Trends In International Litigation : International Business Lawyer & Attorney : Ed Joffe : Joffe & Joffe Law Firm : Miami, Florida Global Customs & Trade Issues

The British Telegraph announced today that a law student falsely named as a pedophile on Facebook has won a £10,000 libel damages payout at the High Court.  

Chef, Jeremiah Barber, 24, posted child porn on the Facebook page of student, Raymond Bryce, along with the comment: "Ray, you like kids and you are gay so I bet you love this picture, Ha ha."   Barber, who had fallen out with Mr Bryce over an £80 debt, removed the post, made on 23 November 2008, within 24 hours.

Mr Bryce said there had been 11 links to the post, 2 comments from viewers, and more than 800 people would have been able to view the material But he later pleaded guilty to making and distributing an indecent image of a child at Stafford Crown Court and was ordered to carry out 150 hours unpaid work and handed a £1,200 costs bill.

Mr Justice Tugendhat, sitting at London's High Court, has awarded Mr. Bryce £10,000 in libel damages for the stress he endured, including anxiety that hundreds of people in his local area may have seen the post.

Mr Bryce, 24, who lives with his parents in Stone, Staffs, suffers from high functioning Asperger's Syndrome, but has secured a place on a full time degree course studying law at Stafford University. The dispute between him and Barber, from Stafford, arose after Mr Bryce lent his former pal £80 and he failed to pay it back, said the judge. Mr Bryce's efforts to secure repayment included obtaining a County Court order.  Judgment was entered for Mr Bryce in the libel case in November last year but he had to return to the High Court for an assessment of his damages.

In the witness box, Mr Bryce said:

Jeremy Barber put a defamatory blog (sic) on Facebook and made me appear to be a pedophile with homosexual tendencies, neither of which is true. He did so with intention and malice. When I viewed the pictures I was shocked because they were repulsive and disgusting and in no way reflected my attitude to life. I asked for an apology which I have not to this date received. The whole thing has been distressing, not only for myself but for my family.

Mr Bryce said there had been 11 links to the post, 2 comments from viewers, and more than 800 people would have been able to view the material.

Mr Justice Tugendhat said: "This was not only defamatory, but a defamation which goes to a central aspect of Mr Bryce's private life as well as his public reputation.

This post was deeply offensive to him, but also a cause for alarm. He could not go out in public because he feared he would be a victim of violence, which is not infrequently the result for those accused of pedophilia. It is well known that people accused of being pedophiles may be subjected to serious violence, even when there is no basis for the accusation. I can infer that the number of people who saw this Facebook page would have been in the hundreds. "This post was clearly a malicious act and the defendant has done nothing to express any regret. "Damages in libel actions are awarded as compensation, not as punishment, to vindicate reputation, to compensate for harm to that reputation and as compensation for injury to feelings.

"I assess the damages in this case at £10,000," the judge concluded, also imposing an injunction banning Barber from repeating the libel.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When a foreign cargo vessel enters this country, may the cabins of its crew members be searched for contraband without reasonable suspicion?

On April 16, 2008, the MV RIO MIAMI, a foreign cargo ship, docked at the Antillean Marine inside Miami, Florida after traveling from the Dominican Republic. The Antillean Marine is located approximately three miles inland on the Miami River. Soon after arrival, officials with United States Customs and Border Protection went on board the ship to inspect the  ship for prohibited agricultural materials. The Team met with the captain of the RIO MIAMI and told him that they would be inspecting the ship from bow to stern.  After the Team inspected the bridge, Specialist Meyer and Officer Quiñones went below to inspect the crew members' cabins. The captain, who was with them, had a master key that unlocked the cabins, which were arranged like hotel rooms-one right beside another. The captain went from cabin to cabin, unlocking and opening each door so that the cabins could be searched. The master key would not open the cabin of Hilario Alfaro-Moncada, a citizen of El Salvador, who was the ship's cook. While Specialist Meyer and Officer Quiñones waited in the hall, the captain went and got Alfaro-Moncada who unlocked his cabin door with his key and opened it. Specialist Meyer asked Alfaro-Moncada if the cabin was his, if he owned everything in it, and if Meyer could inspect it. After Alfaro-Moncada answered “yes” to all three questions, Meyer entered the cabin and began inspecting it.

Specialist Meyer discovered a DVD containing child pornography in a desk drawer. Alfaro-Moncada was charged with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Two weeks after being indicted, he filed a motion to suppress the DVDs and his statements about them, contending that the search of his cabin had violated his Fourth Amendment rights. After conducting an evidentiary hearing, a magistrate judge reported that the search of Alfaro-Moncada's cabin was a routine border search requiring no level of suspicion and recommended that the suppression motion be denied. The district court adopted the magistrate judge's report and recommendation and denied the motion.The appellate court agreed and noted that this case was more difficult since the search was of living quarters on a vessel.

