006 AMC 1028] 12 April 2006 BILLS OF LADING – liability for damage to mangoes caused solely by delay in delivery – burden of proving damage occurred during delivery – parties are free to contract away liability, in this case, liability for delay – but if liable, calculation of damages depends here on whether a container constitutes a COGSA “package” or each pallet or each free-shipped carton is the “package” – held, (1) defendant has shown liability for delay was contracted away, but a triable issue of fact remains as to whether defendant was negligent, in which case, liability remains – (2) each pallet and free-shipped carton is a “package” under COGSA.
APL Co Pte Ltd v UK Aerosols Ltd, et al, 452 FSupp2d 939 (NDCal) [2006 AMC 1680] 6 July 2006 BILLS OF LADING – parties to a bill of lading – negligence and breach of contract claims - whether one of several defendant merchants alleged to be jointly and severally liable by carrier for damage caused by “leaking, dangerous and hazardous” goods was a party to the bill of lading and thus liable – plaintiff argues the defendant, while not a signatory to the bill of lading, demonstrated an intent to be bound by requesting to inspect and salvage the goods and inquiring into the cost of cleanup – held, 1) these allegations of fact are insufficient and do not suggest the defendant asserted an interest in and control over the goods, such that a court may find implied acceptance of the contract – 2) further, cases cited by plaintiff for the proposition that the defendant is nonetheless liable as a “merchant” within the meaning of the contract still require some form of acceptance of the contract – 3) plaintiff’s negligence claim fails to the extent it rests on contractual duties breached, and facts alleged are too conclusatory to support an independent negligence claim.
Cementos Andinos Dominicanos, SA v East Bulk Shipping SA, (Not reported in FSupp2d) [2006 AMC 1121] 29 March 2006 BILLS OF LADING – arbitration over damages incurred when vessel ran aground – sub-sub-charterer (plaintiff) seeks to compel vessel owner to arbitrate in New York claiming the charter, whose terms call for arbitration there, controls – vessel owner claims not to be a party to that agreement, formally between a sub-charterer and the plaintiff – whether by signing the bill of lading, master of the vessel bound the vessel owner to the disputed charter - held, (1) the law in the Second Circuit being well settled, vessel’s master, as agent, made the vessel owner a party to the agreement when he signed the bill of lading - (2) arbitration clause was sufficiently broad to cover this dispute.
Contship Containerlines Ltd v PPG Industries Inc USCA 2 nd Cir [2006 AMC 686] (21 March 2006) SHIPPING – carriage of goods – carrier stowed calcium hypochloride on top of a heated tank knowing that heat could cause a thermal runaway under some conditions – carrier cannot invoke the strict liability imposed on a shipper of dangerous goods under COGSA § 1304(6) where carrier knows the cargo poses a danger and requires gingerly handling and stowage yet exposes the cargo to the general condition that triggers the known danger even where carrier is not aware of the precise characteristics of the cargo.
CVG Ferrominera Orinoco CA v Transportes Ferreos De Venezuela CA et al USDC (SD NY) [2006 AMC 201] 3 January 2006 ARBITRATION – agreement to arbitrate "all claims" includes arbitration of the issue of whether one party to the arbitration agreement is the alter ego of another party.
David E Mullane et al v Adele Chambers et al USCA 1 st Cir [2006 AMC 467] (24 February 2006) MARITIME LIENS – Federal Maritime Lien Act 46 U.S.C. § 31342 – purchaser of boat paid off seller's mortgage – before sale and discharge were registered creditors of seller made in rem claim on vessel – whether rule of advancements created lien in favour of purchaser – purpose of maritime liens to safeguard interests of strangers to vessel – purchaser’s ‘advance’ compensated by ownership of vessel.
Erne Shipping Inc v HBC Hamburg Bulk Carriers GMBH & Co KG USDC (SD NY) [2006 AMC 225] 11 January 2006 MARITIME – order of attachment – Supplemental Rules for Certain Admiralty and Maritime Claims, Rule B – whether defendant ‘found within the district’ – defendant must have sufficient contacts with district – the defendant had no continuous and systematic activity in NY and therefore was not subject to general jurisdiction in the state.
J & A Fleeting Inc v Fireman’s Fund McGee Marine Underwriters USDC (ED Kentucky) [2006 AMC 535] 3 January 2006 MARINE INSURANCE – seaworthiness – when vessel sinks in berth in calm water there is a presumption of unseaworthiness – burden falls on assured to produce evidence to the contrary.
Liberty International Underwriters v Ernest D Carlson, Not Reported in FSupp2d (WDWash) [2006 AMC 1140] 6 February 2006 MARINE INSURANCE – insured seeks compensation from insurance carrier for water damage to deck of fishing boat due to defective design or construction of the deck with the scuppers – policy covers latent defects in a variation of the inchmaree clause - insurer argues the damage is a design defect that as a matter of law, cannot be a latent defect – definition of a latent defect - held, 1) cases offered by insurer do not suggest a design defect cannot also be a latent defect, 2) a latent defect is one a reasonably skilled ship owner would not discover during a reasonably careful inspection, 2) fortuity doctrine (principle that insurer need only cover losses not due to planned, intended or anticipated events) does not apply as insurer produced no evidence insured knew he would suffer a loss.
Malaysia International Shipping Corporation vSinochem International Co Ltd USCA 3 rd Cir [2006 AMC 383] 7 February 2006 ADMIRALTY – torts – location test – tort occurs where the tortious act takes effect – although defendant's negligent misrepresentation of plaintiff's acts to a Chinese court occurred ashore, the resulting seizure of plaintiff's vessel was on navigable waters – forum non conveniens is a non-jurisdictional and non-merits procedural issue – court must determine that it has subject matter and personal jurisdiction before considering forum non conveniens.
Marine Towing and Salvage, Inc – M/V Jersey Devil, et al, Arbitration Decision [2006 AMC 1739] 11 May 2006 SALVAGE – definition of a peril – fishing vessel with passengers strikes submerged rocks near the beach after a navigational error due to fog – salvor responds to distress call and tows vessel to deep waters and then to repair facilities – vessel owner claims the services were a tow and not a salvage – pivotal issue is whether there was a peril, the first element in a claim for a salvage award – a peril is where there is a reasonable apprehension that the vessel may be lost or destroyed – no need to show imminence or actual danger – held, nature of the distress call, abandonment of vessel by passengers, and inability of other vessels nearby to help all suggest a peril.
Motor-Services Hugo Stamp, Inc v M/V Regal Empress, et al, Not published in the Federal Reporter (11th Cir) [2006 AMC 908 (Ltd)] 7 February 2006 MARITIME LIENS – status of property on board luxury cruise ship – appurtenances – whether telecommunications and internet equipment for use by passengers and crew of cruise ship is appurtenant to the ship and therefore subject to maritime liens asserted against the vessel – a vessel and all equipment aboard that is essential to the vessel’s navigation and operation is subject to maritime liens – held, telecommunications and internet equipment is subject to maritime liens as it is “unimaginable” that today a luxury cruise ship could be successful without such equipment.
National Casualty Company v Lockheed Martin Corporation USDC (D Maryland) [2006 AMC 618] 21 February 2006 MARINE INSURANCE – time limitations – conflicting contractual provisions.
Northern Insurance Company of New York v 1996 Searay Model 370DA Yacht, et al, 453 FSupp2d 905 (DSC) [2006 AMC 1570] 13 February 2006 (12 May 2006) TITLE TO VESSEL – stolen vessel – in custodia legis expenses - suit by marine insurer to restore possession of and title to vessel to itself or insured – vessel was stolen from the insured, its hull identification number changed, and sold to defendant in this suit – defendant argues it is a bona fide purchaser for value without notice and seeks reimbursement for betterment, maintenance, insurance, storage, and lost usage – under Florida law, thief cannot pass valid title to buyer, and the most a purchaser of a stolen item has is title and right to possession against all but the rightful owner – registration of the vessel under incorrect hull identification number is not conclusive evidence of ownership - held, 1) vessel belongs to the insurer since defendant never possessed valid title, and having no legal title, could not grant mortgage to defendant bank – 2) defendant purchaser is entitled to reimbursement given evidence of having spent substantial sums for vessel’s betterment, 3) since plaintiff made the decision to arrest the vessel and where it should be stored, court in its equitable discretion holds that plaintiff should bear all in custodia legis expenses (amended 12 May 2006 to hold that defendant should pay for some portion of the in custodia legis expenses since defendant did not consent to turning the vessel over to the plaintiff).
Offshore Marine Towing, Inc and M/V Wilma’s Idea, et al, Arbitration Decision [2006 AMC 1726] 23 May 2006 SALVAGE – definition of a peril - salvor responded to mayday call of vessel taking on water and sinking, and provided pumps and plugged an opening from outside the vessel – vessel owner disputes salvor’s contention that there was a peril, and therefore a salvage – held, a vessel taking on water which cannot be controlled without outside assistance and which will ultimately lead to sinking of the vessel is in peril – further, contract clearly printed with word “salvage” and signed by vessel owner, also demonstrates the parties agreed at the time that the services were a salvage.
RMS Titanic Inc v Wrecked and Abandoned Vessel USCA 4 th Cir [2006 AMC 305] 31 January 2006 SALVAGE – claim of salvor-in-possession to title of salved artefacts – US district court asked to recognise French administrative decision awarding title to salvor – in rem jurisdiction of US district court – proper application of law of finds – trustee duties of salvor – right to compensation – maritime lien on salved property does not divest owner of title – orders for protection of historical, archaeological and cultural purposes of salvage operation.
SAT International Corp v Great White Fleet (US) Ltd, et al, Not reported in FSupp2d (SDNY) [2006 AMC 1108] 15 March 2006 BILLS OF LADING –hijacking of plaintiff’s cargo during inland transport – whether ocean liner’s preceding misdelivery of container to unauthorized trucker who failed to present bill of lading before acquiring the cargo at port amounted to a violation of a maritime contract sufficient to provide jurisdiction for the court – if the court has jurisdiction, whether defendant breached the contract through improper delivery – admiralty jurisdiction arises when the subject matter of the contract is purely or wholly maritime in nature – connection of cargo to global maritime commerce is key - held, (1) failure by an ocean liner to require recipient of cargo to present original bill of lading is prima facie evidence of conversion of goods and breach of contract, the claim is maritime in nature, and the court has jurisdiction – (2) however, since presentation of the bill of lading was not a requirement under the parties’ contract, and failure to present bill of lading did not cause plaintiffs loss (rather, loss was due to the interdiction of highway men and plaintiff’s failure to request cargo be kept at port until the necessary security could be arranged for inland transport), defendant is not liable for conversion.
Stolt Achievement Ltd v Dredge BE Lindholm et al USCA 5 th Cir [2006 AMC 416] 14 February 2006 COLLISION – negligence – apportionment of liability – Pennsylvania rule – where both parties to collision in breach of navigation statutes, court may blame between parties – ratio of 50-50 is still appropriate in some mutual fault cases – Inland Navigation Rules – superseding cause – proximate causation – average. EXPERT WITNESS – testimony of master mariner properly restricted to conclusions based on his experience as a master mariner, testimony on hydrodynamic effects properly excluded.
