The Miami Herald reports on Tuesday, October 11, 2011 that federal prosecutors have been fiercely cracking down against illegally harvested lobster. In 2009, a federal investigation dubbed Operation Freezer Burn resulted in the seizure of more than 2,000 pounds of lobster on Cudjoe Key and the arrests of six people, including ringleader David Dreifort, now serving time in federal prison. Under federal law, commercial lobster divers can harvest 250 lobster per day. However, amounts allegedly sold to a Stock Island man over the time period outlined in the indictment is more than double that amount.
That man, Scott Greager, has admitted that he bought and sold thousands of illegally harvested lobster in the most recent major federal fisheries case from the Lower Keys. Greager, the owner of a Key West business called Holiday Seafood, faced multiple federal counts of conspiring to purchase 5,435 pounds of lobster from two commercial divers over seven days at the opening of the regular lobster season in August 2008. As part of Greager's plea agreement, he will be sentenced to no more than 5 years in federal custody. Greager previously faced a sentence of 10 years.
Commercial fishermen reportedly support the recent actions to shut down illegal operations. The Florida Keys Commercial Fishermen's Association has urged state and federal marine officers to actively pursue lobster poaching. Enforcement officers with the Florida Fish and the Wildlife Conservation Commision and National Marine Fisheries Service have reportedly responded.
If you are interested in seeing the entire Miami Herald article or wish to reach me to discuss this case further, please feel free to reach me at miamipandi@comcast.net or at Houck Anderson, P.A. at motero@houckanderson.com.
Seaboard Exits Bahamas
On Tuesday, October 11, 2011, Lloyd's List reported that Seaboard Marine, the US liner major and subsidiary of Seaboard Corp, is closing its operations in Nassau in the Bahamas and exiting the trade, with the last port call to be made by ro-ro ship Seaboard Spirit set for this month. A search on the Seaboard Marine website today at http://www.seaboardmarine.com/SML/ does not show Nassau as a available port to originate or send shipments.
There does not appear to be any official comment from Seaboard Marine on their website.
If you are interested in contacting me, you may reach me at miamipandi@comcast.net or motero@houckanderson.com.
Single Act of Negligence Does Not Render a Cruise Ship Unseaworthy
In FLUERAS vs. ROYAL CARIBBEAN CRUISES, LTD., 36 Fla. L. Weekly D2131a (Fla. 3d DCA Sept. 28, 2011), the Third District Court of Appeals of Florida held that a single act of negligence by an otherwise competent crew member does not render ship unseaworthy. The Plaintiff, individually, and as the personal representative of the Estate of Diana Elena Flueras (“Ms. Flueras” or “Crew Member”), appeals from a final summary judgment entered in favor of defendant Royal Caribbean Cruises, Ltd. (“RCCL” or “Shipowner”) in an action alleging the unseaworthiness of RCCL's vessel, the Explorer of the Seas, arising out of the alleged negligence of the vessel's medical crew. Ms. Flueras was employed by Image Corp., The Image Group, or Image (collectively, “Image”), not by RCCL, as a photographer on the Explorer of the Seas. On October 10, 2005, Ms. Flueras visited the ship's infirmary complaining of back and abdominal pain.
On October 20, 2005, Ms. Flueras underwent an outpatient abortion procedure performed in St. Thomas, Virgin Islands. The doctor sent a letter to the “Ship's Doctor” advising that the amount of tissue removed during the procedure was inconsistent with her gestational age and that she should submit to further testing to rule out an ectopic pregnancy. The ship's doctor did not complete this testing and after Ms. Flueras worsened on board the vessel, she was disembarked shoreside where the Ship's Doctor received a letter from the port agent indicating that Ms. Flueras had a ruptured ectopic pregnancy and intra-abdominal bleeding. Ms. Flueras died at the shoreside hospital on October 24, 2005. The primary cause of death was septic shock and a ruptured ectopic pregnancy.
