Marine Terminal Liable for Submerged Abandoned Anchor

Today the 3rd Circuit in the ATHOS I matter issued a critical maritime ruling that held that a marine terminal may be liable for a major casualty that occurred when a vessel, on approach, struck a submerged abandoned anchor.

Picture of ATHOS I after casualty taken from www.ceoe.udel.edu

 
The facts of the case are simple: as the oil tanker M/T ATHOS I neared Paulsboro, New Jersey, after a journey from Venezuela, an abandoned ship anchor lay hidden on the bottom of the Delaware River squarely within the ATHOS I’s path and only 900 feet away from its berth. Although dozens of ships had docked since the anchor was deposited in the River, none had reported encountering it. The ATHOS I struck the anchor, which punctured the ship’s hull and caused approximately 263,000 gallons of crude oil to spill into the River. The cleanup following the casualty was successful, but expensive.

The appeal was the result of three interested parties attempting to apportion the monetary liability. The first party (actually two entities consolidated as one for our purposes) includes the ATHOS I’s owner, Frescati Shipping Company, Ltd., and its manager, Tsakos Shipping & Trading, S.A. (jointly and severally, “Frescati”). Although Frescati states that the spill caused it to pay out $180 million in cleanup costs and ship damages, it was reimbursed for nearly $88 million of that amount by the United States (the “Government”)—the second interested party—pursuant to the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq. In order to recoup the unreimbursed losses, Frescati made claims in contract and tort against the third interested party—a set of affiliates known as CITGO Asphalt Refining Company, CITGO Petroleum Corporation, and CITGO East Coast Oil Corporation (jointly and severally, “CARCO”)—which requested the oil shipped on the ATHOS I and owned the marine terminal where it was to dock to unload its oil. Specifically, Frescati brought a contract claim for CARCO’s alleged breach of the safe port/safe berth warranty (jointly and severally, “safe berth warranty”) it made to an intermediary—Star Tankers, Inc.--responsible for chartering the ATHOS I to CARCO’s port, and alleged negligence and negligent misrepresentation against CARCO as the owner of the wharf the ATHOSs I was nearing when it was holed. The Government, as a statutory subrogee that stepped into Frescati’s position for the $88 million it reimbursed to Frescati under the Oil Pollution Act, has limited its claim for reimbursement from CARCO to Frescati’s contractual claim pursuant to a limited settlement agreement.
 
Following a 41-day bench trial, the District Court for the Eastern District of Pennsylvania held that CARCO was not liable for the accident under any of these theories. In regard to the contractual safe berth warranty, the Court determined that Frescati (and the Government as a subrogee) could not recover on their contractual claims. First, Frescati was not a party to the agreement that contained the warranty between CARCO and Star Tankers, and was not an intended beneficiary of that agreement. Furthermore, even if Frescati could claim the protection of the warranty, it was only a promise by CARCO to exercise due diligence and not an unconditional guarantee; moreover, sufficient diligence existed here. In any event, the warranty was excused because CARCO specified the port ahead of the ATHOS I’s arrival, placing the burden on the ATHOS I’s captain to accept it as safe or reject it under what is called the “named port exception.”

The Third Circuit Court of Appeals disagreed with all three of these rulings. First, the appellate court held that the ATHOS I—and by extension, its owner, Frescati—was an implied beneficiary of CARCO’s safe berth warranty. The Court concluded that the safe berth warranty is an express assurance of safety, and that the named port exception to that warranty does not apply to hazards that are unknown to the parties and not reasonably foreseeable. The Court added that it could not be sure that this warranty was actually breached, as the District Court made no finding as to the ATHOS I’s actual draft nor the
amount of clearance actually provided.
Second, the appellate court found that if on remand the District Court rules in favor of Frescati on its contractual warranty claim, its negligence claim becomes unnecessary. It reasoned that if this issue is reached, they do not agree with the District Court’s conclusion that CARCO cannot be liable in negligence because the anchor lay outside the approach to CARCO’s terminal—the area in which CARCO had a duty to exercise reasonable care in proving a safe approach. As such, the District Court would need to resolve the appropriate standard of care required, whether CARCO breached that standard, and if so, whether any such breach caused the accident.

