May It Please The Court
Quote of the Day - When your ship comes in, make sure you are willing to unload it.
Forget $600 Hammers - How About A $500 Damage Limit To Cover A $1.8 Millon Loader?
How does a $1.8 million Air Force truck that can hold 60,000 pounds qualify as a "package" subject to a $500 limit for damage during shipment from the US to a foreign country on the open seas?
When the government says it does.
Apparently the Air Force wanted to move seven of its Halverson Aircraft Loaders (a.k.a. "K-Loaders") from the United States to Oman, and hired Maersk, a shipping company, to put the trucks in the cargo hold of a ship and send them to Oman. The Air Force even provided the contract to Maersk that would govern the terms of the shipment.
One of the K-Loaders sustained over $30,000 in damage during the long voyage, and when the Army made a claim for the damage, Maersk responded that its liability was limited to $500, per the terms of the contract.
The issue turned on whether the K-Loader was a "package" under the terms of the contract. Here's how the analysis goes that defines the term package: "a class of cargo, irrespective of size, shape or weight to which some packaging preparation for transportation has been made with facilitates handling, but which does not necessarily conceal or completely enclose the goods. Next, a court should examine the parties' contract for carriage to determine whether the parties intended the goods to constitute a package."
Other courts look at things the same way: here's the key language: "In this circuit, a carrier may take advantage of COGSA's $500 liability limit if the shipper is given a fair opportunity to opt out of that limitation by declaring a higher value and paying a correspondingly higher freight rate. See Mori Seiki USA, Inc. v. M.V. Alligator Triumph, 990 F.2d 444, 448 (9th Cir. 1993)."
In a 26-page opinion in this situation, the court likewise held that the K-Loader qualified as a "package," and that Maersk's liability to the Air Force was limited to $500, despite the more than $30,000 damage to the K-Loader.
Thank god the thing didn't fall overboard or all seven of them sink with the ship.
Unequal Application Of Tax To Water Rights Holders Declared Unconstitutional
Some four years ago, the State of California levied small, three-cents-per-acre-foot water usage fees on some 7,000 family farmers, and succeeded in collecting some $20 million. That fee was just overturned by the court as unconstitutional, and the State Water Resources Control Board must now refund the fees.
Proposition 13 just struck another blow to regulatory fees applied to those who hold water rights in the State of California. You remember Prop 13 - it was a Constitutional amendment that limits real property (land) tax rates and assessments, and places restrictions on state and local government's power to tax real property.
You wouldn't think that Proposition applies to water rights, but while water rights are a real property right, here we're talking about regulatory fees, which is an exception to the tax restrictions of Prop 13. You know the government - if they want revenue, they'll just call a tax something else. Given the exception, the fees imposed can't exceed the reasonable cost of providing services necessary to the activity for which the fee is charged and can't be levied to bring in revenue to the agency.
The California State Water Resources Control Board asked the California Board of Equalization to tax (er, excuse me, exact annual regulatory fees) on water rights held by water rights permits and licenses, including those who simply entered into a contract with those who held the water rights. Most of the holders of these rights were in the Central Valley of California, and the small fee quickly added up because of the amount of water used.
The case, California Farm Bureau Federation v. California State Water Resources Control Board, turned on two issues: the unequal application of the fee (only 40% of the water users were being taxed) and the lack of direct application of the fee charged by the government to the benefit provided by the government.
In other words, it was just a tax, and not everyone was taxed.
Child Born Out Of Wedlock Entitled To Share In Father's Estate, Even Without A Will
What happens to a child when his father dies without a will, and doesn't actively get involved with the child's life? According to a recent case here, In re: Estate of Burden, the child is treated the same as children who are acknowledged as his children.
According to the facts of our case, Gregory Burden fathered a child, Dale Agnew, out of wedlock, in 1971. The child, Dale, met Gregory's mother and siblings, and spoke to his father Gregory for the first time when he turned 18. Dale eventually developed a close relationship with Gregory's relatives, but Gregory stated that he did not want to be part of Dale's life. Gregory never responded to any of Dale's overtures, but also never denied being Dale's father. Later, Gregory died without a will, and a probate court found that Dale was entitled to the same equal share of Gregory's estate as was Gregory's other biological child, Dale's half-sister Tara.
This scenario has some similarities to James Brown's situation with two major differences. James Brown had a will and he died in Georgia, not California. He had seven children, six of whom were mentioned in his will. James Brown's youngest child wasn't mentioned in his will. In California, as it appears that it is in Georgia, a child not mentioned in a will is out of luck.
