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February 1995
Vol. 6, No. 1
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of Contents
Contents
Securing a New York Arbitration Claim: the Power of New York Arbitrators
to Order Security for Claims
Nothing can take the satisfaction out of winning an arbitration like being unable to enforce the award. One way to avoid this unappealing result is to apply to the arbitrators for a partial final award requiring the opposing party to post security. This article addresses the power of New York arbitrators to issue security orders, certain considerations affecting the exercise of that power, and how the power is enforced by the courts.
I. ARBITRATOR-ORDERED SECURITY
There is no reference to arbitrators' orders for security in the Federal Arbitration Act or in the Rules of the Society of Maritime Arbitrators. So . . .
A. CAN Arbitrators Order Security?
A panel can order a party to post security as an element of the broad grant of equitable powers enjoyed by commercial arbitrators. Judicial recognition of these powers began with the decision of the United States Court of Appeals for the Second Circuit in Sperry International Trade, Inc. v. Government of Israel, 689 F.2d 301 (2d Cir. 1982). The arbitrators had ordered the Government of Israel to place in escrow the proceeds of a disputed $15 million letter of credit. In upholding the order, the court noted that arbitrators "have power to fashion relief that a court might not properly grant." Id. at 306.
Further acknowledgment of the equitable powers of arbitrators came in Southern Seas Navigation Limited of Monrovia v. Petroleos Mexicanos of Mexico City (The MESSINIAKI FLOGA), 606 F. Supp. 692, 1985 AMC 2190 (S.D.N.Y. 1985), in which the court confirmed the arbitrators' partial final award ordering charterer to remove its notice of lien claim on a vessel, noting that the award was "in effect, a grant of a preliminary injunction." 606 F. Supp. at 694.
A trio of 1987 decisions by the United States District Court for the Southern District of New York confirmed that arbitrators' equitable powers include the authority to order security: Compania Chilena de Navigacion Interoceania v. Norton, Lilly & Co., 652 F. Supp. 1512, 1987 AMC 1565 (S.D.N.Y. 1987); Konkar Maritime Enterprises, S.A. v. Compagnie Delge d'Affretement (The KONKAR PIONEER), 668 F. Supp. 267, 1989 AMC 182 (S.D.N.Y. 1987); and Arbitration between East Asiatic Company, Ltd. and Transamerican Steamship Corporation (The CAMARA and CINCHONA), 1988 AMC 1086 (S.D.N.Y. 1987).1
* In Compania Chilena, Judge Walker held that maritime arbitrators did not exceed their legal authority when ordering the respondent to post a $123,000.00 bond, referring to the Sperry International and Southern Seas decisions cited above. Compania Chilena, 652 F. Supp. at 1516-1517.
* In Konkar Maritime, Judge Leisure confirmed the authority of the arbitration panel to order the charterer to deposit $202,889.29 into an interest-bearing escrow account as security for the owner's claims arising out of the charter of the KONKAR PIONEER.2 Referring to the Compania Chilena case, Judge Leisure stated: "Similarly, the Panel in this case ordered respondent to fund a joint escrow account which would be distributed according to the terms of the Panel's Final Award. As a matter of substance, this Panel's escrow account order was within its authority." 668 F. Supp. at 271 (footnote omitted).
* In East Asiatic, Judge Keenan confirmed two preliminary awards which directed the charterer to deposit $84,183.62 and $142,584.66 into an interest-bearing joint escrow account as security for claims asserted by the owners of the CAMARA and CINCHONA.3 In upholding the authority of the arbitrators to order the posting of security, Judge Keenan stated that: "The awards in this case ordering the payment of funds into escrow were designed to protect East Asiatic's claims pending the final determination of liability for the cargo loss." 1988 AMC at 1090.
