Another Court Finds Owner Snoozed on Right to Limit Liability

The Fifth Circuit Court of Appeals in the case of Eckstein Marine Service L.L.C., et al. v. Jackson, Case No. 10-20600, held that the district court did not err in concluding that the six-month deadline to file a limitation action was triggered when claimant delivered his complaint to plaintiff on April 28, 2009, and that plaintiff's January 18, 2010 petition was untimely filed. The appellate court concluded that the district court did not abuse its discretion when it opted not to hold an evidentiary hearing on claimant's motion to dismiss. Accordingly, the court affirmed the judgment of the district court.

This case arose when claimant served plaintiff with a complaint, alleging that his injuries were caused by the unseaworthiness of the M/V St. Andrew and by the negligence of plaintiff and its employees. Claimant became entangled in a line and was pulled into a mooring bit, seriously injuring his left leg. Following a state court trial, claimant won a judgment in excess of $750,000 and plaintiff subsequently appealed. On appeal, plaintiff challenged the district court's dismissal of its limitation action under the U.S. Limitation of Shipowner's Liability Act as untimely. Because a challenge to the timeliness of a limitation action was a challenge to the district court's subject matter jurisdiction and because plaintiff had notice claimant was mounting such a challenge in his motion to dismiss, the district court did not err by construing plaintiff's motion as a Rule 12(b)(1) jurisdictional attack.

A complete copy of the decision can be found at http://law.justia.com/cases/federal/appellate-courts/ca5/10-20600/10-20600-2012-02-22.html. 

Dick Lapidus Dies at 79

It is with great sadness that I am reporting the death of Dick Lapidus, an attorney by profession and an adventurer and good friend by nature.

I remember being his crew while we were with the US Coast Guard Auxiliary aboard his vessel, CORMORANT. It was my favorite vessel to crew for, as Dick was a great boater, smart guy and took good care of his crew. It was Dick that suggested I sign up to obtain my coxswain's certification with the Auxiliary. I did, but shortly thereafter, I found out I was pregnant with my first daughter. So, coxswain's certification was not in the cards for me, but I continued to crew on Dick's boat until the doctor said "no more boats for a while."

Dick's death appears to have been a tragic accident. At 79, Dick was still working out and practicing law part time. In is reported in the Miami Herald that Dick fell while getting out of the University of Miami Wellness Center pool, hitting his head and dying the next day. This is particularly more tragic as Dick had just battled (and won against) non-Hodgkins lymphoma. My heart goes out to Dick's wife, Wendy, and his family.

I have the obituary notice and a very nice article about Dick from the Miami Herald. If you are interested in receiving a copy of either, please feel free to contact me at miamipandi@comcast.net or mov@chaloslaw.com.

Chalos & Co Expands and I Am Now Affilated with Them

Chalos & Co, P.C.-International Law Firm to Expand and Lands Big Fish in Miami Maritime News Maritime Executive Magazine

My friends, please note the good news by clicking above.

Florida's Offer of Judgment Statute Not Applicable Where Parties Agree Otherwise

In the decision of Southeast Floating Docks, Inc. v. Auto-Owners Ins. Co., No. SC11-285 dated February 2, 2012, the Florida Supreme Court answered the following certified question:

Whether Florida's offer of judgment statute, section 768.79, Florida Statutes, constituted substantive law and therefore was inapplicable in instances where parties to a contract have agreed to be bound by the substantive law of another forum.

This case involved a dispute between the parties when Auto-Owners issued a performance bond in connection with the work of Southeast pursuant to a contract which provided that Southeast would build a floating dock for Rivermar. The court held that section 768.79 created a substantive right to costs and attorney's fees upon the satisfaction of certain conditions. Accordingly, under a conflict of law analysis, when parties have agreed to be bound by the substantive law of another jurisdiction, section 768.79 simply did not apply.

This is an important pronouncement from the Florida Supreme Court, particularly in maritime cases. It makes clear that Florida Statute section 768.79 is substantive and therefore, should be parties agree to be bound by the law of another jurisdiction, this statute would not apply. This means that the U.S. rule that each party pays their own lawyer regardless of outcome should apply--with the usual caveat that each case is different and the particular contract at issue should be reviewed before presuming that Southeast Floating applies.

If you are interested in reading the complete decision, you may access the decision here => http://law.justia.com/cases/florida/supreme-court/2012/sc11-285.html.

If you are interested in contacting me, please feel free to do so at miamipandi@comcast.net.

Crew Union Praises Costa Post-Concordia Tragedy

Tradewinds reports in their February 3rd edition that the local transport union Federazione Italiana Transport ("FIT") has praised Costa Cruises for their handling of the crew's welfare following the COSTA CONCORDIA tragedy. It has been described as "exemplary." FIT reports that Costa has a Collective Bargaining Agreement ("CBA") in place, which provides for compensation payments to deceased crew's family with a further EUR 60,000 (US $79,000) compensation payment to be made to families of the deceased from the union's welfare fund.

FIT also reports that Costa are applying the Maritime Labor Convention 2006 and have signed the Social Accountability standard 8000. This means that Costa are reportedly managing the situation in line with its obligations under the CBA and international crew welfare conventions. After the accident, the rescued crew were reportedly placed in hotels with pocket money provided by the company. A consolidated salary, paying crew up to the end of their employment contract, was also paid. Crew will also be paid up to another $3,570 for their personal losses and have been offered post-trauma stress counseling at the cruise line's expense. The cruise line has also paid for family of the injured crew to visit them in the hospital.

All but approximately 20 of the rescued crew have been repatriated back home. Three crew were found dead, while two more remain missing.

There has been some discussion in the local bar about the potential for crew involved in this tragedy bringing claims against Costa in the United States. Discussion of jurisdiction, choice of law and forum non conveniens defenses aside, reports such as this one should assist Costa in repelling some of the substantive arguments within individual claims of crew which may find themselves choosing to sue here in the United States.

If you are interested in receiving a complete copy of the Tradewinds article or wish to contact me, you may do so at miamipandi@comcast.net.