The Mixed Up Exercise of Admiralty Jurisdiction Over Mixed Contracts, Namely Umbrella Insurance Policies Covering Shore-side and Sea-side Risks

Given the broad-ranging implications associated with having a dispute decided by a federal court pursuant to the court’s admiralty jurisdiction, potential parties to a dispute have strong motivations to either avoid a court sitting in admiralty or ensure the court hears the controversy under the exercise of its admiralty jurisdiction. Prior to 2004, the legal test used by courts to determine whether or not they could hear a contractual dispute involving a contract with both maritime and non-maritime elements (“mixed contract”) pursuant to their admiralty jurisdiction was relatively straight forward. Under that test, a court could exercise admiralty jurisdiction to hear a mixed contractual dispute where the non-maritime portion of the contract was (1) merely incidental to the overall contract or (2) the non-maritime portion of the contract could be separated from the maritime portion of the contract. According to the above test, where the maritime and non-maritime claims were bound together and could not be separated, the court would dismiss the entire case, even the maritime portion of the contract, for a lack of admiralty jurisdiction. This test was relatively straight forward and fairly easy to apply to contractual disputes. However, in 2004, the U.S. Supreme Court handed down its decision in Norfolk Southern Railway Co. v. Kirby, whereby the jurisdictional test was fundamentally changed. The rule asserted by the Court in Kirby focused on the maritime portions of the mixed contract and, according to this new test, a court could decide a contractual dispute involving a mixed contract under the exercise of its admiralty jurisdiction where the maritime portions of the contract were substantial, even when the dispute centered on non-maritime elements of the contract. Whereas the Court’s jurisdictional approach to mixed contracts as asserted in Kirby may have made sense with regard to contracts for multi-modal transportation, the application of the test by Circuit Courts has provided anything but uniformity or predictability with regard to other types of mixed contracts. This lack of uniformity or predictability in the application of the general maritime law through the exercise of courts’ admiralty jurisdiction is not a desirable outcome, especially as a predominant goal of admiralty practice in American courts has always been uniformity. This judicial emphasis on uniformity is best explained in the Supreme Court’s decision in The Lottawanna where the Court specifically stated: One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states. Given this disparity in the several Circuit Courts’ application of the Kirby test for mixed contracts, and the broad goal of admiralty jurisdiction to provide uniformity in its application of the general maritime law, the application of the Kirby test should be limited to multi-modal transportation contracts. With regard to other types of mixed contracts, the courts should take a different approach, specifically tailored to determine the substantiality of the maritime elements of that particular type of contract. The above approach would better facilitate the uniformity and predictability of maritime practice that courts have aspired to maintain since the beginning of the federal system of government in the United States. As such, this Article examines the three main types of contracts confronted by the courts in their application of the rule asserted in Kirby. These three main types of contracts include: (1) multi-modal transportation contracts exemplified by “through-bills of lading” (and other contracts with objective geographic elements); (2) master service agreements or blanket contracts common in the offshore oil rig context; and (3) umbrella or bumbershoot insurance policies that provide coverage for both shore-side and maritime risks. While master service agreements and multi-modal transportation contracts will be discussed herein, much of the jurisdictional confusion has been centered on mixed coverage insurance policies; therefore, this Article will focus on that issue area. In examining the application of the modern jurisdictional test for the aforementioned mixed contract types, this Article will begin by investigating the basis for the courts’ admiralty jurisdiction, looking at the historical, constitutional, statutory, and precedential origin of modern jurisprudence over admiralty jurisdiction. Through this prism, this Article will discuss the impact the Supreme Court’s decision in Kirby had on the exercise of admiralty jurisdiction over mixed contracts. By looking at the various Circuit Courts’ applications of the Kirby test, this Article seeks to illustrate the confusion the Supreme Court’s decision in Kirby has caused. Based on this examination, this Article asserts that courts have done an altogether inadequate job of formulating a uniform, cohesive, and predictable rule or set of rules with which to determine which marine insurance contracts—that provide both sea-side and shore-side risk coverage—are sufficiently “salty” to justify the exercise of admiralty jurisdiction for resolving controversies arising from such policies. Additionally, this Article argues that given the magnitude of the implications associated with the exercise of admiralty jurisdiction in resolution of contractual disputes, such as the use of general maritime law or the availability of admiralty-specific procedural devices, the Supreme Court has done the maritime industry a great disservice in its failure to formulate an understandable and applicable set of jurisdictional rules. As such, commercial interests would be better served by a coherent, uniform, and predictable rule or set of rules so as to more effectively negotiate and draft contracts and resolve disputes derived therefrom. Given this reality, the Kirby rule should be limited in its application to multi-modal transportation contracts and other contracts involving an element of geographic movement or insurance coverage thereof and master service agreements, as applied inGrand Isle Shipyard, Inc. v. Seacor Marine, LLC. But with regard to mixed insurance policies, the Supreme Court should follow the Second Circuit’s approach as discussed herein

