October 2010

The Supreme Court just denied a cert petition in the Lee v. Astoria Generating Co. case.  I had earlier posted on the decision of the New York appeals court here.

From my earlier post, this is the issue below:

The New York Appellate Division recently issued a decision interpreting the Longshore and Harbor Workers’ Compensation Act (LWHCA), particularly 33 U.S.C. s. 905(b) and the preemptive effect of that act on state law claims.  The decision is here and the case is entitled Lee v. Astoria Generating Company, L.P.

The facts are pretty straightforward.  The defendant owned a power generation facility which was comprised of four barges that collectively housed several gas turbines used to create electricity.  The barges floated but were only moved for maintenance once a decade.  The plaintiff was injured while working on one of the barges.

Suit was brought in state court for the injuries.  At issue in the decision was whether the barge was a “vessel” under the LWHCA, which would thereby make the remedies of the LHWCA the exclusive remedies for the plaintiff; and, whether the LHWCA preempted the state law claims for negligence.

The court found that although the barge was moored, it was not moored permanently as it had moved for maintenance.  As such, it did not lose its status as a vessel under the LHWCA.  Because the barge was a “vessel,” the court then found that the LHWCA did preempt state law negligence claims.

SCOTUSBLOG has the petition and other briefs here.  The questions presented were:  Whether the lower court misapplied Stewart v. Dutra Construction Co., 543 U.S. 481 (2005), to find that a floating power plant constituted a “vessel in navigation”; and 2) whether the lower court erred by finding that petitioner’s proposed state-law tort claims were within the maritime jurisdiction and by dismissing said claims on the basis that they were preempted by Section 905(b) of the Longshore and Harborworker Compensation Act.

Looks like those questions will have to wait for another day.

Smuggler’s Blues?   Or no dominion means no dominion. 

New asset forfeiture case case from the Eleventh Circuit Court of Appeals.  The case is United States of America v. One 1990 Beechcraft, et al., arising out of (you guessed it) the Southern District of Florida.  The appeals court decision can be found here.

Facts are simple.  An …

Very interesting Ninth Circuit case arising from an oil platform off the coast of Nigeria.

The decision is Bowoto v. Chevron Corp, 2010 U.S. App. LEXIS 18955 and can be found here.

Facts below:  A number of protestors injured in a protest on an oil platform involving security forces firing on them brought suit in federal court in California.  They brought a number of claims including negligence and intentional torts under California and Nigerian law.  After several pretrial decisions of law by the court, a jury found for the defendant on all counts.

Issues on Appeal:

1)  Can the plaintiffs pursue claims under the Alien Tort Statute, 28 U.S.C. 1350?  Maritime law did not provide a wrongful death remedy until Congress passed the Death on the High Seas Act (DOHSA).  The Supreme Court has held that the DOHSA preempts and displaces other recovery.  It also has held that survival claims brought under maritime law are preempted by DOHSA.  Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116 (1998).  The Ninth Circuit found that survival claims under the Alien Tort Statute were preempted by the DOHSA.

2)  Does the Torture Victim Protection Act apply to Corporations?  The TVPA, codified at 28 U.S.C. 1350, provides that:

An individual who, under actual or apparent authority, or color of law, of any foreign nation— (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

As the statute says individual, the court agreed with the trial court decision that the word individual connoted only natural persons and not corporations. POTENTIAL CIRCUIT SPLIT:  two district courts have held otherwise.   Estate of Rodriquez v. Drummond Co. Inc., 256 F. Supp. 2d 1250, 1266-67 (N.D. Ala. 2003) (finding corporations can be liable under TVPA); Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1358-59 (S.D. Fla. 2003) (same).  The Eleventh Circuit decision in Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) may also conflict.

An admiralty case about a train wreck. 

Following the Kawasaki case from the last term of the Supreme Court, the court of appeals are cleaning up cases on their dockets with a common fact pattern:  cargo damage during a rail portion of an intermodal transport of cargo under a bill of lading.

This Second Circuit case is Mitsui Sumitomo Ins. Co. v. Evergreen Marine Corp., 2010 U.S. App. LEXIS 19634 and can be found here.

Per the Second Circuit, the Kawasaki test to determine if the Carmack amendment applies is:

First,the rail carrier must ‘provid[e] transportation or service subject to the jurisdiction of the [Surface Transportation Board (“STB”)].’ Second, that carrier must ‘receiv[e]’ the property ‘for transportation under this part,’ where ‘this part’ is the STB’s jurisdiction over domestic rail transport.” Id. (quoting 49 U.S.C. § 11706) (alterations in original).

The court rejected attempts to distinguish the case from Kawasaki factually, that Kawasaki relied on an oral argument concession, that there was a separate bill of lading for the rail portion of the transport, that the absence of a federal district court impacted Kawasaki, and that the decision should not act retroactively.