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Showing posts from October, 2011

Non-US Citizen Crew May Be Unable to Sue for Injury If Bill Becomes Law

On October 28, 2011, Lloyd's List reports that a draftprovision in upcoming US legislation would bar non-US citizen crew on foreign-flag passenger vessels from seeking damages for injury or death in US courts. Of course, this legislation has sparked outrage among seafarer rights advocates, while others note that the provision — whose main effect will be on cruise line employees — sets a different standard for this category of mariners as compared with crewmembers on cargoships or containerships, or any other merchant vessel.
The House of Representatives’ version of the new US Coast Guard Authorization Act contains a section that stipulates that a seafarer who is not a US national or permanent resident, and who suffers injury or death outside US territorial waters, be barred from bringing a damages lawsuit before a US court, so long as the mariner has a right to seek compensation under the laws of his homeland or in the ship’s flag state. The Bill, introduced by Republican Congressm…

Overlawyered Insurance Dispute Sheds Light on Attorney's Fee Issue

On October 18, 2011, the Miami-Dade Daily Business Review reports on the case of DeLeon v. Great American Assurance Co., where the Third District Court of Appeals held that a truck driver is entitled to attorney's fees after an attorney for his insurance carrier improperly questioned him during an examination under oath, thereby making judicial intervention necessary to resolve the claim.

The facts are as follows--the truck driver's tractor-trailer was stolen while parked at an interstate trucking company. When the police found the truck, it was damaged and nine tires were  missing. The trucker filed a claim with his insurer. The insurer required the trucker to submit to an examination under oath ("EUO"), as part of its investigation. Like many insurance policies, the trucker's required him to provide the statement before initiating a lawsuit. However during the EUO, the bulk of the questioning pertained to the trucker's unrelated criminal conviction and who …

S.D. Florida Finds For Vessel Owner Against Necessaries Provider

In DELTA NOVEMBER, LLC. vs. BAKER, 23 Fla. L. Weekly Fed. D44a (S.D. Fla. August 22, 2011), a vessel owner entered into oral repair contract with a repairer and brought the action against the repairer alleging breach of maritime contract/warranty of workmanlike performance and breach of marine bailment, after vessel sank at its berth causing damages to its hull, machinery, appurtenances, and plaintiff's personal property. The repairer moved to dismiss for lack of jurisdiction, improper venue, and failure to state a claim.

The facts of the case are as follows. Plaintiff Delta November, LLC (“Plaintiff”) entered into an oral contract with Defendant Richard Baker (“Defendant”) to repair the starboard engine of Defendant's vessel, the M/Y CJ, a 33-foot Chris-Craft fly bridge sportfish vessel. At the time, the vessel was docked at its home dock, Worldwide Sportsman, and connected to shore-side power. The Defendant began the repairs at Worldwide Sportsman, which is located in Islamo…

Crewmember Claims Not Falling Within Arbitration Clause

In DOE v. PRINCESS CRUISE LINES, LTD., 23 Fla. L. Weekly Fed. C439a (11th Cir. September 23, 2011), the Eleventh Circuit held that the trial court did not err in holding that a crewmember's claims for false imprisonment, intentional infliction of emotional distress, spoliation of evidence, invasion of privacy, and fraudulent misrepresentation do not fall within scope of arbitration provision, where those claims contain allegations that do not arise from, do not relate to, and are not connected with parties' crew agreement or services performed by plaintiff as bar server. The Eleventh Circuit reasoned that such claims are not the immediate, foreseeable result of performance of parties' contractual duties or plaintiff's services as cruise line employee and are not within scope of arbitration clause, where claims involve factual allegations about how cruise line and its officials treated plaintiff after learning that she had been raped, including allegations that she was …

The Key to Arbitration Clause Provisions is Careful Handling

Businesses often insert an arbitration clause in a contract based on the expectations that arbitration is cheaper and faster than a lawsuit. Unfortunately, a poorly drafted arbitration clause can lead to a messy legal dispute that is neither cheaper nor faster. Transaction-oriented lawyers have their strengths, and litigation is generally not one of them. As a result, they may not anticipate all of the ramifications of the provisions they insert in an arbitration clause. Sometimes an attorney borrows from a well-crafted contract that is ill-suited to the needs of the current client. In a sincere but misguided effort to cover all bases, an attorney may insert language that is overly expansive, overly restrictive or just plain impractical. This is particularly true in maritime matters.

