The Cargo Letter

header2b.jpg (5742 bytes)

Section A: Trade, Financial & Inland News | Section B: FF World Air News |
Section C: FF World Ocean News | Section D: FF in Cyberspace |
Section E: The Forwarder Broker World

OUR "E" Section: The Forwarder/Broker World

7. New U.S. Transport Related Legal Cases

GATX/Airlog Co. v. U.S.A.
Ninth Circuit Court of Appeals
Dec. 13, 2000

Federal Tort Claims Act/ FAA: A suit against the Federal Aviation Administration (FAA) for negligence is barred from litigation under the Federal Tort Claims Act (FTCA) 28 U.S.C.  2671-2680 (1994) by the "discretionary function exception" when it meets the two-part test of being a discretionary decision of an agency & requiring policy analysis.  The government has the burden of proof.  The FAA's decision to issue Supplemental Type Certificate (STCs), including the decision to use a particular engineering method, is discretionary.  Additionally, the FAA's role in the safety and certification process requires policy analysis.  Thus, negligent issuance of an STC to convert passenger planes into cargo planes, which results in the issuance of an airworthiness directive, decreasing the payload of the planes, is barred from litigation under the FTCA.  AFFIRMED.

M/G Transporter Services v. Water Quality Insurance Syndicate
Sixth Circuit Court of Appeals
Dec. 12, 2000

Marine Insurance: the underwriter had no obligation to defend or indemnify the assured for liability arising from claims under the False Claims Act (FCA) since the underlying complaint simply did not assert a Clean Water Act violation and because the policy excluded intentional conduct, which had been pleaded in connection with the FCA violations.

In re the Complaint of the Endeavor Marine
Fifth Circuit Court of Appeals
Dec. 11, 2000

Jones Act: a crane operator assigned to a derrick barge was a Jones Act seaman because: (1) he was permanently assigned to the barge and had spent almost all of the prior 18 months on the barge before the accident; (2) his primary responsibility was to operate the cranes on board the barge, which had the sole purpose of loading & unloading cargo vessels; and (3) he was regularly exposed to the perils of the sea in the course of his employment.

South Port Marine v. Gulf Oil Ltd.
First Circuit Court of Appeals
Dec. 7, 2000

Admiralty Jurisdiction: plaintiff's floating docks that were damaged by an oil spill were extensions of the land and hence a tort that causes damage to them does not occur wholly on navigable waters and therefore constitutes an action at law, rather than in admiralty;

OPA/Jury Trial: although the Oil Pollution Act (OPA) does not create a statutory right to a jury trial, plaintiff has a 7th Amendment right to a jury trial of its claims under the Act since they are analogous to causes of action at common law, rather than causes of action in admiralty; Punitive Damages: punitive damages are not available under OPA for marine pollution claims, nor are they available under the general maritime law in view of the enactment of OPA, which has supplanted the existing maritime law of punitive.

Venus Lines Agency v. CVG Int'l America
Eleventh Circuit Court of Appeals
Dec. 4. 2000

Laches: the equitable doctrine of laches (delay in bring a claim) will bar a claim when 3 elements are present: (1) a delay in asserting a right or a claim, (2) that the delay was not excusable, and (3) that there was undue prejudice to the party against whom the claim is asserted; since the plaintiff filed its demurrage claims within the analogous 4 year state statute of limitations period, the burden is on defendant to show inexcusable delay and resulting prejudice; plaintiff's delay in pursuing 2 & 3 year old demurrage claims was inexcusable and prejudicial since no demands for payment were made at the time of the shipments, which prevented defendant from contemporaneously contesting the claims or demanding payment from the consignees; plaintiff's one year old demurrage claims were timely;
Demurrage/Interest: the tariff plaintiff submitted to the Federal Maritime Commission states that the interest rate on costs of collection of demurrage was 12%; because the bills of lading incorporated all the terms & conditions of the tariff, the district court clearly erred in applying a 10% interest rate rather than the 12% rate in the tariff.

In re Barnacle Marine Management
Fifth Circuit Court of Appeals
Dec. 1, 2000

Limitation of Liability Act: 33 U.S.C. section 408 of the Rivers & Harbors Act does not provide the United States with an in personam remedy against the owner of a vessel that damages a public work, thus the District Court's decision allowing the United States to proceed with an in personam claim against the vessel owner outside of the vessel owner's limitation action was in error.

