Wilson Elser updates

Pre-trip inspections: are you doing enough?
Wilson Elser
  • Shipping & Transport
  • USA
  • 20 February 2019

Serious or fatal accidents involving tractor trailers or other commercial vehicles often arise in part from a maintenance defect in the vehicle. When this occurs and the matter proceeds to litigation, counsel for the plaintiff will shine a bright spotlight on the pre-trip inspection that was or should have been performed by the driver. This article addresses three key liability issues that commercial vehicle owners and operators should consider in their practices, policies and procedures pertaining to pre-trip inspections.

Exculpatory clauses in towage contracts: limiting exposure in light of Bisso doctrine
Wilson Elser
  • Shipping & Transport
  • USA
  • 12 December 2018

In Bisso v Inland Waterways Corp the Supreme Court held that clauses in towage contracts that release the tug owner from all liability from its own negligence are invalid as they contravene public policy. Since then, the courts have struggled with the extent to which Bisso precludes exculpatory clauses in towage contracts. However, Bisso has been widely criticised and the courts have circumvented it by creating various exceptions.

Appeals court allows recovery of punitive damages for unseaworthiness claim
Wilson Elser
  • Shipping & Transport
  • USA
  • 14 February 2018

The Ninth Circuit recently held that punitive damages are available to seafarers who sustain injuries from unseaworthy conditions under the general maritime law. In doing so, it rejected a previous Fifth Circuit decision. The decision appears to suggest that if an owner knows of the unseaworthiness but does nothing, it is immune from punitive damages; yet, if an owner knows nothing, it may still be subject to punitive damages if the unseaworthy condition is sufficiently egregious in the opinion of the court.

Maritime attachment permissible to obtain security for foreign arbitration, but only as adjunct to obtaining jurisdiction
Wilson Elser
  • Shipping & Transport
  • USA
  • 06 December 2017

The US Court of Appeals for the Eleventh Circuit recently reinforced the availability of a maritime attachment as a means of obtaining security for a foreign arbitration. However, in so doing, the court highlighted that a maritime attachment must include an element of obtaining jurisdiction and may not be used solely to obtain security from a party already subject to the court's jurisdiction.

Oil Pollution Act permits recovery in contribution for purely economic damages
Wilson Elser
  • Shipping & Transport
  • USA
  • 30 August 2017

The US Court of Appeals for the Fifth Circuit recently ruled that the responsible party for an oil spill may obtain contribution for purely economic damages from another tortfeasor under the Oil Pollution Act 1990 irrespective of the general maritime law's economic loss rule. This decision provides some comfort to statutorily designated responsible parties that are held strictly liable in the first instance for significant costs relating to clean-up, remediation and third-party damages resulting from an oil spill.

Modified application of Jones Act coastwise trade requirements proposed
Wilson Elser
  • Shipping & Transport
  • USA
  • 05 April 2017

Over the years, a number of US Customs and Border Control (CBP) rulings have addressed the ability of foreign-flagged vessels to conduct certain activities relating to the offshore energy industry. CBP recently issued a notice of proposed modifications and revocations of its prior letter rulings relating to these activities, which would require them to be conducted by qualified vessels with coastwise endorsements under the Jones Act regulations.

Courts continue to deny fuel suppliers' lien claims in ongoing OW Bunker litigation
Wilson Elser
  • Shipping & Transport
  • USA
  • 14 September 2016

US courts continue to rule against physical fuel suppliers in the ongoing saga following the financial collapse of OW Bunker & Trading A/S. Separate courts in three leading maritime judicial circuits recently ruled that physical bunker suppliers contracted by OW Bunker to provide fuel to vessels were not entitled to maritime liens against the vessels. More decisions on this issue are expected at both the district and appellate court levels.

Court denies maritime lien to fuel supplier following OW Bunker collapse
Wilson Elser
  • Shipping & Transport
  • USA
  • 06 April 2016

The collapse of OW Bunker A/S and its worldwide subsidiaries left a multitude of creditors seeking other methods of collecting payment for fuel ordered on credit by OW Bunker and delivered to numerous vessels. The US District Court for the Eastern District of Louisiana recently ruled that a fuel supplier that had contracted with OW Bunker to provide fuel to a vessel was not entitled to a maritime lien against this vessel.

The pitfalls of post-incident paperwork
Wilson Elser
  • Shipping & Transport
  • USA
  • 25 November 2015

When an accident occurs on a vessel, an investigation is necessary to determine what happened, how it happened and how it can be prevented from happening in the future. A company can create a safer workplace while reducing its claim exposure by developing a plan to ensure that the documents generated during the investigative process are helpful in preventing a future accident while preserving its ability to defend a claim against an injured party.

The government has a plan for responding to your oil spill – do you?
Wilson Elser
  • Shipping & Transport
  • USA
  • 07 October 2015

Oil spills are a risk regardless of how safe and well trained your crew is. The federal government has developed a plan for responding to spill incidents and it is important to have a company plan that provides a response procedure that allows the government to be notified, manages the company's response to the incident and allows the government and the company to work together to minimise the effect of the spill.

Planning ahead to use act of God as legal defence
Wilson Elser
  • Shipping & Transport
  • USA
  • 08 July 2015

Shipping companies attempt to minimise risk in a number of ways. However, despite best attempts to minimise exposure, 'acts of God' may occur that are beyond their control and that could cause damage for which they may be responsible. Nevertheless, some advance planning and an analysis of hurricane procedures could protect shipping companies from future liability.

Punitive damages available in unseaworthiness claims
Wilson Elser
  • Shipping & Transport
  • USA
  • 25 April 2012

The US District Court for the Eastern District of Missouri recently held that punitive damages are available under general maritime law in unseaworthiness actions. The court followed a recent Supreme Court ruling which stated that the common-law tradition of punitive damages extends to maritime claims unless Congress has enacted a federal statute restricting its application.

Trying in rem and in personam claims together
Wilson Elser
  • Shipping & Transport
  • USA
  • 08 June 2011

The US Court of Appeals for the Fifth Circuit has affirmed a district court order holding that in rem claims asserted under admiralty jurisdiction filed in the same complaint as in personam claims asserted in diversity must be tried together before a jury when the plaintiff clearly expresses its intent that the in personam claims be premised on diversity jurisdiction rather than in admiralty.

Failure to report can make vessels moving targets for prosecution
Wilson Elser
  • Shipping & Transport
  • USA
  • 30 March 2011

The Court of Appeals for the Sixth Circuit recently held that a violation of the Ports and Waterways Safety Act − failure to report immediately a hazardous condition to the nearest Coast Guard office − is a continuing offence and venue is proper in any district in which such offence began, continued or is completed.

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