The Mixed Up Exercise of Admiralty Jurisdiction Over Mixed Contracts, Namely Umbrella Insurance Policies Covering Shore-side and Sea-side Risks

Given the broad-ranging implications associated with having a dispute decided by a federal court pursuant to the court’s admiralty jurisdiction, potential parties to a dispute have strong motivations to either avoid a court sitting in admiralty or ensure the court hears the controversy under the exercise of its admiralty jurisdiction. Prior to 2004, the legal test used by courts to determine whether or not they could hear a contractual dispute involving a contract with both maritime and non-maritime elements (“mixed contract”) pursuant to their admiralty jurisdiction was relatively straight forward. Under that test, a court could exercise admiralty jurisdiction to hear a mixed contractual dispute where the non-maritime portion of the contract was (1) merely incidental to the overall contract or (2) the non-maritime portion of the contract could be separated from the maritime portion of the contract. According to the above test, where the maritime and non-maritime claims were bound together and could not be separated, the court would dismiss the entire case, even the maritime portion of the contract, for a lack of admiralty jurisdiction. This test was relatively straight forward and fairly easy to apply to contractual disputes. However, in 2004, the U.S. Supreme Court handed down its decision in Norfolk Southern Railway Co. v. Kirby, whereby the jurisdictional test was fundamentally changed. The rule asserted by the Court in Kirby focused on the maritime portions of the mixed contract and, according to this new test, a court could decide a contractual dispute involving a mixed contract under the exercise of its admiralty jurisdiction where the maritime portions of the contract were substantial, even when the dispute centered on non-maritime elements of the contract. Whereas the Court’s jurisdictional approach to mixed contracts as asserted in Kirby may have made sense with regard to contracts for multi-modal transportation, the application of the test by Circuit Courts has provided anything but uniformity or predictability with regard to other types of mixed contracts. This lack of uniformity or predictability in the application of the general maritime law through the exercise of courts’ admiralty jurisdiction is not a desirable outcome, especially as a predominant goal of admiralty practice in American courts has always been uniformity. This judicial emphasis on uniformity is best explained in the Supreme Court’s decision in The Lottawanna where the Court specifically stated: One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states. Given this disparity in the several Circuit Courts’ application of the Kirby test for mixed contracts, and the broad goal of admiralty jurisdiction to provide uniformity in its application of the general maritime law, the application of the Kirby test should be limited to multi-modal transportation contracts. With regard to other types of mixed contracts, the courts should take a different approach, specifically tailored to determine the substantiality of the maritime elements of that particular type of contract. The above approach would better facilitate the uniformity and predictability of maritime practice that courts have aspired to maintain since the beginning of the federal system of government in the United States. As such, this Article examines the three main types of contracts confronted by the courts in their application of the rule asserted in Kirby. These three main types of contracts include: (1) multi-modal transportation contracts exemplified by “through-bills of lading” (and other contracts with objective geographic elements); (2) master service agreements or blanket contracts common in the offshore oil rig context; and (3) umbrella or bumbershoot insurance policies that provide coverage for both shore-side and maritime risks. While master service agreements and multi-modal transportation contracts will be discussed herein, much of the jurisdictional confusion has been centered on mixed coverage insurance policies; therefore, this Article will focus on that issue area. In examining the application of the modern jurisdictional test for the aforementioned mixed contract types, this Article will begin by investigating the basis for the courts’ admiralty jurisdiction, looking at the historical, constitutional, statutory, and precedential origin of modern jurisprudence over admiralty jurisdiction. Through this prism, this Article will discuss the impact the Supreme Court’s decision in Kirby had on the exercise of admiralty jurisdiction over mixed contracts. By looking at the various Circuit Courts’ applications of the Kirby test, this Article seeks to illustrate the confusion the Supreme Court’s decision in Kirby has caused. Based on this examination, this Article asserts that courts have done an altogether inadequate job of formulating a uniform, cohesive, and predictable rule or set of rules with which to determine which marine insurance contracts—that provide both sea-side and shore-side risk coverage—are sufficiently “salty” to justify the exercise of admiralty jurisdiction for resolving controversies arising from such policies. Additionally, this Article argues that given the magnitude of the implications associated with the exercise of admiralty jurisdiction in resolution of contractual disputes, such as the use of general maritime law or the availability of admiralty-specific procedural devices, the Supreme Court has done the maritime industry a great disservice in its failure to formulate an understandable and applicable set of jurisdictional rules. As such, commercial interests would be better served by a coherent, uniform, and predictable rule or set of rules so as to more effectively negotiate and draft contracts and resolve disputes derived therefrom. Given this reality, the Kirby rule should be limited in its application to multi-modal transportation contracts and other contracts involving an element of geographic movement or insurance coverage thereof and master service agreements, as applied inGrand Isle Shipyard, Inc. v. Seacor Marine, LLC. But with regard to mixed insurance policies, the Supreme Court should follow the Second Circuit’s approach as discussed herein

