Case Summaries

Great American v Seaboard Marine
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In Great America Insurance Co. v Seaboard Marine, (S.D. Fla 2019) WL 2515330, 2019 AMC 1810; working with local Florida counsel, we established the principle that the ocean carrier could not avoid liability for a hijacking in Costa Rica, based on an exculpatory clause in the bill of lading.  Although COGSA did not apply as the loss occurred outside its tackle to tackle purview, the Harter Act  was held to apply to invalidate the exculpatory clause.

 

Scenic Route
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In Scenic Route (Great American v. Reis N.Y. Sup Ct. 7-27-17) we successfully sued a yacht owner whose vessel leaked fuel oil and contaminated a marina.  The vessel owner contended the marina had hauled the yacht and probably caused the leak, and that the storage contract contained a mutual waiver of subrogation.  Despite these efforts to raise issues of fact we persuaded the court to construe the storage contract in our client’s favor and grant summary judgment for the full amount of the cleanup costs plus prejudgment interest at 9% per annum.

Dart Canada
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In the Dart Canada we succeeded in greatly expanding the liability of a pier operator in whose custody cargo mysteriously disappeared, by persuading the Courts that their liability cannot be limited in such cases despite a valid Himalaya clause in the ocean bill of lading.

Oliver Drescher
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In the Oliver Drescher we also broke the COGSA limit by persuading the Court that a call at an “inducement port” was a geographical deviation, and that stowage on deck of large construction cranes was a quasi-deviation, despite the carrier’s defense of custom.

Fortune Star
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The Fortune Star was also an on deck deviation where we originally persuaded the trial judge to award punitive damages against the ocean carrier for the first time in a cargo case. Although the punitive award in the Fortune Star was reversed on the facts, the principle that punitive damages may be recovered from ocean carriers in a proper case has remained intact.

Arktis Sky
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In the Arktis Sky we established the law that an ocean carrier subject to COGSA cannot delegate his duty of proper stowage by means of an F.I.O.S. clause in the bill of lading. We were also able to break the package limitation by relying on a Hague-Visby clause in the bill of lading.

Eurounity
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In the Eurounity we overcame a peril of the sea defense despite a ferocious storm which caused structural damage to the ship and was deemed an “ultra-bomb” by the U.S. Weather Bureau. We also established that the bill of lading exceptions were not a deterrent to recovery, that the consignee could bring suit despite payment by the shipper, and that ultimate use of the cargo as intended could not defeat recovery on the basis of market depreciation.

Ibn Abdoun
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In the Ibn Abdoun we broke the package limitation by successfully contending that the bill of lading and charter party failed to provide adequate notice and “fair opportunity.”

Faros
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In Faros, we won a reversal in the Court of Appeals of dismissal of a cargo damage claim based on a foreign jurisdiction clause in the bill of lading.  This was accomplished by effecting an assignment of the charter party to the cargo owner. As the charter party contained a U.S. jurisdiction clause, the charter party was held to take precedence over the bill of lading, and the dismissal ordered by the District Judge was reversed by the Court of Appeals.

Holland Truck
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Great American Ins. Co. v. USF Holland, Inc. involved a shipment of veterinary vaccines frozen during interstate truck transportation. We persuaded the Court to grant plaintiff summary judgment for the full limitation ($100,000) stipulated in the pricing agreement between the shipper and trucker, rejecting the trucker’s defenses and holding that plaintiff had proved a prima facie case, that the shipper was not required to request special freeze protection, and that the trucker had failed to show that the freezing damage could have occurred before or after transportation, and rejecting the lower limitation shown on the bill of lading.

Akili
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In Akili we represented cargo interests, and prevailed in upholding a judgment against an ocean vessel in rem for physical damage to steel cargo, where the vessel was chartered out on F.I.O. terms.  In the face of a direct challenge to the traditional American concepts of personification of the vessel, contract ratification and vessel liability in rem, the Court affirmed the vessel’s responsibility though the vessel’s owner was not held liable, based on the voyage charter party to which the vessel owner was not party, and as to which no reference was made in the sub-charterer’s bill of lading.

Fort Dearborn Life Insurance
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In Nocella v. Fort Dearborn Life Insurance Co., we represented a widower whose late wife was insured under an accidental death policy which specifically covered “pyogenic infection.”  The insurance company successfully denied coverage at the trial court level contending that the policy had been cancelled and a new policy substituted without “pyogenic infection” coverage.  On appeal we persuaded the Appellate Court that the evidence of notice of cancellation of the first policy was insufficient to sustain the insurer’s burden of proof, and won a judgment for the full amount of the policy.

Olympic Mentor
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Olympic Mentor was a significant victory for cargo interests, where the vessel and her owner were held liable for fresh water rust damage to wrapped steel coils caused by sweat in the ship’s holds.  Although traditionally ship’s sweat was considered a peril of the sea we persuaded the court to hold the vessel unseaworthy for lack of a modern ventilation system, relying instead on “natural ventilation.”

 

 


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Kingsley & Kingsley
91 West Cherry St
Hicksville, NY 11801
P: 516-931-0064
F: 516-931-4313 Jsk@kingsleyandkingsley.com