October 2018

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Dippin’ Dots, Quilt Museums and the Intricacies of Maritime Federal Venue - Southern District of Texas Considers Forum Selection Clauses under FELA and the Jones Act

Many folks across this great country might not be familiar with Paducah, Kentucky. As a public service, the Court provides some basic background information about this relatively small community first settled as Perkin in 1821 and renamed Paducah in 1827 by William Clark (of the famed Lewis & Clark expedition). Paducah is located in the far western part of Kentucky at the confluence of the Tennessee and Ohio rivers, halfway between St. Louis and Nashville. Approximately 25,000 men, women, and children reside in Paducah. Designated by UNESCO as a Creative City of Crafts and Folk Art, the city is home of the National Quilt Museum and, as the local convention and visitor’s bureau likes to boast, “a haven for creative thinkers and doers who find inspiration here.” There is a laundry list of famous people who grew up in Paducah, including Alben W. Barkley (the 35th Vice President of the United States during the presidency of Harry S. Truman), John Scopes (the teacher accused for teaching the theory of evolution in the legendary Scopes trial) and PGA golfer Kenny Perry. Saving the best for last, Paducah is also the corporate headquarters for Dippin’ Dots, a favorite treat of this judge and his family.

With this opening paean to Paducah, the U.S. District Court for the Southern District of Texas addressed an intriguing legal question in In the matter of Complaint of Marquette Transportation Company Gulf-Inland LLC: can a limitation of liability action in federal court, filed in response to a Jones Act claim in state court, be transferred to a different venue than the pending state court action under a contractually bargained for forum-selection clause? See 2018 WL 4443141, 3:18-cv-00074 (S.D. Tex. 2018). (more…)

Unsmooth "Operator" - Fifth Circuit Holds Tug Owner Liable Under OPA as "Operator" of Non-Owned "Dumb" Oil Barge

In an important decision of first impression construing the Oil Pollution Act of 1990 (“OPA,” 33 U.S.C. §§2701 et seq.), the Fifth Circuit has held the owner and operator (“Nature’s Way”) of a “dominant mind” tugboat liable under OPA as the “responsible party” for a spill emanating from a non-self-propelled “dumb” tank barge in its tow, even though the barge was owned by a third party (Third Coast Towing, “TCT”). Specifically, the Fifth Circuit conducted a res nova interpretation and application of 33 U.S.C. §2702(a), which provides that a designated “responsible party” shall be strictly liable, in the first instance and even without fault, for cleanup/removal costs and damages resulting from an oil spill; and further defines “responsible party” with respect to a “vessel” as “any person owning, operating or demise chartering the vessel.” (more…)