In my years as a claims executive ultimately paying for arbitration proceedings, a lawyer appearing before arbitrators and advising clients on contracts that other lawyers have drafted, I have learned to …

Glut of Ships Bad News for Supertanker Owners

Bloomberg News reports that owners of supertankers, losing money for a sixth consecutive quarter, will probably idle the most ships in more than two decades, as they contend with a glut that drove charter rates to the lowest in at least fourteen years. The combination of too many ships and slowing demand growth for oil means that about six percent of the fleet will be anchored in a year, according to Bloomberg's survey of eight brokers and analysts. However that may not be enough to end the slump. This is because it is reported that freight agreements, traded by brokers and used to bet on transportation costs, anticipate rates no higher than $13,819 a day through 2013.

While owners can cut operating costs to as little as $2,000 a day from $12,000 by anchoring ships, it also means no income. This was a statement made by Andreas Sohmen-Pao, CEO of the oil and gas shipping unit of BW Group, which is idling three ships of its own. The global fleet of VLCCs expanded about 9 percent to …

Feds Cracking Down on Lobster Violations In the Florida Keys

The Miami Herald reports on Tuesday, October 11, 2011 that federal prosecutors have been fiercely cracking down against illegally harvested lobster. In 2009, a federal investigation dubbed Operation Freezer Burn resulted in the seizure of more than 2,000 pounds of lobster on Cudjoe Key and the arrests of six people, including ringleader David Dreifort, now serving time in federal prison. Under federal law, commercial lobster divers can harvest 250 lobster per day. However, amounts allegedly sold to a Stock Island man over the time period outlined in the indictment is more than double that amount.

That man, Scott Greager, has admitted that he bought and sold thousands of illegally harvested lobster in the most recent major federal fisheries case from the Lower Keys. Greager, the owner of a Key West business called Holiday Seafood, faced multiple federal counts of conspiring to purchase 5,435 pounds of lobster from two commercial divers over seven days at the opening of the regular lobs…

Seaboard Exits Bahamas

On Tuesday, October 11, 2011, Lloyd's List reported that Seaboard Marine, the US liner major and subsidiary of Seaboard Corp, is closing its operations in Nassau in the Bahamas and exiting the trade, with the last port call to be made by ro-ro ship Seaboard Spirit set for this month. A search on the Seaboard Marine website today at http://www.seaboardmarine.com/SML/ does not show Nassau as a available port to originate or send shipments.

There does not appear to be any official comment from Seaboard Marine on their website.

If you are interested in contacting me, you may reach me at miamipandi@comcast.net or motero@houckanderson.com.

Single Act of Negligence Does Not Render a Cruise Ship Unseaworthy

In FLUERAS vs. ROYAL CARIBBEAN CRUISES, LTD., 36 Fla. L. Weekly D2131a (Fla. 3d DCA Sept. 28, 2011), the Third District Court of Appeals of Florida held that a single act of negligence by an otherwise competent crew member does not render ship unseaworthy. The Plaintiff, individually, and as the personal representative of the Estate of Diana Elena Flueras (“Ms. Flueras” or “Crew Member”), appeals from a final summary judgment entered in favor of defendant Royal Caribbean Cruises, Ltd. (“RCCL” or “Shipowner”) in an action alleging the unseaworthiness of RCCL's vessel, the Explorer of the Seas, arising out of the alleged negligence of the vessel's medical crew. Ms. Flueras was employed by Image Corp., The Image Group, or Image (collectively, “Image”), not by RCCL, as a photographer on the Explorer of the Seas. On October 10, 2005, Ms. Flueras visited the ship's infirmary complaining of back and abdominal pain.

On October 20, 2005, Ms. Flueras underwent an outpatient abortion…