That's why lawyers encourage their clients to update their wills and trusts as major life events occur. Sometimes they even make provisions in wills for children born after the will is written. But the better practice is to keep your will and trust up to date.
Give your lawyer (or this one) a call. Your family will be glad you did.
Legal Thriller Nominated For Edgar Allan Poe Award
MIPTC's regular readers know that I'm a fan of Paul Levine's writing, and especially his Solomon v. Lord series. Drum roll, please: the Mystery Writers of America just nominated Paul for a 2007 Edgar Allan Poe Award in honor of the writer's birthday on January 19, some 198 years ago.
Congrats to Paul. In an email announcing the nomination, he said, "It only took 10 novels to get my first Edgar nomination. If it takes another 10 to win one, they'll have to award it posthumously." Let's hope not. Keep up the wonderful writing, Paul.
Coast to Coast Internet Radio Plugs In E-discovery Experts
Most recently, several major companies have found themselves being investigated by authorities and many of them are discovering that they are losing the battle on how they handle their emails and important corporate documents. In this show, we will be discussing the recent issues plaguing companies and firms, the power of e-discovery, the world of limitless legal technology and the revised FRCP.
Please join me and my fellow co-host and Law.com blogger Bob Ambrogi as we welcome e-discovery experts, Attorney Thomas I. Barnett, Special Counsel for Sullivan & Cromwell, Michele C.S. Lange, staff attorney in the Electronic Evidence Services group at KrollOntrack Inc. and Attorney Craig Ball, writer for the Law Technology News' column, "Ball in your Court." Don't miss it.
How To Continue Your Trial Down In The Parish. Especially For Football Fans.
Tip of the hat to my friend, Jamie Duarte, for sending me a copy of this motion from New Orleans: Your honor, we want to watch the Saints play, and you've got this trial in our way. How about continuing it for two days so we (you too) all watch the championship playoff?
MIPTC confirmed it with the lawyers in NLO, and yes, it was filed.
Granted, too. Not surprisingly. Here's the Court's Order.
Now one step away from the Super Bowl, let's all cheer on the home team and help out the folks who still haven't recovered from Hurricane Katrina.
How Much For That Elbow Through The Painting?
Next to Marilyn Monroe's legs, Steve Wynn's elbow must be the most expensive celebrity extremity.
Just a few weeks ago, Mr. Wynn apparently put his elbow through Le Reve, a 1932 painting of Picasso's mistress, Marie Therese Walter. Back in 1997, Wynn purchased the painting for just over $48 million. Now, however, he claims that moments before he put his elbow through it, it was worth $139 million, but only $89 million afterward.
The painting's insurers, Lloyd's of London, have offered $91,000 to fix the painting, with a $21,000 consultation fee thrown in for good measure. Not satisfied with the speed of Lloyd's claims handling process - and certainly the amount of their offer, Wynn sued his insurers asking the Court to make them resolve the claim. It's certainly understandable. Our law firm has worked for Lloyd's before, and it can sometimes take them almost a year to pay one of our invoices for fees and costs. Bitter? No. We just won't work for them anymore.
Meanwhile, Steve's soliciting bids on insuring his elbow.
Light The Afterburners - Burning Man Is On Fire In The Courts
Burning Man is as much of a social movement as it is an event, and many "burners" (the self-styled name of the participants), want to keep both. As with most things, money tends to get in the way. As a non-participant, MIPTC can't really speak to the social or entertainment aspects of the movement, but I can address the legal ramifications.
It seems that one of the members of Paper Man, LLC, the company that apparently "owns" Burning Man filed a lawsuit, only to receive in response a demand for private arbitration. If it gets into arbitration, we'll only know the result after it's over. But news and Internet reports give the picture that perhaps some of the members of the LLC want to keep it private, and others want to put it into the public domain.
Here's the consequences of both: once something's in the public domain, everyone can capitalize on it. That's capitalize with a capital "C." Everyone will be able to make money on it. If it "belongs to everybody," then it does, and the marketplace will control how the name is used, and used perhaps not with the apparent care it's used now. No one has been able to capitalize on it so far because the "owners" have kept it that way.
If the trademark and the name "Burning Man" are kept private, then the members of Paper Man, LLC can control how the name is used. There's also another company, Black Rock City, LLC, which appears to run the festival (dare I call it that?) itself. The struggle over Burning Man involves both, and that big C in the desert may come to stand for something other than what it does now.