A Bump in the Road for the Collection of Evidence for Use in Foreign Legal Proceedings

Mainbrace | March 2018 (No.1)

W. Cameron Beard and Lauren B. Wilgus

As discussed in prior issues of Mainbrace, parties to for­eign legal proceedings can collect evidence in the United States for use abroad by invoking a U.S. statute, 28 U.S.C. § 1782 (“section 1782”). Section 1782 is a powerful tool, and allows either foreign courts or foreign litigants to seek orders directly from U.S. federal district courts for the taking of testimony or the disclosure of documents in this country. Notably, litigants can often obtain section 1782 relief quickly and without undue burden or delay, because the statute can be invoked independently of, and does not require prior resort to, the Hague Evidence Convention.

Various disputes regarding the proper scope of section 1782 have arisen over the years. Some of the major disputes have been conclusively resolved. For exam­ple, in 2004 the U.S. Supreme Court resolved a significant conflict among the lower federal courts, and ruled that under section 1782 a foreign party may obtain broad dis­covery of the kind generally available in U.S. litigation, even if such discovery would not be allowed under the laws of the foreign forum where litigation is pending. Other vexing issues, however, remain unresolved. For example, the ques­tion of whether section 1782 may be used for the collection of evidence for purely private arbitrations remains unsettled. We have discussed these and other issues previously. Continue reading “A Bump in the Road for the Collection of Evidence for Use in Foreign Legal Proceedings”

NY Bankruptcy Courts Grapple with Territorial Limits

Mainbrace | March 2018 (No.1)

Rick Antonoff, Michael B. Schaedle, Bryan J. Hall, and Matthew E. Kaslow

In a pair of recent opinions from the U.S. Bankruptcy Court for the Southern District of New York, two judges took varying approaches to the issues of 1) their ability to assert personal jurisdiction over foreign defendants, and 2) applica­tion of U.S. laws to transactions that occur, at least in part, outside of the United States.

The first opinion, from Judge Sean H. Lane, denied the defendants’ motion to dismiss a lawsuit seeking to avoid and recover money initially transferred to correspondent bank accounts in New York designated by the defendants, before being further transferred outside of the United States to complete transactions under investment agreement executed outside of the United States and governed by foreign law. On remand after a district judge ruled that the defendants’ use of correspondent banks in the United States was sufficient for the bankruptcy court to have personal jurisdiction over them, Judge Lane held that the doctrine of international comity and the presumption against extra­territoriality did not prevent application of U.S. law to avoid transfers under the Bankruptcy Code. The second opinion, from Judge James L. Garrity, Jr., dismissed a bankruptcy trustee’s claims to avoid and recover transfers under U.S. bankruptcy law that occurred entirely outside the territory of the United States. Continue reading “NY Bankruptcy Courts Grapple with Territorial Limits”

The Courts Strike Down Oilfield Contractor Penalty Liabilities

On December 18, 2017, the U.S. Court of Appeals for the Fifth Circuit dismissed the U.S. government’s appeal regarding a Bureau of Safety and Environmental Enforcement (“BSEE”) Notification of Incident of Noncompliance (“INC”) civil penalty issued against an oilfield contractor. This development brings closure to the long-standing question of whether BSEE has authority to enforce civil and criminal penalties against offshore contractors.

Continue reading “The Courts Strike Down Oilfield Contractor Penalty Liabilities”

Enforcement in the United States of Foreign Judgments that Incorporate Monetary “Penalty” Provisions

Mainbrace | October 2017 (No.4)

W. Cameron Beard

While the United States is a party to an international convention on the enforcement of foreign arbitral awards,  it is not a party to any similar instrument regarding the enforcement of foreign court judgments. Nevertheless, foreign court judgments providing civil as opposed to criminal relief can be enforced in the United States, generally pursuant to the laws of individual states where judgment enforcement is sought. Continue reading “Enforcement in the United States of Foreign Judgments that Incorporate Monetary “Penalty” Provisions”

A Seaman’s Claim for Punitive Damages: The Gray Area between the Jones Act and General Maritime Law

Mainbrace | June 2017 (No. 3)

William R. Bennett III and Alexandra Clark

A recent state court decision highlights a division among state, district, and circuit courts on the availability of punitive damages for general maritime law claims. In a unanimous opinion, the Washington State Supreme Court in Tabingo v. American Triumph LLV ruled that punitive damages are recoverable by seaman with a claim for unseaworthiness where the employer acts recklessly.1 Plaintiff Allan Tabingo was working as a trainee deckhand on a fishing trawler when he was seriously injured by a hatch cover closing on his hand, resulting in the amputation of two fingers. Tabingo alleged the vessel was unseaworthy because the vessel operator was aware of the faulty control handle for at least two years, but failed to take any measure to repair the handle. He brought suit against the vessel owners and operators, claiming negligence under the Jones Act as well as a general maritime claim of unseaworthiness, for which he requested punitive damages. A unanimous Washington Supreme Court reversed the trial court’s decision to hold that punitive damages are an available remedy in a claim for unseaworthiness.

Continue reading “A Seaman’s Claim for Punitive Damages: The Gray Area between the Jones Act and General Maritime Law”

The Dual Threats of “Wrongful Arrest” and “Counter-Security” in U.S. Maritime Actions: Practical Considerations for the Foreign Litigant

Mainbrace | January 2017 (No. 1)

Jeremy A. Herchaft and Lauren B. Wilgus

Restraining maritime property ex parte within the district of a United States federal court represents a challenging and “high stakes” area of admiralty practice for the American maritime litigator. Given the significance of this unique type of litigation and its inevitable impact on maritime commerce, two preliminary questions are almost always asked by our foreign colleagues at the outset of conflict. First, once an arrest or attachment occurs, can the defendant respond with a wrongful arrest or attachment claim against the initiating plaintiff? Second, what is “counter-security,” and is it available in the United States to the defendant whose property has just been attached or seized? Both of these important questions will be addressed below.

Continue reading “The Dual Threats of “Wrongful Arrest” and “Counter-Security” in U.S. Maritime Actions: Practical Considerations for the Foreign Litigant”

First Offshore Wind Project in United States to Launch This Fall

Mainbrace | September 2016 (No. 4)

Jonathan K. Waldron and Joan M. Bondareff

Although skeptics said it couldn’t happen, the first offshore wind project in the United States is scheduled to begin opera- tion by the end of this year, bringing wind power to shore from waters off Block Island, Rhode Island. Bragging rights can go to Jeffrey Grybowski and his team at Deepwater Wind. The project may be relatively small—five turbines producing only 30 megawatts (“MW”) of wind and providing power to about 17,000 homes—but it is a giant step forward in the world of offshore wind in the United States. Continue reading “First Offshore Wind Project in United States to Launch This Fall”