by Christopher Hannan | Feb 26, 2014
After making a splash in October of 2013 with a landmark ruling in McBride v. Estis Well Service, L.L.C., 731 F.3d 505, 517 (5th Cir. 2013) “that punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness” – which departed from the Fifth Circuit’s prior en banc opinion in Guevara v. Mar. Overseas Corp., 59 F.3d 1496, (5th Cir. 1995) – the Fifth Circuit has decided to revisit en banc the issue of punitive damages for unseaworthiness. The panel decision in Estis, following the analytical path of the United States Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2007) (an equally historic opinion that abrogated Guevara, and least in part, and validated a seaman’s punitive damage claim for an employer’s willful failure to pay maintenance and cure), charted the history of punitive damages (or their rough analog) in maritime jurisprudence, and held that such damages are available for the seaman’s ancient general maritime law remedy for breach of the warranty of unseaworthiness. In particular, the Estis court held that punitive damages forgeneral maritime law unseaworthiness are available notwithstanding that punitive damages are expressly barred in the context of a seaman’s closely related – but technically distinct – statutory remedy for negligence under the Jones Act and/or the Death on the High Seas Act (DOHSA). (more…)
by Christopher Hannan | Jan 27, 2014
Full fathom five thy father lies,
Of his bones are coral made,
Those are pearls that were his eyes,
Nothing of him that doth fade,
But doth suffer a sea-change,
into something rich and strange,
Sea-nymphs hourly ring his knell,
Ding-dong.
Hark! now I hear them, ding-dong, bell.
William Shakespeare, The Tempest
As originally discussed in a recent post on Striding the Quarterdeck (December 9, 2013), amendments to 28 U.S.C. §1441 have effected a sea-change in admiralty procedure by ostensibly allowing removal of general maritime law (GML) claims on a federal question basis, notwithstanding the Savings to Suitors Clause and the long line of jurisprudence under Romero espousing the proposition that GML claims do not “arise under” the Constitution or law of the United States. The jurisprudential trend affirming removal of GML claims under the revised version of §1441, which began with Judge Gray Miller’s decision in Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D. Tex. 2013), has continued, suggesting that this sea-change may in fact ring the knell of the old Romero non-removability rule. (more…)
by Laurie Clark | Jan 24, 2014
In a marine builder’s risk policy coverage dispute decided under Washington state law, the United States Court of Appeals for the Ninth Circuit reversed and remanded a grant of summary judgment for Underwriters. Alaska Village Electric Cooperative, Inc. v. Zurich American Insurance Company, et al, 2014 WL 185778 (Jan. 17, 2014) (unpublished). Lead Underwriter Zurich American Insurance Company and four other subscribing underwriters (“Underwriters”) jointly issued the builder’s risk policy in connection with the construction of two barges. The policy is a standard form American Institute of Marine Underwriters (“AIMU”) policy but in this case did not include Addendum No. 2, a standard addendum that expressly excludes coverage for the cost to repair faulty workmanship. (more…)
by Christopher Hannan | Jan 22, 2014
On September 10th of this year, the President and CEO of the American Waterways Operators (AWO) appeared before the House Subcommittee on Coast Guard and Maritime Transportation and called for finalization by late 2013 or early 2014 of the long-languishing Subchapter M regulations relating to inspection of uninspected towing vessels (UTVs). http://transportation.house.gov/sites/republicans.transportation.house.gov/files/documents/2013-09-10-Allegretti.pdf. Thus, after more than a decade of regulatory delays and industry uncertainty, it appears that UTV operators can now bank (very literally) on the reality of mandatory Subchapter M compliance in the very near future. (more…)
by Christopher Hannan | Jan 21, 2014
In a 106-page Notice of Proposed Rulemaking issued Monday, January 13, 2014, the United States Coast Guard (USCG) has undertaken a wide-ranging overhaul of the standards for fire protection, detection and extinguishment equipment aboard inspected and uninspected vessels, mobile offshore drilling units (MODUs), deepwater ports, and Outer Continental Shelf (OCS) facilities. This comprehensive and expansive overhaul is intended to “harmonize [USCG] regulations with appropriate national and international consensus standards; address advances in fire protection technologies and standards; update [USCG] approval processes for fire detection and alarm systems; and revise [USCG] regulations for other types of equipment or components.” 79 Fed. Reg. 2254, 2254 (Jan. 13, 2014). The proposed regulations span several chapters and subparts of two different C.F.R. titles – namely Title 46 (covering the USCG’s more historic shipping purview with respect to vessels) and Title 33 (covering the USCG’s hybrid/share authority over certain units/facilities/vessels engaged in operations on the OCS). (more…)