Mr. Flueras filed an action for unseaworthiness, alleging that RCCL's vessel was unseaworthy because: (a) the vessel was unsafe and unfit as a consequence of RCCL's conduct; (b) the vessel was manned by a medical crew that was not properly trained, instructed or supervised; (c) the vessel's medical crew was unfit; (d) the vessel lacked adequate manpower for the tasks being performed; and (e) “[o]perational negligence existed in defendant's inadequate medical care provided to Ms. Flueras; incompetent medical care provided to Ms. Flueras, and unfit medical crew caring for Ms. Flueras.” Subsequently, RCCL moved for summary judgment on the ground that the Ship Doctor's negligent conduct could not render the vessel unseaworthy because Mr. Flueras failed to put the Ship Doctor's competence at issue. In response, Mr. Flueras argued that the crew members' conduct and incompetency, as well as the absence of or failure to follow shipboard policies and procedures rendered RCCL's vessel unseaworthy. Mr. Flueras also argued that the necessity for additional discovery precluded the entry of summary judgment. The trial court heard the motion on October 18, 2007, reserved ruling, and ordered the parties to submit supplemental memoranda of law. The trial court subsequently granted RCCL's motion for summary judgment.
The appellate court found that heart of the analysis in these cases is the crew member's specific knowledge, degree of skill, sufficiency of experience, and/or adequacy of licensure, and the affidavits produced by Mr. Flueras fail to directly challenge these aspects of the Ship Doctor's qualifications. Because the Ship Doctor's Harris's licensure, experience, knowledge, and skill remain unrebutted by the affidavits, the appellate court affirmed the trial court's entry of summary judgment on this issue.
This case addresses other issues related to the sufficiency of the discovery undertaken by Mr. Flueras and thus, the case was remanded for further proceedings. The case is lengthy and instructive and thus, if you are interested in obtaining a copy of this decision, please feel free to contact me at miamipandi@comcast.net or motero@houckanderson.com.
If You Want Your Restrictive Convenants To Last, They Should Say So
September 30, 2011
A Restrictive Covenant is a specific type of covenant in which someone agrees to be restricted by a contract. The most common type of restrictive covenant is one in which a former employee is restricted from working in his or her field for a specific time and within a specific area after leaving employment. Restrictive covenant agreements often contain "tolling" provisions which extend the duration of the covenants by the time of any discovered violation. However there are occasions where employers do not include tolling provisions in their restrictive covenant agreements, but nevertheless subsequently request that a court use its discretion to extend the duration of those covenants by the time of the discovered violation. A recent decision from the U.S. Court of Appeals for the First Circuit highlights the danger in not including a tolling provision in a restrictive covenant agreement.
In EMC Corp. v. Arturi, ___ F.3d ___ (1st Cir. Aug. 26, 2011), EMC requested a preliminary injunction prohibiting its former employee from using its confidential information, from competing with EMC and from soliciting EMC customers. The trial court issued a preliminary injunction prohibiting the disclosure of confidential information. However, the trial court refused to issue an injunction prohibiting the former employee from competing or soliciting EMC's customers because the one-year time periods in the restrictive convenants in the employment contract had already elapsed and there was no tolling provision to extend them. On appeal, the First Circuit affirmed the trial court's refusal to extend the non-compete and non-solicit provisions absent a tolling provision. The court explained that under governing state law, "when the period of restraint has expired, even when the delay was substantially caused by the time consumed in legal appeals, specific relief is inappropriate and the injured party is left to his damages remedy." The First Circuit also specifically pointed out that "EMC could have contracted...for tolling the term of the restriction during litigation, or for a period of restriction to commence upon preliminary finding of breach. But it did not."
Thus, this case serves as a cautionary reminder to employers to include tolling provisions in their restrictive covenant agreements if they want to increase the likelihood that a court will subsequently extend the duration of those restrictive covenants by the period of any violation.
If you are interested in receiving a copy of this decision, you may contact me at miamipandi@comcast.net or motero@houckanderson.com.