_{The Cargo Letter}

OUR "E" Section: The Forwarder Broker World

New U.S. Transport Related Legal Cases

U.S. Customs Broker Duty of Reasonable Care -- Cameron Roberts, Esq. of the Countryman & McDaniel firm presents case study of his new Colorado Court of Appeals decision to the Western Cargo Conference -- WESCON -- at Vancouver, Oct. 4 2001. Study guides.
www.cargolaw.com/cases-broker-care.2001.html.

Rodrequez v. Bowhead Transp. Co. Ninth Circuit Court of Appeals Oct. 26, 2001 Under the Longshore & Harbor Workers' Compensation Act, a standard terminal services agreement between a time charterer & a stevedoring company will not impose duty on time charterer to supervise loading of cargo.
caselaw.lp.findlaw.com/data2/circs/9th/0035280p.pdf.

Arkansas State Highways Comm. v. Arkansas River Co. Eighth Circuit Court of Appeals Oct. 16, 2001 Seaworthiness/Casualties/Charter Parties: because the U.S. Army Corps of Engineers ("Corps"), the owner of the barge, tendered the barge to the tug's captain with a boom that was unobviously raised such that it could not pass safely under a Mississippi River bridge, barge was unseaworthy on delivery & the Corps was 100% liable for resulting damages.
www.admiraltylawguide.com/circt/8tharkansas.pdf.

Gilliland v. E. J. Bartels Co. Ninth Circuit Court of Appeals Oct. 16, 2001 Longshore & Harbor Workers' Act: when a claimant receives a tort recovery from a 3rd party defendant for which an employer or carrier is entitled to an offset under 33 U.S.C. § 933(f), and the award includes periodic payments, employer may take a dollar-for-dollar credit for each payment at the time claimant receives it, whether or not employer elects to fund those periodic payments by purchasing an annuity.
www.admiraltylawguide.com/circt/9thgilliland.pdf.

Dazo v. Globe Airport Security Services Ninth Circuit Court of Appeals Oct. 11, 2001 WARSAW CONVENTION / CARRIERS: District court properly granted Globe Airport Security Services ("Globe") & airlines' motion to dismiss action brought by airline passenger for negligence & breach of implied contract of bailment, seeking damages from theft of a carry-on bag from airport security checkpoint. Ninth Circuit joined other circuit courts in extending the Warsaw Convention's coverage to an airline's agents & employees and determined that Warsaw Convention, relating to Int'l air transport, preempts state law claims for damages from theft from an airport security checkpoint. Article 18 preempts all claims for damages arising from loss or theft of a bag if loss or theft occurred while carrier in charge of bag, whether in an airport or on board an aircraft. Therefore, since Dazo's bags were stolen while under carrier's care, only cause of action is claim under Article 18, with a potential recovery limited to US$400. Warsaw Convention precludes Dazo's state law claims, even if she can establish willful misconduct. AFFIRMED. Facts: Dazo's bags were stolen from security checkpoint at San Jose Int'l Airport, where she intended to board flight, connecting in St. Louis, to Toronto, Canada.
caselaw.lp.findlaw.com/data2/circs/9th/0015058p.pdf.

Greenwell v. Aztar Indiana Gaming Co. Seventh Circuit Court of Appeals October 4, 2001 Jones Act/Maintenance & Cure: since plaintiff casino boat employee dropped her allegation that she had had been injured at work onboard the vessel, her medical malpractice claim against her employer, which was based the employer's Jones Act and maintenance & cure obligations and the doctrine of respondeat superior, should have been dismissed on the merits; Procedure: plaintiff did not allege an admiralty claim under Rule 9(h) & thus could not use the 3rd party vouching in mechanism of Rule 14(c), but this did not prevent her from using the non-admiralty 3rd party claim procedure under Rule 14(a).
www.admiraltylawguide.com/circt/7thgreenwell.html.

Transamerica Leasing v. Institute of London Underwriters Eleventh Circuit Court of Appeals October 4, 2001 Marine Insurance: based on the facts, the jury, not the district court on a motion for summary judgment, must determine whether Transamerica is an additional assured, a loss payee, or both; if the jury finds that Transamerica is an additional assured, or both an additional assured and a loss payee, then the primary assured's alleged non-disclosure does not affect Transamerica's coverage because the Policy is severable; if the jury finds that Transamerica is merely a loss payee, then the jury must decide whether the primary assured's alleged non-disclosure violates the doctrine of uberrimae fidei, thus voiding the Policy altogether. www.admiraltylawguide.com/circt/11thtransamerica.html.

Rusty Roberts v. Cardinal Services, Inc. Fifth Circuit Court of Appeals October 2, 2001 Jones Act: since Plaintiff failed to show that at least 30% of his time was spent on a vessel or vessels under the common ownership or control of his employer, he was not "substantially connected" to a vessel or fleet of vessels such that he could recover as a seaman under the Jones Act. www.admiraltylawguide.com/circt/5thrusty.html.