Tern Shipholding Corporation, et al v John Rockhill, et al, Not Reported in FSupp2d (NDFla) [2006 AMC 1708] 27 June 2006 MAINTENANCE, CURE AND WAGES – maximum cure – personal injury – respondent seaman who contracted cancer while employed seeks court order that ship management company remains responsible for his maintenance and cure after his employment ended – law of maintenance and cure imposes duty on ship owner to provide an injured seaman maintenance and cure up to the point of “maximum cure” – whether point of maximum cure was reached when seaman’s condition developed into extensive small cell cancer, where no cure was expected – held, shipper was not responsible for maintenance and cure beyond the point at which seaman’s condition became incurable – court regards continuing treatment as being able only to reduce symptoms and ease pain - the fact that stopping his treatment may also reduce the seaman’s lifespan, and continuing with it could add a period of time, is acknowledged but court states that maintenance and cure is not the equivalent of long-term disability insurance.
Ullises Shipping Corp v FAL Shipping Co Ltd, et al, 415 FSupp2d 318 (SDNY) [2006 AMC 1094] 20 January 2006 CORPORATIONS – piercing the corporate veil – plaintiff, a Liberian corporation, obtained an ex parte order of attachment and garnishment from the district court over three defendants as alter egos – plaintiff has brought suit over one of them in the High Court of London after its chartered vessel was detained on suspicion of carrying oil subject to the Iraqi embargo and sold at auction – defendants (FAL Shipping, FAL Oil, FAL Energy) are separately registered under the laws of the United Arab Emirates and keep separate books and records, but all are owned and controlled by a single individual, and share employees and the same general manager - defendants state that attachment order over FAL Energy and FAL Oil was improper as they are not being sued in the London litigation – federal courts in admiralty apply federal common law when examining corporate identity – piercing the corporate veil allowed when corporation uses its alter ego to perpetuate fraud or where alter ego is carrying on controlling corporation’s business in stead of its own – actual domination rather than an opportunity to exercise control must be shown - held, (1) issuance of a joint statement by FAL Energy and FAL Oil on same stationary was not a reasonable ground for concluding domination and control of one by the other – but with regard FAL Oil and FAL Shipping, former’s payment of latter’s debts together with overlapping staff and manager was reasonable grounds for such a conclusion – (2) counter-security awarded to defendants given attorneys’ fees resulting from London litigation are inextricably intertwined with the original transaction that is the subject of the London litigation.
Zarepta Chemical, KS as owners of the M/T Rachel B, et al v Solae, LLC, Slip Copy (SDNY) [2006 AMC 1546] 28 April 2006 ARBITRATION – agents - bills of lading – current owner of vessel and the managing agent of the former owner of the vessel move for an injunction enjoining arbitration arguing they are not proper parties for arbitration – respondent owner of cargo contaminated during two separate voyages on the vessel operated by the previous owner opposes the motion – whether the parties are required to arbitrate – held, 1) managing agent to previous owner can be compelled to arbitrate because even though the identity of the owner of the vessel was not disclosed at the time of the contract of affreightment, by the time the bill of lading was issued, the principal was fully disclosed - 2) court enjoins arbitration against current vessel owner, in rem, where no arrest was made of the vessel nor an undertaking equivalent to an arrest given.
2005
Agfa Gevaert AG et al v TMM Lines Limited et al; Allianz Marine & Aviation ( France) v Lykes Limited L.L.C. et al USDC (SDNY) [2005 AMC 2378] 25 August 2005 bill of lading, limitation of liability/value, ambiguities construed against the carrier
Alaska v USA 125 S.Ct. 2137, June 6 2005 TITLE TO SUBMERGED LANDS - The State of Alaska filed an action against the US government to resolve a dispute over title to certain submerged lands underlying in southeast Alaskan waters. Discussion of: claiming submerged lands based on an area's status as historic inland waters; claiming a body of water as historic inland water; juridical bay theory. Convention on the Territorial Sea and the Contiguous Zone. Held: the waters were not historic inland waters; the federal government had reserved the submerged lands underlying Glacier Bay and the remaining waters within the monument's boundaries; the Alaska Statehood Act rebutted the presumption that Alaska held title to those lands.
In re American Milling Co., Ltd. USCA 8th Cir (Mo), 17 May 2005 ALLISION – LIABILITY - Barges being towed allided with a pier and moored gambling vessel in the St Louis Harbour. Questions of causation, liability and fair market value of the towboat. Held: The previous findings that the allision was caused by the towboat pilot’s navigational error and that the moored gambling vessel was at fault were not erroneous. Neither was the finding that there was no privity between the owner and pilot, which therefore did not preclude the owner from limiting liability.
Aquae International Inc v M/Y Osiana II USDC (SD Massachusetts) [2005 AMC 2770] 26 October 2005 Procedure in rem, a vessel is a fictional person that can be sued but it cannot file a counterclaim on its own or by next friend when it opposes a motion to add its owner as a real party in interest
Asoma Corporation v M/V Faros et al USDC (SDNY) [2005 AMC 2473] 21 September 2005 bills of lading, where a bill of lading is issued to a stranger to a charter the bill becomes the contract of charter, bill of lading had Korean jurisdiction clause, suit in SDNY for cargo damage is dismissed
BDL International v Sodetal USA Inc USDC (D South Carolina), 21 July 2005 UNPAID SERVICES – MARITIME CONTRACT – STAY - Non-payment of freight charges for ocean shipments from France to the US. The waybills named the defendant (owner of goods) as the consignee. The defendant paid the shipper who in turn paid the plaintiff, who arranged for inland freight. Plaintiff sued the defendant for breach of maritime contract after the shipper failed to pay. Fact that delivery was sent overland did not alter the contract’s maritime nature – an evolving understanding of admiralty jurisdiction was taken into account. Defendant sought a stay due to the shipper’s bankruptcy proceedings in France – denied.
Captain Sheriff Saudi v Northrop Grumman Corporation USCA 4 th Cir [2005 AMC 2831]; 427 F.3d 271; 26 October 2005 Jurisdiction in personam, whether sufficient contacts, the Singapore shipyard’s contacts with the US were insufficient to satisfy due process for jurisdiction over it as a defendant in action for personal injury on the high seas, subsidiary’s contacts cannot impute jurisdiction in the parent – defendant's subsidiary shipyard in Texas did not, in itself, provide a basis for general jurisdiction
Caribbean Yacht Works Ltd v M/V Neenah Z et al USDC (SD Florida) [2005 AMC 2159] 1 August 2005 action in rem, no maritime lien, whether can amend to in personam action, whether prejudice to owner, amendment relates back to time original complaint filed – time to determine whether defendant could be found in district, application for release of vessel
Certain Underwriters at Lloyd’s London v Inlet Fisheries Inc et al USDC ( Alaska) [2005 AMC 2307] 12 September 2005 expert witnesses, underwriting, marine pollution insurance policy, disclosure of pollution loss history, doctrine of uberrimae fidei – disclose material facts to insurer, survey and repair of vessels, good faith
Clinton River Cruise Co, Limitation Proceedings M/V Clinton Friendship USDC (ED Michigan) [2005 AMC 2728] 28 October 2005 Passenger overboard, manning statute required vessel to carry the crewmembers specified by its Coast Guard certificate, vessel violated this as only had one deckhand when two required, the violation was negligence per se and engaged the Pennsylvania Rule, fault could therefore be determined by summary judgment, vessel subject to the Pennsylvania presumption of causation in the death of a passenger overboard, duty of care to detect the intention of an intoxicated passenger to dive overboard and prevent it or rescue him
Commercial Union Insurance Co v Pesante, USDC D Rhode Island, March 3 2005 MARINE INSURANCE - Owner of a commercial fishing vessel engaged in gill netting. Insurance agreement included a warranty that the only commercial use of the vessel would be for lobstering. Owner returned from gill netting - collision with other boat. Insurer denies coverage on ground of breach of warranty, argues that under federal admiralty law, the breach voided the policy. No question of breach of warranty. Issue - whether that breach voided the policy even though the vessel was not engaged in gill netting when it collided with the other boat and there was no evidence of any causal connection between its gill netting activities and the loss. Policy not voided - there is no federal maritime rule that negates coverage for this loss.
Dannebrog Rederi AS et al v M/Y True Dream et al USDC (SD Florida) [2005 AMC 2740] 2 November 2005 The holding that a freight forwarder is an agent for the limited purpose of binding a shipper to liability limitations of downstream carriers is not limited to freight forwarders, also applies to other intermediaries such as a party that had a space charter with the shipper and then entered into a booking note with the shipowner, shipper bound by limits in booking note although not in the charter to which it was a direct party, the contractual extension of COGSA to inland transportation is valid to limit the liability of a carrier that negligently damages cargo
DR Johnson Lumber Company v Fireman's Fund Insurance Companies USDC, D Oregon, April 12, 2005 MARINE INSURANCE –INTERPRETATION OF CONTRACT Marine insurance policy covered the shipment of logs, which were damaged en route. Defendant insurer claimed the damage was due to an ‘inherent vice' of the cargo and/or delay of the voyage. Insured received a certificate of insurance for an Open Policy (OP), it also received a Special Cargo Policy (SCP) (as proof of insurance) which did not contain an inherent vice exclusion. Question as to which policy governed the dispute. Although the contracting parties intended the insurance to be placed under the OP, there was no reference to it in the SP -this gave rise to an ambiguity as to which policy should govern the case. Held: Plaintiff failed to present sufficient evidence that any party intended the SCP to define the terms of the insurance coverage, therefore the dispute was controlled by the OP; the plaintiff's loss was not exempt from coverage due to delay; it was reasonably open to find that damage was caused by something other than inherent vice.
Eimskip v Atlantic Fish Market USCA 1st Cir (Mass), 27 July 2005 SHIPPING – UNPAID FREIGHT - Atlantic booked two shipments of frozen herring to be transported by Eimskip. The bills of lading listed Mayflower as the fish's shipper, but Atlantic received the freight invoices and paid the charges. Freight went unpaid, Eimskip placed a hold on the cargo. The district court found that Atlantic and Mayflower had both been shippers of the cargo. Because Mayflower was listed as the shipper and consignee on the bills of lading, it was presumptively primarily liable for the freight charges. However, ultimately Atlantic was held primarily liable because of its representations to both Mayflower and Eimskip that it would be liable for the cargo; the course of dealings and Eimskip’s decision to lift the hold on the cargo after speaking to Atlantic’s president. The B/L making the "merchant" liable applied to both Atlantic and Mayflower and made each company jointly and severally liable for specified costs and attorneys' fees. District Court’s judgment was affirmed.
Ezeokobe v Hual North America Inc USDC EDNY, 25 May 2005 BILL OF LADING – FORUM SELECTION CLAUSE- COGSA - Claim against shipper for an damaged to an automobile. The bill of lading contained a forum selection clause, which provided for the settlement of disputes in the courts of the country where the carrier had its principal place of business. Contention as to who the carrier was and whether Norway or America was the principal place of business. Question of validity of the forum selection clause under COGSA. Held: Even if the forum selection clause was valid, issues of fact (the above contentions) remained that made it inappropriate to dismiss the plaintiffs' claims on the basis of the clause. However, the plaintiffs' claim was dismissed as time-barred under COGSA.
