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Coast Guard Releases Deepwater Horizon Preparedness Review Report

The U.S. Coast Guard has released its "Incident Specific Preparedness Review" for the Deepwater Horizon oil spill of 2010.  Fox is reporting that this report suggests the Administration slowed some of the flow of information from the responders.

 

The Commandant of the Coast Guard's approval memorandum states:

On February I, 20II, I received the ISPR team's final report. I received this report acknowledging that it reflects the desired independent observations of the ISPR team regarding the response and associated recommendations. While the report does not necessarily reflect the views of the Coast Guard, the ISPR's processes of critical analysis, review, and outside perspective will be a useful tool to me in helping the Coast Guard continuously improve coastal oil spill response for the American people. The report identifies a number of areas, ranging from spill response doctrine, to mobilizing assets in crisis, to engaging with key stakeholders and the public, where the Coast Guard could have done better over the course of this unprecedented event, and we will.

Along with the President's National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling's findings and several other Deepwater Horizon reports, the ISPR significantly adds to a body of important perspectives and opinions that the Coast Guard will take onboard and carefully evaluate to identify further opportunities for positive, effective preparedness improvements. I have already directed several actions to address areas where planning and preparedness will be improved, including directing Captains of the Port to review Oil Spill Response Plans for offshore facilities, requiring Area Committees to include Worst Case Discharge scenarios for offshore facilities in their respective Area Contingency Plans. working with the National Response Team to review large volume and novel dispersant use, reviewing response data management procedures and tools, and establishing a Coast Guard, FEMA, and EPA workgroup to develop recommendations to harmonize the NCP and National Response Framework governance constructs. These are just a few of the actions the Coast Guard is pursuing. There is much more work to be done and we will work diligently with our government partners and industry to implement meaningful improvements for future oil spill planning, preparedness, organization, and response.

The full report can be downloaded here. 

 

Live Blog of Attorney General Confirmation Hearing - March 29, 2011

Rebecca, at www.recordonappeal.com, is live blogging the Senate confirmation hearing for David Louie, Esq.  Follow the action below.

 

New Maintenance & Cure Case from Fifth Circuit - Orlando Ramirez v. Amer Pollution Control Corp.

New maintenance and cure case from the Fifth Circuit Court of Appeals.  It is unpublished, and therefore of limited precedential value, but does show the effect of a non-disclosure of pre-existing physical condition on a claimant's later maintenance and cure claim.  In this case, the employer obtained summary judgment and the Plaintiff's claims dismissed because of the nondisclosure.

The case is Orlando Ramirez v. Amer Pollution Control Corp., 2011 U.S. App. LEXIS 5079 and can be found here.

New Marine Insurance Case from Fifth Circuit - St. Paul Fire & Marine Ins. Co. v. Board of Commissioners of the Port of New Orleans

New marine insurance case from the Fifth Circuit Court of Appeals.  It relates to whether a "bumbershoot" insurance policy is a marine contract, giving the federal court admiralty jurisdiction.  The trial court held it was and the Fifth Circuit affirmed in an unpublished decision.  The insurer did prevail on its attempt to have New York law apply to the dispute, instead of Louisiana law - the forum.  All things being equal, a valid choice of law provision in a contract will be enforced.  The court did so and New York law applied.  Under New York law, an insured's failure to provide timely notice of a claim is a complete defense to coverage.  The policy required the insured to send notice to all "Underwriters" which was defined as "insurers subscribing to this Policy."  The court found that the failure to provide such notice triggered the complete defense under New York law and found the trial court's grant of summary judgment to the excess carriers to be appropriate.

The case is St. Paul Fire & Marine Ins. Co. v. Board. of Commissioners of the Port of New Orleans, 2011 U.S. App. LEXIS 5318 and can be found here.

Note:  a bumbershoot policy is akin to an umbrella policy in the maritime context.  Chubb's definition here, Traveler's here. 

 

New Admiralty Case from Fifth Circuit - Regan v. Starcraft Marine

New admiralty case from the Fifth Circuit Court of Appeals. The case regards the negligence standard for maritime personal injury cases, as governed by federal maritime law.