New York Marine & General Insurance Co. v. Tradeline Second Circuit Court of Appeals September 28, 2001 Marine Insurance: the policyholder & cargo seller had been authorized by cargo underwriter to issue certificates of insurance to its customers under an open cargo policy, thus it acted as the underwriter's agent in issuing the certificates; the prediction of severe rainy weather at discharge port was a material fact that would have affected the underwriter's decision whether to issue extended coverage under the policy for rainwater damage & thus had to be disclosed under the doctrine of uberrimae fidae; the buyer's disclosure of that weather prediction to the policyholder/cargo seller (but not to the underwriter) before coverage was extended was sufficient since policy holder/cargo seller was the underwriter's agent, thus the extended coverage was not void based on the doctrine of uberrimae fidae; Damages: buyer could not recover under extended coverage for cargo that had been deposited from lightering barges onto the shore area & was washed away as a result of rising tides & tidal waves & for other cargo damaged by the cyclone on shore because coverage terminated once cargo had been delivered to "any other warehouse of place of storage" & was no longer in "ordinary course of transit"; Clause 12 of the Institute Cargo Clauses (C) did not cover extra charges incurred in unloading, storing & forwarding cargo to its destination since this resulted from the closing of discharge port, which was not a risk covered under policy; the district court properly refused to award attorneys' fees to assureds because underwriter did not act in bad faith in denying claim or in instituting declaratory action; the district court did not abuse its broad discretion with respect to prejudgment interest by applying the U.S. Treasury Bill rate, rather than 17% rate urged by cargo interests.
www.admiraltylawguide.com/circt/2ndnymarine.html.

NATCO Ltd. v. Moran Towing Eleventh Circuit Court of Appeals Sept. 28, 2001 Indemnity/Charter Parties: the towage contract's indemnity provision provided that the tug owner would be held harmless from "any & all loss, damage or liability", which allowed the indemnitee tug owner to recover its attorneys fees from the indemnitor cargo owner, including both defense fees and fees expended in pursuing a counter-claim against a 3rd party.
www.admiraltylawguide.com/circt/11thnatco.html.

Pickett v. Petroleum Helicopters Fifth Circuit Court of Appeals Sept. 28, 2001 Longshore & Harbor Workers' Act/Outer Continental Shelf Lands Act ("OCSLA"): claimant spouse could not recover under the Longshore Act as applied by the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(b), since her husband's death from a helicopter crash occurred over land and not over the Outer Continental Shelf.
www.admiraltylawguide.com/circt/5thpickett.html.

Rannals v. Diamond Jo Casino Sixth Circuit Court of Appeals Sept. 12, 2001 Jones Act: the district court in granting summary judgment for defendant ship owner erred in finding that plaintiff seaman failed to create a genuine issue of material fact regarding whether her injuries were caused, in whole or part, by owner's or its agents' failure to cure or eliminate an unreasonably dangerous condition in her workplace about which they knew or should have known (the alleged dangerous condition was a patch of ice at the Great Lakes Region Training Center parking lot where plaintiff had gone for ship related training).
www.admiraltylawguide.com/circt/6thrannals.html.

In re Marine Asbestos Cases Ninth Circuit Court of Appeals Sept. 10, 2001 Jones Act/Maintenance & Cure/Seaworthiness: plaintiff seamen, none of whom had been diagnosed with an asbestos-related medical condition, had no claim under the Jones Act or under the doctrines of seaworthiness and maintenance & cure for the costs of medical monitoring that would provide each plaintiff with a single baseline medical examination.
www.admiraltylawguide.com/circt/9thmarasbestos.pdf.

Karim v. Finch Shipping Fifth Circuit Court of Appeals Sept. 5, 2001 Procedure (Jurisdiction)/Limitation of Liability Act: the shipowner waived its jurisdictional defense where it voluntarily provided the district court inrem jurisdiction by commencing the limitation proceeding & placing the res, or the bond, in hands of the court, and where it invoked the powers of the court to require plaintiff seaman to halt his proceeding in another forum & to file in the limitation action; Procedure (Forum Non Conveniens): the relevant private and public interest factors under Gulf Oil/Piper Aircraft, such as Plaintiff receiving medical treatment in the U.S., evidence and testimony being easily accessible in this forum, counsel for both parties being based in this forum, and the fact that U.S. limitation law applied, weighed against dismissal; Choice of Law: the district court did not err in making a determination of quantum of personal injury damages under Bangladeshi law by applying English and Indian precedent since experts informed the court that Bangladeshi courts would look to Indian & British cases for guidance where their precedents were lacking; Damages (Prejudgment Interest): award of prejudgment interest is discretionary (both under Bangladeshi & U.S. law) -- district court did not abuse its discretion in setting the initial date of the interest accrual to be the date the limitation action was reactivated in federal court, rather than the date of injury.
www.admiraltylawguide.com/circt/5thkarim.html.

The Cargo Letter Correspondents:
Michael S. McDaniel, Esq., Editor (Countryman & McDaniel).
Cameron W. Roberts, Esq. (Countryman & McDaniel).

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

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