Conversely, the appellate court found no error with the Court’s holding that CARCO’s alleged misrepresentation as to the depth of its berth was geographically (and hence factually) irrelevant to the ultimate accident. In addition, the appellate court concluded that the Government had waived reliance on a partial settlement agreement with CARCO that, the Government contended, precluded CARCO from making certain equitable defenses to the Government’s subrogation claims. In this context, the Court affirmed in part, and vacate and remand in part for additional fact finding on the contractual (and possibly negligence) claims.

A copy of this decision can be found here => http://www.americanmaritimecases.com/assets/Third-Circuit/ATHOS.pdf. If you are unable to open this link and wish a copy of this decision or if you wish to reach me, you may do so by email at mov@chaloslaw.com.

Towing Vessel Work-Hour Limitations and What is "Rest"?

An often contentious issue in maritime litigation involving both personal injury and property damage is whether the licensed operator in charge of a towing vessel that exceeds 26 feet violated the so-called “twelve-hour rule.” According to 46 U.S.C. § 8104(h), “an individual licensed to operate a towing vessel may not work for more than 12 hours in a consecutive 24-hour period except in an emergency.” It is important for a company to understand how investigators evaluate what is a 24-hour period and what the courts consider “work.”

To provide guidance to licensed operators, the United States Coast Guard (“USCG”) issued a policy letter, G-MOC Policy Letter 4-00, Rev-1. According to the USCG, except in emergencies, a licensed operator of a towing vessel “may not work in excess of 12 hours in any consecutive twenty-four (24) hour period.” The Federal District Court for the Eastern District of Louisiana, interpreting the language of the statute as well as the USCG Policy Letter, has held that in determining whether the 12-hour rule was violated “the countdown starts from the time the injury occurred, going back 24 hours.” Mercer v. Chem Carriers LLC, 790 F. Supp.2d 478, 481 (E.D. La. 2011)(citing Archer Daniels Midland Co. v. M/V Freeport, 909 F.2d 809, 810-11 (5th Cir. 1990)). 

Though the term “work” is not defined by statute or regulation, the term “rest” has been defined as “a period of time during which the person concerned is off duty, is not performing work (which includes administrative tasks such as chart corrections or preparation of port-entry documents), and is allowed to sleep without being interrupted….” 46 CFR § 15.1101(a)(4). Given the definition of “rest,” it might be difficult for companies to keep track of whether their licensed operators are adhering to the 12-hour rule. Most towing companies establish six hour watch-keeping policies aboard their vessels. That is, crew members work six hours on-watch and six hours off-watch. Most licensed operators record the times they go on-watch and off-watch in the vessel’s log. But what a licensed operator does after his relief comes on watch could be just as important.     

Indeed, if a licensed operator spends his entire six hour watch behind the ”wheel” and then spends 30 to 40 minutes instructing or helping other crewmembers, the 12-hour rule might be violated. Another consideration to take in to account is whether travel time to and from the vessel would be included in the definition of “work.” Thus, all activities of a “licensed operator” could be considered by a USCG officer investigating an incident or a court in determining whether the licensed operator is compliant with the “12-hour rule.” Because a wheelman’s “work” schedule may be different than his watch schedule, it may be wise for companies to implement policies that a licensed operator mark down the time period he is off-duty, i.e., at “rest.” 

 

If you are interested in obtaining a copy of the USCG Policy Letter or otherwise wish to contact me, you may do so by email at mov@chaloslaw.com.

What the "Bleep" is MLC 2006 and Why Should I Care?

Since my last few blog posts on the MLC, I have repeatedly heard this question with increasing frequency. While mainstream clients have been increasingly asking about the Maritime Labor Convention 2006 (“MLC”), which comes into force on August 20, 2013, others question the "need to know". Ship owner clients wonder what it means for them—in a nutshell, non-compliance with the requirements of the Convention will result in port state control (PSC) detentions. Insurers ask what it means for them—it means knowing what your policy states and how the Convention is interpreted to know whether a given situation is covered under the policy. Yacht managers and operators figure it does not apply to them, so many of them simply want a letter from me to cover themselves that they are not required to be compliant. When I tell them that such a letter may not be possible in their given situation, all of a sudden, I get “what the !@#$%” is this law and why am I subject to it?