In re ADM/Growmark River System
Fifth Circuit Court of Appeals
Nov. 30, 2000

Longshore & Harbor Workers' Act/Indemnity: a dual capacity employer sued pursuant to section 905(b) of the Act for negligence in its capacity as vessel owner may terminate its rights to contribution from another vessel by agreeing to contractually indemnify that vessel, thus the indemnity provisions relevant to this case are valid to the extent that they preclude a contribution claim by the vessel owner employer against the other vessel.

In re Container Applications Intl.
Eleventh Circuit Court of Appeals
Nov. 22, 2000

Maritime Liens: cargo containers leased in bulk to the owner of a group of vessels for unrestricted use on board the vessels in that group, are not "provided" to any particular vessel within the meaning of 46 U.S.C. 31342(a), thus liens cannot be claimed for containers furnished in bulk to a fleet owner who then decides upon which vessels the containers will be placed.

New FCR Case From Hong Kong ......... as Simon Church, of Ince & Co in Hong Kong, has prepared a useful analysis of a case for Forwarder Law that dealt with the legal effect of a Forwarder's Cargo Receipt (or FCR). The Hong Kong Court decided that a party issuing this document acted at its peril if the actual transport did not correspond with the terms of the document. Read his comments at:   http://www.forwarderlaw/Cases/fcrhk.htm


8. The Old Nigerian Money Scam

For those of you who have not had the pleasure, below is a sample of the now well known scam which has been used for years to clean out the bank accounts of unsuspecting, but greedy recipients.  Laugh, but don't dare be involved. We received this kind "new offer" directly on Dec. 27 2000.

Engr. Ogudi Oriwae
Federal Ministry of Works & Housing
Ikoyi Lagos. Nigeria.
Date: 27/12/2000

Attn: President/C.E.O.
Dear sir,


  First, I must solicit your strictest confidence in this transaction, this is by virtue of it's nature as been utterly confidential and top secret as you were introduced to us in confidence through the Nigerian/Gambian Chambers of Commerce, Foreign Trade division, during an official assignment to Banjul.

We are top officials from the Federal Ministry of Works & Housing (FMW&H), Federal Ministry of Finance and the Presidency, making up the Contract Review Panel (CRP) set up by the Federal Government of Nigeria to review contracts awarded by the past Military administration.

In the course of our work in the CRP, we discovered this fund which resulted from grossly over-invoiced contracts which were executed for the FMW&H during the last administration. The companies that executed the contract have been duly paid and the contracts commissioned leaving the sum of US$26.426M floating in the Escrow account of the Central Bank of Nigeria ready for payment.

I have therefore been mandated as a matter of trust by my colleagues in the Panel to look for an over-seas partner to whom we could transfer the sum of US$26.426M by Legally subcontracting the contract entitlement to your company. This is bearing in mind that our civil service code of conduct forbids us from owning foreign companies or running foreign accounts while in Government service hence the need for an over-seas partner.

We have agreed that the funds will be shared thus after it has been transferred into your account:
(1)    30% of the money will go to you for acting as the beneficiary of the fund.
(2)    65% to us the Government officials (with wish we wish to commence an importation business in conjunction with you).
(3)    5% has been set aside as an abstract projection for reimbursement to both parties for incidental expenses that may be incurred in the course of this transaction.

All logistics are in place and all modalities worked out for the smooth conclusion of the transaction within ten to fourteen working days of commencement after receipt of the following information from you: Your company name, address, company's details and activities, telephone & fax numbers. These information will enable us make applications and lodge claims to the concerned Ministries & agencies in favor of your company and it is pertinent to state here that this transaction is entirely based on trust as the Solar Bank Draft or Certified Cheque drawable in any of the Central Bank of Nigeria correspondent Bankers in America is going to be made in your name.

Please acknowledge the receipt of this letter by using this email address or the alternative address:  bzadioruwa@(deleted).com

  Yours faithfully,

  Engr. Ogudi Oriwae

  NB. Bank Account details not necessary, as preferred mode of payment is by draft or cheque.

Written from wire stories, the Associated Press, Reuters, Hong Kong Shipping News Lloyds & other world sources.

Please click below for other sections:
Section A
Section B
Section C
Section D

Please click below to go back to the Cargo Letter home page.
Cargo Letter Home Page

Return to the top of Section E