At the border a search without reasonable suspicion of a crew member's living quarters on a foreign cargo vessel that is entering this country is not unreasonable for Fourth Amendment purposes.  [U.S. v. Alfaro-Moncada 607 F.3d 720 (11th Cir. 2010)]
The court makes a point of explaining that the defendant allowed the inspection. Would the court have ruled differently if consent  had not been given?
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On July 12, 2010, Judge Daniel R. Dominguezgranted certification of the settlement class and granted preliminary approval to the settlement agreements with the Crowley  and Horizon Defendants in the Puerto Rican Cabotage Antitrust Litigation, MDL Docket No. 3:08 md-1960(DRD).  The final fairness hearing is set for October 26, 2010. The only remaining defendants are the Sea Star Defendants.  

Counsel for the Plaintiffs' Class is Hollis L. Salzman of Labaton Sucharow.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Air France, KLM and Martinair have entered into an agreement to settle damage claims brought against them in the United States alleging violations of the antitrust laws in connection with air cargo shipping services.

Under the terms of the settlement agreement, which is subject to court approval, the carriers will pay a total of $87 million in exchange for a release from all claims by direct purchasers of air cargo shipping services to and from the United States between 2000 and 2006. This amount will be deducted from the provision posted in 2008.

The civil actions, which have been brought as class actions and consolidated in the United States District Court for the Eastern District of New York, were initially filed in 2006 after the U.S. Department of Justice and the European Commission initiated investigations of the air cargo industry.

In 2008, the three carriers entered into plea agreements in the United States to resolve that investigation. The investigation by the EU Commission remains pending.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

From 1980 to 1986 petitioner Mohamed Ali Samantar was the First Vice President and Minister of Defense of Somalia, and from 1987 to 1990 he served as its Prime Minister. Respondents are natives of Somalia who allege that they, or members of their families, were the victims of torture and extrajudicial killings during those years. They seek damages from petitioner based on his alleged authorization of those acts.

The narrow question before the Supreme Court was whether the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1330, 1602 et seq., provides petitioner with immunity from suit based on actions taken in his official capacity. The High Court found that it does not.

The opinion noted, however, that the suit may still be barred by foreign sovereign immunity under the common law. Also even when a plaintiff names only a foreign official, it may be the case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because that party has “an interest relating to the subject of the action” and “disposing of the action in the person's absence may ... as a practical matter impair or impede the person's ability to protect the interest.” Fed. Rule Civ. Proc. 19(a)(1)(B). If this is the case, and the entity is immune from suit under the FSIA, the district court may have to dismiss the suit, regardless of whether the official is immune or not under the common law.

Finally, a plaintiff seeking to sue a foreign official will not be able to rely on the Act's service of process and jurisdictional provisions. Thus, a plaintiff will have to establish that the district court has personal jurisdiction over an official without the benefit of the FSIA provision that makes personal jurisdiction over a foreign state automatic when an exception to immunity applies and service of process has been accomplished in accordance with 28 U.S.C. § 1608.

[Samantar v. Yousuf, __ US __, 130 S. Ct. 2278 (2010)]
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On July 8, 2010, the Second Circuit Court of Appeals   ruled that new regulations for the importation of unmanufactured wood packaging material into the United States complied with the National Environmental Policy Act and the Plant Protection Act. The final rule required that all solid wood packaging material (“SWPM”) be either heat treated to a minimum wood core temperature of 56°C for a minimum of 30 minutes or fumigated with methyl bromide prior to being used in connection with the importation of goods into the United States.

The Natural Resources Defense Council, Inc. (NRDC") and the States of California, Connecticut, and Illinois had argued that the new rule did not comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., or  the Plant Protection Act (PPA"), 7 U.S.C. § 7701 et seq. 

Plaintiffs claimed that U.S. Department of Agriculture, through the Animal and Plant Health Inspection Service (“APHIS”) violated the NEPA and the PPA by failing to fully consider the reasonable alternative of a phased-in substitute materials requirement before adopting a final rule requiring that all SWPM be either heat treated or fumigated with methyl bromide prior to being used in the transport of goods into the United States.

The Court took note

of the significant environmental threat presented by plant pests and pathogens introduced into the United States through the importation of solid wood packaging material, including pallets, crates, boxes, cases, and skids-used to support, protect, and carry commodities entering the country. Exotic wood-boring insects that accompany SWPM, such as the pine shoot beetle, the Asian long horned beetle, and the emerald ash borer, undisputedly pose a threat to U.S. agriculture and ecotourism, and to natural, cultivated, and urban forests. While the environmental impact of these destructive insects is real, the United States cannot address this global threat alone, and the U.S. Department of Agriculture, through the Animal and Plant Health Inspection Service ("APHIS"), was required to balance environmental considerations, international guidelines, and global trade concerns in adopting a final rule for the importation of SWPM.

 
The Court concluded that the Government considered all reasonable alternatives to the proposed rule, and did not act arbitrarily or capriciously in adopting a rule providing for either heat treatment or fumigation with methyl bromide of the wood material prior to importation. Accordingly, it affirmed the District Court’s decision upholding the regulations.