 

This blog post is to set out an FAQ of sorts to answer many of the questions I have received in the last year or so leading up to the entry into force of this Convention.

1.               What is MLC 2006 certification?

According to the International Labor Organization (“ILO”), the MLC provides comprehensive rights and protection at work for the world's more than 1.2 million seafarers.  On their website, the ILO goes on to state that Convention aims to achieve both decent work for seafarers and secure economic interests in fair competition for quality ship owners. By its origin and by its intent, the MLC is a human rights document. It prescribes a variety of seafarers’ protections in terms of work and living conditions, terms of employment, health care, social security, and related matters. All present employment contracts will become null and void on MLC implementation. They will have to be replaced by seafarers’ employment agreements, with mandatory prescribed particulars of conditions of employment. The MLC has been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the key Conventions of the International Maritime Organization (“IMO”). The decision by the ILO to move forward to create MLC was the result of a joint resolution in 2001 by the international seafarers’ and ship owners’  organizations, also supported by governments.  They pointed out that the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”.  Thus, all sections of the MLC should be read with this background in mind--both decent working conditions for seafarers and fair competition for vessel owners.

The MLC certification process is similar to ISM and ISPS for ships, and the certificate will have 5 years validity and the process will include interim, initial and intermediate inspections. The MLC requires owners to submit a Declaration of Maritime Labor Compliance (“DMLC”) to their Flag State, which is a party to the Convention. The Flag State will then issue an MLC Certificate to ships flying their flag which should be posted on board in a conspicuous place that is accessible to seafarers. Thus, the MLC Certificate is issued by the vessel’s Flag State, following approval of certain paperwork and a physical inspection of the vessel.

2.               Do pleasure yachts fall under the certification requirement, or is this just for industry-related vessels?

The Convention applies to all commercially registered vessels, including yachts engaged in international voyages, regardless of country of registration (Flag). Cannes to Monaco can be construed as an international voyage, so exceptions would be very rare.  It is also interesting to note that in one of their circulars discussing what ships are covered under the MLC, the Marshall Islands flag states that yachts regardless of tonnage are considered ships covered by the Convention if they are “ordinarily engaged in chartering”. 

3.               Is there a vessel size below which I don’t need certification?

Those vessels over 500GT must, among other requirements, carry the MLC Certificate. For those under 500GT, it is strongly recommended that voluntary compliance with the Convention be documented by your Flag State. If you want to know why, please read my blog post on Is the Industry Asleep to the MLC on this blog. 

4.               How do I get compliant with the requirements?

The MLC Certification is based upon a regime where the Flag State Administration is either doing the certification themselves or authorizing Recognized Organizations (“RO”) to work on their behalf. Such authorization may range from full authorization (from initial DMLC submission, inspection to shipboard verification to issuance of the MLC Certificate) to part of these activities only. For some flags, a case by case authorization may be required. Many vessel owners are utilizing their Classification Society or third party vendors as the RO specializing in the MLC to get compliant. The answer to this question generally rests with the vessel’s Flag State.

5.              How do I stay compliant with the requirements?

After the initial inspection and certification, there will be interim and intermediate inspections. At some point, all vessels subject to the MLC will eventually be boarded by Port State Control (PSC) inspectors, who have the authority to detain a vessel not compliant with the requirements of the MLC. Compliance is dependent mainly on sticking to the vessel’s DMLC, the certificate and the plan for keeping the vessel MLC compliant.

6.         How long does it take to get certified?

Length of certification time will depend on the Flag State of the vessel and the lead time to seek certification. One of the main requirements of the MLC is that each crew member is to have been issued, and be in possession of, a signed Flag State approved Seafarer Employment Agreement (“SEA”). This document must contain certain provisions required under the MLC. The SEA will replace or be used in conjunction with any Crew Contracts already used by the vessel and will be examined at PSC inspections. Issuance of new SEA’s and Crew Manuals will take time. Each vessel and ownership entity may have differing levels of compensation and benefits for crew over and above those required as a minimum under MLC. Following a gap analysis and the subsequent creation of SEA’s and updated crew manuals, it may take many weeks or even months for documents to be reviewed, revised and approved by owner’s representatives and advisors. Thus, the question on the lead time is “it depends”.

