Florida Maritime Accident Lawyer
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Maritime Law Applies in State Court Actions
Category: General
I am sometimes surprised that State Courts, as Courts of general jurisdiction, have difficulty with the concept that they are required to apply the maritime law of the United States in actions brought before them dealing with maritime cases, even it it conflicts with their own state law. Here are some cases which may help explain why that it so:
When Does Maritime Law Apply?
Torts committed within the boundaries of maritime jurisdiction are subject to maritime law. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 1959 AMC 597, 599 (1959). For example, the storage and maintenance of a boat on a marina on navigable waters is substantially related to traditional maritime activity and hence maritime law applies, even if the case is brought in a State Court. Sisson v. Ruby, 497 U.S. 358 (U.S. 1990).
Continue reading "Maritime Law Applies in State Court Actions"
The Oceans as CO2 Sink
Category: General
I recently was asked to be a guest on a radio talk show. The topic was global warming and I was asked about those predictions that regardless of what we do, the temperature of the earth will rise 3.5 degrees over the next 50 years. What I said in response was far more polite than what I thought because what I was thinking was that people who say things like that ought to be taken out and, and,......given a stern talking to.
It was two scholars from the Cato Institute who have been making those statements. Their policy is
No known mechanism can stop global warming in the near term. International agreements, such as the Kyoto Protocol to the United Nations Framework Convention on Climate Change, would have no detectable effect on average temperature within any reasonable policy time frame of 50 years or so, even with full compliance.
I don't know if the Kyoto Protocol or UN Framework would stop global warming, but I do disagree that "no known mechanism can stop global warming."
Manipulating Bills of Lading to Screw Cargo Owners with the $500 Package Limitation
Category: General
Background:
In 1882, over 120 years ago, the International Law Association, and specifially the International Bills of Lading Committee, held a meeting in Liverpool, England the goal of which was to find a way to prevent ocean carriers from screwing cargo owners. The way that shipowners were screwing cargo owners was by inserting in the microscopic print on the backs of their bills of lading exoneration clauses, benefit of insurance clauses, and limitation of liability clauses. Since then, national legislatures around the world have succeeded in protecting cargo owners for the most part, except in the United States, where the Courts have fairly consistently intervened to permit the screwing to go on.
The fact that U.S. courts protect shipowners and permit them to screw cargo owners is somewhat of a wonder. The United States has virtually no indigenous merchant marine anymore and while the country prides itself on a long commercial maritime tradition, that tradition is largely product of the national imagination inspired by privateers during the war of 1812 and a vast shipbuilding surge during the Second World War. Other than those historical aberrations, by and large, the United States has always been a country of importers and exporters, not carriers and shipowners.
Consequently, U.S. courts, by permitting shipowners to screw cargo owners, are causing a shift in national income from U.S. importers and exporters, and their predominantly domestic insurers, to foreign shipowners and the predominantly foreign protection and indemnity clubs. However, U.S. courts appear to be oblivious to the effects of their rule-making.
Nuclear Energy and Global Warming
Category: General
Permit it to take off my maritime lawyer wig and replace it with my engineer's cap for a moment. I want to tell you what we can do about global warming.
I may be one of the few lawyers who believes that global warming exists, that it is a phenomenon caused by the burning of coal, gas, and gasoline, and the earth won't be able to correct global warming by itself. I've taken the time to "crunch the numbers." After doing the math I've come to a sobering conclusion: the warming trend cannot be reversed without nuclear energy.
A recent newspaper editorial entitled "Go on the Offensive" praised the development of "plug in hybrid" technology and predicted that 70 mile per gallon gasoline-electric cars and biofuels would produce "cleaner air, a stabler economy, and starving Middle East oil sheiks." While all that may be true, the fact is that it won't cure global warming. Even if we all drove hybrid cars, the earth would continue to get warmer.
The reason why hybrid cars won't save the earth is because in most states electricity is nothing more than coal, oil, or gas in a different form. According to DOE calculations, one kilowatt hour (kWh) of power from coal produces 2.1 pounds of CO2. The average electric customer uses between 1,200 and 1,400 kWh per month. Unless I've crunched the numbers wrong, that's an average of 32,760 lbs of CO2 per electric customer per year. In short, if CO2 were sacks of flour, we could fill a truck with the amount each customer produces each year. Someone, please tell me I'm wrong.