Fathom Exploration, LLC vUnidentified Shipwrecked Vessel or Vessels, etc, in rem, USDC SD Alabama Southern Division, F.Supp.2d, Jan 24 2005 Salvor filed action against unidentified shipwrecked vessel. United States filed motion for more definite statement or dismissal. Federal civil procedure. Discussion of laws of salvage and finds. Abandoned Shipwreck Act. Held that salvor was required to plead with particularity the shipwreck's precise location; but was not required to positively identify vessel before initiating action; and that it had an obligation to amend its complaint to the extent that it acquired additional information regarding the possible identity of the vessel.
Felham Enterprises (Cayman) Ltd v Certain Underwriters at Lloyds, London Companies, USDC ED Louisiana, Feb 11 2005 Motion for partial summary judgment. Whether marine policy issued is void by virtue of a breach of the duty of utmost good faith (uberrimae fidei) allegedly owed under general maritime law. Held that Louisiana state law, not the general maritime doctrine of uberrimae fidei, controls the issue of whether a marine insurance policy is void by reason of an insured's alleged misrepresentation and/or failure to disclose material facts during the application process. Motion granted in part and denied in part.
FolksAmerica Reinsurance Company v Clean Water of New York Inc USCA 2nd Cir (NY), 30 June 2005 INSURANCE – WHETHER MARINE IN NATURE - An insurance contract contained a Shiprepairers Legal Liability (SLL) policy coupled with a modified Comprehensive General Liability (CGL) policy. Whether the Policy was a maritime contract giving rise to admiralty jurisdiction. Held: SLL created coverage of marine insurance; and the various protections provided in the CGL section - completed operations, products, pollution, premises and operations, and contractual liability - reached maritime risks; the two sections of the Policy together operated seamlessly to provide coverage that was primarily marine in nature.
Fortis Bank ( Nederland) NV v M/V Shamrock et al USDC ( Maine) [2005 AMC 2561] 29 July 2005 maritime liens, rank and priorities, mortgages of vessels, priority, US law governs, whether claim constitutes custodia legis, contributions due from shipowner/crew of French ship to French governmental agency (based on wages of the crew) for the purpose of health and life insurance and pension benefits do not constitute wages of the crew to support a maritime lien
Fortis Corporate Insurance v M/V Inviken USDC ND Ohio, Western Division, March 16, 2005 GOODS DAMAGED IN TRANSIT – JURISDICTION. Goods were damaged when water entered the cargo hold of the vessel. Insurers brought action against shipowners (and managers) for negligence and breach of bailment obligations. Whether court has jurisdiction. Specific jurisdiction – whether defendants purposely availed themselves of the forum, whether the time charter was a contract to provide goods in Ohio. Held: No specific jurisdiction, no general jurisdiction.
Fuesting v Lafayette Parish Bayou Vermilion District USDC (WD La), 15 July 2005 ALLISION – SUNKEN BOAT – DUTY OF AUTHORITIES - Allision between small pleasure boat and a sunken shrimp boat, causing injury to boat operator (Fuesting). Fuesting asserted that because the District failed to remove the sunken boat, thus creating a navigational hazard on the river, the District was liable for the injuries sustained. Although the District had no initial duty under the Wreck Act to remove the boat, because it entered into an agreement with the owner of the sunken boat to attempt its removal, the District voluntarily assumed a duty to the boating public, to remove the boat in a non-negligent manner. However, the District was held to be immune from liability under statute.
G. Simons & Co. S.A. v New Bar of North America USDC SDNY, 13 May 2005 MARINE INSURANCE – THIRD PARTY BENEFICIARY - Goods were lost in transit between New York and Moscow. The plaintiff, a managing agent in marine insurance sought a declaratory judgment that it was not liable to the defendant owner of the goods for the loss. The plaintiff had issued an insurance policy to the shippers on behalf of an insurance company. Held that the defendant: was not an insured under the Policy; had no insurable interest in the goods; did not provide International Adjusters with a notice of claim within a reasonable time; and had breached the insurance policy warranty requiring that a discharge survey be conducted. Plaintiffs motion for summary judgment granted.
Hanson Industries, Inc v Alaska Marine Transport & Salvage Inc USDC D Alaska, 18 May 2005 PROCEDURE – MOTION TO EXCLUDE EVIDENCE OF DAMAGES - Charter agreement. Before cargo reached its destination, a dispute arose as to when payment was due. Cargo owner had the vessel arrested, however subsequently allowed its release. Cargo owner did not have a maritime lien against the vessel and should not have had the vessel arrested. Therefore, it was to bear the costs of the arrest. The court allowed the cargo owner to present evidence on the issue of the vessel’s size and its damages allegedly resulting from the vessel's size. However the owner was precluded from calling a particular witness.
Hart v Progressive Casualty Insurance Company USDC D. Alaska, April 1 2005 BOAT SINKS – INADEQUATE MAINTENANCE – INSURANCE
A boat sank in an Alaskan harbour during a storm. The insurance company claimed that the proximate cause of the boat's sinking was the owner's failure to adequately maintain the boat – therefore, it declined to cover the loss, relying on a contractual provision excluding coverage for ‘inadequate maintenance.' Held: The owner's actions (eg leaving the boat for a month with the exhaust system unfinished, elbow unsecured) came within the ambit of ‘inadequate maintenance' and therefore the insurance company was entitled to exclude coverage; owner's actions were the proximate cause of the incident.
Interflow (Tank Container System) Ltd v Burlington Northern Santa Fe Railway Co et al USDC (SD Texas) [2005 AMC 2894] 29 November 2005 Afreightment, sea carrier’s bill of lading never issued because cargo seriously damaged by it before loading for first stage of through carriage, loss governed by COGSA under carrier’s standard bill of lading in accordance with an implied understanding arising from common business experience, limitation of value, Himalaya clause
Just Take Action Inc v GST (Americas) Inc USDC D Minnesota, May 6 2005 DAMAGED CARGO- BILL OF LADING – NEGLIGENCE - Shipment of fermenter tanks arrived damaged at their destination. Just Take Action contracted with GST to arrange transportation, who retained CTI to transport the goods. GST prepared a bill of lading, however it was never provided to Just Take Action and never signed by GST. Liability for damages under Carmack Amendment, state law claims of negligence and breach of contract. GST's motion for summary judgment denied.
Key Tow Inc v M/V Just J’s et al USDC (SD Florida) [2005 AMC 2840] 1 November 2005 Salvage, salvor not entitled to salvage award, was an implied contract to salvage so its actions were not voluntary, although the boat was aground it was not in marine peril as it would have floated off on next high tide, salvor forfeited any salvage award by its fraud in grossly exaggerating the amount due from the boat, misrepresentation of times and manpower and value of equipment, performed more work than necessary to create big claim, salvor was entitled to quantum meruit compensation for the benefit it provided
Keytrade USA Inc v Ain Temouchent M/V USCA 5th Cir (La), March 23 2005 BILL OF LADING – WHETHER ARBITRATION CLAUSE INCORPORATED. Vessel was delayed by 16 days. Owner of cargo filed suit against bulk carrier and charterer for breach of contract of carriage, seeking damages. Whether the bill of lading incorporated the voyage charter’s arbitration clause. Bill of lading included an incorporation clause, but did not specify the charter party that it sought to incorporate. Discussion and application of Sea Phoenix. Whether confusion as to which charter party governed the rights of the parties. Held to be no confusion and therefore bill of lading gave owner the right to compel arbitration. No waiver by owner.
Kukje Hwajae Insurance Co Ltd v M/V HYUNDAI LIBERTY, USCA 9th Cir, 26 May 2005 BILL OF LADING - FORUM SELECTION CLAUSE - A Korean manufacturer contracted (to ship a lathe) with a non-vessel operating common carrier (NVOCC). Bill of lading selected New York as the forum for determining claims. The NVOCC then contracted with Hyundai. Hyundai issued a bill of lading, which provided for claims to be governed by Korean law and to be brought before a Korean court. The subrogated insurer of the manufacturer, brought actions in personam against the NVOCC and in rem against Hyundai, for damage to cargo during transportation. Held: plaintiff accepted the Hyundai bill of lading by suing on it, therefore the Korean forum-selection clause could be applied to the Plaintiff's in rem action. NVOCC was entitled to take advantage of the limitation of liability under COGSA .
Lykes Lines Ltd v M/V BBC Sealand USCA 5 th Cir C.A.5 (Tex.), 2005, January 18 2005 Contract to transport cargo via containers. Charterer did not pay freight - vessel owner seeks to enforce its lien (arising from the Charter). Also, cargo owner filed complaint in District Court against vessel, vessel owner, and charterer, alleging breach of contract, damage to the cargo, and conversion. Charter provided that only vessel owner could issue bills of lading, yet some were issued without authorization of ship owner. Bill of lading contained lien clause in favour of carrier. Vessel held to be bound by bills of lading issued by charterer; and vessel breached contract of carriage by failing to discharge cargo in designated port. Discussion of maritime liens - actual/constructive notice of lien.
Marco Forwarding Co v Continental Casualty Company USDC (SD Florida) [2005 AMC 2669] 30 September 2005 marine insurance, choice of law and forum provisions were not negotiated, whether unequal bargaining power, insured not meet the burden of showing the inconvenience of litigating in Canada
In re Mid-South Towing Co USCA 5th (La) Cir, 25 July 2005 ALLISION – LIMITATION OF LIABILITY - Vessel collided into a wharf. The vessel brought an action in rem against three other vessels on the river that morning, alleging that those vessels had so embarrassed her navigation as to be contributory and proximate causes of the allision and thus deserving of some liability for the damages incurred by the owner of the wharf. The district court found that any negligent conduct of the vessels was not a proximate cause of the allision. Therefore the district court applied a valid rule of legal causation and not the discredited last clear chance doctrine. District court’s judgment affirmed.
In Re Millenium Seacarriers Inc et al USCA 2 nd Cir [2005 AMC 1987] 11 August 2005 interaction of admiralty and bankruptcy, maritime liens – extinguishment, in rem jurisdiction
Miller Marine Services Inc v Travelers Property Casualty Insurance Co et al USDC (EDNY) [2005 AMC 2601] 19 September 2005 marine insurance, vessel sank at pier, all risks clause, words ‘all other like risks’ after named perils do not make the policy an all risks policy, word ‘like’ restricts coverage to similar perils, named perils policy, hull policy, causation, not due to peril of the sea
Miracle of Life, LLC v North American Van Lines Inc USDC D South Carolina, April 19 2005 SHIPPING – DAMAGED GOODS – STATUE OF LIMITATIONS
Plaintiff, arranged to ship goods to Germany. Recipient claimed some goods were missing and others damaged. Plaintiff initially sued North America Van lines, then sought to add Stevens International Forwarders’ as a party. Stevens argued action was barred by the statute of limitations in COGSA and the Carmack Amendment. On the facts, Stevens did have notice of a claimed file against it, motion denied.