7.         When will my initial certificate be issued and how frequently must it be renewed?

The MLC shall be issued to a vessel by the competent authority (Flag State), or by a RO duly authorized for this purpose.  Pursuant to the MLC, the term “competent authority” means the minister, government department or other authority having power to issue and enforce regulations, orders or other instructions having the force of law in respect of the subject matter of the provision concerned.  Practices for issuing the certificate will vary by country and may deal with more than one government department. The certificate may be issued for a period not to exceed five (5) years.  Where the competent authority of the Flag State has ascertained through inspection that a ship that flies the member state’s flag meets or continues to meet the standards of the Convention, it shall issue or renew a Certificate to that effect and maintain a publicly available record of that Certificate.  Additionally, a MLC Certificate may also be issued on an interim basis to new ships on delivery, when a ship changes flag, or when a ship owner assumes responsibility for the operation of a ship which is new to that ship owner.  It is important to note that the interim certificate may not be issued for a period exceeding six months.

8.          Is it up to me to schedule a certification meeting?

 
Each Flag State is responsible for ensuring implementation of its obligations under the Convention on ships that fly its flag.  The Flag State is responsible for creating an effective system for the inspection and certification of maritime labor conditions.  The setting up of inspections will vary from country to country.  It is important to look at your country specific authority to determine how the country will be scheduling certification inspections.

9.          Is my certification strictly based on the PSC inspection?

Each Flag State shall maintain a system of inspection of the conditions for seafarers on ships that fly its flag which shall include verification that the measures relating to working and living conditions are being followed and that the requirements of the convention are being met. The Flag State is required to appoint a sufficient number of qualified inspectors to fulfill its inspection responsibilities.  The time between inspections should not exceed three (3) years. Inspectors have the power to board a ship that flies the Flag State flag, to carry out any examination, test or inquiry which they may consider necessary in order to satisfy themselves that the standards are being strictly observed and to require that any deficiency is remedied and, where they have grounds to believe the deficiencies constitute a serious breach of the requirements of the Convention, or represent a significant danger to seafarers’ safety, health or security, the inspector will be able to prohibit a ship from leaving port until necessary actions are taken to remedy the deficiencies.

10.       What happens if I don’t pass inspection?

If the vessel does not pass inspection, the MLC Certificate shall be withdrawn by the Flag State and the inspector has the right to prohibit the vessel from leaving port.  Generally, a vessel will not pass inspection if there is evidence that the vessel concerned does not comply with the requirements of the Convention and required corrective action has not been taken.  For example, the average length of detention for a yacht is 4 days. With the implementation of MLC, I expect the number of inspections will increase and therefore the average number and length of detentions will exponentially increase. Nevertheless, the Flag State should take into account the seriousness or the frequency of the deficiencies before withdrawing the MLC Certificate.

11.       Can my inspection occur while having the owner or charter customers on board?

Any vessel can be inspected at any time, regardless of owners, guests or charterers being aboard. Detention for non-compliance could therefore prove disastrous in terms of financial and reputation losses for the vessel, her owner, charterers, captain, crew and charter agent.  There are no prohibitions in the Convention that would not allow the owner to be present for the inspections.

12.        What is the best way to insure that I’ll pass inspection as quickly as possible the first day, the first time? 

The best way to insure that your vessel will pass inspection is to strictly adhere to the guidelines laid out in the Convention.  If the vessel is treating its employees fairly and providing a safe and secure workplace, there is no reason that the vessel should fail its inspection.

13.       What format should my documentation be saved in (i.e., electronic document, hard copies, faxes, scans)?

Member states require that each vessel maintain a hard copy of the Convention onboard the vessel at all times.  Additionally, the vessel will also be required to carry and maintain the MLC Certificate in hard copy format onboard the vessel at all times.  The vessel will also be required to maintain a declaration of maritime labor compliance stating the national requirements implementing the Convention for the working and living conditions for seafarers and setting out the measures adopted by the vessel owner to ensure compliance with the requirements on the vessels concerned. 

14.       What is the best way to organize all the things the PSC inspector will require?

The competent authority designated by the Flag State is responsible for establishing procedures to enable their inspections to investigate each vessel’s compliance with the Convention.  It is advised that you look to the Flag State’s specific guidelines for how to best organize the information that may be requested by the inspectors.

