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New Case from First Circuit - Bielunas v. F/V Misty Dawn, Inc.

New Jones Act/maintenance and cure case from the First Circuit Court of Appeals.  The case is Bielunas v. F/V Misty Dawn, Inc., 2010 U.S. APP Lexis 20855, and the original opinion can be found here.

First paragraph gives a bit of a clue as to how the court is going to hold:

This case – according to Wojciech Bielunas – is about life-altering pain. Working as a commercial fisherman aboard the F/V SEA WATCHER I, Bielunas had his right foot crushed in a ghastly accident. An orthopedic surgeon said it looked like someone had taken a sledgehammer to Bielunas's foot.
His livelihood lost, Bielunas later sued the vessel's owner, F/V Misty Dawn, Inc., charging Jones Act negligence, ship unseaworthiness, and a right to maintenance and cure. A jury returned a verdict in Bielunas's favor, and the district judge entered judgment against Misty Dawn for $2,307,690. In this arena, Misty Dawn criticizes the district judge for admitting certain evidence and denying a motion for new trial or remittitur. Detecting no hint of reversible error, we affirm the judgment below.

"Safety was hardly the watchword" - methinks the ship has a tough road to hoe.  Rocks and shoals ahead?

Something about admiralty cases makes appellate judges wax poetic.  Some choice, not-often heard phrases:

"Boatloads of cases", counsel "blasting" his opponents, "Neither claim has traction,"  "if a picture speaks a thousand words, this one spoke plenty", "Misty Dawn talked a good game about how safety was a top concern", "Also sailing wide of the mark", "This is where Misty Dawn gets tripped up", "For starters", and "As a parting shot."

Practitioner note:  this case recites the case law on pain and suffering damages and unit of time calculations in closing argument.

New Case from Ninth Circuit - American Cargo Transport, Inc. v. U.S.A.

How can you make a Defendant change its position, but lose a lawsuit?  Sue the federal government.

A new case from the Ninth Circuit Court of Appeals.  It isn't an admiralty case, but is an interesting case relating to intra-governmental disputes and civil remedies.  The case is American Cargo Transport, Inc. v. U.S.A, and the original opinion can be found here.

This appeal centers around federal cargo shipping preferences related to the United States government’s Food for Peace program. Specifically, we consider whether the government’s changed position with respect to the administrative process governing international food aid shipments moots this appeal and whether the government is nonetheless subject to money damages for failing to comply with those requirements.

The facts are interesting and I've pasted them below:

Under Title II of the Food for Peace program, 7 U.S.C.§ 1721, Congress authorized USAID to distribute food aid worldwide to countries in need and to “promote economic and community development.” Id. Shipping food overseas is not a simple matter from a regulatory point of view, as the process implicates multiple agricultural, shipping, and other laws and regulations.

To transport food to foreign countries, USAID works with organizations that receive bids directly from cargo carriers that transport the food shipments. See id. § 1722. The Cargo Preference Act of 1954 (“CPA”), 46 U.S.C. § 55305(b), provides that USAID must take steps to ensure that fifty percent of the gross tonnage of commodities under Title II are transported on U.S.-flag vessels “to the extent those vessels are available at fair and reasonable rates.” Id. Where agricultural commodities, like the vegetable oil at issue here, are involved,the Food Security Act (“FSA”) requires an additional twentyfive percent of the gross tonnage be shipped on U.S.-flag vessels, see 46 U.S.C. § 55314(a)(1), raising the minimum to seventy-five percent. The cargo preference regulation relevant to this case provides that “each full shipload of cargo” must be shipped on a U.S.-flag vessel, unless MARAD agrees with USAID that (a) such “vessels are not available at fair and reasonable rates,” or (b) there is a “substantially valid reason” for using a foreign-flag vessel. 46 C.F.R. § 381.5.

In February 2005, two freight forwarders for eligible organizations issued solicitations for ocean transportation of Title II food aid—specifically, 5,660 metric tons of vegetable oil— from Texas to multiple port destinations in India. These solicitations provided that the “lowest responsive offeror meeting the mandatory requirements of the solicitations” would receive the bid. Maersk Sea-Land (“Maersk”) offered to transport a portion of the vegetable oil for $125 per metric ton, and ACT offered to transport the full shipload for $520 per metric ton. Both offers were Priority 1 (“P1”) bids, or bids for transport on U.S.-flag vessels. USAID recommended that the organizations award the contract for the partial shipment to Maersk. USAID recommended awarding the remainder of the vegetable oil shipment to Priority 2 and 3 bids—those involving either partial or full shipment on a foreign-flag vessel— because ACT had not offered to transport less than a full shipload and there were no other offers from P1 vessels.

ACT claims that the vessel offered by Maersk was not actually a P1 vessel (i.e., not a U.S.-flag vessel), and that if USAID had sought MARAD’s concurrence, as USAID was required to do under 46 C.F.R. § 381.5, it would have discovered that fact and recommended acceptance of ACT’s bid. Under USAID’s interpretation of § 381.5, the agency was not required to seek MARAD’s concurrence. MARAD viewed the process differently, claiming that USAID needed MARAD’s concurrence because ACT offered to carry a full shipload of cargo.

Ah, the perils of having two governmental positions (the USAID contracting process and the MARAD shipping law enforcement process) at play.  In the midst of litigation, the federal agencies agreed to have the Department of Justice resolve the conflicting positions.  It took some time, but it eventually chose MARAD's position.  So, the government agreed with ACT's position which then mooted ACT's lawsuit.  And, there was no waiver of sovereign immunity so ACT could not obtain money damages AND the government prevailed and was substantially justified in its legal position, so ACT couldn't get attorney's fees.