This Power was recently affirmed in Blue Sympathy Shipping Company Ltd. v. Seriocean International, S.A., 1994 AMC 2522 (S.D.N.Y. 1994), in which Judge Sotomayor described the above cases as reflecting ". . . the arbitrators' broad power to impose equitable remedies . . ." and confirmed an award directing charterer to post security in the amount of $194,796.09. Id. at 2524.
B. SHOULD Arbitrators Order Security?
In light of the court decisions discussed above, it is beyond dispute that arbitrators have the power to order security. There is, however, a difference of opinion among New York arbitrators with regard to the circumstances under which the power should be exercised.
* Awards in Favor
Several points favor arbitrator-ordered security. The principal, and most obvious, reason is to protect the enforceability of the applicant's claims during the pendency of the action. For example, in East Asiatic, Judge Keenan confirmed the arbitrators' security orders, stating: "The awards in this case ordering the payment of funds into escrow were designed to protect East Asiatic's claims pending the final determination of liability for the cargo loss." 1988 AMC at 1090.
Arbitrator-ordered security serves the additional purpose of effectuating the arbitral process. In the Blue Sympathy case, Judge Sotomayor stated that the purpose of the arbitrators' power to order security was to ". . . insure that their ultimate decision on the merits will not be merely academic." 1994 AMC at 2524; see also, East Asiatic, 1988 AMC at 1090 ("As petitioner has urged if the confirmation of the arbitrators' awards were refused, the entire purpose of the award would be frustrated and the awards would be a futile exercise of the arbitrators' powers").
A security order can also provide a preview of a party's ability to fund an ultimate award on the merits. If a party resists an application for a security order by pleading impecunious circumstances and can substantiate that claim, the moving party will then be in a position to decide whether to proceed with the arbitration before incurring further fees and costs.
There are situations in which an award is clearly warranted. In HALLBORG, SMA No. 2639 (1990), the owner sought an order directing the charterer to establish a joint escrow account in the amount of $200,000.00 to secure owner's as yet unquantified claims. Referring to cases cited above, the panel granted the owner's application on the basis of the following considerations.
The fact that Charterers have not only failed in their obligation to supply a full cargo under the charter party, but also failed to respond to Owner's demand for arbitration, is a clear sign to this panel that the Charterers have no intention of meeting any of their obligations. Also, Owners have drawn the panel's attention to the "disappearance" of Charterers, the fact that the Bank Guarantee, as required under Clause 16 of the charter party, was not kept in force by Charterers, points that justify that security be demanded from Charterers to satisfy future, as yet unquantified claims by Owners.
In the right circumstances, applying for a security award can be a fairly simple procedure. One example is The LILIANA DIMITROVA, SMA No. 3075 (1994). The charterer, who had been ordered to post security for the owner's claims in a related court proceeding, applied to the panel for an order requiring owner to post security for charterer's counterclaims in the amount of $65,000.00. The panel directed both parties to submit briefs addressing whether an award to post security should be issued. The panel granted charterer's request and ordered owner to post security in the requested amount within ten days, either in the form of a letter of credit payable against a further award by the panel, or by cash deposit into an escrow account maintained by owner's counsel.
Sometimes a party needs a little "push" from the arbitrators. In The BERMUDA, SMA No. 3097, Attachment A (1994), the parties agreed to exchange mutually satisfactory security. Charterer forwarded a letter of guarantee to owner, but when owner responded with nothing more than reasons why it should not have to reciprocate, charterer sought an order from the panel. The panel rejected owner's arguments and issued an order requiring it to post security in the amount of $3,616,798.00, in the form of a letter of guarantee, within ten days of the date of the award.
An interesting order was entered by the panel in The EUROGAS, SMA No. 3005 (1993). Owner sought a partial final award directing charterer to post security for its claims for demurrage/deviation, a fender rental charge, interest and attorneys' fees. The panel granted owner's request for all but the attorneys' fees and ordered charterer to deposit the sum of $246,989.22 into an attorneys' joint interest bearing account. The panel also noted, however, that charterer should be secured for the cost of posting the security in the event its position was sustained on the merits. The panel therefore ordered owner to deposit the sum of $25,000.00, or approximately 10% of the amount to be escrowed by charterer, into the account.