Motor-Services Hugo Stamp Inc v M/V Regal Empress et al USDC (MD Florida) [2005 AMC 2880] 10 November 2005 Termination pay that becomes due upon early termination of seaman’s contract constitutes seaman's wages and is entitled to maritime lien status, termination pay that becomes payable after their ship’s arrested can constitute a maritime lien where it is based on services performed before the arrest, however the claims for early termination of employment were for damages in contract and were not wage liens
M/V DG Harmony USDC (SDNY) [2005 AMC 2528] 18 October 2005 affreightment, dangerous goods cause a fire, IMDG Code, strict liability of manufacturer, ship and cargo interests had no actual or constructive knowledge of the nature of cargo – shipper in a better position to determine nature of goods, strict liability on shipper of dangerous goods, COGSA s4(6)
New Hampshire Insurance Company v Dagnone USDC D Rhode Island, April 19, 2005 MARINE INSURANCE – LAY UP WARRANTY
Vessel owner had insurance policy, which provided that the vessel has to be ‘laid-up and out of commission’ (‘Lay-Up Warranty’) during certain periods. The vessel was docked, a storm hit and the vessel was damaged. whether a breach of the Lay-Up Warranty negates coverage under the policy even if that breach is immaterial to the damage sustained. No settled federal admiralty rule governing the issue, so the Court applied New York law. Under New York law, where a warranty in a marine insurance policy pertains to any risk of marine navigation, transit or transportation on seas or inland waters, the breach of such warranty precludes recovery under such policy. Held: owner had breached the warranty as he had not completed winterization of the vessel, therefore precluding recovery under the policy.
Offshore Marine Towing Inc v MR23 2005 USCA 11th Cir (Fla) 18 Fla. L. Weekly Fed. C 665, 20 June 2005 ARBITRATION AWARD - SALVAGE - LEGAL FEES - A yacht was grounded and freed by salvors. The salvage contract provided for the arbitration of disputes regardling reasonableness of fees. The arbitrator issued an award in favour of the salvor and also awarded attorney's fees. Whether attorney's fees may be awarded to a salvor in an in rem action against the vessel, whether the district court acted within its authority under the Federal Arbitration Act when it modified the arbitration award in favour of the salvor to exclude attorney's fees and expenses. Decision of the district court was affirmed, as attorney's fees are not part of a salvage lien that may be awarded in an in rem action.
In re Otal Investments Ltd. USDC (SDNY), 8 July 2005 COLLISION IN INTERNATIONAL WATERS – DUPLICATIVE CLAIMS - Two ships collided in international waters. Owner of one of the ships (Otal) brought an action in the Netherlands against a third ship for its alleged involvement in the collision and attached the third ship in Rotterdam. A limitation of liability fund was established and the ship released from attachment, without providing security to Otal. Otal filed a claim against the limitation of liability fund and filed a complaint in the US for exoneration of or a limitation of liability. Third ship interests sought to dismiss this in rem claim as duplicative of the claim filed in Rotterdam, and also sought a declaratory judgment with respect to whether only Article 4 of the Brussels Collision Convention of 1910 applies to this matter. Held: the parties intended to apply Article 4 of the Convention. The limitation fund prevented re-attachment but did not prevent additional claims. Under Netherlands law, Otal had an in personam claim since an in rem action is an unknown concept under Dutch law. Therefore the in rem claim was not duplicative and even if it were, the 1976 Limitation of Liability Convention was not binding since the US is not a signatory to that Convention.
Otal Investments Ltd, Limitation Proceedings M/V Kariba USDC (SDNY) [2005 AMC 2461] 29 September 2005 collision on high seas, causation, 1910 Brussels Collision Convention Article 6 – there ‘shall be no legal presumptions of fault in regard to liability for collision’, Convention precludes application of the Pennsylvania Rule presuming that a statutory violation caused a collision, ‘fault’ in the Convention includes both culpability and causation
Otal Investments Ltd, M/V Kariba, Limitation Proceedings USDC (SDNY) [2005 AMC 2454] 28 July 2005 vessel arrested in US, shipowner seeks to dismiss in rem claim, shipowner filed limitation proceeding and posted security pursuant to Limitation of Liability Convention 1976, US not a party to Convention therefore not recognised by US courts, maritime lien, motion to dismiss in rem claim denied
Pablo Membreno v Costa Crociere SPA et al USCA 11 th Cir [2005 AMC 2527] 16 September 2005 forum non conveniens, personal injury, foreign vessel, substantial base of operations in US not sufficient, parent and subsidiary, most of business from European market
Pacorini USA Inc v Rosina Topic MV USCA 5th Cir (La), March 24 2005 STEVEDORES UNPAID BY CHARTERER – MARITIME LIEN – STANDING. The Rosina, was chartered by a corporation. Clear Water and Pacorini negotiated with the corporation to discharge cargo, (Pacorini on a “liner out” basis). Charterer became insolvent, Pacorini and ClearWater did not receive payment. They filed a complaint against the vessel in rem seeking to have the vessel arrested. District court found that plaintiffs were entitled to a maritime liens to secure payment. Appellant claimed Clear Water lacked standing, that Pacorini waived its maritime lien and that damages awarded to Pacorini were excessive. Held: Clear Water lacked standing to sue; Pecorini did not waive its maritime lien; the district court did not clearly err in the level of damages awarded.
Puerto Rico Ports Authority v Barge Katy-B USCA 1 st Cir [2005 AMC 2409] 25 October 2005 arrest of vessel, arrest of barge not justified where original complaint sought in rem damages for port charges predating sale of barge but where amended complaint sought post-sale charges only in personam, interlocutory decree vacating a ship arrest in an action in rem is subject to admiralty appeal, release of vessel from arrest does not divest the court of jurisdiction under ‘useless judgment’ doctrine, maritime liens, whether waiver – need deliberate intent to relinquish lien rights
Puget Sound Repair Inc v M/V Freebird USDC W.D.Wash., 2 June 2005 MARITIME LIEN – WORK PERFORMED - Dispute as to the existence of a maritime lien arising from work done on a vessel. Held: Not shown that the company performing work had no authority to rely on the credit of the vessel or that it had intended to waive its right to assert a lien on the vessel. Motion for summary judgment in relation to work done on vessel denied.
Rational Software Corporation v Sterling Corporation USCA 1 st Cir CA 1 (Mass) 2005, 393 F.3d 276, January 5 2005 Shipper who employed carrier to move items to and from facilities brought an action for damages to goods dropped by carrier's employees. Bill of lading containing the liability limitation was issued after the damage. However, the shipper had previously hired the carrier for over 200 jobs, receiving bills of lading which prominently displayed limitation clause. Therefore, the carrier limited its liability through its prior course of dealings with shipper.
Rationis Enterprises Inc of Panama et al v Hyundai Mipo Dockyard Co Ltd et al USCA 2 nd Cir [2005 AMC 2516] 17 October 2005 cargo damage claim, notice of intent to rely on foreign law, claim for cargo damage under the Carriage of Goods by Sea Act (COGSA) may be a mix of tort & contract & bailment, products liability for ship failure on high seas causing loss of vessel and cargo, conflict of laws, limitations, claims time-barred under Korean products liability law, Korean law applies
Rossetti vCharleston Freight Station, Inc, USDC D. South Carolina, Charleston Division, F.Supp.2d, February 1 2005 Shipper brought suit against carrier to recover for damage to shipment of goods during land portion of shipment of goods by sea from United States. Application of $500 limitation of liability per package under the Carriage of Goods by Sea Act (COGSA). General discussion of bills of lading. When a bill of lading discloses what is inside the container, and those contents may reasonably be considered COGSA packages, then container is not considered to be a COGSA package. Ambiguous bill of lading – ambiguity should be resolved against the carrier unless the parties have clearly and explicitly agreed to treat the container as the COGSA package. Limitation of liability applied to each individual piece in shipper's container, not to the container as whole.
Shirley Bird v Celebrity Cruise Line Inc USDC (SD Florida) [2005 AMC 2794] 4 November 2005 Admiralty jurisdiction exists for claim that passenger contracted food poisoning on board ship and became ill after cruise, location test met because the food poisoning occurred on the ship and food poisoning can disrupt commerce, serving food a traditional maritime activity, admiralty does not imply a warranty of safe passage or seaworthiness from a cruise line to a passenger, products liability – the Kermarac standard of care a shipowner owes to persons legitimately on board ship (‘reasonable care under the circumstances’) precludes finding a cruise line strictly liable in tort for food poisoning
Stemcor USA v Hyundai Merchant Marine Co., Ltd., USDC SDNY, January 12 2005 Owner of goods sues the owner/charterer defendants, stevedores and storage company for damages arising from the alleged mishandling of cargo shipped aboard the vessel M/V Dimitra. Bill of lading – clause stipulating that Korean law is to govern the B/L. Discussion of forum selection clauses. Personal jurisdiction issue. Complaint dismissed due to forum selection clause and a lack of personal jurisdiction.
Stemcor USA Inc v M/V Patria USDC (SD Tex), 21 July 2005 ARBITRATION – TIMELINESS - Cargo arrived at its destination damaged. Cargo owner (Stemcor) sued the vessel in rem and its time charterers for damages. The vessel’s time charterer sought to dismiss the claim on the ground that the charter party contractually obligated Stemcor to seek arbitration within twelve months of the cargo being discharged. Held: Whether a request for arbitration is timely made under an arbitration agreement is a matter of procedural arbitrability that is for an arbitrator to decide. Action dismissed without prejudice to permit the parties to pursue arbitration in accordance with their agreement.
Sweet Pea Marine LTd v APJ Marine Inc USCA 11th Cir (Fla), June 8 2005 BREACH OF CONTRACT – MARITIME LIEN - Vessel owner brought a claim against a marine contractor for breach of contract. Contractor filed a complaint in personam and in rem for work performed on the vessel. Discussion of: When one can recover damages for breach of maritime contract; the requirements for establishing a maritime lien on a vessel pursuant to statute in an in rem action; and satisfying the reasonable price element of a maritime lien claim. Held: vessel owner did not waive its ability to contest the reasonableness of the contractor's charges for goods and materials by agreeing to a 15% mark-up on them; absent evidence that its charges were reasonable, the contractor was not entitled to damages or the imposition of a maritime lien on vessel.
Thyssen Inc v Nobility MV et al USCA 5 th Cir [2005 AMC 2067] 10 August 2005 affreightment, voyage charter, COGSA clause paramount, private carriage, Free In Out Stowed clause – responsibility of cargo owner to discharge vessel, stevedore an agent of cargo not vessel, vessel not responsible for damage done by stevedore to cargo, marine insurance, late notice by insured – lack of opportunity to defend or mitigate damages, whether underwriters directly liable to third parties, insurers showed sufficient prejudice to preclude direct action
USA v Water Quality Insurance Syndicate USDC, D Maine, April 6 2005 MARINE INSURANCE – EXCLUSION CLAUSE – WILFUL MISCONDUCT – INEBRIATION
The crew of a fishing vessel were inebriated. The owner of vessel, who had observed their drinking, ordered a crew member to operate the vessel. The boat struck an object and sank - oil spill resulted. Judgment ordered against shipowner for removal costs. Owner had a marine oil pollution insurance policy. Government sought to recover from insurer. Insurer denied liability on grounds of exclusion clause which denied coverage for damage arising from wilful misconduct. Whether recklessness resulting from voluntary intoxication is "willful misconduct" or a "fortuitous event.” No existing federal maritime case law or New York law on the issue. Magistrate concluded that wilful inebriation constituted wilful misconduct and recommended the Government’s motion be denied.
