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New Admiralty Case from Sixth Circuit - USA v. $22,050.00 United States Currency

New case from the Sixth Circuit Court of Appeals discussing Rule G of the Supplemental Rules and the interplay with Rule 55 of the Federal Rules of Civil Procedure.  The case is United States of America v. $22,050.00 United States Currency and can be found here.

The issue:  The rules governing admiralty actions (including in rem forfeiture actions) are strict with defined deadlines which are unforgiving.  The rules governing civil procedure, however, are more forgiving and designed to have cases decided on the merits, not on technicalities.  [Author note: So sayeth the Sixth Circuit, federal practitioners know otherwise].

Rule G required a verified claim within 35 days of notice.  The claimant did not make that deadline.  The claimant sought to set aside the entry of default citing to Rule 55.  Rule 55 allows defaults taken (after service of process) to be set aside for "good cause."  So, when a claimant in an in rem action is barred by Rule G as untimely, but a claimant could show "good cause," should the Court set aside the default?

This court said yes and reversed the District Court's dismissal of the claim.

New LHWCA Case from First Circuit - Bath Iron Works Corp. v. Fields

New Longshore case from the First Circuit Court of Appeals.  The case is Bath Iron Works Corp. v. Fields  and can be found here.

This case turns on the employer's burden of proof to rebut the work connection to an injury:

Section 20(a) of the LHWCA provides that certain disabilities are presumed to be work-related "in the absence of substantial evidence to the contrary." 33 U.S.C. § 920(a). Relying on that provision, the Benefits Review Board affirmed an award of disability benefits for respondent Clair Maynard Fields.

Fields's employer Bath Iron Works ("BIW"), a ship manufacturing facility based in Bath, Maine, now petitions for review of the Board's decision, arguing that it produced "substantial evidence" to rebut the statutory presumption and, alternatively, that the Board exceeded the scope of its authority in vacating an earlier decision of the ALJ that rejected Fields's claim for benefits. We disagree on both points and therefore deny the petition.

The opinion is fact heavy, but it does show that the presumption is a potent tool in claimant's arsenal.

New Admiralty Case from First Circuit - Fishing Wage Agreements

New admiralty case from the First Circuit Court of Appeals on fishing wage agreements.  The opinion in the case of Borkowski v. F/V Madison Kate, can be found here.

From the Court's introduction:

The appellants in this maritime matter are three commercial fishermen who served aboard the F/V Madison Kate on a fishing voyage from Stonington, Connecticut in March 2006. Contrary to the requirements of federal maritime law, there was no written agreement memorializing the terms of appellants' employment. Upon return to port, each of the fishermen and the other crew members was paid a portion of the boat's net proceeds, consisting of the value of the trip's catch, less various expenses and the owner's share. Their payments were made pursuant to what the fishing industry is known in the fishing industry as the "lay-share system," under which the net proceeds are divided up into "shares" that are then awarded, in whole or part, to crew members depending on, among other things, their experience and performance. Appellants Wood and Borkowski each received a full share; appellant Ayres received a three-quarter share. The fishermen sued, claiming violations of federal maritime law and state wage laws. After an abbreviated bench trial, the district court awarded Ayres an additional quarter-share; Wood and Borkowski received no damage award. The fishermen claim on appeal that the district court committed legal error in limiting their damages. Such written agreements must contain the period of their effectiveness, the terms of any wage, share or other compensation arrangement, and any other agreed terms. Although we employ somewhat different reasoning than did the district court, we affirm the judgment.

At issue in this case was what damages are available for violations of the fishing wage agreement statute, 46 U.S.C. 10601.  Rather than address the crewmens' arguments regarding the availability of compensatory damages for violations of that statute, the appeals court highlighted their lack of evidence (apart from counsel's "say-so") of damage or the details of the deductions taken from the fishing vessel's gross revenue from the trip.  Such a lack of evidence was fatal to the claim.

Hawaii Leg Considers Amendment of Shoreline Definition

The Advertiser ran a story this morning on a bill pending in the Legislature regarding the definition of the boundary between oceanfront landowners and the public.  Article here.

I pulled the bill and it is reprinted below:

RELATING TO COASTAL AREAS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 205A-1, Hawaii Revised Statutes, is amended by amending the definition of “shoreline” to read as follows:

“Shoreline” means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of natural vegetation growth, or the upper limit of debris left by the wash of the waves[-], whichever is further most mauka, but never lower than the upper limit of debris left by the wash of the waves.”

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 3. This Act shall take effect on July 1, 2050.

You can download here.  It is pretty sparse and appears to be a placeholder for further legislative action. 

Stay tuned.

SCOTUS Maritime Contract Case: Briefs Available

This month, the Supreme Court is hearing a case that deals with the interplay between maritime contracts dealing with cargo shipments and the rules governing disputes for cargo transported on railways.  It is a thorny mix of federal law, international conventions and contract principles. My earlier post here.