The case is Regan v. Starcraft Marine, 2011 U.S. App. LEXIS 5192 and can be found here.

The opinion is unpublished, and therefore not precedential, but briefly, a passenger on a boat rented from the Army's Morale Welfare and Recreation Facility at Fort Polk, Louisiana was injured when he was thrown from the boat and struck by the propeller.  He brought suit against the pilot of the boat and the boat's manufacturers.  The manufacturer brought a third party complaint against the Army.  The Army obtained a summary judgment and this decision is about the Army's negligence and whether it breached a duty of care to the plaintiff. 

The court found that the Army did not breach its duty of care and affirmed the summary judgment.

Hawaii Blogosphere Expands! Welcome AHFI

Aloha and welcome to the latest blawg to grace Hawaii's legal community.  Alston Hunt Floyd & Ing's Litigation Practice Group has launched www.hawaiilitigation.com.  Not surprisingly, their initial posts are full of pearls of wisdom for the business community generally and the legal community specifically.

Louise Ing's post on courtroom attire was spot on and addresses the first question that every mainland attorney (and quite a few clients) have asked me:  what do I wear to court?  While I used to bemoan the "Waihee" look (coat over aloha shirt) as fashion faux pas, I have embraced it of late.

Blawgs are like the First Amendment:  more is better.  Good luck!

Update on Longshore Case From Ninth Circuit - Pedroza v. Benefits Review Board

Update on a Longshore and Harbor Workers Compensation Act case from the Ninth Circuit Court of Appeals.  The court has denied rehearing en banc in the case of Pedroza v. BRB, 2010 U.S. App. LEXIS 27063 which can be found here.

Facts:  A harbor worker was unloading materials from a Navy vessel and struck a 440 volt cable line.  He did not seek medical attention after the resulting explosion.  The worker received a letter from his employer a year later noting that it was his negligence that caused the accient.  Thereafter, the claimant sought medical attention.  The ALJ and the Benefits Review Board found that his claimed psychological injuries were the result of general working conditions or the personnel actions and denied the claim.

There was only one issue in this case:  Are psychological injuries that result from legitimate personnel actions compensable under the Longshore Act?

The Ninth Circuit reviewed the history of the Longshore and Harbor Workers Compensation Act, 33 U.S.C. 901 et seq.  The court then noted that work related psychological impairment and injuries are presumed to be compensable under the Longshore Act.  The court then noted its prior case law, Turner v. Todd Pacific Shipyards Corp., 990 F.2d 1261, No. 91-70524 (9th Cir. 1993)(table) that found that injuries caused by legitimate personnel actions don't fall within the Longshore Act.  The court has now endorsed the prior unpublished decision and has explicitly found that such injuries resulting from legitimate personnel actions are not recoverable.

Judge Pregerson "specially concurred" stating: 

I write separately to emphasize that our holding concerns legitimate personnel actions, and not employer conduct that is in any way hostile, vindictive, malicious, mean, insensitive, crude, or abusive.

 

 

Closing the Chapter on the Coastwise Price-Fixing, Antitrust Charges against Major U.S. Shipper

Hat tip to a reader who sent two documents relating to the Horizon Coastwise Antitrust case. I posted about a parallel civil companion case here.

The Department of Justice Press Release is here.  The Sentencing Memorandum is here.

Per the Press Release:

Horizon Lines LLC has agreed to plead guilty and to pay a $45 million criminal fine for its role in a conspiracy to fix prices in the coastal water freight transportation industry, the Department of Justice announced today.

New Ninth Circuit Case on Death on the High Seas Act

Brand new case on the Death on the High Seas Act.  My quick read shows a circuit split with 2nd Circuit on the applicability of the DOHSA in the band of water between 3 and 12 nautical miles from shore.  Will review and comment later, but the case is Helman v. Alcoa Global Fasteners and can be found here.