Ventura Packers Inc v F/V Jeanine Kathleen et al USCA 9 th Cir as amended [2005 AMC 2113] 16 September 2005 securities for release of vessel put in escrow, case wrongly dismissed for lack of admiralty jurisdiction, securities returned on order of court, court did not lose jurisdiction for lack of custody of the securities, useless judgment doctrine not apply – vessels and securities still existed in hands of defendant and district court could order them reinstated
Weeks
Marine Inc v Hanjin Shipping USDC (DNJ), 12 July 2005 COLLISION – TIME
CHARTER – LIABILITY - A vessel collided with
a barge while navigating with the assistance of three
tugs. Hanjin was the time charterer of the vessel -
question of its liability. The charter provided that
the owner of the vessel is responsible for the navigation
of the vessel. Since the incident occurred while the
M/V HANJIN was moving from one dock to another, this
constituted "navigation". Therefore, Hanjin,
absent any evidence of independent negligence, could
not be held liable. As there was no evidence establishing
Hanjin's independent tort liability. Hanjin's summary
judgment motion was granted.
2004
Trans-Tec Asia v M/V Harmony Container, et al, Unreported in FSupp2d (CDCal) [2006 AMC 852] 28 December 2004 CHOICE OF LAW AND FORUM – dispute over unpaid bunkers – plaintiff is a Singapore corporation which sold bunkers to a Taiwanese charterer of the Malaysian defendant vessel owner – maritime and maritime lien claims made against the defendant for unpaid bunkers – threshold question is which country’s law governs the sale – more specifically, whether bunker sale confirmation, formed subsequent to the charter party, and containing a new choice of law was valid – courts in admiralty will enforce valid choice of law clauses in agreements, applying United States law to determine their validity – held, (1) the specification of a new choice of law was a material alteration of the offer and under the Uniform Commercial Code, such alterations do not become a part of the contract – even if it were valid, as a non-party to the agreement, the defendant vessel owner would not be bound by its terms (court applies five part test from Itel Containers Int’l Corp v Atlanttrafik Exp Serv Ltd, 2 Cir, 909 F2d 698, 701, 1900 AMC 1817, 1821, as to whether the vessel owner and charterer were joint venturers) - (2) where there is no valid choice of law clause, general maritime choice of law principles apply: based on seven factors test from Lauritzen v Larsen, 345 US 571, 1953 AMC 1210, application of Malaysian law would be appropriate.
Allianz CP General Insurance Company Ltd v Blue Anchor
Line, et al USDC SDNY [2004 AMC 1266], May 7 2004 Power
turbine motor transported between Ohio and Thailand was
damaged. Whether the governing bill of lading relieved
the potential liability of inland US trucker to shipper
or subrogee. When there is a “through bill of lading”,
as opposed to a separate bill of lading for the inland
leg of the journey, Carmack amendment is inapplicable.
Cargo damage claim against an inland carrier (carrying
cargo under a through bill of lading) is governed by
that bill of lading, not one issued by the inland carrier.
Altadis USA, Inc. v NPR, Inc., et al, USDC MD Florida
[2004 AMC 1080], Feb 5 2004 Bill of lading which involved
substantial land transportation. Jurisdiction – a contract
must be wholly maritime to provide admiralty jurisdiction,
or the non-maritime elements must be insubstantial or
separable.
American Home Assurance Company v Fore River Dock & Dredge,
Inc., et al USDC D Massachusetts [2004
AMC 2455] June 14 2004 Tugboat and barge grounded.
Marine insurance. Whether the damage fell into the exceptions
contained in the insurance policy. Protection and Indemnity
policy. Equipment on barge which has more than a temporary
attachment is not “cargo” for the purpose of coverage. Lessee considered “owner” of
the vessels under the policy. Debris removal is part
of wreck removal and therefore covered under the policy.
Breach of warranty does not defeat a claim for wreck
removal unless insurer can prove the breach increased
the risk of losses.
American Home Assurance Company vTGL Container Lines,
Ltd., USDC ND California, 347 F.Supp.2d 749, December 7 2004 Damage to shipment caused
by fire on vessel. Subrogated insurers of shipper filed
action against non-vessel operating common carrier (NVOCC)
who arranged for the transport of goods. Ocean carrier
was also defendant. NVOCC filed third-party complaint
against vessel and ocean carrier. Ocean carrier moved
to dismiss this complaint on basis of improper venue
under forum selection clause in its bills of lading or,
on the ground of forum non conveniens. Discussion of
forum selection clauses – reasonableness
of the clause . Discussion of forum non conveniens. Forum
selection clause in bill of lading was valid and enforceable.
NVOCC waived defence of improper venue in respect of
the shipper's subrogee's complaint. However, subrogated
insurer's complaint would be dismissed on ground of forum
non conveniens.
American Home Assurance Co v Zim Jamaica – USDC
SDNY (2004 AMC 393), December 23 2003 Cargo Claim – clean
bill – container – wet cargo on delivery – wetting
by fresh water – summary judgment for plaintiff
denied – genuine issue of fact to be tried.
Americas Insurance Company, et al v Stolt-Nielsen, Inc
et al USDC SDNY [2004 AMC 2542], September 29 2004 Contract
of affreightment. Bill of lading provided for freight
to be earned “concurrent with loading” but further
stated that freight was “payable as per charter party”.
Tanks were contaminated, sent back, reconditioned and
redelivered. Advanced freight paid was recovered from
the charterer for the first voyage never made. Freight
at issue was not earned as goods were not delivered to
their destination. Insurers recovered unearned freight
as it was not a covered risk under the insurance policy.
Antisubrogation rule does not apply here. Volunteer doctrine
not a bar to recovery.
Assuranceforeningen Skuld (Gjensidig), et al v Apollo
Ship Chandlers, Inc., et al. Florida, District CA, 3
rd District, [2004 AMC 765], March 19 2003 Marine insurance. Whether an
insurer is entitled to arbitrate a claim abroad in accordance
with the insurance policy, in light of the McCarran-Ferguson
Act.
Assicuraziono Geberali S.P.A., et al v Black & Veatch
Corporation, et al, USCA 8 th Cir. [2004
AMC 773], March 26 2004 Marine insurance. Open policy.
Warranty clause referred to “items listed below” or on a separate schedule – yet
no items were listed. Whether wording ambiguous. Policy
endorsement issued after loss. Consideration needed for
it to be effective. “Dury of the Assured” clause to minimise
loss.
AT&T Corp, et al v Tyco Telecommunications (US)
Inc USDC SDNY [2004 AMC 1964], April 4 2003 Submarine cable damaged by
ship. There is no clear law that the International Convention
for the Protection of Submarine Cables does not allow
a private cause of action.
Best Cheese Corporation v All-Ways Forwarding Int'l
Inc et al NY, SC [2004 AMC 1763], June 10 2004 Cheese
being shipped was delivered to the wrong port and arrived
damaged. Bill of lading contained forum selection clause.
Hamburg Rules.
Bowman Import/Export Ltd v B&P International, et
al, New York SC, [2004 AMC 689], December 23 2003 Marine insurance. Financial
backer of ship named as insured on cargo policy by broker.
Financier sues broker for negligence in not securing
adequate protection. Motion for summary judgment.
BP West Coast Products, LLC v Alaska Tanker Co., LLC,
et al, USDC, Western district of Washington (Seattle)
[2004 AMC 108], November 24 2003 Tanker operated by Alaska
Tanker discharged crude oil at a terminal. Accident damaged
the terminal, could not receive oil for a few days as
a result. 2 ships chartered by affiliates of BP West
Coast from Alaska Tanker were scheduled to discharge
their cargos of crude oil. BP seeks to recover the excess
demurrage charges arising from the incident.
Bulholm Fisheries Inc., in re USDC, Western District
of Washington (Seattle) [2004 AMC 243], October 2 2003 Bankruptcy. Interest on maritime
lien claim.
The Carney Family Investment Trust et al v Insurance
Company of North America, USDC for the District of Maryland
[2004 AMC 405], January 6 2004 Marine insurance. Whether state
law or federal admiralty law should apply law should
apply to a claim against a marine insurer for unfair
claims settlement practice in relation to fire damage
to a yacht.
Chembulk Trading LLC v Chemex Ltd, USCA 5 th Cir, C.A.5 (La.),2004, 393 F.3d 550, December
8 2004 Vessel owners
disputed meaning of term "all freights" in
time-charter party. Held that “all freights" could
properly include "subfreights." The term "subfreight" had
not become, by custom and usage, the only way to refer
to compensation payable by a third party to a charterer.
So, a lien on "all freights" held by owner
of vessel provided it with a lien on subfreights carried
by the second company. Discussion of maritime liens -
when they arise, priority in relation to creditors, lien
against third party. Discussion of interpretation of
contracts governed by admiralty law.
City of Chicago v M/V Morgan, et al, USCA,
7 th Cir [2004 AMC 1859], July 9 2004 Tugboat was pushing
four barges on Calumet River in Chicago, winch brake
failed causing a barge to collide with a bridge. Oregon
rule (which creates a rebuttable presumption of fault
against a moving vessel) held to apply. Vessel did not
react to the mechanical failure in a reasonable manner,
collision not the result of an inevitable accident or
the sole fault of the stationary object, in extremis doctrine
(agony of the moment defence) does not apply.
Collins v National Transportation Safety Board – US
Court of Appeals, District of Columbia Circuit (2004
AMC 153), December 19 2003 Collision – Colregs
and inland rules – rule 34(d) warning signals.
Continental Florida Materials, Inc. v M/V Lamazon ,
et al. USDC S.D.Florida. [2004 AMC 612], February 25 2004 Damaged cargo. Voyage charter party with arbitration
clause. Whether bill of lading incorporates the arbitration
clause from the voyage charter party.
Continental Insurance Company v M/V Orsula et al USCA
, 7 th Circ, [2004 AMC 172], December 24 2003 Damage to goods during voyage.
Recovery of damages. Bills of lading. Jurisdiction, forum-selection
clause.
DCI Management Group Inc., et al v MV Miden Agan,
et al USDC SDNY [2004 AMC 1294], May 14 2004 Cargo
was carried in temperatures above what was required.
Insurance claim submitted. Application of the $500 per
package limitation in the Carriage of Goods by Sea Act – what
constitutes the package, when bill of lading is ambiguous.
Pallets were deemed to be the packages as each pallet
was wrapped in plastic and shipper's CFO only mentioned
the number of pallets in the fax. Visby Amendments to
Hague Rules not applicable as have been signed but not
ratified by the US.
Delphi-Delco Electronics Systems, et al v M/V Nedlloyd
Europa, et al USDC SDNY [2004 AMC 1217], May 5 2004 Automotive
parts shipped on a non-vessel operating common carrier.
Alleged that carriers delivered the shipments without
producing bills of lading. Discussion of what constitutes
a deviation and “false” bills of lading.
Himalaya clause. Whether carriers can limit their liability
to $500 per package – shipper placed a value in the “description
of commodities” portion of B/L, not in place designated
for declaration of value.
Deltak LLC v Industrial Maritime Carriers Worldwide
et al USDC ND California [2004 AMC 1781], June 21 2004 Cargo was damaged as a result
of exposure to water. Allegations that owners of vessel
knowingly furnished a ship with leaky hatches and failed
to apply sealant tape. Even if there were evidence supporting
this, it would perhaps support a finding of negligence,
but not a finding of unreasonable deviation sufficient
to defeat the package limitation of liability in the
bill of lading. Discussion of what constitutes a “package”.
The attachment of steel bars and wooden bands to large
pieces of machinery is not sufficient to convert them
into packages. Carriage of Goods by Sea Act.
