Hawaiioceanlaw.com

New Admiralty Case - 2nd Circuit Clarifies "Oregon" Rule on Allisions

The Court of Appeals for the 2nd Circuit, based in New York, has recently decided a case which clarifies the plaintiff's burden of proof in allision cases.  An allision is a collision between a moving object and a stationary object.

In the case of Zerega Avenue Realty Corp. v. Hornbeck Offshore Transportation, LLC, a barge allided with a bulkhead or retaining wall on shore.   The property owner brought suit against the tug company responsible for the barge.  At trial, the property owner asserted that under the Oregon Rule (from the U.S. Supreme Court case, The Oregon), it was entitled to a presumption of fault shifting the burden from the plaintiff to the defendant-vessel owner to prove that it was NOT the cause of the damage.  The general rule in torts is that the claimant has the burden to show the defendant was the cause of damage.

The court found, however, that the presumption did not extend to whether the allision caused the damages alleged.  Because the trial court did extend the presumption, the case was reversed and returned to the trial court for such determination.

Side note for the trial bar:  Apparently, photographs were used as exhibits.  Counsel, during witness examination, did not ask if the photographs "fairly and accurately portrayed the area shown" in the picture.  The trial court sustained an objection to the admission of the photograph as lacking proper foundation.  The Court of Appeals, perhaps not appreciative of strict application of the Rules of Evidence, wrote: "It would have been preferable for the District Court, when discussing the foundation issue with counsel at sidebar, to have offered the helping hand of a properly framed follow-up question."  (emphasis added). 

Always nice to get a helping hand from the courts.

Murphy's Law of the Sea: Port Royal Investigation Released

Not related to the law, but this sure seems to be a good case study in afloat operations, military and civilian.

The Honolulu Advertiser has published details about the Navy's Safety Investigation Board Report into the grounding of the USS Port Royal.  My earlier post on the Port Royal incident, here.

The report denotes causes of the grounding to include: lack of sleep by the Commanding Officer, inoperable equipment (including fathometer), and bridge team failures.

Defending Against Pirates - Guidelines for Self Defense and Firearms

Captain Bryant has a great post on three recent Coast Guard Port Security Advisories related to defending U.S. flagged, commercial vessels from the threat of piracy.  The three advisories are available for download at his blog.

From the Coast Guard's advisory:

Working with our interagency partners we have identified at least three options under which firearms could be exported and used aboard vessels in compliance with the ITAR, 1) obtaining a temporary export license (DSP-73), 2) temporarily exporting firearms and ammunition under an exemption to the ITAR, and 3) purchasing foreign firearms and filing for a temporary import license (DSP-61) when entering U.S. ports. The option that provides the most flexibility for an owner or operator of a vessel would be to obtain a DSP-73 temporary export license in accordance with 22 CFR 123.5. (Please note that in order to apply for a DSP-73, you must first register with the Department of State. Information on registering is available below.) This license is valid for up to four years, may be used for multiple entries and exits, and would require the operator to identify and list on the license application the firearms or other defense articles (e.g., ammunition) to be carried aboard the vessel. Once the license is obtained the operator could then stow the firearms on board the vessel in a U.S. port and keep them stored aboard the vessel until needed for use within the High Risk Waters by the crew or contracted security teams. Prior to entering or exiting the United States the license holder or their authorized freight forwarder would present the DSP-73 to CBP officials as part of clearing customs. Prior to leaving the United States the license holder or their authorized freight forwarder would have to submit the Electronic Export Information (EEI) through the Automated Export System.

To be sure, this only applies to U.S. vessels carrying firearms when departing U.S. ports and there is a personal exemption detailed in the post. 

Exxon Valdez - Ninth Circuit Awards Post Judgment Interest , but....

Exxon Valdez litigation update:

The Ninth Circuit Court of Appeals, on remand following the Supreme Court's decision limited punitive damages to 1-1 ratio with compensatory damages, awarded post-judgment interest to the Plaintiffs in the amount of $507.5 million. Decision posted here.

But, per SCOTUSBLOG, Exxon has sought rehearing en banc, with regards to the denial of Exxon's costs of court.

Engineering a Solution to Governmental Concerns with Seawalls - Maui Resident's Solution

The Maui News has a good article recounting one owner's experience with coming up with a solution to the erosion of his oceanfront land that would accomplish his objective (i.e. land preservation) and be palatable to governmental officials.

Seawalls, and efforts to address the often competing interests of property owners and governmental regulators, are controversial and present thorny issues of Constitutional law, ocean engineering and intergovernmental relations/authorities.

Stay tuned.

County Regulates Boating? Kauai County Sues to Enjoin Commercial Vessel Operations

Per news releases and reports, the County of Kauai brought suit against a vessel operator to enjoin passenger loading operations in the Hanalei River.  The County asserts that the operator must obtain a Special Management Area permit from the Planning Commission.  Hat tip to Kauai blogger Charley Foster for his post on this new lawsuit with links.  We'll try to get a copy of the complaint.

