General Maritime Law

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Found this new-er marine insurance case from the Fifth Circuit Court of Appeals (ok, I’m cleaning out the in-tray).  The case name is Great Lakes Reinsurance (UK) PLC v. Durham Auctions Inc., and the official opinion can be found here.

At issue in this case is a choice of law provision of a marine insurance policy.…

New LHWCA and Jones Act case from the Fifth Circuit Court of Appeals.  The case sets out the impact of a LHWCA settlement on a claimant’s other non-LWHCA claims (i.e. Jones Act, Maintenance & Cure).  The case is  Cooper v. International Offshore Services,  2010 U.S. App. LEXIS 16133 and can be found here.

Per the court,

Charles Cooper was seriously injured while loading supplies onto the M/V INTERNATIONAL THUNDER during the course of his employment. He settled his compensation claims with his employer, International Marine, and its parent company, International Offshore Services, (collectively “International”) through the administrative processes in the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Thereafter, he filed a complaint against International for negligence and sought damages, maintenance, and cure. International’s motion for summary judgment was granted. We AFFIRM.

The court found that the because the claimant did not appeal the order approving the settlement with the employer, he was barred from bringing a separate suit for damages because the settlement agreement settled all claims.

Recent COGSA case from the Sixth Circuit Court of Appeals.  The case is Fortis Corporate Ins. v. Viken Ship Mgmt., which can be found here.

First off:  the opinion was written by retired Justice Sandra Day O'connor (sheesh, so much for retirement being golf and grandkids). 

Facts:  during the transport of steel coils from Poland to Ohio, seawater intruded on the cargo hold and caused rust damage.  The insurance company paid on the claim then brought a subrogration claim against the vessel owner and the ship's manager (who provided the Master, officers and crew).

Issue:  The ship's manager brought a motion for summary judgment to dismiss the suit because it had been filed beyond the one-year statute of limitation in the Carriage of Goods at Sea Act (COGSA).

The ship's manager was trying to say that it was practically a "carrier" under COGSA and if it were a "carrier," then the lawsuit was time-barred.

Analysis:  Justice O'connor rejected the "practical" test and found that COGSA was clear in its definition of carriers and ship's managers were not included in that definition.  As such, simple negligence claims against non-carrier parties were valid.  Justice O'connor noted that the parties were free to contractually expand the COGSA coverages, by way of a Himalaya clause in the bill of lading:

It is important to note that shipping parties are free to extend COGSA’s coverage by adding provisions to bills of lading extending the COGSA regime to any and all agents or independent contractors who participate in the shipment of goods under a particular contract. See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 30–31 (2004). These contractual provisions are known as “Himalaya clauses.” See generally, Marie Healey, Carriage of Goods by Sea: Application of the Himalaya Clause to Subdelegees of the Carrier, 2 Mar. Law 91 (1977). If the parties in this case wanted SM to be covered by COGSA’s terms, they could have provided for that contractually, but they chose not to do so. This is especially telling when the parties were contracting against the backdrop of nearly-uniform case law refusing to extend COGSA’s liabilities and immunities to ship managers absent such a Himalaya clause. The value of maintaining uniformity with our sister circuits is at a premium in cases involving the interpretation of maritime contracts, especially when the parties can easily alter the terms of their contracts to react to prevailing case law. Cf. Kirby, 543 U.S. at 28 (stressing need for uniformity in maritime law).

 

New case from the Eleventh Circuit Court of Appeals which deals with Fourth Amendment protections on vessels.  The case is United States of America v. Guillermo Alfonzo Zarabozo and the original opinion can be found here.

The facts are skimpy but it appears that the defendant was a migrant smuggler rescued from a life raft.   Without a warrant, law enforcement searched a backpack in the liferaft.  The smuggler challenged the warrantless search.

The Eleventh Circuit said, We conclude the district court did not err in finding these facts constituted exigent circumstances supporting the FBI agent’s warrantless search of Zarabozo’s bags. Zarabozo’s bags had been exposed to massive amounts of sea water, and the district court found law enforcement had a reasonable fear that any electronic or paper evidence might be irrevocably damaged if left in that condition.

Accordingly, the district court ruled it was reasonable for agents to search Zarabozo’s bags to collect evidence in danger of immediate deterioration. We conclude the court, therefore, committed no error in admitting into evidence the items found pursuant to that search.