Dorens & De Waal B.vv Zim Israel Navigation Company,
et al. USDC NDIll, [2004 AMC 859], March 25 2004 Cargo
damaged. Bill of lading contained clauses limiting liability.
Construction.
Dutie L Blair, et al v Suard Barge Services, Inc., et
al. USDC ED Louisiana [2004 AMC 1144], February 18 2004 Man
was operating a boat in a canal, struck two moored barges
and died. The barges had general marine liability insurance
and indemnity coverage. Whether watercraft exclusion
clause bars recovery in the circumstances of the barge
being moored offshore of the insured's premises. Discussion
of a hull policy, protection and indemnity policy, marine
general liability policy and comprehensive general liability
policy.
Eimskip, et al v Mayflower Int'l Ltd, et al USDC D Massachusetts [2004 AMC 1904],
July 14 2004 Action to recover unpaid
freight charges. Bill of lading – presumption
that shipper shown is the party responsible for paying
freight. Where buyer of cargo orally booked shipment
and orally agreed to pay the freight buyer is responsible
and must indemnify the shipper of it pays.
Energy Transport, Ltd. vM.vSan Sebastian USDC SDNY
F.Supp.2d, December 10 2004 (NB A lot about procedure, standing
here as well) Arbitration, charter parties, narrow arbitration
clause. The terms of a charter party, including an arbitration
clause, may, by appropriate reference, be incorporated
into a bill of lading. Whether claims against vessel
owner for breach of contract and negligence were arbitrable
under charter's arbitration provision.
Exter Shipping Limited et al v Stamatios I Kilakos,
et al USDC ND Georgia (Atlantic Division) [2004 AMC 1443], March 29 2004 Vessels chartered to company
which became insolvent. Third party secured arrest of
plaintiff's vessel. Plaintiffs allege that defendant
made fraudulent representations as to the charterer's
solvency. Discussion of jurisdiction – subject
matter, maritime contract, maritime tort, supplemental.
Court declined to exercise jurisdiction on the grounds
of forum non conveniens.
Ferrostaal, Inc. v M/V Cerinthus, et al . USDC
ED Louisiana [2004 AMC 1134], March 24 2004 Steel coils
damaged. Bill of lading incorporated the mate's receipt
which noted denting –this was accepted
by the court as reflecting the condition of the cargo
at the time of loading. Therefore plaintiff required
to show how carrier's breach of duty caused the damage,
as the burden of proof did not shift to carrier (under
Carriage of Goods by Sea Act).
Ferrostaal, Inc. vM/V Sea Baisen, USDC SDNY, November 30
2004 Goods damaged while transported pursuant to a contract
of affreightment. Defendants move for summary judgment
-arguing that claim is time-barred pursuant to the Carriage
of Goods by Sea Act. Plaintiff was previously granted
extensions by its agent. Need to show the agent was also
acting as an agent for the shipowners when extension
requests were granted, or that owners are estopped from
denying the existence of such a relationship. Motion
for summary judgment granted.
Ferrostaal, Inc. vM/V Tupungato, USDC SDNY
[2004 AMC 2498], October 1 2004 Cargo owner seeks recovery for damage to
cargo, from vessel owners and charterers. Two defendants
file a third party complaint against the time charterer
who in turn impleads the owner of the vessel. The vessel-owner
moved to stay these claims on the ground that the charter
party executed requires the parties to resolve all disputes
through arbitration. Time charterer opposes arbitration
on the ground that it may be deprived of its remedy against
the vessel-owner if forced to arbitrate this dispute
in London, because English courts have applied the Carriage
of Goods by Sea Act in ways which may bar the time charterer's
claims. Argument rejected and motion to stay is granted.
Firemans Fund McGee Marine Underwriters v M/V Caroline – USDC SDNY (2004 AMC) 430, February 10 2004 Charterparty – execution
by agent “on behalf of the owner” – owner
a party, not signing agent – “owner of the
vessel” is an adequate disclosure of the principal – the
test being the identity or existence of the principal:
Getty Oil Co v Norse Mgmt Co (Pte) Ltd 711 F. Supp 175,177
(SDNY 2/6/93) followed.
Foster Wheeler Energy Corporation v An Ning Jiang MV et
al, USCA 5 th Cir, [2004 AMC 2409], September 13 2004 Equipment
damaged while being shipped from Spain to China. The bills
of lading contained a paramount clause which referred to
the Hague-Visby Rules and a US jurisdiction clause. Hague-Visby
Rules govern the extent of liability for cargo damage rather
than the Carriage of Goods by Sea Act.
Gfroerer vAce American Insurance Company, USDC WDNY, December 22, 2004 Power boat owner commenced
action against insurance company seeking a declaratory
judgment that they are obligated to pay plaintiff insurance
proceeds. Insurance company claims that their denial
of coverage was proper because plaintiff had breached
an express warranty of the policy by allowing plaintiff's
powerboat to be "operated
by" someone other than himself at the time of the
accident. Discussion of what is meant by “operated by,” and
of whether the policy is intended to cover "ocean
going vessels." Plaintiff's claims for coverage
denied.
In re Millenium Seacarriers Inc – USDC
SDNY (2004 AMC 538), December 11 2003 No bailment of bunkers sold
on credit.
Intermetals Corp v Bargelink LLC, USDC ED Louisiana,
November 3 2004 Goods damaged on vessel. Defendant found
not to be a Carrier, a Non-Vessel Operating Common Carrier,
or a Freight Forwarder holding itself out as performing
carrier functions. Therefore it is not subject to the
general restriction on waiver of liability for failure
to provide/use due diligence to provide a seaworthy vessel
under the Carriage of Goods by Sea Act. Motion for summary
judgment granted.
Jefferson Insurance Company v Roberts, USDC D. Massachusetts,
349 F.Supp.2d 101, December 2 2004 Insurer brought action
seeking declaration that hull and machinery insurance
policy did not cover damage to insured vessel's engines.
What law governs insurance contract - absent controlling
federal rule, statute, or precedent to the contrary,
it is appropriate to look to state law in interpreting
terms of marine insurance contract.
Under Massachusetts law, hull and machinery insurance
policy excluded coverage for damages to insured vessel's
engines, and broker was not insurer's agent.
Jefferson Insurance Company of
New York v Michael Cassella, et al, USDC, EDNY, [2004 AMC 163], May 7
2003 Marine insurance. Collision at Freeport Creek. Which law controls insurance policy.
Whether a vessel is an “ocean going vessel”. Status of endorsement.
John F Dillon & Co LLC v Foremost Maritime Corporation
et al USDC SDNY [2004 AMC 1677], June 18 2004 Charter
party agreement. Agents and brokers. Where party listed
as “Managing Agents to Owners of the vessel described
below”- the party is an agent for a disclosed principal.
Brokers commissions on charters. Broker not entitled
to commission on a charter after termination by mutual
agreement or unilateral breach.
Joseph Todd et al v Paul J Schneider USDC, District of South Carolina (Charleston
Division) [2004 AMC 409], December 8 2003 Boating collision on a lake.
General maritime law. The Pennsylvania Rule.
The Inland Navigation Rules. Wrong side of channel, proper
look out, safe speed, appropriate steps/action to avoid
the collision, narrow channel rule, head-on situation.
Liability.
Julianne Woodyer v United States of America USDC WD
Washington (Tacoma) [2004 AMC 1114], March 17 2004 Protestor
operated high-speed boat contrary to law in an exclusionary
zone, with the purpose of interfering with whale hunters.
Violated crossing and other rules – then
collided with a cost guard vessel. Protestor not able
to recover for injuries.
International Aircraft Recovery LLC v Unidentified,
Wrecked and Abandoned Aircraft et al USCA 11 th Cir [2004 AMC 1724], June
18 2004 Navy wreck located. Letter sent
from a US Navy Captain to a potential salvor saying that
his office would recommend taking appropriate action
to prevent an unauthorized taking, was an effective rejection
of salvage services. Therefore salvor receives no award
for services undertaken after the letter.
Kristensons-Petroleum, Inc. v Sealock Tanker Co., Ltd
et al. USDC, SDNY [2004 AMC 1184], February 23 2004 Contracts
for sale of marine fuel oil – failure to pay.
Contract governed by laws of New York. Belgian court
authorized arrest of ship. Whether SDNY has subject matter
jurisdiction, in rem jurisdiction.
Liverpool and London Steamship Protection & Indemnity
Association Limited v M/V ABRA (ex Kappa Unity), In Rem,
USDC MDLa [2004 AMC 1025], November 9 2003 Mutual insurance association – members
made contributions (calls). A member was unable to continue
paying calls. Ship arrested. Whether maritime liens exists
on individual vessels in a member's fleet (where the
member earmarked individual coverage but was billed in
full). Whether the insurance association possessed a
maritime lien against a vessel, for the total amount
of unpaid calls of the other vessels in the member's
fleet. Discussion of maritime liens, necessaries liens
and maritime contract liens.
Lloyd Victor Ramirez v Matt Butler, et al USDC NDCal,
[2004 AMC 2203], June 3 2004 Claim of sailboat owner against
marina for trespassing on his boat and converting and
selling it. Discussion of whether incident has a potentially
disruptive impact on maritime commerce. No admiralty
jurisdiction found.
Macsteel International USA Corp v M/V Jag Rani – USDC
SDNY (2004 AMC 220), 30 September 2003 Charterparty and bills
of lading – incorporation of charterparty arbitration
clause into the bill – CONGENBILL – stated
to be used with charterparties – the particular
charterparty ambiguously referred to on the face of
the bill – discovery permitted as to knowledge
of shipper – discussion of U.S. law of incorporation
of charterparty terms into bills: where the bill “specifically
refers to a charterparty” and incorporates the
terms of the charter in “unmistakeable language”:
Import Export Steel Corp v Mississippi Valley Barge
Line Co 351 F 2d 503 (2 CCA 1905), 1966 AMC 237, 240.
Maersk-Sealand v Eurocargo Express, LLC, et al. USDC
CD California (Western Division) [2004 AMC
1098], April 8 2004 Containers shipped on ocean
common carrier's vessels. Carrier was not paid certain
charges – as a result asserted
a “general lien” (pursuant to a clause in the bill of
lading) on the containers it was transporting. Charges
and validity of lien were disputed, nonetheless delivery
was delayed, leading to a loss of business and profits
for the defendant. Whether general lien provision enforceable
and valid.
Marine Office of America Corp., et al v Lilac Marine
Corporation, et al. USDC D.P.R, no, [2004
AMC 670] November 13 2003 Carriage of Goods by Sea
Act. Cargo arrived damaged by rust. Carrier's liability – need
to establish that goods were damaged while in the custody
of the carrier. Bill of Lading – proof that carrier received
goods. Duty to provide a seaworthy vessel.
Marquette Transportation Company Inc., et al v Louisiana
Machinery Company Inc., et al USCA 5 th Cir [2004 AMC 1156], April 16
2004 Negligence – fire on vessel. Indemnification
clause – required
each party to hold the other harmless for suits for loss
of damage to property owned. Reconciling insurance and
indemnity provisions. In this case, indemnity provision
was not affected by the requirement to maintain specified
insurance coverages.
