hawaiioceanlaw.com

New Admiralty Case from Ninth Circuit - Bauer v. MRAG Ams., Inc.

New case from the Ninth Circuit Court of Appeals relating to commercial vessel owner liability for injuries to federal fisheries observers.  Not surprisingly, owners are immune from such suits.  The case is Bauer v. MRAG Ams., Inc., 2010 U.S. App. LEXIS 22111, and the source opinion can be found here.

As a general rule, an observer “that is ill, disabled, injured, or killed from service as an observer on that vessel may not bring a civil action . . . against the vessel owner.” Id. 1383a(e)(7)(A). We conclude that this immunity provision precludes a negligence suit by a federal observer who was injured while taking a restroom break.

The claimant in this case argued that because her injury occurred during a bathroom break, the immunity provision should not apply.  The court found the bathroom break to be incidental to her duties onboard and found the owner immune from suit.

New Ship's Mortgage Case from Third Circuit - Goldfish Shipping, S.A. v. HSH Nordbank AG

New case from the Third Circuit Court of Appeals involving ship's mortgages and judicial sales of vessels.  The court says that it is non-precedential, but it does denote the state of the law with respect to the effect of a judicial sale of an arrested vessel.

Would that all appeals courts write as succintly:

We write exclusively for the parties, who are familiar with the factual context and legal history of the case. Therefore, we will set forth only those facts necessary to our analysis.

The case is Goldfish Shipping, S.A. v. HSH Nordbank AG, 2010 U.S. App. LEXIS 8224, which can be found (in the original form) here.

Sand Comes and Sand Goes - But Who Owns It?

Accretion.  Does a property owner have an intangible right to future accretion or merely the right to the land when it accretes?  This question and more in a Hawaii case now pending before the U.S. Supreme Court.  The case is Maunalua Bay Beach Ohana 28 v. Hawaii case.  My partner Robert Thomas posted this case at his inversecondemnation.com blog, here.

Petitioner's question presented is:  

For nearly 115 years, littoral owners in Hawai`i held riparian rights to accretion and direct ocean
access because their oceanward boundaries moved as beaches accreted and eroded. In 2003, Hawai`i adopted a statute – Act 73 – that, effective immediately, changed both existing and future oceanfront accretions throughout the state into “public lands.” Act 73 fixed oceanfront boundaries forever and, as a result, littoral owners lost both existing accretion and their riparian rights. In 2010, the Hawai`i Intermediate Court of Appeals ruled that the State owed just compensation only for accretion that existed in 2003. However, it held riparian rights to a shoreline boundary and future accretion could be taken for free because littoral owners’ riparian rights were only contingent interests in future accretion so they were not “property” for takings purposes. That holding directly conflicts with this Court’s decisions regarding the nature of riparian rights.

The question presented here is:

Since this Court has recognized riparian rights are vested property interests, can Hawai`i take those rights, including future accretion, without paying just compensation?

Our amicus brief, filed on behalf of Land Use Research Foundation of Hawaii, posits a different question:

In 2003, the Hawaii legislature adopted Act 73, which declared that the private right to own accretion on beachfront parcels was public property. The statute did not provide for compensation, and upon challenge by the Petitioners, a state trial court invalidated Act 73 as a regulatory taking of the right to accretion.

The Intermediate Court of Appeals of Hawaii partially affirmed, concluding that Act 73 was a taking of accreted land in existence in 2003 when the Act became effective. It also concluded, however, that the statute was not a taking of "future accretion," or land that might be accreted after 2003, because there was no certainty that accretion would occur, and littoral owners' right to accretion was therefore not "vested." The court concluded the legislature was free to recharacterize the private right to accretion as state property without compensation because Petitioners never owned it. In other words, the right to accretion is not "property" as that term is used in the Fifth and Fourteenth Amendments.

The question presented is whether the right to accretion is property within the meaning of the Fifth and Fourteenth Amendments, and therefore protected from ipse dixit redefinition into public property.

The Petition is here.

Our Brief is here.

Pacific Legal Foundation/Cato Institute's brief is here.

The State of Hawaii declined to submit an opposition to the Petition.

New Admiralty Case from Ninth Circuit - Crowley Mar. Corp. v. Fed. Ins. Co

New admiralty case from the Ninth Circuit Court of Appeals.  Will review and comment later, but the opinion in the case of Crowley Mar.Corp. v. Fed. Ins. Co., 2010 U.S. App. LEXIS 7333, and can be found here.

Supreme Court Denies review of "Vessel Status" Issue - Lee v. Astoria Generating Co.

The Supreme Court just denied a cert petition in the Lee v. Astoria Generating Co. case.  I had earlier posted on the decision of the New York appeals court here.

From my earlier post, this is the issue below:

The New York Appellate Division recently issued a decision interpreting the Longshore and Harbor Workers' Compensation Act (LWHCA), particularly 33 U.S.C. s. 905(b) and the preemptive effect of that act on state law claims.  The decision is here and the case is entitled Lee v. Astoria Generating Company, L.P.

