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Showing posts from 2014

Maritime Law--Barbetta Rejected! Passenger May Sue Cruise Line Under Agency Theories

In Franza v. Royal Caribbean Cruises, Ltd., Docket No. 13-13067 (11th Cir. Nov. 10, 2014), the Plaintiff filed suit against Royal Caribbean for maritime negligence after her elderly father fell and hit his head while on one of Royal Caribbean's cruise vessels. The Plaintiff's father died a week after the injury. Plaintiff alleged that Royal Caribbean is vicariously liable for the negligence of two of its employees, the onboard nurse and doctor, under an actual agency or apparent agency theory. The court concluded that the allegations in plaintiff's complaint plausibly support holding Royal Caribbean vicariously liable for the medical negligence of its onboard nurse and doctor.

The court declined to adopt the Barbetta rule, which immunizes a ship owner from respondent superior liability whenever a ship's employees render negligent medical care to its passengers. The court found that the complaint in this cause plausibly establishes a claim against Royal Caribbean under …

Maritime Law--USCG Foundation Tribute to the Coast Guard Seventh District on 11/13/14

The U.S. Coast Guard Foundation invites you to the Tribute to the Seventh Coast Guard District honoring Admiral Thad Allen, USCG (Ret.), 23rd Commandant of the United States Coast Guard on November 13, 2014 at the Miami Marriott Biscayne Bay at 1633 North Bayshore Drive, Miami.

My Husband and I with Admiral Allen I have had the pleasure of meeting Admiral Allen and getting to know him at various Coast Guard events. Allen is best known for his performance directing the federal response to Hurricanes Katrina and Rita in the Gulf Coast region from September 2005 to January 2006, and for his 2010 work as National Incident Commander of the Unified Command for the Deepwater Horizon oil spill in the Gulf of Mexico.

The Coast Guard Foundation is a national non-profit organization dedicated to enhancing the lives of the men and women of the U.S. Coast Guard and their families. Founded more than 40 years ago, the Coast Guard Foundation provides education, support and relief for the brave men a…

Maritime Law--The Legal Ramifications of Hard-A-Port

Brought to my attention by our friends at Shiptalk Ltd is a video of the Hapag-Lloyd containership COLOMBO EXPRESS turning hard-a-port into the MAERSK TANJONG. Both vessels were heading south through the Suez Canal, with the COLOMBO EXPRESS seemingly attempting to overtake the MAERSK TANJONG. Then about 2 1/2 minutes into the seemingly normal maneuver and with no warning at all, the overtaking vessel lurches to port and slammed its bow into the side of the unsuspecting Maersk vessel. Hapag-Lloyd noted in a statement there were no injuries or pollution as a result of the incident. A Maersk Line spokesperson said that three containers were lost over the side from their ship. You can watch the video here =>Containership Collision. While I do not speak fluent Arabic, people can be heard shouting off-camera as the two vessels gradually crash. Three shipping containers fell into the water as a result of the impact, and the COLOMBO EXPRESS was also left with a 65-foot dent, Reuters repor…

ReThink + ReUse Center "It's How We Roll" Fun Raiser -- Bowling Night -- October 16, 2014

As many of my readers may be aware, I am the Chair of the ReThink + ReUse Center, a non-for-profit educational and environmental Center in Miami educating children into rethinking reuseable materials for learning through play. The ReThink and ReUse Center’s Quality Play is Learning Program provides a series of educational and participatory workshops based on the philosophies of Reggio Emilia and Harvard's Project Zero Visible Thinking. The Children’s Trust is the major funder of this program, but the Center is required to continually fundraise for the balance its annual budget.