* Awards Opposed
Some New York arbitrators view the power to order security as an exceptional remedy. In The ENERCHEM AVANCE, SMA No. 2907 (1992), owner sought a partial final award for withheld freight. Charterer responded with a request for security for various cargo and delay-related claims. The sole arbitrator denied charterer's request for security, stating:
This arbitrator does not believe that arbitrators should order security to be established for unliquidated claims with impunity. There should be special circumstances, such as a special clause in the charter party, or outside considerations which require security in order to maintain the status quo.
Caution was the watchword in The CHESHIRE, SMA No. 3129 (1994), in which owner sought an order directing charterer to post $53,945.42 as security for the unpaid balance of its demurrage claim. The panel referred to court decisions discussed above, and then declined to order security under the circumstances, stating:
Despite this positive and affirmative message to arbitrators [from the court decisions], ordering security for claims is an act which arbitrators should approach cautiously. In our view, the mere request for security by one party should not be granted without careful consideration of the particular circumstances, including other remedies available to the petitioner. In this particular case, the panel declined to grant Owners' request. Instead, the panel opted to complete and issue its award in an expeditious fashion, which we consider to be more in line with the scope and purpose of arbitration.
While the panel's reference to "other remedies available to the petitioner" was but one of the factors proposed, a panel's authority to order security is in no way affected by the claiming party's concomitant right under Section 8 of the Federal Arbitration Act to seek security by other means, such as an arrest or attachment of the opposing party's vessel or other property. See East Asiatic, 1988 AMC at 1088-1089. A prudent claimant should nonetheless take into account that its application for a security order may be viewed more favorably if it can show that other methods of obtaining security were either unavailable or unavailing.
Another issue to which arbitrators should be sensitive is the potential for abuse of the power by a party who is seeking a security order for an improper purpose. It can be an expensive proposition to post security whether by depositing cash, posting a letter of undertaking or guarantee, or obtaining some other form of commercial surety - particularly when the claim is large. A party with no legitimate reason to be concerned about the ability of the opposing party to satisfy an award may seek a security award in order to inflict the cost of compliance upon the other party so as to obtain bargaining leverage for settlement purposes as a disincentive to protracted proceedings. If the panel suspects this is the applicant's true causus belli, it can respond by applying a heightened scrutiny to the need for security and the amount sought. The panel can also require the applicant to post counter-security for the other side's cost of complying with the requested order.
* How Much Proof?
One of the more elusive questions concerns the extent of proof the applicant must make to satisfy the panel, both that security is warranted and that the amount sought is appropriate. In The LILIANA DIMITROVA, the panel directed the parties to submit briefs on the question of whether security should be ordered for charterer's counterclaims. There is no indication in the award that the panel inquired into, or received, evidence on the merits of the claim before agreeing to issue the order on the basis of the briefs.
The panel in The Compania Chilena dispute took a closer look at the merits, according to the decision by Judge Keenan confirming the award. The panel held a hearing at which evidence was presented on plaintiff's outstanding claims. It then reserved decision with respect to the merits of the claims, but issued an order requiring the defendant to promptly post a bond of $123,000.00 as security against a possible future finding of liability to plaintiff. 652 F. Supp. At 513-4, 1516-7.
A thorough examination of the underlying merits was made in The MAASLOT, SMA No. 3074 (1994), in which owner sought a preliminary order directing charterer to provide security for its claim in the amount of $206,198.62. Charterer objected to owner's request, but asked that if it was required to post security, owner be similarly required to post security of $270,000.00 for charterer's counterclaims. Both parties submitted preliminary memoranda, and then exchanged main and reply briefs. Owner also buttressed its claim with itemized supporting documentation. Upon consideration of the parties' submissions, the panel determined that owner's documentary evidence constituted a "prima facie" case, while at the same time finding that charterer's response on the merits, and its claim for counter-security, were both without supporting documentary evidence. The panel issued an "interim award" directing charterer to provide security in a form satisfactory to owner in the amount of $225,000.00 within 30 days and denying charterer's request for counter-security.