Now, let's look at our cars. According to the EPA the average 2005 Ford Escape produces 16,000 lbs of CO2 a year while the average 2005 Toyota Prius, a hybrid, produces 7000 lbs of CO2. By going to a hybrid car, you can reduce CO2 production by 9,000 lbs a year at best. However, when you add in home energy usage your total CO2 has only gone from 48,760 to 39,760 lbs of CO2 every year. Still a truckload of CO2, if CO2 were flour.
CO2 is not a solid, it's a gas. One pound of it takes up 8.8 cubic feet. 48,760 lbs, the amount that a family produces a year, takes up 430,000 cubic feet of space. That's about 2/3rd's of a square mile of land, covered one foot deep in CO2. That's just for one year.
Hybrid cars, biofuels, photovoltaics, wind power and any other alternative you think of won't fill the gap. Like placebos, they may make you feel good, but they won't significantly affect the problem.
The sobering fact is that the French, who supply 80% of their electrical needs with nuclear energy, got it right. My conclusion, and you are welcome to prove me wrong, is that we either start planning for a nuclear future, or we live with global warming.
In Florida, Does a Marina Have a Lien on a Boat which left the Marina without paying?
Category: General
Prior to 1978 in Florida, marinas had no liens on boats under Florida law, although they did have a maritime lien under general maritime law. In 1978 the Florida Legislature gave marina owners a possessory lien on boats at the marina in a statute which now is identified as Section 328.17 of Florida Statutes.
However, once a vessel leaves a marina, it loses its possessory lien. Florida lien law is then preempted by federal maritime law. See Bernier v. Broward Marine, Inc., 504 So. 2d 1379, 1381 (Fla. 4th DCA 1987). Then it is just like any other lien holder. To enforce its lien, it needs to arrest the boat in federal court and assert its lien there.
Federal maritime liens are established by Statute. The first Federal Maritime Lien Act was enacted in 1910. It was substantially changed in 1988 and recodified at 46 U.S.C. ยงยง 31341-31343.
The Federal Maritime Lien Act defines a marina as a "supplier of necessaries" under 46 USC Section 31342 which says:
A person providing necessaries to a vessel on the order of the owner or a person
authorized by the owner--
(1) has a maritime lien on the vessel;
(2) may bring a civil action in rem to enforce the lien; and
(3) is not required to allege or prove in the action that credit
was given to the vessel.
2006 Congressional Elections: 10 More Seats to Watch
Category: General
In the New York Times on Sunday, November 5, it listed a number of seats as being in play which most pundits had not considered. Since I didn't consider these when I first targeted 25 districts which the Washington Post considered to be in play, I thought I'd update my predictions:
NEW PREDICTION: DEMOCRATS PICK UP A NET OF 12 SEATS. REPUBLICANS HOLD THE HOUSE.
ARIZONA
The NYT says that this seat is in play. I disagree. J.D. Hayworth has been in congress 12 years. He's been through one redistricting by a Republican legislature. While the state was not heavily gerrymandered, making his seat more likely to be "in play" in 1988 the corresponding area went 68% for Bush over Dukakis, who only got 32% of the vote. In 1992 Bush + Perot got 68% of the vote to Clinton's 31%.
Prediction: Hayworth is safe. Seat stays R.
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California
California was so heavily gerrymandered in the 2002 redistricting that it's inconceivable that anyone would think that a congressional seat was in play---but the NYT thinks so. Nevertheless, this area went 59% for Bush + Perot in 1992 and 56% for Bush in 1988.
Prediction: Congressman Pombo, incumbent R, is safe.
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Connecticut
Okay, I agree. Eastern Connecticut is up for grabs. Christopher Shays has beaten Dianne Farrell once, but only by 4.9%.
Prediction: Connecticut voters are hot for change. I'll put this one in the D column.
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Florida
The NYT says that this Sarasota centered seat, formerly held by Katherine Harris is too close to call? That is a pipe dream, in my opinion.
Prediction: Seat stays R.
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Illinois
Prediction: I've already predicted that Roskam will win the seat. I'll stick with that prediction. Duckworth lacks sufficient substance as a candidate. Being a veteran is admirable. Being a wounded veteran is even more so. But when it comes to brass tacks, Roskam has the "G" word---gravitas, and Duckworth doesn't.
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Kansas
Ryun, a five term incumbent, beat his challenger, Boyda, last election by 14.9%. The NYT now says that this seat is in play. They need to re-think their polls. The district went 63% for Bush + Perot in 1992 over a mere 38% for Clinton. It went 54% for Bush over Dukakis in 1988. It ain't changin this year.
Prediction: Seat stays R.
