Volume 36, Issue 2

Balancing Bargaining Power: The Eleventh Circuit Overreaches To Destroy the Public Policy Defense at the Initial Enforcement Stage of Arbitration in Lindo v. NCL (Bahamas), Ltd.

This dispute arose from the Jones Act negligence claim of Harold Leonel Pineda Lindo, a Nicaraguan citizen and resident, after he sustained injury while working for Norwegian Cruise Line (Bahamas) Ltd. (NCL) on its private island in the Bahamas. Lindo's employment contract with NCL included a collective bargaining agreement and contained an arbitration clause, which provided that all claims were subject to binding arbitration under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Lindo's contract further provided that “[t]he place of the arbitration shall be the Seaman's country of citizenship, unless arbitration is unavailable under The Convention in that country, in which case, and only in that case, said arbitration shall take place in Nassau, Bahamas” and that “[t]he substantive law to be applied to the arbitration shall be the law of the flag state of the vessel.” Thus, pursuant to Lindo's contract, any claim would be subject to arbitration in Nicaragua under Bahamian law. Read More »

“I Immediately Regret This Decision”*: The Sixth Circuit’s Misinterpretation of the PWSA

On June 16, 2005, a barge carrying 400,000 gallons of benzene, a toxic, highly flammable, and carcinogenic liquid, sprang a leak on the Mississippi River near St. Louis, Missouri. Conoco Phillips hired Canal Barge Company, the owner of the barge, to transport the toxic substance from Illinois to Kentucky. When the leak was discovered, Jeffery Scarborough, a Canal Barge employee, instructed deckhands to seal the opening with a bar of soap. Scarborough then called Paul Barnes, the port captain in the company's Louisiana office, who instructed Scarborough to apply a temporary epoxy patch over the leak. The barge's captain, Randy Martin, was off duty and asleep but resumed control of the barge later that day. The barge was later transferred to a tugboat near Cairo, Illinois, and then continued onto the Ohio River. On June 20, the epoxy patch failed. At that time, the captain of the tugboat notified the Coast Guard Office in Louisville, Kentucky. Read More »

The Day Historic Preservation Principles Saved the TITANIC From a Second Maritime Disaster

The story of RMS TITANIC has fascinated the public ever since the fateful night of April 15, 1912, when she hit an iceberg and sank, causing the death of over 1500 passengers and crewmen. Since then, TITANIC has been the subject of numerous movies, television documentaries, print stories, academic conferences, and museum exhibits. Although the wreck's general location, approximately 400 nautical miles southeast of Newfoundland, Canada, was well known, it was not until 1985 that a joint American-French team discovered the wreck's actual location. In 1987, Titanic Ventures Limited Partnership, predecessor-in-interest to RMS Titanic, Inc./Premier Exhibitions (RMST), and Institut français de recherché pour l'exploitation de la mer (IFREMER) began salvage work on the site, during which time they raised approximately 1800 artifacts. RMST continued salvaging the wreck site in conjunction with IFREMER and then later with P.P. Shirshov Institute of Oceanology of Moscow, Russia. RMST raised several thousand artifacts during 1993, 1994, 1996, 1998, 2000, and 2004, and has since conserved those artifacts at its facility in Atlanta, Georgia. Read More »

Finders Weepers, Losers Keepers: The Eleventh Circuit Denies Salvage Company’s Claims to a Sunken Military Vessel Found in International Waters In Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel

In March 2007, Odyssey Marine Exploration, Inc. (Odyssey) discovered the remains of a shipwrecked vessel along with approximately 594,000 rare coins and other valuable artifacts spread over 40,000 square meters of the ocean floor in international waters 100 miles west of the Straits of Gibraltar. Eager to begin its recovery efforts, Odyssey filed a complaint in the United States District Court for the Middle District of Florida against “The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo,” simultaneously asserting a possessory claim pursuant to the law of finds and a salvage claim under the law of salvage. Shortly thereafter, the clerk issued a warrant directing the United States Marshal to take possession of a small bronze block recovered from the shipwreck to symbolize her arrest in rem and appointing Odyssey as the substitute custodian of the vessel and her artifacts until further direction from the court. Upon Odyssey's publication of the notice of arrest, the Kingdom of Spain filed a claim to the vessel, its contents, and cargo, and subsequently filed a motion requesting more information identifying the vessel. Alternatively, Spain sought dismissal of Odyssey's complaint, claiming that it failed to “describe with reasonable particularity the property that is the subject of the action” in accordance with the heightened pleading requirements for an in rem complaint in admiralty. In response, Odyssey filed an amended complaint in which it plead ignorance as to the identity of the wrecked vessel, responding to interrogatories from the court by stating only that the site may be linked to the NUESTRA SENORA DE LAS MERCEDES Y LAS ANIMAS (MERCEDES). Read More »

Dimming the Bright-Line Rule: The Fifth Circuit Lowers Its Requirement to Bring Claims for Purely Economic Losses

During the late hours of Christmas Eve 2007, a collision on the Mississippi River between the up-river bound tug M/V DAN MACMILLAN and the down-river bound tug M/V JOHN M DONNELLY broke several barges free from the DAN MACMILLAN's tow. After drifting more than two miles down the river, one of those barges drifted into a connecting channel and eventually grounded on its bank. The waterway in which the barge grounded served as the intake channel for a hydroelectric station owned by Catalyst Old River Hydroelectric Limited Partnership (Catalyst). The channel's purpose was to divert water from the Mississippi River toward the station's dam structure, where turbines use the water's flow to generate electrical power. The barge grounded on the bank in a way that obstructed the continuous flow of water through the channel to the station's turbines. In order to prevent the barge from sinking and facilitate its safe removal, Catalyst reduced the current in the intake channel by shutting down six of the station's eight turbines. The removal effort continued for approximately twenty hours, and Catalyst's facility suffered no physical damage as a result of the incident. However, by operating its turbines at reduced capacity during the barge's removal, Catalyst's station generated substantially less electrical power than it otherwise would have. As a result, Catalyst brought claims against American River Transportation Company and Ingram Barge Company, the owners of the vessels involved in the collision, to recover the value of the lost electrical output. Read More »

