Latest updates

Recovering punitive damages from non-employer third parties
Fowler Rodriguez
  • Shipping & Transport
  • USA
  • 06 June 2018

Can seafarers recover punitive damages from non-employer third parties under the general maritime law? Short answer: it depends on where you are. A recent Circuit Court of the City of Chesapeake, Virginia case is the latest example of inconsistent rulings on the availability of punitive damages under the general maritime law.

Vessel owner's bid for 'stigma' damages denied
Fowler Rodriguez
  • Shipping & Transport
  • USA
  • 02 May 2018

Under general maritime law, a vessel owner is entitled to the reasonable cost of repair of the vessel, unless this cost exceeds the pre-incident value of the vessel. But can the vessel owner also recover the post-repair loss of market value associated with so-called 'stigma' damages simply because the vessel was repaired following a maritime collision? The court in a recent case answered this question in the negative.

Mere presence in 'zone of danger' insufficient to support claim for purely emotional injuries
Fowler Rodriguez
  • Shipping & Transport
  • USA
  • 25 April 2018

The court recently assumed that passengers aboard a charter fishing vessel were within the 'zone of danger', but still dismissed their claims based on insufficient evidence of injury. According to the court, mere presence in the zone of danger, without more, is insufficient to support a claim for purely emotional injuries under the general maritime law. In short, if you want the court to believe that you have genuine, compensable, emotional injuries, see a medical professional.

Earnings from second or side job constitute mitigation income (sometimes)
Fasken
  • Employment & Benefits
  • Canada
  • 11 April 2018

Where an employee consults on the side or has a second job, can his or her income post-termination count as mitigation income? According to a recent British Columbia Court of Appeal decision, the answer is yes; such income is considered to be mitigation income and will therefore be deducted from any wrongful dismissal damages that are awarded.

Illinois confirms treatment of deemed repatriated foreign earnings provisions
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 30 March 2018

The Illinois Department of Revenue recently issued additional guidance concerning its treatment of the new deemed repatriated foreign earnings provisions found in Internal Revenue Code Section 965, enacted in the federal tax reform bill. The department confirmed key aspects of Illinois' treatment of the repatriation provisions, including that both the income inclusion and deduction provided for in the provisions will be taken into account in determining a taxpayer's tax base.

Insolvency of sea carrier: consequences for shippers and forwarders
Dabelstein & Passehl
  • Shipping & Transport
  • Germany
  • 31 January 2018

When a sea carrier files for insolvency in the course of a sea carriage, considerable additional costs and expenses occur in the effort to deliver the cargo to the consignee. German law applies if a German freight forwarder is instructed with a multimodal carriage including a sea leg. This results in the general legal obligation for the forwarder to conduct the transport itself or with subcontractors in order to deliver the cargo to its destination for the fixed freight agreed.

Fifth Circuit throws Davis & Sons test for maritime contracts overboard
Fowler Rodriguez
  • Shipping & Transport
  • USA
  • 31 January 2018

The US Court of Appeals for the Fifth Circuit recently jettisoned the six-factor, fact-intensive Davis & Sons test for maritime contracts in favour of a "simpler, more straightforward test consistent with the Supreme Court's decision in Norfolk Southern Railway Co. v. Kirby". The decision will affect contractual indemnity provisions in offshore drilling contracts.

Federal Circuit holds that time bar determinations for inter partes reviews may be appealed
Fitzpatrick, Cella, Harper & Scinto
  • Intellectual Property
  • USA
  • 22 January 2018

The US Court of Appeals for the Federal Circuit sitting en banc recently issued a majority opinion holding that a determination made by the Patent and Trademark Office concerning whether a petition for an inter partes review is time barred is subject to judicial review. Specifically, the majority held that the limit on judicial review pertaining to institution decisions does not apply to time bar determinations under 35 USC Section 315(b).

Starting point of carrier's period of responsibility for goods packed in containers
Dabelstein & Passehl
  • Shipping & Transport
  • Germany
  • 06 December 2017

The Higher Regional Court of Hamburg recently clarified the fact that goods having been packed in a container made available to a shipper by a carrier on a decoupled trailer belonging to the carrier is insufficient grounds for the carrier to have accepted the goods for carriage. The court set out the prerequisites for a carrier's acceptance of goods under Section 425 of the Commercial Code, as established in case law.

Loss of goods due to misloading in multimodal transport
Dabelstein & Passehl
  • Shipping & Transport
  • Germany
  • 25 October 2017

The Federal Court of Justice recently ruled that the loss of transported goods occurs when a freight forwarder or carrier is unable to deliver the goods to the authorised recipient for an indefinite time. It is sufficient that late delivery is unlikely or unacceptable. Once the goods are lost, it is irrelevant whether they are located.