The facts are pretty straightforward.  The defendant owned a power generation facility which was comprised of four barges that collectively housed several gas turbines used to create electricity.  The barges floated but were only moved for maintenance once a decade.  The plaintiff was injured while working on one of the barges.

Suit was brought in state court for the injuries.  At issue in the decision was whether the barge was a "vessel" under the LWHCA, which would thereby make the remedies of the LHWCA the exclusive remedies for the plaintiff; and, whether the LHWCA preempted the state law claims for negligence.

The court found that although the barge was moored, it was not moored permanently as it had moved for maintenance.  As such, it did not lose its status as a vessel under the LHWCA.  Because the barge was a "vessel," the court then found that the LHWCA did preempt state law negligence claims.

SCOTUSBLOG has the petition and other briefs here.  The questions presented were:  Whether the lower court misapplied Stewart v. Dutra Construction Co., 543 U.S. 481 (2005), to find that a floating power plant constituted a "vessel in navigation"; and 2) whether the lower court erred by finding that petitioner's proposed state-law tort claims were within the maritime jurisdiction and by dismissing said claims on the basis that they were preempted by Section 905(b) of the Longshore and Harborworker Compensation Act.

Looks like those questions will have to wait for another day.

New Asset Forfeiture Case from Eleventh Circuit - United States of America v. One 1990 Beechcraft, et al.

Smuggler's Blues?   Or no dominion means no dominion. 

New asset forfeiture case case from the Eleventh Circuit Court of Appeals.  The case is United States of America v. One 1990 Beechcraft, et al., arising out of (you guessed it) the Southern District of Florida.  The appeals court decision can be found here.

Facts are simple.  An airplance was used to transport cocaine from Venezuela to the United States.  The vessel was subject to seizure accordingly.  The title owner to the aircraft challenged the forfeiture. 

The issue on appeal was whether a nominee that had title to the aircraft but exercised no dominion or control over it had the ability to challenge forfeiture.  The statute says that claimants seeking to challenge forfeiture proceedings must be more than a “nominee who exercises no dominion or control,” 18 U.S.C. § 983(d)(6)(B)(iii).  The court found that based on the facts below, it was clear that the claimant did not exercise dominion or control over the aircraft and therefore could not avail itself of the statute to challenge forfeiture.

New DOHSA Case from Ninth Circuit - Bowoto v. Chevron Corp

Very interesting Ninth Circuit case arising from an oil platform off the coast of Nigeria.

The decision is Bowoto v. Chevron Corp, 2010 U.S. App. LEXIS 18955 and can be found here.

Facts below:  A number of protestors injured in a protest on an oil platform involving security forces firing on them brought suit in federal court in California.  They brought a number of claims including negligence and intentional torts under California and Nigerian law.  After several pretrial decisions of law by the court, a jury found for the defendant on all counts.

Issues on Appeal:

1)  Can the plaintiffs pursue claims under the Alien Tort Statute, 28 U.S.C. 1350?  Maritime law did not provide a wrongful death remedy until Congress passed the Death on the High Seas Act (DOHSA).  The Supreme Court has held that the DOHSA preempts and displaces other recovery.  It also has held that survival claims brought under maritime law are preempted by DOHSA.  Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116 (1998).  The Ninth Circuit found that survival claims under the Alien Tort Statute were preempted by the DOHSA.

2)  Does the Torture Victim Protection Act apply to Corporations?  The TVPA, codified at 28 U.S.C. 1350, provides that:

An individual who, under actual or apparent authority, or color of law, of any foreign nation— (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

As the statute says individual, the court agreed with the trial court decision that the word individual connoted only natural persons and not corporations. POTENTIAL CIRCUIT SPLIT:  two district courts have held otherwise.   Estate of Rodriquez v. Drummond Co. Inc., 256 F. Supp. 2d 1250, 1266-67 (N.D. Ala. 2003) (finding corporations can be liable under TVPA); Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1358-59 (S.D. Fla. 2003) (same).  The Eleventh Circuit decision in Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) may also conflict.

New Carmack Case from Second Circuit - Mitsui Sumitomo Ins. Co. v. Evergreen Marine Corp.

An admiralty case about a train wreck. 

Following the Kawasaki case from the last term of the Supreme Court, the court of appeals are cleaning up cases on their dockets with a common fact pattern:  cargo damage during a rail portion of an intermodal transport of cargo under a bill of lading.

This Second Circuit case is Mitsui Sumitomo Ins. Co. v. Evergreen Marine Corp., 2010 U.S. App. LEXIS 19634 and can be found here.

Per the Second Circuit, the Kawasaki test to determine if the Carmack amendment applies is:

First,the rail carrier must ‘provid[e] transportation or service subject to the jurisdiction of the [Surface Transportation Board (“STB”)].’ Second, that carrier must ‘receiv[e]’ the property ‘for transportation under this part,’ where ‘this part’ is the STB’s jurisdiction over domestic rail transport.” Id. (quoting 49 U.S.C. § 11706) (alterations in original).

The court rejected attempts to distinguish the case from Kawasaki factually, that Kawasaki relied on an oral argument concession, that there was a separate bill of lading for the rail portion of the transport, that the absence of a federal district court impacted Kawasaki, and that the decision should not act retroactively.