If It Can Be Towed, Then It’s a Vessel: The Eleventh Circuit Reveals Flaws In the Overinclusive Definition of “Vessel” for Maritime Liens in City of Riviera Beach v. That Certain Unnamed Gray Vessel

Fane Lozman lived in his gray, two-story houseboat for nearly seven years until April 20, 2009, when the United States Marshal arrested the defendant houseboat after the City of Riviera Beach filed an admiralty complaint against it. By doing so, the City sought to foreclose a maritime lien for unpaid dockage provided to the houseboat by the City marina. Lozman purchased the defendant houseboat in 2002 and towed it approximately 200 miles to North Bay Village, Florida, where he lived on it for the next three years. In March 2006, after Hurricane Wilma struck, Lozman had the houseboat towed to the city marina, where he entered into an agreement with the City to pay a monthly dockage fee to keep the houseboat in the marina. The houseboat was Lozman's primary residence and remained at the marina until its arrest in 2009. The conflict leading to the defendant houseboat's arrest arose after the city council unanimously passed a revised dockage agreement for the city marina that called for new insurance and vessel requirements. The city marina sent out letters requiring execution of the new dockage agreement by a certain date; Lozman failed to execute the new agreement by that date and did not satisfy the new requirements. Lozman also owed dockage and fees amounting to about $3000. The City subsequently informed Lozman of its intent to enforce the maritime lien for necessaries, and the defendant vessel was arrested on April 20, 2009. The City filed a complaint seeking to foreclose its maritime liens for dockage at the marina, a “necessary,” pursuant to 46 U.S.C. § 31342. Read More »

Multimodal Transport Reform and the European Union: A Treaty Change Approach

In Europe, liability issues arising from the international carriage of goods are primarily governed by separate multilateral conventions for each mode of transport. This creates problems where multimodal transport is concerned because the relationship between these conventions is not always clear, for example, in cases where damage occurring to goods in transit cannot be localized. With no global solution to the complexities of multimodal transport in sight, the European Union has been moving slowly towards some form of intervention in this area for its twenty-seven Member States. This Article examines two variations of an approach the E.U. could work toward as part of a longer-term multimodal transport strategy, involving amendments to Europe's road and rail transport conventions. Read More »

Relations Between the Rotterdam Rules and the Convention on the Carriage of Goods by Road

On December 11, 2008, the United Nations General Assembly adopted the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, known as the Rotterdam Rules. The Rotterdam Rules strive to extend and modernize the existing international regimes that regulate contracts for maritime carriage of goods. The Rotterdam Rules were intended to replace the Hague Rules, the Hague-Visby Rules, and the Hamburg Rules, in order to achieve uniformity of law in maritime carriage of goods. The United Nations Commission for International Trade Law (UNCITRAL) prepared the Rotterdam Rules during intergovernmental negotiations, which lasted for over ten years. The Comité Maritime International (CMI) conducted the preparatory work on the Rotterdam Rules. The final text was signed in Rotterdam in September 2009. Since then, twenty-four countries representing twenty-five percent of the world's trade have signed the Rotterdam Rules. Read More »

Claiming Damages in Multimodal Transport: A Need for Harmonisation

Multimodal transport operates in a context of carriage law largely governed or at least influenced by unimodal conventions. The interaction of these unimodal regimes leads to unnecessary multi-layered complexities, overlapping legal instruments, and results in lacunae for multimodal transport. Although several contractual solutions have been used in practice to minimise these inherent problems, the mandatory nature of these unimodal conventions limits the scope of contractual provisions and leads to uncertainty. A cargo claimant thus faces many hurdles in establishing and making a valid claim arising out of a multimodal carriage contract. Read More »

The Regal-Beloit Decision: What, If Anything, Would Happen to the Legal Regime for Multimodal Transport in the United States If It Adopted the Rotterdam Rules

Multimodal transport pursuant to a through bill of lading can present a complicated set of relationships when goods are lost or damaged. Using some terminology of the Rotterdam Rules, these issues, among others, are currently resolved as follows:

  • Shipper's rights against the ocean “carrier” are determined under the Carriage of Goods by Sea Act (COGSA) or as provided in a service contract or a voyage charterparty between shipper or consignee and carrier.
  • Shipper's rights against a maritime performing party such as a stevedore, terminal operator, etc., are determined under the law of torts if there is no contract. However, bills of lading usually contain a Himalaya clause which extends to maritime performing parties the same defenses and limits of liability that may be invoked by the carrier under COGSA and its bill of lading.
  • Shipper's rights against an overland carrier who initially receives cargo for multimodal transport that includes a subsequent sea leg will be discussed infra.
  • Shipper's rights against a nonmaritime performing party such as an overland carrier who is not the initial carrier but who transports the goods within the United States after their arrival at a U.S. port from a foreign port will also be discussed infra.
  • Carrier's rights to indemnity or contribution against a performing party, whether maritime or nonmaritime, are not provided by statute and are derived from the general maritime law or state law on contracts and torts, which is beyond the scope of this Article.
Read More »