15.       Should my shore-side yacht management company be involved in MLC inspection?

There is no requirement under MLC that your shore side yacht management company be onboard the vessel at the time of the inspection.  However, if you feel that the shore-side staff has a better handle on the understanding of the Convention than the Master/Captain, it may be highly beneficial to have your shore-side yacht management company involved in the inspection, especially if they were the party responsible for implementing the DLMC, MLC Certification and any subsequent deficiencies.    

16.       Do I need to refit my crew accommodation spaces to meet the MLC standards?

MLC crew accommodation standards will apply only to new vessels, the keels of which are laid after MLC implementation date.

17.       Do I now have to provide social security to my crew and handle complex taxation requirements?

The MLC does not impose a blanket requirement for social security contributions to be made by seafarers or by ship owners, and taxation is not even mentioned. However, it is in all seafarers’ interests to find out what their social security status is.

18.       Will my liability insurance for the vessel pay for any problems with inspection, detention  or other costs related to the crew resulting from the MLC?

Of course, every insurance policy is different and the first stop is to review its terms.  Nevertheless, financial security is required of vessel owners in respect of repatriation, death or long term disability of crew under the MLC. Some liability insurers have agreed to issue proof of insurance as evidence of financial security for seafarer claims under MLC. However, some insurers may not cover all aspects of crew expenses related to MLC and thus, a discussion on this topic should be had between the vessel owner and the insurer/broker.

I am sure there are many other questions various players in the industry have related to MLC. These are but just a sampling of the questions I have been asked and based on the kind of questions still being presented to me, there is still much to learn. If you are interested in learning more, consulting with me on the various aspects to establish vessel/company SEA’s/benefits compliant with Flag State requirements, conduct an overview of the requirements of MLC, understanding the processes required to achieve certification, conducting a Gap Analysis to review any existing Crew Contracts and Manuals, please feel free to contact me, Michelle Otero Valdes, Esq., Chalos & Co, P.C., 141 Almeria Avenue, Coral Gables, Florida 33134, Tel: 305 377 3700, Fax: 866 702 4577, Email: mov@chaloslaw.com.

NB. A substantially similar copy of this blog article drafted by me is being posted on Great Circle Systems, Inc. website at you http://blog.greatcirclesys.com/-0/bid/273548/mlc-2006-compliance-13-frequently-asked-questions?source=Blog_Email_[MLC%202006%20Compliance%3A]. Check it out. 

 

Is the Industry Asleep to the MLC?

Good news is that clients have been recently seeking more guidance on the Maritime Labor (or Labour for our English friends) Convention 2006 ("MLC"). It would appear that my continued ramblings on the MLC, which comes into effect on August 20, 2013, has garnered some mild attention.

The MLC consolidates most existing International Labor Organization maritime conventions into one document. It sets minimum standards for conditions of employment, hours of work and rest, accommodation, recreation, food and catering, health protection, medical care, welfare and social security protection. Some 35 flag states, covering more than 70% of the world fleet, have ratified the convention to date. They include major flags such as the Marshall Islands and Panama, and maritime nations Australia, Canada, Denmark, Greece, Norway, Singapore and Spain. MLC member nations issue maritime labor certificates to vessels under their flag, which are prima facie evidence of the vessel compliance with the convention.

The big problem is that the US has not ratified MLC 2006. The US Coast Guard ("USCG") has urged voluntary self-compliance, but my fear is that US-flag owners are asleep to the looming problem. Despite the US having one of the world’s most robust seafarer protection regimes and strong maritime unions, US-flag ships risk being inspected from bow to stern in foreign harbors and even detained, because of its failure to ratify the convention.

What makes these certificates crucial is that Port State Control ("PSC") inspectors in foreign ports normally do not look beyond them for evidence of compliance. Ships from non-member nations will not have this convenience. Recognizing the possibility of US ships being harassed or detained overseas for failure to have the compliance certificates, the USCG issued a draft Navigation and Vessel Inspection Circular, providing guidance on how US-flag vessels can prepare for the post-MLC 2006 era. The USCG intends to implement a voluntary inspection programme for such vessels before the enactment date, so US-flag vessels may document compliance. To this end, the USCG has authorized a select group of classification societies to conduct compliance inspections on ships and to issue Statements of Voluntary Compliance ("SOVC") on behalf of the USCG.