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Kentucky
These northern Kentucky voters went for father Bush 60% over Dukakis with a mere 40%. They voted in Ryun 14.9% over his opponenent two years ago.
Prediction: This seat stays R.
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New Mexico
While the 1st district isn't as solidly R as it once was, incumbent Heather Wilson won by a comfortable 8.9% in her last election.
Predition: This one stays in the R column.
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New York
Okay, I'll grant that this is a swing district which could go for a D. However, Reynolds is a strong incumbent, his opponent is a weak D, who hasn't attracted much outside financing. It could have been in play, but its not.
Prediction: Seat stays R.
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Wyoming
Wyoming At Large District
Anything can happen in an at-large district because demographics can't be tampered with by gerrymandering. However, Wyoming is a strong R state and a few gaffs by Barbara Cubin about a questioner in a wheelchair needing to be slapped doesn't put this seat in play, no matter what the NYT says.
Prediction: Seat stays R.
Handicapping the 2006 Congressional Elections: 25 Races to Watch
Category: General
Meredith Viera pronounced on the Today Show this morning that "It's looking pretty good" for the Democrats to take control of the House of Representatives. She may be pretty, but she's no demographer, and no political analyst either.
In an earlier time, I taught a seminar to political candidates which I named "PIGS: Precinct Investigation, Grouping and Selection." The seminar taught that voters fall into one of three categories: Saints, Sinners, and Savables. The premise was that an congressional district can only be won if you can put together enough Savables, with the Saints, to have 50% of the vote, plus 1.
Currently, in the House of Representatives, there are 232 Republicans (including the Resident Commissioner), 203 Democrats (including one Independent who is aligned with the Democrats). That is a difference of 29 votes. The Democrats need a swing of 15 districts to take control of the House.
In summary, DEMOGRAPHICS IS DESTINY in congressional district races. Here is my analysis of the demographics of the 2006 Congressional Elections:
MY PREDICTION----DEMOCRATS HAVE A NET GAIN OF 10 SEATS, NOT ENOUGH TO TAKE CONTROL OF THE HOUSE OF REPRESENTATIVES
ARIZONA
Arizona's 8th District:
The 8th District includes eastern Tucson, all of rural Cochise County and two major military bases.
Currently: Republican
Open Seat after Congressman Jim Kolbe, R decided not to run for reelection.
Republicans control of both chambers of the Legislature (Senate 18-12, House 39-21)
Analysis: Republican district being taken over by a Dem. Graf campaign reeling from charges scandal.
Sullivan's Prediction: Open seat. Gabrielle Giffords, D, defeats Randy Graf, R.
You can take as a given that Harvard educated Fulbright Scholar Sen. Gabrielle Giffords (D) is prettier and more heavily degreed than her Republican opponent, Randy Graf. Setting that aside, this is a district which is demographically Republican. It supported Gerald Ford over Jimmy Carter in 1980. Reagan over Carter 50%-34%in 1984. Bush over Dukakis 55% to 44% in 1988. Bush + Perot over Clinton 57% to 42% in 1992. So what's happening?
Graf has been backpedaling from allegations of racism, rumors that he was endorsed by the KKK, allegations that a campaign leader sexually abused two young girls etc. Whether true or not, the rumors have crippled his campaign.
Give Gifford 4-5% for being more approachable than Graf, and another 2-4% for being a woman and a few more points for being free from scandal, and this Republican district will go Democrat this year. Sometimes a more attractive candidate can overcome demographics. This is one of those rare districts where it will happen.
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COLORADO
Colorado's 7th District:
Currently Republican
Open Seat
Sullivan's Prediction: Open seat. Perlmutter, D defeats O'Donnell, R. Seat switches R to D
This is no surprise. This is an historically Democrat seat which was won by Bob Beauprez in 2002 by a mere 121 votes. This district supported Dukakis over Bush, 51%-49% in 1988. Clinton over Bush + Perot 45%-44% in 1992. Demographically it is a Democratic district.
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CONNECTICUT
Connecticut's 4th District:
Currently Republican
Incumbent Congressman Chris Shays
Sullivan's Prediction: Incumbent, Shays, R, defeats challenger Diane Farrell, D. Seat stays R
Tying Shays to Bush isn't enough, nor is being pretty and blond.
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Connecticut's 5th District:
Currently Republican
Congresswoman Nancy Johnson
Sullivan's Prediction: Incumbent Nancy Johnson, R, defeats challenger Chris Murphy, D. Seat stays R
Relying on news clippings from NYT and WP isn't enough to give this fresh face (Murphy) a fighting chance.