The Center is having a fun event you are invited to--the ReThink + Reuse Center’s “It’s How We Roll” bowling event on October 16, 2014 at Splitsville Luxury Lanes from 18:00 to 21:30 hours. My firm, Comcast and Waste Management are major sponsors for this event, but we could use a few more sponsors. If you are interested in sponsoring the event, please let me know by reaching me at Otherwi…

Maritime Law--Cruise Plaintiffs Must Read Their Ticket to Figure Out Venue or Risk Dismissal

In Royal Caribbean Cruises, Ltd. v. Clarke, 2014 Fla. App. LEXIS 15655 (Fla. 3d DCA Oct. 8, 2014), the Third District Court of Appeal, which encompasses Miami-Dade County, ruled that where a defendant cruise line reasonably communicated to the plaintiff that there was a forum selection clause in the ticket contract before the plaintiff boarded vessel, the trial court erred in denying defendant's motion to dismiss for improper venue. The Court further found that although the forum selection clause stated that all disputes shall be litigated in United States District Court for the Southern District of Florida, defendant had no obligation to remove state court case to federal court.

In this case, the plaintiff, while she apparently filed her lawsuit timely, filed it in the wrong court. The plaintiff attempted to argue that it was up to the defendant to remove the lawsuit if it wanted to assert the forum selection clause. The court rejected this argument, finding that the court has pre…

Maritime Law--En Banc 5th Circuit Rules Punitive Damages NOT Allowed in Jones Act Cases

In the long awaited en banc decision of McBride v. Estes Well Services, LLC, No. 12-30714 (Sept. 25, 2014), the Fifth Circuit Court of Appeals had to decide whether seaman plaintiffs, two injured seamen and the personal representative of a deceased seaman, could recover punitive damages under either the Jones Act or the general maritime law of the United States. The en banc Court affirmed the district court and concluded that the case was controlled by the SCOTUS decision in Miles v. Apex Marine Corp., which holds that the Jones Act limits a seaman's recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness. Because punitive damages are non-pecuniary losses, punitive damages were not recoverable in the case. The 73-page decision is interesting, as there are two separate concurring opinions for the 8 judges in the majority and two separate dissenting opinions by 6 judges. Care was taken in this decision, as several circuits hold that the Miles pr…

Maritime Law--Presentation at the Southeastern Admiralty Law Institute on International Conventions

On June 27, 2014, I had the pleasure of speaking at the Southeastern Admiralty Law Institute ("SEALI") in New Orleans, Louisiana at their Annual Seminar on the topic titled "International Conventions and Their Applicability to U.S. Maritime Cases." My partner in this presentation was Kate Goodsell of Cassidy & Black, P.A.

My portion of the presentation focused on how rules of international law are established in the United States, the International Salvage Convention of 1989 and the Maritime Labour Convention. I briefly discuss each of these in turn.

International Law as U.S. Law

Rules of international law can be established in the United States in three principal ways: (1) by international agreement between countries; (2) international custom; and (3) by derivation of principles common to major world legal systems. Since its inception, the United States has recognized that international legal commitments are binding upon it both internationally and domestically…

Maritime Law-To Litigate or to Arbitrate? That is the Question

In this industry, it is generally presumed that arbitration is preferable to litigation. However three recent high-profile arbitral awards highlight the risks of arbitration and demonstrate that, contrary to widespread belief, arbitration is often not cheaper, faster or more predictable than litigation. These three awards, though not strictly maritime in nature, call into question the common practice among corporations of including contractual provisions mandating arbitration in the event of any and every dispute. This is because despite the fact that these decisions are not strictly maritime, the emerging trend in arbitral proceedings also leads to questioning this common practice. As coined by a local judge that will remain nameless, the word "arbitrary" is the root word for the word "arbitration".
In the first case, there were arbitration proceedings that were pending for nearly eight years involving a patent license agreement between the technology companies Amk…

Maritime Law--Latin America and Legal Reform? Is it Possible?

