Volume 85

United State v. Pickett: The Fifth Circuit Renders Point of Origin Irrelevant in Evaluating the Application of the Border Search Exception

On appeal, the United States Court of Appeals for the Fifth Circuit held that the border search exception applied, regardless of a defendant's point of origin, as long as the defendant crossed a border. United States v. Pickett, 598 F.3d 231, 235 (5th Cir. 2010), cert. denied, 131 S. Ct. 637 (2010).  

Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC: The Fifth Circuit Finds Comparative Fault Principle Unaffected By Burden-Shifting Presumption of Fault in Admiralty Case

Reversing the district court, the United States Court of Appeals for the Fifth Circuit held that United could seek contribution from Carnival after settling with Combo, reasoning that contribution can be sought by a settling tortfeasor who releases all claims, that the presumption of fault against a defendant in the case of drifting vessels is not to be applied between codefendants, and that the presumption of fault does not affect the principle that joint tortfeasors are entitled to allocate damages relative to their proportionate degree of fault. Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599, 2010 AMC 2196 (5th Cir. 2010).  

Peterson v. City of Forth Worth: The Fifth Circuit Demands More Than the Demanding Standard of Monell to Establish Municipal Liability under § 1983

Ultimately, the United States District Court for the Northern District of Texas concluded that while Peterson made a colorable claim for the excessive use of force against the individual officers, he failed to meet the rigorous standard necessary to impose municipal liability, and the court consequently dismissed his complaint under summary judgment. Affirming this decision, the United States Court of Appeals for the Fifth Circuit held that twenty-seven claims of excessive force did not amount to an official city policy permissive of excessive force and, thus, the city could not be liable. Peterson v. City of Fort Worth, 588 F.3d 838, 852 (5th Cir. 2009), cert. denied, 79 U.S.L.W. 3195 (U.S. Oct. 4, 2010) (No. 09-983).  

Smith v. Xerox Corp.: The Fifth Circuit Maintains Mixed-Motive Applicability in Title VII Retaliation Claims

The United States Court of Appeals for the Fifth Circuit held that the mixed-motive framework applies to Title VII retaliation cases and a plaintiff can present circumstantial or direct evidence to obtain a mixed-motive jury instruction. Smith v. Xerox Corp., 602 F.3d 320, 329, 331-32 (5th Cir. 2010).  

Marine Casualty Investigations

This Article will focus primarily on the government entities (e.g., Coast Guard and NTSB) responsible for conducting marine casualty investigations. These formal investigations allow evidence to be gathered and preserved in a more orderly manner than can be done during, or even immediately after, a serious collision, fire, oil discharge, sinking, or other casualty, when response is the primary goal and the “Incident Command Center,” whether run solely by the Coast Guard or in conjunction with other federal and state agencies, is still in full swing.  

Maritime Catastrophe Response — Civil and Criminal Counsel Investigation; Illustrative Recent Collision and Platform Case Law; Criminalization of Marine Negligence

To most people, nothing is more fascinating and newsworthy than a maritime disaster. A burning factory in Kentucky or a pipeline oil spill in Utah does not generate the same sense of drama and excitement as an equivalent amount of spilled oil from a burning ship or oil platform in Louisiana, Texas, or anywhere else. This Article partners a panel presentation at the 2011 Tulane Admiralty Law Institute. In this presentation, for illustrative purposes, the authors played back a United States Coast Guard Vessel Traffic Service (VTS) Automatic Identification System (AIS) Electronic Chart Display (ECDIS) for the M/T BOW FORTUNE--M/T STOLT ZULU collision at 81 Mile Point on the Mississippi River above New Orleans at about 0440 hours on May 19, 2006.


The Role of the P&I Clubs in Marine Pollution Incidents

The fire and explosion on the mobile offshore drilling unit Deepwater Horizon and the subsequent release of nearly five million barrels of crude oil into the Gulf of Mexico has been characterized as “the worst environmental disaster America has ever faced.” Although the oil spill occurred while the rig was operating as an offshore facility, among the many issues arising from the disaster is the adequacy of the current limits of liability applicable both to vessels and offshore oil exploration and production facilities under the U.S. Oil Pollution Act of 1990 (OPA 90), and the role of the marine insurance industry in meeting the costs of response and damages caused by such catastrophes. Pollution risks are borne primarily by the owner of the ship or facility concerned, who will normally insure against them, along with other marine liability risks, by separate liability cover. In the case of vessels, this is arranged most commonly by entering the vessel in one of the shipowners' mutual insurance associations, which specialize in providing cover of this kind, and which are more commonly known as Protection and Indemnity Associations, or P&I Clubs. This Article will discuss the law and practice of P&I insurance with particular emphasis on the liabilities arising from major marine pollution incidents.  

Hijacked: The Unlikely Interface Between Somali Piracy and the U.S. Regulatory Regime

As of March 4, 2011, 33 vessels and 711 crew members were being held hostage by pirates. The international community has engaged in various efforts to address the continuing problem of pirate hijackings with seemingly little success. The United States has also taken its own swipe at piracy through Executive Order 13,536, entitled “Blocking Property of Certain Persons Contributing to the Conflict in Somalia” (Order), that was issued by President Barack Obama on April 12, 2010. Upon its issuance, the Order created a great deal of confusion and consternation with respect to whether it prohibited the payment of ransom to pirates. The answer as it emerged has proved to be “yes,” “no,” and “maybe” and has resulted in a process whereby applications for guidance with respect to the payment of certain ransoms (and related insurance payments) are made to the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC). The authors of this Article have both been actively involved in the development of the application process and have represented numerous clients seeking guidance with respect to ransom-related payments. This Article explains the Order and its import for piracy situations, and details the authors' experience with both the OFAC guidance process and related procedural and substantive issues that have arisen.  

Arbitration Law In Flux and Maritime Implications

Arbitration clauses are contained in many if not most maritime contracts, and maritime arbitration practice is a fairly settled process for resolving maritime disputes. But recent developments in the larger world of arbitration have unsettled some of the basic assumptions, and in a number of areas arbitration law is in flux. These developments bear watching by maritime practitioners, as they will undoubtedly impact the functioning of arbitration in the maritime context. . . .

Impacts of the Supreme Court Decision Regal-Beloit: Exporting Import Litigation

The United States Supreme Court's June 2010 decision in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. puts to rest an element of the controversy over the legal regime applicable to domestic losses to intermodal shipments originating from overseas. According to the Regal-Beloit Court, the Carmack Amendmentis not triggered when a domestic rail carrier accepts such imported cargo. Instead, the Carriage of Goods by Sea Act (COGSA) of 1936 can apply to both the ocean and inland legs of a multimodal import shipment. Thus, the Court's most recent decision gives further imprimatur to the use of Himalaya clauses in through ocean bills of lading to extend COGSA's application to subcontracting overland carriers who participate in a portion of the shipment's overall multimodal transportation.