[Natural Resources Defense Council, Inc. v. U.S. Dep't of Agriculture 09-2021-cv]
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Carpenter alleged that he was subject to abuse by the courts of Chile in a criminal case that was initiated in Santiago, Chile over ten years ago. He was prosecuted for fraud, but declared not guilty by the Chilean courts. He sued the Republic of Chile and various government officials of Chile, among others, in the Eastern District of New York to remedy these alleged wrongs. The District Court dismissed Carpenter's complaint against the Republic of Chile and the government officials of Chile because it concluded that the Foreign Sovereign Immunities Act (“FSIA”), 28 U .S.C. § 1602 et seq., barred the District Court from exercising jurisdiction over those defendants.

Carpenter made 5 arguments concerning the Republic of Chile:
1) the Torture Victim Protection Act , 28 U.S.C. § 1350 note (a)(1), effectively overrides the jurisdictional bar set forth in FSIA;
2) the Republic of Chile lost its sovereign immunity under FSIA's exception for state-sponsored terrorist acts set forth in 28 U.S.C. § 1605A;
3) the Republic of Chile waived its sovereign immunity by joining various treaties;
4) his claim falls under the commercial activity exception to FSIA set forth in 28 U.S.C. § 1605(a)(2);
5) the international law doctrine of jus cogens provides a further exception to FSIA.

The Second Circuit rejected all of these arguments and concluded that the District Court did not err in dismissing Carpenter's claims against the Republic of Chile.

The District Court had relied on the Second Circuit’s 2008 decision in In re Terrorist Attacks of September 11, 2001, 538 F.3d 71(2d Cir.2008) to conclude that FSIA extended to individual officials of foreign governments acting in their official capacities. The Supreme Court's recent decision in Samantar v. Yousuf, however, abrogated that 2008 precedent insofar as it held that FSIA applied to individual officials. No. 08-1555, 2010 WL 2160785 (S.Ct. June 1, 2010). Although FSIA no longer protects government officials, the Supreme Court expressly noted in Samantar that “[e]ven if a suit is not governed by [FSIA], it may still be barred by foreign sovereign immunity under the common law.” Accordingly, the Second Circuit vacated the judgment of the District Court insofar as it dismissed Carpenter's complaint against the government officials of Chile on the grounds that FSIA provided immunity. It left it to the District Court to determine, in the first instance, whether Carpenter's claims against the government officials of Chile are barred by foreign sovereign immunity under the common law.

[Carpenter v. Republic of Chile , --- F.3d ----, 2010 WL 2558012 (2nd Cir. June 28, 2010)]
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

R. G. Edmonson of the Journal of Commerce has reported that Customs Brokers are asking the House Ways and Means Committee to weigh in on legislation that would require foreign manufacturers to have registered agents in the U.S. to represent them in state and federal courts.

In a letter to the committee's leadership Jeff Coppersmith, president of the National Customs Brokers and Forwarders Association of America, said that requiring foreign companies to have a U.S. proxy to appear in legal proceedings would prompt other countries to reciprocate.
"It will be very difficult and expensive for small and medium-sized companies to maintain registered agents in all the foreign markets to which they export," Coppersmith said. U.S. companies would also face uncertainty in the way foreign legal systems would treat them.

A House Energy and Commerce subcommittee last week took testimony on the proposed Foreign Manufacturers Legal Accountability Act. The bill is supported by the Consumer Product Safety Commission, which says lack of a U.S. agent makes it difficult to bring foreign manufacturers to account for unsafe products.
 
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Today the U.S. Supreme Court  held that the COGSA limitations of liability extended to an inland shipment using a through bill of lading trumped the Carmack Amendment which covers domestic interstate commerce.

Cargo owners delivered goods to "K" line for shipment from China to inland United States destinations. "K" Line issued them four through bills of lading, i.e., bills of lading covering both the ocean and inland portions of transport in a single document. The bills contain a "Himalaya Clause," which extended the bills' defenses and liability limitations to subcontractors; permitted "K" Line to subcontract to complete the journey; provided that the entire journey is governed by the Carriage of Goods by Sea Act (COGSA), which regulates bills of lading issued by ocean carriers engaged in foreign trade and designated a Tokyo court as the venue for any dispute.

"K" line arranged the journey, subcontracting with Union Pacific for rail shipment in the United States. The cargo was shipped in "K" Line vessels to California and then loaded onto a Union Pacific train. A derailment along the inland route allegedly destroyed the cargo. Ultimately, the Federal District Court granted the motion of Union Pacific and "K" Line to dismiss the cargo owners' suits against them based on the parties' Tokyo forum-selection clause. The Ninth Circuit reversed, concluding that that clause was trumped by the Carmack Amendment governing bills of lading issued by domestic rail carriers, which applied to the inland portion of the shipment.

The Supreme Court reversed the Ninth Circuit because the Carmack Amendment does not apply to a shipment originating overseas under a single through bill of lading. The parties' agreement to litigate these cases in Tokyo is binding. [KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.]

This was not new law and reaffirms the longstanding rules about the enforceability of Himalaya Clauses in multimodal bills of lading.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link