The Supreme Court is considering whether to hear an appeal fo the Ninth Circuit's decision in Kawasaki Kisen Kaisha v. Regal Beloit Corporation and Union Pacific Railroad Company v. Regal-Beloit Corporation. The issue before the court is to what extent do statutory rules governing shipments by rail or motor carrier apply to a shipment of
General Maritime Law
Admiralty News Flash – Winter Storm Decision Overturned
By Mark M. Murakami on
Admiralty practitioners note: Winter Storm has been overturned. A panel of the 2nd Circuit Court of Appeals issued this noteworthy decision today, with the consent of all active judges for that circuit. Decision here. Everyone else can stop reading now.
This issue relates to Rule B attachment under the Federal Rules of Civil Procedure and New York state law regarding the definition of “property.” In Winter Storm Shipping Ltd. v. TPI, 310 F.3d 263 (2nd Cir. 2002), the court of appeals found that electronic funds transfers between two parties outside of New York, but which funds transferred through “intermediary banks” in New York, were subject to prejudgment attachment in New York.
The intermediary bank is how foreign banks will exchange currency for dollars by way of Electronic Funds Transfer or ETF. The court uses this example:
To more concretely illustrate the circumstances of the instant case, consider the following example: ABC Shipping wants to transfer $100 to XYZ overseas. ABC has an account at India National Bank, and XYZ has an account at Bank of Thailand. India National Bank and Bank of Thailand do not belong to the same consortium, but each has an account at New York Bank. To begin the transfer, ABC instructs India National Bank to transfer $100 to XYZ’s account at Bank of Thailand. India National Bank then debits ABC’s account and forwards the instruction to New York Bank. New York Bank then debits India National’s account and credits Bank of Thailand’s account. Bank of Thailand then credits XYZ’s account, thereby completing the transfer.
The New York banks were certainly not happy with Winter Storm. According to this opinion (citing amicus brief):
from October 1, 2008 to January 31, 2009 alone “maritime plaintiffs filed 962 lawsuits seeking to attach a total of $1.35 billion. These lawsuits constituted 33% of all lawsuits filed in the Southern District, and the resulting maritime writs only add to the burden of 800 to 900 writs already served daily on the District’s banks
ETF’s are not property subject to Rule B attachment in New York any longer. I’ll try to get the briefs to post later.
New Hawaii Lawsuit – Constitutional Challenge to Jones Act
By Mark M. Murakami on
Several Hawaii residents and businesses have brought suit against the federal government challenging the constitutionality of the “Jones Act.” The complaint can be downloaded here.
The suit notes that because the Jones Act requires cargo to be transported on U.S. flagged ships between U.S. ports, Hawaii residents pay more for their goods. It purports …
New 9th Circuit Admiralty Case – Forum Non Conveniens and Death on the High Seas Act
By Mark M. Murakami on
The Ninth Circuit Court of Appeals just issued a decision relating to a scuba-related death in Mexico. The decision is Loya v. Starwood Hotel & Resorts Worldwide, Inc., and can be downloaded here.
Facts: the plaintiff's husband died during a scuba trip in the waters off the Baja peninsula, Mexico. The plaintiff brought…
New 9th Circuit Admiralty/COGSA case – “Shippers,” Indemnities & Foreign Law
By Mark M. Murakami on
The Ninth Circuit just issued a decision interpreting a bill of lading in light of the Carriage of Goods at Sea Act (COGSA). The decision is in the APL Co. Pte. Ltd. v. U.G. Co., Inc. case which can be downloaded here. The facts are a bit convoluted, but not surprising in the global …
New 9th Cir. Admiralty Case – Pennsylvania Rule and Jones Act
By Mark M. Murakami on
The Ninth Circuit just published an opinion relating to the Jones Act and a worker injured while conducting a “free dive” incident to the employer’s vessel operations.
The case is MacDonald v. Kahikolu, Ltd., No. 08-15239, download here.
In MacDonald, a vessel employee was injured while “free diving” to support anchoring of …
New Admiralty Case – Stays of Tort Cases Pending Limitation Action
By Mark M. Murakami on
Ah, the Limitation Act, 46 U.S.C. s 30501. Roughly digested, it provides a cap or limit on the damages a tortfeasor faces for maritime wrongs. The limit is set, by statute, as the value of the vessel plus freight. The typical tort scenario is: maritime injury occurs, victim files suit in state court asserting
…
Matson – Horizon Shipping Antitrust Lawsuit Dismissed
By Mark M. Murakami on
A federal court in Seattle has dismissed an antitrust lawsuit brought against Matson Navigation Company and Horizon Lines, LLC.
I have obtained the decision which can be downloaded here. The case is In Re Hawaiian & Guamanian Cabotage Antitrust Litigation, No. 08-md-1972 TSZ.
This case is interesting on several fronts. First, this court …
New Admiralty Case: Ninth Circuit Rules Jet Ski Incident in Admiralty
By Mark M. Murakami on
New Admiralty Case – 11th Circuit Opinion on Choice of Law and Equitable Claims
By Mark M. Murakami on
An interesting (if you are a civil procedure wonk), and lengthy, admiralty decision was just published by the Court of Appeals for the Eleventh Circuit.
I’m still digesting the opinion in Cooper v. Meridian Yachts, Ltd. From my initial skim, the court ruled that the choice of law provision applied to third-party equitable claims. More to follow.