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Connecticut's 2nd District:
Currently Republican
Incumbent Congressman Rob Simmons
Sullivan's Prediction: Incumbent Simmons, R, defeats challenger Courtney, D. Seat stays R.
Sullivan's Prediction:
Truly a swing district, which supported Bush over Dukakis, 51% to 49% in 1988. Bush-Perot over Clinton, 56% to 43% in 1992. But it also supported Kerry over Bush by 10% in 2004.
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FLORIDA
Florida's 16th District:
Currently Republican
Open Seat upon resignation of Congressman Mark Foley
Sullivan's Prediction: Open Seat. Negron (standing in for Foley), R defeats Mahoney, D. Seat stays R
Mahoney's campaign is lackluster. Negron is starting so late, it will be tough to get traction. Foley's name on the ballot stinks up the race. A close call, but on balance, these voters are going to will stick with R.
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Florida's 22nd District:
Currently Republican
Incumbent Congressman Clay Shaw
Sullivan's Prediction: Incumbent Clay Shaw, R defeats challenger, Klein, D. Seat stays R
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Georgia's 8th District:
Currently Democrat
Incumbent Congressman Jim Marshall, D
Sullivan's Prediction: Incumbent Marshall, defeats challenger Collins, R. Seat stays D.
Marshall is a Democrat who is a proven vote-getter from Republicans. They like him and they'll cross over for him.
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ILLINOIS
Illinois's 6th District:
Currently Republican
Open Seat
Sullivan's Prediction: Open seat. Roskam, R defeats Iraq war veteran Duckworth, D. Seat stays R
Duckworth's status as a wounded Iraq veteran isn't enough to make her a congressman.
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INDIANA
Indiana's 8th District:
Currently Republican
Congressman John Hostettler, R
Sullivan's Prediction: Incumbent Hostettler is beaten by Ellsworth, D. Seat switches from R to D
Ellsworth runs to the right of Hostettler, taking away some Saints and garnering most Savables. Not only that, he's handsome, law enforcement, and likeable.
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Indiana's 2nd District:
Currently Republican
Incumbent Congressman Chris Chocola
Sullivan's Prediction: Incumbent Chocola, R is defeated by challenger Donnelly, D. Seat switches R to D.
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Indiana's 9th District:
Currently Republican
Congressman Mike Sodrel, R
Sullivan's Prediction: Sodrel, R, incumbent holds seat, but should lose the mustache.
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IOWA
Currently Republican
Open Seat
Iowa's 1st District:
Sullivan's Prediction: Whalen, R, defeats trial lawyer Braley, seat stays R
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KENTUCKY
Kentucky's 4th District:
Currently Republican
Incumbent Congressman Geoff Davis
Sullivan's Prediction: Davis, incumbent, R wins. Seat stays R
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NEW MEXICO
New Mexico's 1st District:
Currently Republican
Congresswoman Heather Wilson, R
Sullivan's Prediction: Open seat. Wilson, R, defeats Madrid, D. Seat stays R
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New York's 24th District:
Currently Republican
Open Seat
Sullivan's Prediction: Open seat, R. Meier, R defeats Arcuri, D. Seat stays R
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NORTH CAROLINA
North Carolina's 11th District:
Currently Republican
Incumbent Congressman Charles Taylor, R
Sullivan's Prediction: Incumbent R Taylor beats NFL quarterback Shuler, D. Seat stays R.
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OHIO
Ohio's 15th District:
Currently Republican
Congresswoman Pryce
Sullivan's Prediction: Incumbent, R Pryce beats Kilroy, D. Seat stays R
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Ohio's 18th District:
Currently Republican
Open Seat after Congressman Bob Ney resigned and went to prison for taking bribes
Sullivan's Prediction: Ney scandal turns seat from R to D, Space, D defeats Joy Padgett, R. But will female vote affect outcome?