Mitsui Marine & Fire Insurance Co Ltd v Hanjin Shipping
Co Ltd –Georgia, State Court of Chatham
County (2004 AMC 577), February 18 2004 Packages of yarn transported
by ocean and land. Yarn allegedly damaged during rail
transport. Ocean and land transport governed by 2 separate
bills of lading. Discussion of principles which can govern
rights of a cargo owner against a vessel owner/operator
and stevedores and inland carriers. Carriage of Goods
By Sea Act. What law controls bill of lading.
NVOCC’s bill issued to shipper – ocean bill
to NVOCC held to have been issued to NVOCC in its own
right and not as agent of shipper – court applied
the discussion of the relationship between shipper, NVOCC
and carrier in James N Kirby Pty Ltd v Norfolk Southern
R Co 300 F.3d (11 CCA 2002), 2002 AMC 213. Thus shipper
was not bound by limitations in the ocean bill. But compare
Barbara Lloyd Designs Inc v Mitsui OSK Lines 2003 AMC
2608 where a N Dakota District Court found the shipper
bound by the ocean carrier’s bill through the agency
of the NVOCC or freight forwarder.
The National Shipping Company of Saudi Arabia v Diversified
Freight Logistics, Inc. USDC, SDNY, [2004
AMC 188], December 18 2003 Affreightment. Whether valid
oral contract. Dead freight damages. Who is to pay freight.
Agents and Brokers. Undisclosed principal. Status of freight
forwarder.
Nippon Express USA (Illinois) Inc v Mitsui Sumitomo
Insurance Co Ltd, et al USDC ND Illinois (Eastern Division)
[2004 AMC 2031], August 9 2004 Non-vessel owning common carrier
contracted vessel owning common carrier to transport
goods. One container's contents went missing. Bill of
lading incorporated Carriage of Goods By Sea Act (COGSA).
Whether Carriage of Goods By Sea Act definition of package
applies - where bill of lading states the number of cartons
in a container, an attempt to define the container as
a package subject to the $500 limitation on liability
is void.
Norfolk
Southern Railway Co. vJames N. Kirby, Pty. Ltd., No.
02-1028 United States Supreme Court: Opinion by Justice
O’Connor:
November 9 2004 (not yet officially reported)
Admiralty jurisdiction: US Carriage of Goods
by Sea Act 1936 ("COGSA"):
Bills of Lading: Multimodal Bills of Lading: NVOCC: contracting carrier : accident
during carriage by rail: Himalaya Clause.
In this important decision, the United States Supreme Court
held that the United States Federal maritime law (that
is, rather than state law) governs disputes arising under
a multi-modal ocean bill of lading which includes a "substantial" maritime
leg, irrespective of whether the carriage also includes
a substantial over-land carriage and irrespective of the
leg of the voyage on which the claimed damage occurred.
The Court further held that claims arising under multi-modal
ocean bills of lading are not "inherently local" such
that state law should govern. Applying Federal maritime
law, the Supreme Court concluded that defendant rail carrier
was covered by Himalaya clauses contained in two multi-modal
bills of lading issued in respect of the subject cargo
and thus was entitled to the US Carriage of Goods by Sea
Act 1936 ("COGSA")’s US$500 per package
limitation of liability in respect of damage to a cargo
of machinery which occurred as a result of a train derailment
on the final leg of the delivery. In so doing, the Court
held that, for the narrow purposes of accepting limitations
of liabilities in the bill of lading, at least, the cargo
interests were bound by the terms in the bill of lading
of the actual carrier through the agency of the contracting
carrier.
Nova Information Systems, Inc. v Greenwich Insurance
Company, et al. USCA, 11th Cir, [2004 AMC
969], April 9 2004 Passengers pre-paid for cruise
by credit card. Company in financial troubles, cruise
did not take place. A credit card processor paid for
it – it was not held to be a
third-party beneficiary of a surety bond contract. Promissory
or equitable estoppel – may expand parties covered by
a surety bond only if oral representations or promises
interpret ambiguous contract terms.
Oliver Arch v Treasure Chest Casino, LLC USDC ED Louisiana
[2004 AMC 1303], February 17 2004 Injury of crewman on permanently
moored boat. Discussion of factors that give rise to
admiralty jurisdiction.
Pemex-Refinacion v Tbilisi Shipping Co Ltd USDC SDNY
[2004 AMC 2424], August 29 2004 Cargo was damaged while being
discharged. Cargo was insured – insurer given a subrogation
receipt. Insurer had reinsurance for 85% of the claim.
Claim that the insurers and reinsurers were real party
in interest – request
for recommencement of arbitration on these grounds.
PNC Bank Delaware v F/V Miss Laura et al USCA
3 rd Cir, [2004 AMC 2314], August 25 2004 Assuming a vessel's
history may be the subject of a maritime lien, the lien
does not transfer to a replacement vessel after the original
vessel sinks. Liens have a vessel-specific character.
Progressive Northern Insurance Company v Fred Bachmann
USDC WD Wisconsin [2004 AMC 1745], April 19 2004 Marine
insurance. Owner misrepresented horse power of recreational
boat to insurer. The federal admiralty rule uberimmae
fidei does not apply to insurance for a recreational
boat. State insurance law held to apply.
RMS Titanic Inc v Wrecked and Abandoned Vessel et al
USDC ED Virginia (Norfolk Division) [2004
AMC 1817] , July 2 2004 French official awarded artefacts
recovered from the wreck of the Titanic to the salvor
by issuing a Proces-Verbal was not recognised under the
doctrine of comity in the US. Discussion of law of finds
and law of salvage. Maritime lien – determining salvage
awards.
Royal Insurance Company of America v BHRS LLC USDC SD
Florida [2004 AMC 1192], April 6 2004 Salvage operation.
When asked about money the salvor said that the insurance
company would pay. Owner was given a document, signed
it without reading. Document was a “no
cure pay” agreement, including an arbitration clause. Owner
bound by document.
Royal Insurance Company of America v M/V MSC Dymphna
- USDC SDNY (2004 AMC 785), February 27 2004 Carriage of Goods by Sea Act
(COGSA). Failure to deliver 2880 cartons of pharmaceuticals “packed
on 40 pallets”. Bill of lading - ambiguous as to what unit
of shipment qualifies as a COGSA package. Extrinsic evidence
used. Package limitation US COGSA - discussion of US cases.
Royal Insurance Company of America v M/V MSC Dymphna,
et al, USDC SDNY [2004 AMC 1548], June 16 2004 Court affirms
its prior decision that a particular bill of lading ambiguously
defines “cartons” as the relevant
package(s) for the purpose of insurance and the $500
per package limitation of liability. Court denies plaintiff's
motion that appellate court, prior to final judgment
in matter, determine the issue of fact, namely, what
constitutes “cartons”.
Royal Insurance Company of America d/b/a Royal & Sunalliance
vCommercial Underwriters Insurance Company, USDC SDNY,
November 17 2004 Insurance coverage dispute.
Both plaintiff and defendant insurance companies provide
client with insurance, though under separate policies
with differing coverage. Plaintiff insured client under
two policies, a Hull Insurance Policy a Protection & Indemnity
Insurance Policy. Defendant insured the client under
a Commercial General Liability Policy. Spill in Louisiana,
client was sued in Louisiana state court. Dispute over
which carrier is obligated to cover the costs of defence
for the client. Both the plaintiff's and defendant's
motions for summary judgment were denied.
Salty Dawg Marina Inc v The M/Y Eastern Star, et al
BOAT/US, Salvage Arbitration, New York, [2004
AMC 497], January 7 2004 Salvage operation. Definition of an act of salvage.
Seabulk Offshore Limited v American Home Asurance Company
et al USCA 4 th Cir [2004 AMC 1924], July 28 2004 Marine
insurance. Additional insured endorsement, named insured
endorsement. Insurer to cover claims against additional
insured for personal injury at sea.
Security Insurance Company of Hartford v Old Dominion
Freight Line Inc. USCA 2 nd Cir Dec. 2, 2004 C.A.2 (N.Y.)
2004, 391 F.3d 77 Shipment of cigarettes stolen. Shipper's
subrogee brought action under Carmack Amendment against
carrier. Carriage of goods. Where contents of a shipment
are not visible or open for inspection, a clean bill
of lading is not sufficient to establish delivery of
the goods in good condition. No summary judgment as a
genuine issue of material fact as to quantity and quality
of goods in shipment was found to exist.
Sompo Japan Insurance Company of America v M/V Commander
et al USDC ND Illinois (Eastern Division) [2004 AMC 2283], August
4 2004 Cargo damaged on a journey between
Turkey and Chicago. Bills of lading signed by a time
charterer's agent in Turkey naming a Maltese owner
as the carrier are inadequate to establish specific
jurisdiction of owner.
Sompo Japan Insurance of America v Union Pacific Railroad
Company, USDC, SDNY, [2004 AMC 247], November 4 and 18, 2003 Cargo from Japan to Georgia,
damaged on a train in the US. Bills of lading covered entire
shipment from Tokyo to Georgia. Construction of bills of
lading that purport to extend the protection of the Carriage
of Goods Sea Act's typical period of applicability.
Sony Computer Entertainment Inc., et al v Nippon Express
USA (Illinois) Inc., et al., USDC SDNY, [2004 AMC 1126], April 9 2004 Cargo transported by ship and railway
was lost. Himalaya clause and clause limiting liability
in bill of lading. Whether carrier had benefit of a limit
contained in the rail carrier's circular.
Stemcor USA Inc v Atlantic Transport Association Ltd,
USDC SDNY, October 12 2004 Cargo owner alleges that ship
owner breached the charter party by failing to provide
it with a vessel suitable for the shipment of loose steel
billets by the scheduled time. Default judgment entered.
Assessment of damages for breach of charter party. Prejudgment
interest granted from the date on which the charter party
was breached.
Stemcor USA Inc v M/V Archimedes et al USDC
SDNY, [2004 AMC 1651] May 5 2004 and June 7 2004 Voyage
charter party provided for the carriage of a cargo of
wire rod. Paramount clause – contract was governed
by the Hague-Visby Rules. Although voyage charter required
the charterer to load and unload the vessel, Hague-Visby
rules makes this duty non-delegable by the owner, therefore
owner not excused from bad stowage and handling.
Stephen Gross v Tonomo Marine Inc USDC WD Pennsylvania
[2004 AMC 1358], May 25 2004 Worker unloading a barge
by a crane was injured. Admiralty jurisdiction found
to exist under the admiralty Extension Act. Locality
test, connection test (disruptive impact and substantial
relationship).
Steven Henry Adams, et al v Unione Mediterranea di Sicurta,
et al USCA 5 th Cir, [2004 AMC 1170], April 14 2004 2
barges sank and 158 slabs of steel were lost. Jurisdiction.
Marine insurance. Forum selection clause. First insurer
not bound by forum selection clause in a contract between
the second insurer and the insured. Double insurance.
One policy incorporated a provision from the Italian
Civil Code, providing for a right to recourse against
other insurers for “a proportional contribution based
on the indemnities owed in accordance with their respective
contracts. ” Discussion of doctrine of equal subrogation.
Thames Shipyard and Repair Company v United States et
al, USCA 1 st Cir, [2004 AMC 112], November 26 2003 Sinking vessel. Salvage.
Authority of Coast Guard to issue evacuation order. Search
and rescue powers. Liability of the Government for negligence,
question of immunity.
