New admiralty case from the Sixth Circuit Court of Appeals. This one is about the Oregon rule and the rebuttable presumption arising out of allisions. The case is Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transport, and can be found here.
The trial court found that the Oregon rule established prima facie liability on behalf of the vessel for damage cause in an allision and did required the vessel owner to put on evidence to rebut the presumption before it could put on evidence that the damage was not 100% its fault. The Court disagreed. On the Oregon rule, the court stated:
That is not how the Oregon Rule works. It is a burden-shifting doctrine, “not a rule of ultimate liability.” City of Chicago, 375 F.3d at 572. While it may be the case that a moving vessel must rebut the presumption to absolve itself of all liability, id. at 573, we know of no case law to the effect that the vessel must rebut the presumption to relieve itself of some liability—that is, to raise a comparative fault defense against the stationary object. “[T]he Oregon Rule . . . speaks explicitly only to a presumed breach on the part of the alliding vessel, and is not a presumption regarding either the question of causation . . . or the percentages of fault assigned parties adjudged negligent.”
I earlier posted on the Oregon rule in a case from the Second Circuit, here.
Today, the Supreme Court heard oral arguments in the McDonald v. City of Chicago case. The transcript of that argument is available here.
Case Background
The U.S. Supreme Court is reviewing a case that has the potential to re-write over 100 years of 14th Amendment jurisprudence. The case is McDonald v. City of Chicago, No. 08-1521 (cert granted Sept. 30, 2009).
The Fourteenth Amendment states:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Question Presented
The Question Presented is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.
My resource page with briefs, opinions below and media is here.
Next week, the U.S. Supreme Court is scheduled to hear arguments in McDonald v. City of Chicago, a case asking whether the Fourteenth Amendment’s Privileges or Immunities Clause or the Due Process Clause makes the Second Amendment applicable to the states and local governments. It is shaping up to be one of the most important cases of the court’s term and it could usher in a new era in constitutional jurisprudence.
I am moderating a 90 minute teleconference sponsored by the American Bar Association's State and Local Government Section today (ABA flyer is here).
Quick summary:
Case Background
The U.S. Supreme Court has agreed to hear a case that has the potential to re-write over 100 years of 14th Amendment jurisprudence. The case is McDonald v. City of Chicago, No. 08-1521 (cert granted Sept. 30, 2009).
The Fourteenth Amendment states:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Question Presented
The Question Presented is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.
My resource page with briefs, opinions below and media is here.
Winter... Part Two. A Florida newspaper is reporting an environmental challenge to the Navy's training area off the east coast of Florida.
Per the article,
A dozen environmental groups filed suit today to stop a U.S. Navy plan to build its $100 million Undersea Warfare Training Range about 50 miles east of Jacksonville, near known calving grounds for the endangered North Atlantic right whale.
The legal challenge alleges that the Navy and the National Marine Fisheries Service failed to study the impacts that building and operating the range would have on right whales.
They fear the sonar used at the range could damage to the giant mammals’ ability to navigate, increasing the risk of beaching and death as they migrate and calve along Florida’s east coast — including the Space Coast — primarily in January and February.
Who owns submerged logs in a riverbed? A new opinion from Eleventh Circuit Court of Appeals says ask the jury.
These submerged logs are also called deadheads. When I was stationed in California on a Coast Guard patrol boat, we hit one near the Golden Gate bridge (mighta been a railroad tie). Significant emotional event.
An association long line fishermen has filed suit in federal court in Hawaii against the National Marine Fisheries Service, alleging the agency has not authorized the incidental taking of humpback whales in Hawaiian waters.
The Complaint (filed Jan. 22, 2010) is posted here.here. The Complaint summarizes the lawsuit:
1. This civil action is brought by Plaintiff Hawaii Longline Association because Defendant National Marine Fisheries Service ("NMFS") has failed to issue required determinations and authorizations pursuant to Section 101(a)(5)(E) of the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1371(a)(5)(E), and Section 7(b)(4) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(b)(4), authorizing the incidental, but not the intentional, taking of humpback whales in the Hawaii-based commercial shallow-set (swordfish target) longline fishery ("shallow-set fishery").