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Ohio's 1st District:
Currently Republican
Incumbent Congressman Steve Chabot
Sullivan's Prediction: Incumbent Chabot, R defeats Cranley, D. Seat stays R
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PENNSYLVANIA
Pennsylvania's 6th District:
Currently Republican
Incumbent Congressman Jim Gerlach, R
Sullivan's Prediction: Incumbent Gerlach, R defeats challenger Murphy, D. Seat stays R
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Pennsylvania's 10th District:
Currently Republican
Incumbent Congressman Don Sherwood
Sullivan's Prediction: Incumbent Sherwood loses to challenger Carney, D. Seat switches from R to D
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Pennsylvania's 8th District:
Currently Republican
Incumbent Congressman Mike Fitzpatrick, R
Sullivan's Prediction: Incumbent Fitzpatrick, R defeats challenger Murphy, D. Seat stays R
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Pennsylvania's 7th District:
Currently Republican
Incumbent Congressman Curt Weldon, R
Sullivan's Prediction: Weldon, incumbent, R defeats challenger, Admiral Sestak, D. Seat stays R
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TEXAS
Texas's 22nd District:
Currently Republican
Open Seat
Sullivan's Prediction: Open seat, formerly R. Sekula-Gibbs defeats former congressman Lampson, D. Seat stays R
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VERMONT
Vermont's At-Large District:
Currently Democrat
Open Seat
Sullivan's Prediction: Open seat, formerly D. Peter Welch, D defeats Rainville, R. Seat stays D
COGSA $500 Package Limitation is Really an Exoneration from Liability
Category: General
The Carriage of Goods by Sea Act (46 U.S.C. Section 1301 and particularly 1304(5)) needs to be amended. Last year the failure to amend the Act cost me $100,000. It cost my American client (located in Pennsylvania, Connecticut and Florida) $200,000. The beneficiary was a foreign ship owner. On January 31, 2001 the failure of Congress to amend the Act cost me $150,000 and my American (New York, Pennsylvania and Florida) client $300,000. The beneficiary was a ship owner. An attorney who works in the same field as I do called me this morning and told me that Congress' failure to amend the Act today cost him $300,000 and his American client $600,000. The beneficiary was a foreign ship owner. The problem in all these cases were the same--Congress' failure to update the Carriage of Goods by Sea Act to deal with the advent of containerized shipping and the shipment of large bulky items.
Continue reading "COGSA $500 Package Limitation is Really an Exoneration from Liability"
Just How Political is ABA Standing Committee on the Federal Judiciary? Just ask Judge Kavanaugh
Category: General
Apparently very political. For example, the ABA Committee recently lowered the judicial qualification of Judge Brett Kavanaugh on the D.C. Court of Appeals from "well qualified" to "qualified" -- without even permitting him to appear and respond, as its own rules require.
Here is a guy who graduated from Yale undergraduate and Yale Law, clerked for Supreme Court Justice Anthony Kennedy, Judge Alex Kozinski of the Ninth Circuit and Judge Walter Stapleton of the Third Circuit, and who was a fellow in the Office of the Solicitor General of the United States. If the guy is only "qualified," a luke-warm reference, then an awful lot of really smart people missed his mediocrity along the way.
What could account for such a mediocre rating? Perhaps it was that Kenneth Starr was the Solicitor General at the time that Kavanaugh did his fellowship. You see, Kavanaugh was an Associate for Independent Counsel Ken Starr, and headed up the investigation into the death of former Clinton White House Deputy Counsel Vincent Foster.
A little retribution from the ABA, you think? Pretty soon Michael Moore will be getting a "well qualified" rating (and he's not even a lawyer) from the Committee.
Rock, Paper and Scissors to Settle Lawsuit Issue
Category: General
The New York Times recently reported that a Federal Judge in Orlando had ordered two attorneys to settle where a deposition was to be held by engaging in a game of "Rock, Paper, and Scissors." Here is a copy of the order:
ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of
alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall
convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they
shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave.,
Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who
shall act as an attendant and witness. At that time and location, counsel shall engage in one (1)
game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the
location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the
period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may
be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in
Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.
DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.
Gregory A. Presnell
United States District Judge
You can find the order yourself at Case 6:05-cv-01430-GAP-JGG Document 106 Filed 06/06/2006.
Coast Guard pays $170,000 each for 24 boats from Donzi manufacturer
Category: General
The Coast Guard is paying an average of $170,000 per boat for 24 boats being manufactured by the people who make Donzi performance craft.
AMH is the parent company of both Donzi Marine and Pro-Line, and is the lead partner of Metal Shark Aluminum Boats in Jeanrette. AMH's government division modifies Donzi and Pro-Line boats for military use.
American Marine Holdings was awarded a $17 million contract for five years and up to 100 boats, with an initial order for 24 for the United States Coast Guard.
It's unbelievable that the Coast Guard pays an average of $170,000 per boat for a Donzi. ($17 million/100 boats = $170,000 per boat).
The boats will be manufactured from American Marine Holdings' Metal Shark facility in Jeanerette, La.