Should merchant ships transiting high risk areas carry small arms for defense against pirates?

Selected crew should be trained and have guns available
Professional armed security teams should be hired
No guns on merchant ships, ever

June 12, 2009

Appeals Court reaches Prestige case decision

The U.S. Court of Appeals for the Second Circuit has has reversed a lower court's dismissal of the case brought against ABS by the Kingdom of Spain relating to the loss of the tanker Prestige. However, in remanding the suit back to the U.S. District Court for the Southern District of New York, the Appeals Court directed the lower court to conduct the remand proceedings in a manner consistent with the narrow appellate court decision.

"Our reading of that decision is that it appears to provide a road map for the ultimate dismissal of the case," said ABS spokesman, Stewart Wade, Vice President External Affairs. "The Court has focused on exactly the narrow point of law that was of concern in the initial decision and has remanded the case solely on that issue and has provided guidance that could provide a firmer legal footing for reaching the same decision to dismiss the case," he said.

Additionally, the Court of Appeals found in favor of ABS in its cross appeal for the reinstatement of its counterclaims against Spain that are based on the contributory negligence of the Spanish government in handling the Prestige casualty and implicate Spain for breaching its duties to vessels in distress in a manner that caused or exacerbated the damages.

ABS specifically welcomed the appellate court's wording of the ruling against the specific reasoning upon which the lower court determined that it did not have subject matter jurisdiction. It "does not meanÉthat the district court is required here to exercise jurisdiction," the Court wrote, pointing out that the principles of forum non conveniens or international comity provide grounds for a discretionary decision not to exercise jurisdiction. The Appeals Court also instructed the lower court to "conduct a conflicts-of-law analysis to determine which law governs this case" should it conclude that dismissal under forum non conveniens or international comity is not warranted.

"We can understand the Court of Appeals' decision," said Wade who also stressed that the Appeals Court's outright reversal of the lower Court's decision, rendered in 2004, to dismiss the ABS counterclaims against Spain was a major victory for the class society. "The Court of Appeals has specifically brought the issue of Spain's contributory negligence in handling the casualty, and the likelihood that such negligence caused the subsequent damage, back to the forefront," he said. "This has been one of the central contentions of ABS from the outset and we are very pleased that we are now able to pursue these counter claims."

According to Wade "We feel that the fact that the criminal Court's investigation in Spain has found no reason as yet to impute ABS with respect to this casualty, after six years of detailed investigation and the presentation of voluminous evidence, is clear validation of our continued assertion that ABS played no part in this tragic event," he said. "We stand ready to clear our name in any and every court and look forward to providing every assistance to the District Court as it reconsiders its decision."

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