Performance analysis of a hybrid topology CDD/TDD-CDMA network architecture

Student Number : 0006936H - MSc research report - School of Electrical and Information Engineering - Faculty of Engineering and the Built EnvironmentCode division duplexing (CDD) has steadily garnered attention in the telecommunication community. In this project report we propose a physical layer implementation of CDD that utilizes orthogonal Gold codes as the means of differentiating transmission directions, in order to implement an ad-hoc networking infrastructure that is overlaid on a standard mobile networking topology, and hence creating a hybrid networking topology. The performance of the CDD based system is then comparatively assessed in two ways: from the perspective of the physical layer using point-to-point simulations and from the perspective of the network layer using an iterative snapshot based simulation where node elements are able to setup connections based on predefined rules

Growth of Defect-Free 3C-SiC on 4H- and 6H-SiC Mesas Using Step-Free Surface Heteroepitaxy

A new growth process, herein named step-free surface heteroepitaxy, has achieved 3CSiC films completely free of double positioning boundaries and stacking faults on 4H-SiC and 6H-SiC substrate mesas. The process is based upon the initial 2-dimensional nucleation and lateral expansion of a single island of 3C-SiC on a 4H- or 6H-SiC mesa surface that is completely free of bilayer surface steps. Our experimental results indicate that substrate-epilayer in-plane lattice mismatch (delta a/a = 0.0854% for 3C/4H) is at least partially relieved parallel to the interface in the initial bilayers of the heterofilm, producing an at least partially relaxed 3C-SiC film without dislocations that undesirably thread through the thickness of the epilayer. This result should enable realization of improved 3C-SiC devices

Improvement in Chronic Hepatocerebral Degeneration Following Liver Transplantation

Chronic progressive hepatocerebral degeneration with spastic paraparesis, dementia, dysarthria, ataxia, tremor, and neuropsychiatric symptoms follows long-standing portal-systemic shunting, is associated with structural changes in the central nervous system, and does not respond to conventional therapy for hepatic encephalopathy. A case of advanced chronic liver disease with severe, progressive hepatocerebral degeneration after 23 yr of portal-systemic shunting is reported in whom there was significant objective improvement in intellectual function and in the chronic neurological signs 3 mo after orthotopic liver transplantation and further improvement 12 mo after transplantation