There is a potential danger in delving too deeply into the merits in assessing a security application. If the panel makes substantive pronouncements on the merits in its partial final award ordering security, there is a risk the panel may become functus officio as to the underlying claim. The downside to this risk is that the panel's preliminary findings may have been made on a less-than-complete record of evidence, particularly if, as is typically the case, the security request is made at, or near, the commencement of the proceeding and before witnesses have testified or there has been a substantial production of documents.
As can be seen from the above discussion, the decision to order security cannot be based on a "bright line" test, or a set of immutable guidelines, nor should it be granted or denied automatically. The matter is properly left to the arbitrators as an exercise or sound commercial judgment based upon the particular circumstances.
II. COURT ENFORCEMENT
A partial final award ordering a party to post security is not self-executing and, unless the other party complies voluntarily, the award will not be immediately effective.
* What If The Other Side Refuses to Comply?
Go to court. Arbitrators' orders to post security can be confirmed as partial final awards pursuant to Section 9 of the Federal Arbitration Act. See, Compania Chilena, 652 F. Supp. at 1516-1517; East Asiatic, 1988 AMC at 1089-1090; Blue Sympathy Shipping Company Ltd. v. Serviocean International, S.A., 1994 AMC 2522, 2523-24 (S.D.N.Y. 1994).
* If They STILL Won't Listen?
In the Blue Sympathy case, Judge Sotomayer addressed a motion to confirm an award in which the arbitrators had directed the parties to post security for their opponent's respective claims. Owner had complied by filing a letter of undertaking for $175,000.00, but charterer claimed it was unable to comply with the panel's order to place $194,796.06 into an escrow account. Owner then brought the motion to confirm the award and requested an order declaring charterer in contempt of court.
Although Judge Sotomayer confirmed the award, she refused to find charterer in contempt because no court order had yet been issued. Of substantial significance, however, was the court's pronouncement that if charterer did not comply with the order confirming the award, the court would entertain a contempt motion, and its further caution that:
... a mere plea of financial inability will not shelter [charterer] from contempt. To successfully defend against contempt based on impecunious circumstances, [charterer] must prove that its compliance with this order is factually impossible. 1994 AMC at 2522 (citation omitted).
Charterer complied with the security as ordered.5
In making the decision to go to court, consideration must be given to the time and expense required for such "satellite" litigation. If the claim in dispute, and the concern regarding the opposing party's solvency, are both substantial, the exercise is probably warranted in order to secure a final award on the merits. It must also be considered, however, that the panel may not be willing to put the arbitration "on hold" while a party pursues court confirmation of the security order.
If the court action becomes delayed, or is met with a vigorous cross-motion to vacate the security award, it is conceivable the panel will issue a final award on the merits while confirmation of the security award is still pending before the court. Under current court conditions, however, the Blue Sympathy case gives reason to be hopeful. The arbitrators' order of March 11, 1994 directing charterer to post security was confirmed by the court, over charterer's opposition, within four months in a decision dated July 6, 1994.
III. THE BOTTOM LINE
New York arbitrators have the legal authority to order a party to post security for claims as an element of the broad grant of equitable powers enjoyed by commercial arbitrators. This power is enforced by the courts by confirming a security award and, if necessary, finding a non-complying party in contempt of court.
Since there are no formal guidelines for considering an application for security, the question of whether an order will issue in a given case depends upon the arbitrators' assessment of the particular circumstances. Moreover, while the power to order security cannot be disputed, some New York arbitrators have suggested that it should be exercised with caution or only in special circumstances.