A few reports have come out that question recent legal and litigation reform in Latin America. The first comes from Mexico, where 337 mostly foreign-owned sailboats and yachts at 11 marinas around Mexico were impounded. While nearly half of all vessels have been freed, as of earlier this year, over 100 remain impounded, tied up in red tape and confusion in raids that initially seemed aimed at rooting out tax cheats and boat thieves. Mexico's Tax Service Administration, the equivalent to the U.S. Internal Revenue Service, said in a statement that "the republic reiterates its commitment to promote legality and support tourism...for the benefit of Mexicans." Many foreigners had to scramble to prove that they were the rightful owners of their vessels, as well as the vessel's legal status in Mexico. In Mexico, boat owners are not required to pay tax or duty if they have a 10-year Temporary Import Permit, which costs around $50. The second report relates to companies doing …

Maritime Law--Miami Home for Arbitration of Panama Canal Dispute

It is generally presumed that big arbitrations generally go to New York or London. However, the case between the Panama Canal Authority ("ACP") and the contractor consortium constructing the Panama Canal known as Grupos Unidos por el Canal ("GUPC") have recently begun preliminary discussions for arbitrating their $1.6 billion dispute regarding alleged cost overruns on the largest infrastructure project in the Western Hemisphere.  
Photograph taken from July 31, 2014 Miami's legal community has focused over the past 15 years on developing the expertise and venues to handle arbitration cases, particularly for disputes arising in Latin America. This is especially important, as Miami has the legal expertise, the language capabilities and the cultural experience to handle disputes arising out of Latin America. The Dispute at Issue According to previous statements from ACP and GUPC, the disagreement began in 2012, three years after GUPC beat o…

Maritime Law-"The Costa Concordia: What If This Happened in U.S. Waters?" (08/14/2014)

On August 14, 2014, the Admiralty Law Section, the Federal Litigation Section and the Broward County Chapter of the Federal Bar Association is presenting the seminar "The Costa Concordia: What if this Happened in U.S. Waters?" This seminar will take place at the Riverside Hotel, 620 East Las Olas Boulevard, Fort Lauderdale, Florida 33301 and will be from 8:30 a.m. to 5:00 p.m. The anticipated Florida CLE credits will be 7.0 hours and Florida Admiralty and Maritime Law Certification Credit will be available.

The seminar agenda is impressive and includes the following:

Seminar Agenda
8:30 – 8:40 a.m.WelcomingRemarks and Introductions Speaker: Patricia Olney, Seminar Chair 8:40 – 9:00 a.m.Short Update on Status of Litigation over Costa                                              Concordia                                                            Speaker: Atillio Costabel 9:00 – 9:30 a.m.  Forum Selection/Jurisdiction                                                            Speaker…

Maritime Law--8th Circuit Finds for Marine Insurer on Utmost Good Faith (Uberrimae Fidei) Principles

In New York Marine & General Ins. v. Continental Cement Co., Case No.13-2313 (8th Cir. July 17, 2014), the Eighth Circuit Court of Appeals has found that the District Court did not abuse its discretion in submitting the uberrimae fidei instruction against the insured.

Starr Indemnity filed a declaratory judgment action in the United States District Court for the Eastern District of Missouri, seeking a determination of its rights and obligations under Continental Cement's insurance policies after MARK TWAIN, a cement barge owned by Continental Cement, sank in the Mississippi River. Continental Cement counterclaimed for breach of contract and vexatious refusal to pay under Missouri law.

While conducting its investigation into the loss, Starr Indemnity discovered that a survey had been undertaken of MARK TWAIN in 2008 which indicated that the barge had not been watertight at the time Continental Cement obtained its policies. On the grounds that Continental Cement had breached its…

Maritime Law--Can Fisherman's Case Recast Sarbanes-Oxley?

Can a law written to punish the "Enrons" of the world for shredding or doing away with records also be used to convict a Florida fisherman who tossed his undersized catch into the sea in an effort to avoid penalties?
That is the question before the U.S. Supreme Court in a case it has accepted to hear in its next term. The case involves the Sarbanes-Oxley Act, specifically 18 U.S.C. § 1519, which makes it a crime to destroy “any record, document or tangible object” with the intent to obstruct an investigation. In this case, fish were deemed by the government to be a “tangible object.” The case arose when government agents boarded John Yates’ boat, F/V MISS KATIE, and found 72 undersized red grouper fish, some several inches shorter than the 20-inch keeper limit. Yates, a commercial fisherman, was ordered to turn over the undersized catch when he came to port. However, a crew member testified at trial that Yates told the crew to throw the undersized fish overboard and replace t…