Ships are encouraged to post these SOVCs in a conspicuous place on board, easily visible to the crew and to inspectors, to serve as de facto MLC certificates in foreign ports. However, this has sparked a bit of a debate. On the one hand, it is believed that most foreign PSC regimes would not differentiate between a US-flag ship with an SOVC and a ship with a certificate from a signatory nation and would be likelier to target ships that have no certificate at all. So, the view is that the SOVC system would be a good one. On the other hand, the MLC requires ratifying governments to impose MLC requirements even on vessels from a non-ratifying government when calling on their ports. This clause may make foreign PSC inspectors feel almost duty-bound to inspect US-flag ships vigorously, since they do not have the necessary MLC certificate on board.

This is food for thought. The post-MLC world is a big unknown. Clients are learning that some flag states are requiring compliance certificates for vessels that fly their flag, regardless of tonnage, if they are utilized commercially and internationally. So those in the yacht sector, wake up! No matter what flag their vessel flies, no owner today can guess precisely what kind of enforcement to expect with MLC. This is why it is important to become educated and be prepared for this new, forth pillar of shipping. 

If you are interested in receiving a copy of the MLC, need more information on the countries that have ratified the MLC or wish to reach me, you may do so by writing to me at mov@chaloslaw.com.

Carnival's Woes Continue with Unacceptable Health Grade

My week at Cruise Shipping Miami had me socializing with the cruise shipping set, including various "worker bees" at Carnival Cruise Lines. I am unable to divulge their private comments as to what is going on within the company and their ships, but their woes have been heard not only by me as the sympathetic ear, but U.S. cruise passengers...

As reported in the Daily Business Review and every television station in South Florida recently, federal inspectors cited Carnival's FASCINATION cruise ship in February for flies, dried food waste and a roach nymph, U.S. health officials said. The Centers for Disease Control and Prevention said inspectors with the agency's Vessel Sanitation Program gave the 2,056-passenger ship a score of 84. Anything below 86 is considered unacceptable, the CDC said on its website.

The CDC conducts surprise inspections twice each year on cruise ships that dock at U.S. ports. Carnival spokesman Vance Gulliksen said it is rare for a Carnival ship to fail an inspection. The violations included low levels of chlorine in the ship's water park and a missing sneeze shield over the salad bar, the newspaper reported Thursday. A fly was spotted at the hamburger grill and dried food waste was found under a kitchen counter. Four to six small flies and a "roach nymph" — or larva — were found around the drain below the room service juice dispenser, the report said.

Guliksen said all issues were resolved within 24 hours of the inspection.

This latest news has come out after a year of damage control for Carnival Cruise Lines. Foregoing further discussion of the COSTA CONCORDIA disaster, Carnival's passengers and crew this year faced the "cruise from hell" aboard CARNIVAL TRIUMPH after an engine room fire left the vessel adrift in the Gulf of Mexico with 4,200 passengers aboard, resurrecting stories of the CARNIVAL SPENDOR's 2010 debacle.

Disabled TRIUMPH being towed to harbor off Mobile Bay, Ala. (AP Photo/Gerald Herbert, file)

 
Then CARNIVAL ELATION had to be escorted by tug because of a problem in its steering system. CARNIVAL DREAM (a dream class ship at 128,000 tons, the largest ship yet built for Carnival Cruise Lines I have been on) experienced power interruptions at the island of St. Maarten, stranding more than 4,000 passengers. CARNIVAL LEGEND ended up limping home to Tampa at reduced speed because of an issue with one of its propulsion units. In the past few weeks alone, three of the cruise line's giant floating playgrounds have experienced embarrassing malfunctions that have at least inconvenienced, if not angered, many passengers.
 
Christopher Muller of Boston University's School of Hospitality tells CNN that the latest wave of issues at Carnival appear to be a management problem. "They are doing something wrong with preventative maintenance," he says. "Carnival has so many working ships that to say the fleet is in distress is maybe a little bit broad, but clearly something is not right."
 