Future awards will doubtless develop parameters for the exercise of this power: likely success on the merits, precarious financial status of the opposing side, evidence that the other side is depleting its assets or winding up its affairs are certainly relevant. Meanwhile, the benefits of a partial final award ordering the posting of security in appropriate cases should make arbitration in New York even more effective and appealing to its users.
NOTES
1 Prior to these decisions, arbitrators did not believe they had authority to issue security orders. See e.g., The Bomi, SMA No. 2485, Appendix C (1980).
2 The arbitrators' order to post security is reported in The KONKAR PIONEER, SMA No. 2369 (1987) at Appendix "A".
3 The security awards are reported in The CAMARA, SMA No. 2430 (1986) and The CINCHONA, SMA No. 2430-A (1986).
4 The writer was counsel to the Owner in the EUROGAS dispute.
5 Lawrence J. Jacobsen, Esq., "Security In Aid Of Maritime Arbitration in New York", speech given on August 8, 1994 at a meeting of the American Bar Association in New Orleans, Louisiana.
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Healy & Baillie Partner, Robert G. Shaw, Moderates Shipping Capital
Seminar
A jointly sponsored seminar of the Hellenic-American Chamber of Commerce and the Norwegian-American Chamber of Commerce, Inc. entitled, "Raising Shipping Capital in the International Securities Markets", was held in New York on February 2, 1995. The seminar was attended by over 160 people. The conference speakers included Mr. Westye Hoegh, the President of the Norwegian Shipowners' Association; Mr. Vassilis Kertsikoff, the Senior Manager of Corporate Development of Eletson Corporation; senior officers of Lazard Frères, smith Barney, Inc., Fearnley Fonds, the Oslo Stock Exchange, Moody's Investors Service and Arthur Andersen; and Dr. Gregory J. Timagenis of Piraeus, who is the President of the Green Seamen's Pension Fund ans was counsel to Strintzis Lines on its recent Athens Stock Exchange listing.
Healy & Baillie partner, Robert G. Shaw, who is the Executive Vice President and a director of the Hellenic-American Chamber of Commerce, served as moderator of the opening session of the conference.
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Andrew V. Buchsbaum Becomes a Member of the Firm
The Firm is pleased to announce that effective January 1, 1995 Andrew V. Buchsbaum has become a member of the Firm. Mr. Buchsbaum joined the Firm in 1988 as an associate. He received his B.S. degree from Duke University and his J.D. degree from Tulane University.
He specializes in litigation and trials, including marine casualties, commercial litigation, products liability and personal injury.
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U.S. Supreme Court Set to Review Various Maritime Cases
Following a period during which years often went by without the United States Supreme Court reviewing a single maritime matter, in recent years the Court's interest in admiralty and maritime cases has increased (or perhaps the Court's interest in other matters has decreased). In any event, the United States Supreme Court has granted petitions for "certiorari" (a petition to the Supreme Court seeking review of a decision of a circuit court of appeals) in the following three maritime matters, which will likely produce results of interest.
* The United States Supreme Court will review a case in which the United States Court of Appeals for the First Circuit upheld the enforceability of a foreign arbitration clause in a U.S. COGSA bill of lading. See, Vimar Seguros y Reaseguros v. M/V SKY REEFER, 29 F.3d 727 (1st Cir. 1994). The decision in Vimar places the First Circuit in conflict with the Eleventh Circuit, which held in State Establishment for Agricultural Product Trading v. M/V WESSERMUNDE, 838 F.2d 1576 (11th Cir.), cert. denied, 488 U.S. 916 (1988), that foreign arbitration clauses are invalid under the U.S. Carriage of Goods by Sea Act, 46 U.S.C. 1300 et seq.
At the center of the dispute is Section 3(8) of U.S. COGSA which invalidates any provision in a contract of carriage which purports to relieve or lessen the liability of the carrier or the ship for loss of or damage to cargo arising from negligence, fault, or failure in the duties and obligations set forth in COGSA.