Tough to operate on the Hanalei River it seems.  Some of the operators have been in Hanalei River litigation before.

The State of Hawaii attempted to require boat operators to obtain permits to operate in Hanalei Bay and Hanalei River.  A boat operator challenged the regulations, citing the Supremacy Clause of the Constitution.  The regulations were struck down by the Ninth Circuit.  Young v. Coloma-Agaran, 340 F.3d 1053 (9th Cir. 2003).

Separately, rival tour boat operators brought suit against the Hanalei boat operators asserting that their alleged failure to obtain necessary state and county permits were unfair competition.  The Hawaii Supreme Court rejected the suit.  Whitey's Boat Cruises, Inc. v. Napali Kauai Boat Charters, Inc. No. 26334 (2006).

It'll be interesting to see how the state courts deal with this one.  Good case to show the interplay between state and federal authority to regulate vessel operations. 

Supreme Court Allows Punitive Damages for Seaman's Maintenance and Cure Case

The Supreme Court, in an opinion by Justice Thomas, has held that punitive damages are allowable for seaman's maintenance and cure claims, despite the argument that the Jones Act remedies (which don't include punitive damages) are exclusive.  The case is Atlantic Sounding Co., Inc. v. Townsend and the opinion is here.

Quick post, but more analysis to follow.  My earlier post on the case here.

Side note:  Justice Thomas was joined by Justices Stevens, Souter, Ginsburg and Breyer.  The dissent was written by Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy. 

While ideologies can be a poor indicator of how a justice will cast their respective votes, I don't think I've ever seen such a split with Justice Thomas not just joining, but authoring, the opinion joined by the Court's "liberal" justices.  Per Supreme Court practice, Justice Stevens would be entitled to choose an opinion's author.  Perhaps he chose Justice Thomas to get the vote to allow punitive damages.

Supreme Court to Hear Shoreline Property Case

The U.S. Supreme Court will hear an apeal from the Florida Supreme Court regarding the uncompensated taking of beach lands.  My partner, and fellow blogger, Robert Thomas, has created a resource page that is more comprehensive than any internet resource on Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).  Professor Kanter's take on Robert's posts is quite laudatory, here.

I'll leave the Constitutional and property rights issues to Robert.  From the practice standpoint, this case will certainly impact all local governments and oceanfront property owners. 

In a nutshell, Florida's Walton County has pursued an effort to renourish beaches devastated by Gulf Coast hurricanes.

Property owners along the beaches to be renourished challenged the project.  The property owners asserted that the efforts to renourish the beach would alter their property boundaries and access, thereby constituting a taking requiring compensation.  

The Florida Supreme Court disagreed and found no compensable taking.  The U.S. Supreme Court will hear the case in the Fall.  As governmental interests in beaches increase, it is perhaps inevitable that those interests will conflict with the property rights of impacted owners.  Whether those conflicts constitute compensable takings will certainly guide governmental actions in shoreline regulations for decades to come.

Stay tuned. 

Congress to Expand Clean Water Act Authority - Take Three?

Marten Law Group has a very comprehensive post on the Clean Water Act amendments pending before Congress.

The post tracks the development of statutory amendments to the Clean Water Act, specifically to address the jurisdictional issues raised and highlighted by the Rapanos decision.  As the Marten Law post notes, this issue presents a confluence (no pun intended) of state rights, property rights and environmental law, bound certainly for the U.S. Supreme Court to clear, the muddy (sorry, couldn't help) waters.

My partner, and fellow blogger, Robert Thomas has several posts on Rapanos and its progeny (here, here, here).  My source for the "muddy waters" reference.

More Observations on the Tonnage Case - Justice Breyer "diss" on the More Obscure Provisions of the Constitution?

Per the Blog of Legal Times, Justice Breyer appeared sheepish at the the arcane-ness of today's opinion on the tonnage clause of the U.S. Constitution (here).

Per BLT:

At the end, Breyer told the audience, "You know now more about the tonnage clause than many."

Another observation - it appears as if the Justices are more comfortable disclosing their original research, not relying merely on the litigants' briefs.  This was an interesting cite:

We can find little, if any, other personal property that it taxes. According to the State of Alaska, Valdez specifically exempts from property taxation motor vehicles, aircraft, and other vehicles, as well as business machinery. See Dept. of Community and Economic Development, Division of Community and Business Development, Office of the State Assessor, Alaska Taxable 2001, p. 20 (Jan. 2002), (Table 4), online at http://www.commerce.state.ak.us/dca/Taxable/AKTaxable2001.pdf (as visited June 10, 2009, and available in Clerk of Court’s case file).

As visited June 10, 2009? 

This reminds me of the hubbub last year when a broad statement in a death penalty case was disputed in a military law blog (CAAFlog) post.  The Supreme Court's decision didn't change, but it appears as if the Court is not going to rely solely on the briefs to provide the applicable law.  Great post on social media and the Supreme Court here.

My earlier post on Polar Tankers case, including links to briefs and transcripts,  here.