Carnival has blamed the problems aboard the CARNIVAL DREAM on a malfunction that occurred in the ship's emergency diesel generator during a routine safety test. The CARNIVAL LEGEND's problems, though at sea not in port, appear to be more in the way of an inconvenience. One of the ship's two Azipods, a directional propulsion unit, was experiencing an unspecified "technical issue" that has forced the ship to reduce its speed. Even before the latest problems, questions have been raised about the cruise industry in general and specifically Carnival, the largest line in the industry.
 

These incidents are the latest in several headline-making issues for one of the world's leading cruise lines. Four of the company's 23 ships have had problems in recent months. The cruise line has offered affected passengers refunds and discounts on future cruises. It faces a class-action lawsuit related to the TRIUMPH's last cruise, when passengers reported that food was scarce, cruise goers sweltered in the heat with no air conditioning, toilets overflowed and human waste ran down the walls in some parts of the ship.

 

The problems have also prompted one U.S. lawmaker to propose a "Cruise Ship Passenger Bill of Rights." Sen. Charles Schumer, D-New York, said he was asking the cruise industry to voluntarily sign on to a list of guidelines, including the right to backup power if generators fail and the right to disembark a docked ship "if basic provisions cannot adequately be provided on board." Schumer also called on the International Maritime Organization to investigate whether cruise lines are following existing guidelines and whether existing standards are being enforced by countries where cruise ships that serve U.S. passengers are based. "Cruise ships, in large part operating outside the bounds of United States enforcement, have become the Wild West of the travel industry, and it's time to rein them in before anyone else gets hurt," Schumer said in a statement. "This bill of rights, based on work we've done with the airline industry, will ensure that passengers aren't forced to live in third world conditions or put their lives at risk when they go on vacation."

 

If you are interested in contacting me, please feel free to do so at mov@chaloslaw.com.

Lozman Wins Again! The Floating Home's Legacy Continues...

 

I have blogged on this case several times and after his U.S. Supreme Court win two months ago, Fane Lozman has won another victory before the U.S. Circuit Court for the Eleventh Circuit in Lozman v. City of Riviera Beach, Docket No. 11-15448 (Restani, J.).  

Fane Lozman with his dog Lady in front of his houseboat at the Riviera Beach Marina (2006 Palm Beach Post file photo)

Lozman appealed from the district court's dismissal of his amended complaint asserting, inter alia, violations of his Constitutional rights, based on the Rooker-Feldman doctrine and res judicata principles. At issue was the preclusive effect of a prior state court eviction action initiated by the City against Lozman. The court concluded that the state court proceedings as to the First Amendment issues raised in the second amended counterclaim did not end prior to the commencement of the federal action and therefore, Rooker-Feldman did not divest the court of jurisdiction, regardless of whether the claims raised in state court were identical to those raised in federal courts.

Consequently, the court found that it need not address the City's arguments as to whether any of the claims asserted in the federal amended complaint were inextricably intertwined with a state court judgment. The court further concluded that none of the federal causes of action were barred by res judicata under Florida's transaction test; defendants have not specified what issues they believe were identical in the federal amended complaint and in the eviction action, but instead, defendants merely restated their res judicata argument as a collateral estoppel argument; and the Admiralty Action had no preclusive effect of any of the issues raised here. Accordingly, the court reversed the district court's dismissal of plaintiff's amended complaint and remanded for further proceedings.

So this case soldiers on...watch this space!

If you are interested in receiving a full copy of this decision, please feel free to contact me at mov@chaloslaw.com.

ReThink + ReUse Center Play Date for the Whole Family!

As you may be aware, I am the Chair of the ReThink + Reuse Center, an educational and environmental non-profit. The Center relies on funding from The Children’s Trust and from the community at large.

 My daughter and I at the last ReThink + ReUse Center event in 2012

 
I am posting this blog because on Sunday, April 28th from 1 to 3 pm, the ReThink + ReUse Center is having its annual play date!  They will have lots of creative and fun activities for the whole family.  There will be a snack area with juices, fruit, and cheese with beer and soda for adults. If you are interested in attending, please feel free to sign up at http://www.rethinkandreusemiami.org/events.html, or feel free to let me know if you have any questions at mov@chaloslaw.com.

I hope to see your family there!