The Eleventh Circuit held in WESSERMUNDE that, as a practical matter, foreign arbitration clauses tend to lessen the liability of the carrier, particularly where the claim is small, and are therefore invalid under Section 3(8) and the Federal Arbitration Act, 9 U.S.C. 1 et seq. Applying various rules of statutory construction, the First Circuit gave precedence to the Federal Arbitration Act, which specifically validates arbitration clauses, and affirmed the decision of the district court granting a stay of litigation pending arbitration in Japan.
* Personal Injury
Another case to be reviewed by the United States Supreme Court involves a decision of the United States Court of Appeals for the Second Circuit defining the status of a worker as a "seaman" under the Jones Act. In Latsis v. Chandris, Inc., 20 F.3d 45 (2d Cir. 1994), the Second Circuit held the trial court had improperly instructed the jury in a case in which the jury denied "seaman" status to a Port Engineer. The Port Engineer lost the sight of his right eye allegedly as a consequence of the negligence of a vessel's doctor.
Prior to the Supreme Court's 1991 decisions in McDermott Int'l, Inc. v. Wilander, 498 U.S. 337 (1991), and Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991), the Second Circuit's definition of a "seaman" under the Jones Act was three-pronged, i.e. (1) a vessel had to be in navigation, (2) the worker must have a more or less substantial connection with the vessel, and (3) the worker must be aboard naturally and primarily as an aid to navigation. The Supreme Court's 1991 Wilander decision diluted the "aid to navigation" requirement.
The current conflict involves the "substantial connection " element after the Supreme Court's Wilander decision. The Fifth Circuit has taken the view that the "substantial connection" element is a purely temporal concept to be determined by the duration of the workman's connection with the vessel. The Second Circuit in the Latsis case held that it was an error to instruct the jury that a worker had to be either permanently assigned to a vessel or perform a substantial part of his work on the vessel. The Second Circuit thus articulated a new test which requires that (1) the worker must contribute to the function or accomplish the mission of the vessel, (2) the contribution must be substantial in terms of either duration or nature, and (4) the employment must regularly expose the worker to the hazards of the sea. Finding a distinction between the test applicable in the Second Circuit and the Fifth Circuit, the Court has determined to review the matter, presumably to articulate further the definitions it revisited in the Wilander case.
* Pre-Judgment Interest/Proportional Fault
The United States Supreme Court will also review a case in which the United States Court of Appeals for the Seventh Circuit has ruled that in a case governed by the proportional fault rule of RELIABLE TRANSFER, prejudgment interest may be awarded in favor of the prevailing party, even though that party was itself negligent to some degree and responsible for a portion of the loss.
The case arose out of the 1979 sinking of a vessel in the Port of Milwaukee. The vessel owner sued the City, based on negligence for a substantial amount. The City, in turn, lodged a minor counter-claim for damage to its dock wall. After an intermediate appeal the City was held one-third responsible for the damage and the vessel two-thirds responsible. Since the vessel's loss exceeded the loss suffered by the City by a substantial amount, a balance was payable by the City to the vessel owner. Since the litigation covered a period of over 15 years, the interest factor exceeded the original claim.
The Seventh Circuit noted that in the pre-RELIABLE TRANSFER days of divided damages, courts sometimes refused to award interest as a way of ameliorating the effect of the divided damages rule on the party whose fault was a relatively minor factor contributing to the loss. Following RELIABLE TRANSFER, however, the Seventh Circuit determined that this rationale was no longer valid, since all aspects of the original contributory fault should be resolved in the allocation itself. Hence, mutual fault could not, per se, be cited as a "special circumstance" justifying a departure from the normal rule of awarding pre-judgment interest.
The Supreme Court will now address the conflict between decisions in the Fifth and Eleventh Circuits holding that mutual fault constitutes a "special circumstance," with the decisions in the Sixth, Seventh and Ninth Circuits (and several District Court decisions) refusing to recognize any such rule.