Thomas H. Collins v National Transportation Safety Board,
et al USCA, District of Columbia Circuit,
[2004 AMC 153], December 19 2003 Two ships collided in the
Miami Harbour Channel. Initially agreed to pass each
other starboard - to - starboard. One ship decided to
pass port-to-port instead. Whether Coast Guard's interpretation
of COLREGS Rule 34(d) to be given deference to.
Thrustmaster of Texas, Inc v The United States, US
Court of Federal Claims, [2004 AMC 1000], February 11 2004 A contract
to supply bow thrusters for the sole purpose of improving
and servicing vessels is wholly maritime in nature. Therefore
it is subject to admiralty jurisdiction.
Thysse, Inc. v M/V Nobility, et al, USDC ED Louisiana
[2004 AMC 1419], April 23 2004 Shipment of steel coils
damaged. Bills of lading incorporated all terms of the
charter. B/L provided that cargo was free in stowed out
and consignee hired the stevedore to discharge the cargo
- the carrier is not liable for physical damage to the
steel coils. Held to be private not common carriage therefore
the US Carriage of Goods by Sea Act does not apply as
a matter of law.
Timbauba Agricola S.A. vM/V Cap San Raphael, USDC
ED Pennsylvania, December 2 2004 Shippers (and exporters and/or
importers of fruit) alleged that the common carriers
were liable in contract and tort for the destruction
of a shipment of a cargo of mangoes, which were carried
by the common carrier defendants. Plaintiffs failed to
identify bills of lading – complaint
found to be insufficient, failure to state a claim upon
which relief may be granted. Defendants granted motion
for summary judgment.
Times Media Private Limited v Ville de Mimosa, et al, . USDC
C.D.California, [2004 AMC 700], March 3 2004 Alleged damage
to goods. Whether there is admiralty jurisdiction – location
test, connection test.
Todd v Schneider USDC S Carolina (2004
AMC 409), December 8 2003 Collision – rules 7
and 8: action to avoid collision; rule 34(e): bend signals;
rule 15: obligations of starboard hand vessel; rule 9:
keeping to starboard; rule 6: safe speed; rule 5: lookout;
rule 2(a) general precautionary rule, good seamanship
and common sense; rule 15: crossing.
Tokio Marine & Fire Insurance Co., Ltd., et al v
M/V Saffron Trader, et al . , USDC SDNY, [2004 AMC 1093] March
21 2003 Action to recover damages
for cargo shipped form US to Japan. Charter party contained
an arbitration clause (to be in New York). Whether arbitration
agreement had been waived. Whether claim time-barred
under Carriage of Goods by Sea Act.
Triton Container International Limited et al v Kien
Hung Shipping Co Ltd et al USDC CDCal [2004
AMC 1566] April 23 2004 Container leases are maritime contracts and
therefore the federal court has maritime jurisdiction.
Triton Container International Limited et al v Kien
Hung Shipping Co Ltd et al USDC CDCal [2004 AMC 1568], June 2 and July
13 2004 Ocean cargo containers leased
for maritime transport. Maritime liens. Foreign liens,
arrest laws.
Tug Barbara E. Bouchard Corp v Amazonia MV, USCA 5 th
Cir, C.A.5 (La.),2004, 117 Fed.Appx. 968, December 13 2004
Owner of tug and barge flotilla dragged anchor and collided
with another vessel Brought action against owner of other
vessel. Strict liability theory not negligence theory
imposed. Proximate cause of collision. Held that tug
and barge flotilla operator failed to exercise due diligence
and take corrective action to avoid other vessel. In
extremis doctrine does not apply here.
Union Carbide Corporation v M/T Encounter, et al USDC
SDNY [2004 AMC 815], March 18 2004 Cargo of liquid ethylene
glycol arrived contaminated in Indonesia. Whether carrier
liable for costs incurred in transporting the cargo to
Japan for sale as anti-freeze. Shipper sold cargo FOB
- whether shipper is real party in interest to sue carrier
for cargo damage.
Union Steel Corporation v M/V Koningsborg, et al, USDC,
SDNY [2004 AMC 438], February 4 2004 Bill of lading. Charter – whether
arbitration clause to be interpreted as permissive or
mandatory.
Usinor
Steel Corp. vM/V Koningsborg United States District
Court for the Southern District of New York: District
Judge: Alvin K. Hellerstein.:No. 03 Civ4301; 2004
U.S. Dist. LEXIS 1615; 4 February 2004 Arbitration: charter party:
arbitration clause: Whether mandatory or permissive: federal
policy: final order.
In this case, the court granted defendant shipowner's motion to stay an action
in favor of arbitration pursuant to an arbitration clause which provided that "arbitration,
if any, to be settled in Paris…." The shipowner contended that the clause required
mandatory arbitration, but the cargo owner argued that the clause only required
foreign arbitration if the parties agreed to arbitrate a dispute. The court held
that, in view of federal policy in favor of arbitration, the arbitration clause
was mandatory rather than permissive.
United States of America v Geovanni Quintero Rendon
USCA, 11 th Circ, [2004 AMC 591], December 31 2003 Vessel intercepted in international
waters with no flag, no registration documentation or
identifying markings. Maritime Drug Law Enforcement Act
(MDLEA) - vessel without nationality. Whether subject
to US jurisdiction under the (MDLEA).
2003
Astra Oil Company, Inc. vRover
Navigation, Ltd.
United States Court of Appeals for the Second Circuit:
Jacobs and Sotomayor, Judges: No. 02-9388: 2003 U.S.
App. LEXIS 19670 (2d Cir. September 2003) (not yet officially
reported): 22 September 2003 Shipping: Charter party: Arbitration: When May A Non-Party
Compel Arbitration?
In this case, the United States Court of Appeals for
the Second Circuit reversed a decision from the District
Court for the Southern District of New York in which
it had denied appellant Astra Oil Company, Inc.’s
("Astra") petition to compel Rover Navigation,
Ltd. ("Rover") to arbitrate Astra’s claims
arising out of the late delivery by Rover of Astra’s
cargo. Even though Astra was not a signatory to the charter
party which contained the arbitration clause, the Second
Circuit held that the petition should have been granted
because Astra’s claims were premised on alleged
breaches of duties under the charter, that is, that Rover
breached warranties of speed and seaworthiness, and thus
were inextricably intertwined with that agreement. Moreover,
the Court held, the relationship between Astra and the
actual signatory to the charter was sufficiently close,
and Rover had treated Astra and the actual signatory
sufficiently interchangeably, that Rover should be estopped
from resisting arbitration.
Chisso America Inc v M/V Hanjin Osaka B, USDC
D of New Jersey (2003 AMC 2796), 10 April 2003 Himalaya clause enforced – owner
and demise charterer could take advantage of the forum
selection clause in a sea waybill issued by a slot
charterer in its combined transport bill of lading.
Duferco
International Steel Trading vT. Klaveness Shipping
A/S United States Court of Appeals for the Second Circuit:
Judges Feinberg, Cardamone, and Sack: 333 F.3d 383: June
24 2003
Time charter: voyage charter: safe-berth warranty: indemnity
Arbitration: Manifest disregard of the law: arbitration
award: vacatur/set aside: vouching-in: collateral estoppel:
plausible reading of the award: whether should also be ‘probable’
In this case, the Second Circuit affirmed a district court’s
decision refusing to vacate (set aside) an arbitration
award for manifest disregard of the law after finding a
plausible reading of the award which resolved an apparent
contradiction. The Petitioner, Duferco, argued that the
arbitrators had acted in manifest disregard of the law
when they rendered an award concerning Respondent’s,
Klaveness’, indemnification claim for damages and
attorney’s fees and costs incurred in a prior London
arbitration. After an extensive review of the law on manifest
disregard of the law and the award, the appellate court
agreed with the "plausible reading" of the award
advanced by the district court and affirmed its decision.
In so affirming, the Second Circuit concluded that it was
of no consequence that this plausible reasoning was not
necessarily one which was advanced in the arbitration or
readily apparent in the award.
Energy Transport Ltd v MV San Sebastian – USDC
SDNY (2003 AMC 2829), 28 June 2003 Lien on Freight – subcharterer
paid freight directly to owner’s agent for transmittal
to owner – freight thereby ceased to be indistinguishable
from the ship and could not be seized in rem and fell
outside the claimant’s maritime lien.
Fireman’s
Fund Ins. Co. vOrient Overseas Container Line Ltd
United States: New York City Civil Court: Eileen A.
Rakower, Judge:
May 2, 2003: 763 N.Y.S.2d 427, 196 Misc. 2d 11 (N.Y.
CivCt. 2003) US CARRIAGE OF GOODS BY SEA
ACT 1936 ("COGSA"):
unreasonable deviation: misplaced cargo: lost cargo: negligent
misrepresentation.
The New York City Civil Court granted summary judgment
against an insurance company pursuing a subrogated claim
against a container line. The insurer sought damages for
the line’s misplacement of a New York-bound shipment
of doors and windows from Germany. The shipping company
had represented to the cargo owner that its shipment could
not be located and had been apparently stolen, but it later
located the cargo and delivered the shipment in good condition.
The court ruled the carrier’s failure to unload the
container at New York and its on-carriage of the container
to Japan and back was not an unreasonable deviation because
the carrier’s actions were not undertaken voluntarily.
The court rejected the insurer’s claim for negligent
misrepresentation on the ground that the shipping company
owed the cargo owner no duties except those created by
and arising out of the shipping contract, a bill of lading.
Moreover, the court found that the alleged negligent misrepresentation
was not a misrepresentation in the first instance because
the shipping company had never definitely advised the cargo
owner that its container had been "stolen."
Tetuan Shipping Corp v M/V Tug Ann Moran, et al, 65 FedAppx 715 (Table) (11th Cir) [2006 AMC 1210 (LTD)] 31 March 2003 DAMAGES – ship owner sues tug boat after the ship ran aground during turning maneuver – tug boat argues ship owner’s damages should be limited to the amount un-reimbursed by the insurer – while under the doctrine of equitable subrogation a marine insurer’s recovery is limited to the amount paid under the policy, there is no such limitation on the insured against the tortfeaser – in addition, under the collateral source rule, payments made by the insurer cannot reduce the liability of the tortfeaser - held, ship owner need not bring suit only for un-reimbursed loss but can sue tug boat for the entire loss – insured’s recovery is then impressed with a trust for the insurer.
Hygrade Operators Inc v The Tug Takchee, USDC
D of New Jersey (2003 AMC 2802), 24 September 2003 Collision – tug with
tow in fog – positive and timely action; safe speed;
keeping to starboard; position on vessel
Sander vAlexander Richardson Investments
United States Court of Appeals for the Eighth Circuit: 334 F.3d 712: Judges Hansen,
Riley, and Chief Judge Beam: July 1, 2003 Admiralty: Exculpatory Clauses: Negligence: Yacht Club: Slip Agreement: Whether
Exculpatory Provision In Slip Rental Agreement Enforceable
The United States Court of Appeals for the Eighth Circuit, reversing a decision
of the United States District Court for the Eastern District of Missouri,
held that the defendant yacht club was not liable to various plaintiff boat
owners in negligence for a fire which had destroyed the plaintiffs’ boats.
The decision was founded on an exculpatory clause in the slip rental agreement
which purported to exonerate the yacht club from liability for "any
and all" damage to plaintiffs’ property.
