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Star-Advertiser Sues Governor to Obtain List of Judicial Nominees

Today, on behalf of the Honolulu Star-Advertiser, we filed a complaint against Governor Neil Abercrombie seeking to compel the disclosure of the list of judicial nominees provided to him by the Judicial Selection Commission. 

The complaint is here. 

New Author in Town - All You Wanted to Learn About Condemnation

And, not the eternal damnation kind of condemnation either.  We are proud to announce the publication of Eminent Domain - A Handbook of Condemnation Law (ABA 2011).

The American Bar Association's Section of State & Local Government Law has just published a new book on eminent domain fundamentals: Eminent Domain - A Handbook of Condemnation Law (available for preorder here).

I was asked to author a chapter on Damages with Christi-Anne Kudo Chock.  Robert Thomas wrote two chapters on prelitigation process and flooding too.   

The price is $89.95 with the price of $69.95 for members of the Section of State and Local Government Law (discounts on books and CLE: another good reason to join the Section). There are also discounts for purchase of multiple copies. More details here.

From the Introduction by Dan Dalton:

Eminent domain has a long and distinguished legal history, dating from the first limits on sovereign power in the Magna Carta. Just compensation is a newer concept, and court decisions such as Kelo v. New London make the exercise of eminent domain controversial. Can government condemn property to increase its tax base? Can the state transfer property from one private owner to another for incidental public benefit, and does this constitute "public use"? While eminent domain traditionally was used to acquire property for roads, waterways, defense installations, government and public buildings, and the interstate highway system, it has recently been a favored tool in developing urban areas, creating shopping malls, and building big-box retail stores. Eminent Domain: A Handbook of Condemnation Law is written by leaders in the field and will introduce general practitioners working for condemnors and property owners alike to the many intricacies of condemnation practice.

The Table of Contents is available here.  This book is a must for the occasional condemnation practitioner.

Final Hawaii connection?  Professor David Callies of the University of Hawaii Law School is Editor. 

On a lighter note, ask me how it feels to author something for a book? 

   

More on the Proposed Monk Seal Critical Habitat - Civil Beat Article

Civil Beat had a great article in today's edition on the proposed designation of critical habitat for the Monk Seal (for more on the regulation, see my earlier post here). 

 
Photo courtesy of NOAA.

Sophie Cocke does a great job outlining the proposed habitat designation and then identifying the issues associated with the rulemaking. To date, the monk seal critical habitat was limited to the uninhabited Northwestern Hawaiian Islands.  This proposed rule brings the habitat to the Main Hawaiian Islands:

Specific areas proposed for the MHI include terrestrial and marine habitat from 5 m inland from the shoreline extending seaward to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii (except those areas that have been identified as not included in the designation).

Stay tuned. 

New Hawaii Lawsuit Challenging Open-Ocean Aquaculture Permit

 

An environmental group has brought a federal court lawsuit against various federal officials seeking to enjoin the issuance of permits to the Kona Blue Water Fish aquaculture operation.  The complaint can be downloaded here.

The complaint alleges that the issuance of permits for the aquaculture operation violates the Marine Sanctuaries Act, the National Environmental Policy Act and the Administrative Procedures Act.

Stay tuned.

Thanks to Civil Beat for the tip.

Vancouver Aquarium

View from Amtrak Cascade

New Longshore Case From Eleventh Circuit - Langfitt v. Federal Marine Terminals, Inc.

New Longshore case from the Eleventh Circuit Court of Appeals. It involves the exclusivity of the compensation scheme nestled in the Longshore and Harbor Worker's Compensation Act.  the case is Langfitt v. Federal Marine Terminals, Inc., 2011 U.S. App. LEXIS 15658 and can be found here.

Facts are simple:  longshore worker is injured on the job.  He is paid by the LHWCA insurer, but sues the marine terminal where he was injured.  The marine terminal asserted an affirmative defense that it was an "employer" for the purposes of the LHWCA.  As a LHWCA employer, it would be immune from any negligence suit.  The trial court found that it was an "employer and granted the terminal's motion for summary judgment.

Analysis:  the court issue an exhaustive 41 page decision outlining the analysis for who is a LHWCA employer and then conducted an intense application of the facts.  But, the essence of the decision is that the "borrowed employee" doctrine can immunize defendants facing claimants who are receiving LHWCA benefits from their actual employer's insurer.

The test is:

When a general employer transfers its employee to another person or company, the latter is the employee’s borrowing employer for purposes of the LHWCA, and thus is liable for the Act’s compensation and has the benefit of the Act’s tort immunity, if each
of the following three criteria is satisfied:

(1) Employee Consent to the New Employment Relationship. The employee must be shown to have given deliberate and informed consent to the new employment relationship with the borrowing principal. The test is objective, and the employee’s consent may be shown to have been given either expressly or impliedly.

(2) Borrowing Principal’s Work Being Done. The work being performed by the employee at the time of the injury must be shown to have essentially been that of the borrowing
principal—that is, that it was primarily the borrowing principal’s interests that were being furthered by the employee’s work.

(3) Borrowing Principal Assumed Right to Control the Details of Employee’s Work. The borrowing principal must be shown to have received, from the employee’s general employer, the right to control the manners and details of the employee’s work. This might be evidenced by: (a) an express agreement between the general employer
and the borrowing principal that directly evidences a transfer of control over the employee to the borrowing principal; (b) the borrowing principal’s actual exercise of control; (c) the borrowing principal’s furnishing of the equipment and space necessary for the employee to perform the work; (d) the borrowing principal’s right to terminate the employee’s relationship with the borrowing principal;and (e) the method and obligation of payment for the employee’s services.

Must read if you have a negligence claim by someone receiving benefits under the LWHCA.

New Maritime Contract Case From Ninth Circuit - Federal Insurance Co. v. Union Pacific Railroad Co.

Another maritime case about a train wreck.  The case is Federal Insurance Company v. Union Pacific Railroad Company and it can be found here.

Facts:  Company contracts with carrier to ship goods from Singapore to Alabama.  Cargo damages when train derails on mainland portion of transport. Insurance company pays shipper's claim then brings subrogation claim against carrier and rail line.  The bill of lading had a covenant not to sue carrier's subcontractors, in this case, the railroad.

Legal Issue:  is the covenant not to sue enforceable?

Analysis:  Under the contract's paramount clause, the Carriage of Goods at Sea Act (COGSA) applied until the discharge of the cargo from the vessel and the Hague Rules (also known as the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading) applied after discharge.  The rub is that the Harter Act would typically apply and provide the liability scheme for the land portion of the transport.  The Harter Act can be displaced by contract, as the court in this case, found.  The court found that the contract's exclusive liability provision (i.e. Shippers can only sue carrier), was valid under both the Hague Rules and COGSA.

New Cruise Injury Case From Eleventh Circuit - Crist vs Carnival Corp.

Attention Cruisers:  this is your Captain speaking.

Your ticket says that you have a one year statute of limitation if you get injured.  It also says that you have a choice of law and have selected a forum to bring your claim. 

The Eleventh Circuit says, "Ignore them at your risk."

The case is Crist vs Carnival Corporation, 2010 U.S. App. LEXIS 24749 and can be found here.