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* Healy & Baillie partners, Richard Singleton and LeRoy Lambert, presented papers at a seminar convened in Seoul, Korea in mid-October under the joint sponsorship of Healy & Baillie and the Korean law firm of Lee & Koh.
* Partner Nick Healy and his wife Margaret were honored by the Officers and Executive Council of the Japanese Maritime Law Association at a dinner in Tokyo in October.
Nick attended the 125th Anniversary Dinner of the United Kingdom P&I Club in London in late January.
* Healy & Baillie associate, Matt Marion, has been appointed by the Governor of Connecticut to serve as a Commissioner on the Five Mile River Commission. The Commission was created by the Connecticut General Assembly in 1970 to oversee commercial activities and navigation on the Five Mile River, a state and federal waterway adjacent to Long Island Sound. As a member of the Commission, Matt will help to regulate the water-based activities of four marinas doing business on the river and 200 pleasure craft that use the harbor during the summer.
* As part of a new program, Matt Marion also spent a five month sabbatical recently in the offices of a shipping client of the Firm, gaining familiarity with the operational end of the maritime business and assisting with transactional projects and charter party disputes. The client operates approximately 50 dry bulk carriers, mainly through time and bareboat charters, and performs a variety of contracts of affreightment as well as spot chartering.
Matt divided his time equally between operations and chartering departments and developed a familiarity with the unique challenges and pressures that impact the decision-making of these two facets of the shipping business.
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* A long running case which involved proceedings in New York, London and Oslo, Norway, was recently settled shortly before trial was set to have begun in Oslo. The action involved a claim by the Norwegian Guarantee Institute against an English merchant bank. Healy & Baillie served as United States counsel to the Norwegian Guarantee Institute and was involved in tracing assets, documents and witnesses and in cross-examining key fact witnesses.
* Following a thirty-day trial involving the largest pollution incident in the history of New York Harbor, the Firm successfully concluded litigation on behalf of a tug owner. Exxon, whose under-water pipeline ruptured in 1990, brought an action against the tug company, alleging the 1990 spill was caused by one of the company's tugs striking the pipeline in 1985. Exxon claimed $130 million in damages. United States District Judge Alfred M. Wolin completely rejected Exxon's claim and the case was dismissed.
* In the aftermath of OPA-90 the Firm has observed an increase in the number of safe port/safe berth inquiries, cases and claims. In a recent award a New York arbitration panel affirmed the right of a vessel's Master to refuse to proceed to a berth the Master deemed to be unsafe. The panel held the Master's concerns were reasonable and that on the basis of such concerns the Master was entitled to insist the vessel be lightered prior to entry, even though charterer and the local Pilots and Coast Guard provided some assurance the operation could be undertaken safely.
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Office Renovation And Computer Upgrading Proceed Apace
A four-month partial renovation and extension of the Firm's offices to an additional floor near completion in February basically was projected. While many office assignments will change mid-month, the installation of the staircases - and relocation of our reception area to the 27th floor will likely not occur until late February/early March.
Similarly, the first step of the firm's computer upgrading program is nearing completion. All of our users have new Pentium based PC's (with corrected processor chips). We are looking forward to the installation of windows based software and off premises training with the new products. Among other benefits, the upgraded system will give us the ability to place images of documents on our network. This will be very useful when combined with our litigation support system. To find a document in a case, rather than spending time to retrieve a paper document, the user will be able to conduct a database search, and press the image key to view the document with all handwritten notations and graphics.
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MAINBRACE is intended to provide general information. The articles contained in MAINBRACE do not constitute legal advice. An analysis of the facts relating to a particular issue must be accomplished before legal advice can be given.
NOTE: "Mainbrace," our Firm's cable address, in nautical terminology means the brace or rope sustaining the main yard on a ship. The Staff of "Mainbrace" consists of Nicholas J. Healy, Gordon W. Paulsen, John C. Koster, Matthew A. Marion, Betty M. Waterman and Renee Kintzer.
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HEALY & BAILLIE
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