2. Defendants' failure to issue an MMPA § 101(a)(5)(E) determination, and Defendants' related failure to issue incidental take authorization pursuant to ESA § 7(b)(4), are violations of mandatory duties pursuant to the MMPA and the ESA, constitute agency action unreasonably delayed and unlawfully withheld in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1), and is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2).
3. Plaintiff seeks a declaration that Defendants have unreasonably delayed and unlawfully withheld agency action in violation of APA § 706(1), and that the failure to issue MMPA § 101 (a)(5)(E) and ESA § 7(b)(4) decisions and authorizations is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the MMPA, ESA and APA § 706(1). In addition, Plaintiff seeks to enjoin NMFS to make an MMPA § 101(a)(5)(E) determination, and to issue an incidental take authorization pursuant to ESA § 7(b)(4), in accord with an established, judicially-supervised, schedule.
If this looks like this is turning into an interesting case, I will follow it on the blog. Stay tuned.
The Ninth Circuit just published a decision on Rule B attachment and plaintiff's burden to establish prima facie evidence of its contract claims to withstand a motion to vacate the attachment. Non-admiralty wonks can stop reading here.
In Equatorial Marine Fuel Management Services Pte Ltd. v. MISC Berhad, the Ninth Circuit Court of Appeals reviewed the district court's decision to vacate a Rule B maritime attachment. Under the federal admiralty rules, plaintiffs can obtain pre-judgment attachment of a defendant's property under certain conditions. First, the plaintiff must have an admiralty claim. Second, the defendant must not be found in the district. Third, the defendant's property must be in the district. And finally, there must be no statutory or maritime law bar to the attachment.
In this case, Equatorial provided bunkers to MISC but was not paid by the intermediary who was insolvent. MISC's property, a ship, was attached to satisfy Equatorial's claim. MISC moved to vacate the attachment challenging Equatorial's contract claim (MISC and Equatorial did not contract with each other, only with the intermediary). The district court vacated the attachment.
The Ninth Circuit reviewed the contract claims and found that because Equatorial did not have prima facie evidence of a breach of contract by MISC, the decision to vacate the attachment was correct.
Headed to the American Socty of Int'l Law luncheon on Friday to hear from Lt. Col. Dan Mori, USMC, on his experiences with Guantanamo military commissions.
We had earlier posted about the U.S. Supreme Court agreeing to hear that case of Kawasaki Kisen Kaisha v. Regal-Beliot Corp., Docket No. 08-1553 and Union Pacific Railroad Co., v. Regal-Beliot Corp., Docket No. 08-1554. For you non-admiralty wonks, this case is about the interplay between federal law governing liability for cargo transported on railways and a maritime bill of lading used for the transport. My earlier post on this case is here. The case is set for oral argument on March 24, 2010.
The briefs recently filed are:
Amicus United States of America's Brief in Support of Petitioners
Amicus Association of American Railroads' Brief in Support of Petitioners
Amicus International Group of Protection and Indemnity (P&I) Clubs, et al., Brief in Support of Petitioners
Amicus World Shipping Council's Brief in Support of Petitioners
These briefs favor the contract provisions over the railway provisions in light of international agreements relating to the framework for the shipping industry.
With the oral argument set for March 2, the briefs keep coming in for the McDonald v. City of Chicago case. This case could undo a 120+ year old case and could usher in a new era of Constitutional jurisprudence. My resource page with briefs, media, links to the ABA teleconference I'll be moderating and more is here.
The recent Amicus briefs are still being posted on the official ABA website, but two are available now. These briefs are both in support of the City of Chicago.
Amicus Educational Fund to Stop Gun Violence's Brief in Support of Respondent - this brief seeks to clarify that the Second Amendment right to bear arms does not extend to unlawful acts, like insurrection (comment - you don't hear THAT word too often).
Amicus Anti-Defamation League's Brief in Support of Respondent - this brief counsels the Court to consider the impacts of any decision on the need for gun laws to fulfill the legitimate aims of municipal governments to combat extremism.
We will keep the resource page updated with the latest briefs. Stay tuned.