The Question Presented is:

Whether the Carmack Amendment to the Interstate Commerce Act of 1887, which governs certain rail and motor transportation by common carriers within the United States, 49 U.S.C. §§ 11706 (rail carriers) & 14706 (motor carriers), applies to the inland rail leg of an intermodal shipment from overseas where the shipment was made under a "through" bill of lading issued by an ocean carrier that extended the Carriage of Goods by Sea Act, 46 U.S.C. § 30701 Note, to the inland leg, there was no domestic bill of lading for rail transportation, and the ocean carrier privately subcontracted for rail transportation. 

Merits Briefs (Courtesy of the ABA):

Brief for Petitioner Union Pacific Railroad Co.

Brief for Petition Kawasaki Kisen Kaisha Ltd.

Brief for Respondent Regal-Beliot Corp.

Amicus Briefs (Courtesy of the ABA):

Brief for the USA in Support of Petitioners

Association of American Railroads brief in Support of Petitioners

Brief for the International Group of Protection and Indemnity (P&I) Clubs, et al., in Support of Petitioners

Brief for the World Shipping Council in Support of Petitioners

Brief for the Transportation and Logistics Council and the American Institute of Marine Underwriters in Support of Respondent

We will keep you posted.

SCOTUS Review Sought for Maritime Attachment Case

A Petition for Writ of Certiorari has been filed with the Supreme Court seeking review of Shipping Corp. of India, Ltd. v. Jaldhi Overseas Pte, Ltd. 

At the risk of grossly simplifying, this case deals with the ability to attach electronic funds transfers as they pass through banks in New York.  The federal rules governing admiralty disputes allow for attachment or prejudgment seizure of "property" to provide for funds to satisfy the claims in dispute.  What is "property" is defined by state law. In international banking, if dollars are denominated as the currency for the transaction, foreign banks use an intermediary bank to convert the current to dollars.  While those funds are present in the Clearing House bank (in New York City), can they be subject to attachment?  Even if the dispute is between two non-American parties?

My earlier post on this case, with briefs and analysis, is here.

The Petition has the following Questions Presented:

1. Whether attachments under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure of electronic funds transfers ("EFTs") are precluded by New York State law, specifically §§ 4-A-502(4) & 503 of the New York Uniform Commercial Code?

2. Whether in order to maintain uniform rules relating to maritime matters, which was the fundamental purpose of certain provisions in the Constitution, conflicting provisions of State law and that work material prejudice to the attachment remedy are invalid to that extent?

3. Whether no State, through its enactment of the Uniform Commercial Code, can purport to restrict or define "intangible" property subject to maritime attachment?

The Supreme Court docket can be viewed here.  It denotes that the prevailing party in the Court of Appeals did not file a response. 

There were two amicus briefs filed, one by the Maritime Law Association of the United States and one by the Clearinghouse Association.  Thanks to counsel for providing copies of their pleadings.

MLA filed an Amicus Brief in Support of Petitioner. 

The Clearing House Association filed an Amicus Brief in Opposition.

New Admiralty Case from 6th Circuit - Oregon Rule and Comparative Negligence

New admiralty case from the Sixth Circuit Court of Appeals.  This one is about the Oregon rule and the rebuttable presumption arising out of allisions. The case is Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transport, and can be found here.

The trial court found that the Oregon rule established prima facie liability on behalf of the vessel for damage cause in an allision and did required the vessel owner to put on evidence to rebut the presumption before it could put on evidence that the damage was not 100% its fault.  The Court disagreed.  On the Oregon rule, the court stated:

That is not how the Oregon Rule works. It is a burden-shifting doctrine, “not a rule of ultimate liability.” City of Chicago, 375 F.3d at 572. While it may be the case that a moving vessel must rebut the presumption to absolve itself of all liability, id. at 573, we know of no case law to the effect that the vessel must rebut the presumption to relieve itself of some liability—that is, to raise a comparative fault defense against the stationary object. “[T]he Oregon Rule . . . speaks explicitly only to a presumed breach on the part of the alliding vessel, and is not a presumption regarding either the question of causation . . . or the percentages of fault assigned parties adjudged negligent.”

I earlier posted on the Oregon rule in a case from the Second Circuit, here.

McDonald v. City of Chicago - Oral Argument Transcript Available

Today, the Supreme Court heard oral arguments in the McDonald v. City of Chicago case.  The transcript of that argument is available here.

Case Background

The U.S. Supreme Court is reviewing a case that has the potential to re-write over 100 years of 14th Amendment jurisprudence.  The case is McDonald v. City of Chicago, No. 08-1521 (cert granted Sept. 30, 2009).

The Fourteenth Amendment states: 

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Question Presented

The Question Presented is:  Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.

My resource page with briefs, opinions below and media is here.