GKG Law Submits Amicus Brief to the Supreme Court Following Granting of Certiorari in CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd.
On July 16, 2019, GKG Law submitted an amicus brief to the Supreme Court on behalf of the American Fuels & Petrochemical Manufacturers Association (“AFPM”) and the International Liquid Terminals Association (“ILTA”) in CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd. (“Frescati’”). In November of 2018, GKG Law had submitted an amicus brief in support of Citgo’s Petition for Certiorari, which Petition was granted.
In 2004, an unknown lost anchor resting on the bottom of the Delaware River tore a hole in an oil tanker causing an oil spill. In Frescati, the Third Circuit held that the charterer (or shipper) under a charter party agreement (a form of maritime contract) was strictly liable for the resulting damages, despite having not acted negligently, based upon the safe berth provision in the charter party agreement. The Third Circuit’s decision exacerbated a split between the circuits on how to interpret safe berth clauses in charter agreements. (The Second and Third Circuits have held that the clause constitutes a guarantee of a ship‘s safety, while the Fifth Circuit has held that it is not an absolute guarantee but instead imposes a duty of due diligence on the charterer.) GKG Law, on behalf of AFPM and ILTA, assert that the Third Circuit’s decision imposing liability without fault disregards Supreme Court authority holding that a safe berth provision in a charter agreement does not constitute a warranty, runs afoul of well-established maritime policies reflected in the Carriage of Goods by Sea Act of the United States (COGSA), and is contrary to English common law which does not impose liability without fault on charterers.
AFPM and ILTA’s members are stakeholders in maritime transportation, storage and oil refining and petrochemical industries. As such, they have an interest in the proper allocation of responsibilities under maritime law. Members of both associations are similarly situated as the charterer in Frescati and their operations will be adversely affected if the Third Circuit’s decision is not reversed. Amici request that the Supreme Court follow its long-established precedent that a safe berth provision is not a warranty by the charterer regardless of fault and, by doing so, “the Court will align United States maritime law with international norms and adopt a coherent and rational policy of risk allocation between charterers and the owner of vessels.”
Argument in this case is scheduled for November 5, 2019
More information on this matter and GKG Law’s amicus brief can be found here.