New Admiralty Case from Fourth Circuit - Barna Conshipping, S.L. v. 2,000 Metric Tons

New admiralty case from the Fourth Circuit Court of Appeals.  It is unpublished, but it does have a basic primier on maritime contracts, admiralty jurisdiction and collateral estoppel.  The case is Barna Conshipping, S.L. v. 2,000 Metric Tons, 2011 U.S. App. LEXIS 2751 and it can be found here. 

Facts: the parties contracted to ship steel from Spain to three U.S. ports and one Mexican port.  The steel was apparently damaged upon shipment.  A dispute arose about the bills of lading and the damage after the cargo reached the U.S.  The charter party, who was incurring $15,000 per day detention charges, brought suit in Norfolk, Virginia.  It asserted in rem claims as well as maritime quasi-contract claims.  The ship was allowed to sail and new lawsuits followed the vessel into the Gulf of Mexico.  The case reaching the Fourth Circuit was the Norfolk case, but apparently the Mobile and Houston cases had adverse findings for the charter party.

Issues:  1) should the appeal be dismissed on collateral estoppel grounds based on the adverse findings in Mobile/Houston?; 2) does an admiralty court have jurisdiction over quasi-contract claims in the absence of admiralty jurisdiction over the non-admiralty claims?

Analysis:  the Fourth Circuit reviewed each claims pending in the various courts and found the overlapping claims, which were the subject of adverse rulings, were indeed preclusive under the doctrine of collateral estoppel. 

As to admiralty jurisdiction over quasi-contractual claims, the Fourth Circuit said:

Admiralty jurisdiction exists over contract disputes if the contract at issue is a maritime contract; whether a contract qualifies as a maritime contract “depends upon the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions.” Norfolk S. Ry. v. Kirby, 543 U.S. 14, 24 (2004) (internal quotation marks and alteration omitted). If the “principal objective of a contract is maritime commerce,” id.

Quasi-contract claims, of course, are generally made by parties who, for various reasons, could not prevail on a contract claim. at 25, the contract is a maritime contract and admiralty jurisdiction exists over claims involving that contract. In this case, jurisdiction was lacking not because there were no maritime contracts involved in the transaction, but because Barna was not a party to and thus not entitled to make a claim under the maritime contracts upon which Barna was basing its claims. See Matarese v. Moore-McCormack Lines, 158 F.2d 631, 634 (2d Cir. 1946) (“The doctrine of unjust enrichment or recovery in quasi-contract . . . applies to situations where as a matter of fact there is no legal contract, but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain, but should deliver to another.”); see also Gulf Oil Trading Co. v. Creole Supply, 596 F.2d 515, 520 (2d Cir. 1979) (noting availability of quasi-contract remedies under maritime law even though express contract alleged by plaintiff “had [not] come into being”). Barna’s inability to assert a contract claim thus does not automatically foreclose its quasi-contract claims.

Admiralty courts have jurisdiction over quasi-contractual claims that “arise out of maritime contracts or other inherently maritime transactions.” Peninsular & Oriental Steam Navigation Co. v. Overseas Oil Carriers, Inc., 553 F.2d 830, 835 (2d Cir. 1977) (citation omitted); see Archawski v. Hanioti, 350 U.S. 532, 536 (1956) (“Rights which admiralty recognizes as serving the ends of justice are often indistinguishable from ordinary quasi-contractual rights created to prevent unjust enrichment. How far the concept of quasi-contracts may be applied in admiralty it is unnecessary to decide. It is sufficient this day to hold that admiralty has jurisdiction . . . provided that the unjust enrichment arose as a result of the breach of a maritime contract.”). There certainly are maritime contracts involved in this transaction – the bills of lading and the Barna-Oldendorff charter party, at the very least. Moreover, the quasi-contract claims that Barna asserts appear to arise from those contracts or more generally from the inherently maritime transaction at the heart of this case – the transoceanic transport of cargo by vessel. Barna’s quasi-contract claims did not receive much attention from the parties or the district court below, and the precise nature and contours of the claims are not entirely clear from the record. Nonetheless, given the information now before us, Barna’s quasi-contract claims would seem to be cognizable in admiralty.