Hope they got the contract when it was re-bid.   

New Case from Ninth Circuit - Tokio Marine Nichido Fire Ins. Co. v. United States

New case from the Ninth Circuit Court of Appeals.  It is unpublished and is very, VERY, skimpy on facts, law and analysis.  My read is that there was property damage to vehicles caused by soot emanating from a Navy vessel.  This case turned on the discretionary function exception to the waiver of sovereign immunity in some statute (opinion doesn't say, but probably Federal Tort Claims Act).  The trial court found the the United States to have not waived sovereign immunity and therefore, there was no jurisdiction to hear the claim.

The case is Tokio Marine Nichido Fire Ins. Co. v. United States, 2010 U.S. App. LEXIS 10129, can be found here.

 

Book Review - ABA's Homeland Security and Emergency Mangement

One advantage to attending an ABA Annual Meeting is that you get to meet some movers and shakers in the legal world.  One such mover and shaker is Ernest Abbott, Esq. whom I sat next to at a State and Local Government Section meeting.  He was discussing his book on Homeland Security and Emergency Management Law.  I picked up a copy last month and thought a book review would be appropriate. You can buy it at the ABA bookstore here.

Broadly speaking, this book is a must for government attorneys (whether federal, state or local) but also attorneys who may be called upon by their clients to provide advice in a disaster context.  Surprisingly, there are many legal issues associated with disasters (planning and response) and they may not be readily apparent to the business community.  At the meeting, Ernie told me there were only a handful of counties, nation-wide, that did not have any declared federal disasters. 

 

Homeland Security and Emergency Management
A Legal Guide for State and Local Governments 

by Ernest B. Abbott and Otto J. Hetzel, Editors

Part I: Federalism, Open Government, and the Role of the Miliary

Chapter 1: Catastrophic Events, the Law, and Federalism - This chapter provides a broad overview of the interplay between catastrophic events and the U.S. legal system, to include the Constitution, the National Incident Management System.

Chapter 2: Public Disclosure of Information by Emergency Services Agencies - This chapter discusses the competing tensions between community's right to know information about the hazards in their environs and the need to keep such information protected.  It includes discussion of FOIA and state equivalents.

Chapter 3: The Posse Comitatus Act and Disaster Response -  A favorite for military attorneys and Civil War buffs, the Posse Comitatus Act directly constrains U.S. military activities in the disaster response context.  There are several exceptions and the law only applies to certain military branches and certain operations.

Part II: Prevention and Mitigation

Chapter 4: The New Information Sharing Environment - This is an interesting chapter which discusses "fusion centers."  These centers are becoming increasingly used in the post-9/11 world to coalesce data, intelligence and foster information sharing.  There are obvious civil liberty concerns and privacy issues associated with these centers.

Chapter 5: State and Local Governments and Immigration Laws - This chapter provides an overview of immigration issues from the local government perspective.  Plainly Arizona's SB1070 and the litigation flowing therefrom will guide these issues going forward.

Chapter 6: The Role of the Private Sector in Emergency Preparedness, Planning, and Response - This chapter discusses the private sector, particularly the owners of critical infrastructure.  It discusses planning, information sharing, the relevant federal plans and relationships, insurance and the future of governmental roles in private sector planning.

Chapter 7: Protecting the Public Through Hazard Mitigation Planning - (written by our friend from the State and Local Government Section, Dwight Merriam) This chapter takes FEMA guidance and goes from the global level to the nitty gritty of hazard and disaster mitigation planning.

Part III: Preparedness and Response

Chapter 8: Sources of Public Funding for Preparedness - This chapter addresses the chief issue for most governments responding to disasters - chiefly, funding.  It discusses funding of preparedness, the various governmental grant programs, including those for medical, infrastructure and communications projects.

Chapter 9: National Response Framework - This chapter discusses disaster response from a federal perspective with [warning] acronyms to help local governments wade into the bureaucracy associated with responses to disasters.

Chapter 10: National Response Framework - This chapter discusses disaster response from a State level perspective.

Chapter 11: Preparedness for Public Health Emergencies - Ironically, this chapter has the most history of judicial decisions providing practitioners guidance.  The pre-antibiotic world required a more robust public health response than the post-antibiotic world does.  This chapter discusses vaccinations, forced medical treatment and quarantines.  It also touches on private property issues.

Chapter 12: Marshalling Resources - This chapter hits on the practical issues of responses.  Workers's compensation, third party liability, command and control and licensing/certification.  It also touches on mutual aid agreements, both intra-state, inter-government (including tribes) and interstate.

Chapter 13: Donations and Volunteer Management - This chapter discusses donations and volunteers which, I'm sure most would agree, are a treasured tradition in America.  But, managing these entities can be daunting.

Chapter 14: Be Prepared and Know When to Evacuate - This chapter provides an overview of evacuation and sheltering issues.

Chapter 15: Representing Local Governments in Catastrophic Events - This chapter, written by Ernie Abbott, provides the meat of how local governments need legal work to assist with disaster response, particularly in the funding area.

Chapter 16: Continuity of Essential Legal Services in the Wake of Catastrophe - The final chapter visits some practical lessons of Hurricane Katrina, paying attention to the legal services, elections and other governmental functions that are core principles of democracies, but which are challenging to create in a post-disaster region.

Finally, the authors have provided legal checklists and a CD with the applicable studies, proclamations and other authorities.

All in all, this is a must for attorneys at the local, tribal, state, military and federal levels.