Lateral Growth Expansion of 4H/6H-SiC m-plane Pseudo Fiber Crystals by Hot Wall CVD Epitaxy

Lateral expansion of small mixed polytype 4H/6H-SiC slivers were realized by hot wall chemical vapor deposition (HWCVD). Small slivers cut from m-oriented ..11..00.. SiC boule slices containing regions of 4H and 6H SiC were exposed to HWCVD conditions using standard silane/propane chemistry for a period of up to eight hours. The slivers exhibited approximately 1500 microns (1.5 mm) of total lateral expansion. Initial analysis by synchrotron white beam x-ray topography (SWBXT) confirms, that the lateral growth was homoepitaxial, matching the polytype of the respective underlying region of the seed sliver

CFD Growth of 3C-SiC on 4H/6H Mesas

This article describes growth and characterization of the highest quality reproducible 3C-SiC heteroepitaxial films ever reported. By properly nucleating 3C-SiC growth on top of perfectly on-axis (0001) 4H-SiC mesa surfaces completely free of atomic scale steps and extended defects, growth of 3C-SiC mesa heterofilms completely free of extended crystal defects can be achieved. In contrast, nucleation and growth of 3C-SiC mesa heterofilms on top of 4H-SiC mesas with atomic-scale steps always results in numerous observable dislocations threading through the 3C-SiC epilayer. High-resolution X-ray diffraction and transmission electron microscopy measurements indicate non-trivial in-plane lattice mismatch between the 3C and 4H layers. This mismatch is somewhat relieved in the step-free mesa case via misfit dislocations confined to the 3C/4H interfacial region without dislocations threading into the overlying 3C-SiC layer. These results indicate that the presence or absence of steps at the 3C/4H heteroepitaxial interface critically impacts the quality, defect structure, and relaxation mechanisms of single-crystal heteroepitaxial 3C-SiC films

Contemporary predictors of death and sustained ventricular tachycardia in patients with repaired tetralogy of Fallot enrolled in the INDICATOR cohort

Objective: Patients with repaired tetralogy of Fallot (TOF) experience increased rates of mortality and morbidity in adulthood. This study was designed to identify risk factors for death and ventricular tachycardia (VT) in a large contemporary cohort of patients with repaired TOF. Methods: Subjects with repaired TOF from four large congenital heart centres in the USA, Canada and Europe were enrolled. Clinical, ECG, exercise, cardiac magnetic resonance (CMR) and outcome data were analysed. Results: Of the 873 patients (median age 24.4 years), 32 (3.7%) reached the primary outcome (28 deaths, 4 sustained VT; median age at outcome 38 years; median time from CMR to outcome 1.9 years). Cox proportional-hazards regression identified RV mass-to-volume ratio ≥0.3 g/mL (HR, 5.04; 95% CI 2.3 to 11.0; p<0.001), LV EF z score<−2.0 (HR, 3.34; 95% CI 1.59 to 7.01; p=0.001), and history of atrial tachyarrhythmia (HR, 3.65; 95% CI 1.75 to 7.62; p=0.001) as outcome predictors. RV dysfunction was predictive of the outcome similar to LV dysfunction. In subgroup analysis of 315 subjects with echocardiographic assessment of RV systolic pressure, higher pressure (HR 1.39; 95% CI 1.19 to 1.62; p<0.001) was associated with death and sustained VT independent of RV hypertrophy and LV dysfunction. Conclusions: RV hypertrophy, ventricular dysfunction and atrial tachyarrhythmias are predictive of death and sustained VT in adults with repaired TOF. These findings may inform risk stratification and the design of future therapeutic trials

Recent Results from Epitaxial Growth on Step Free 4H-SiC Mesas

This paper updates recent progress made in growth, characterization, and understanding of high quality homoepitaxial and heteroepitaxial films grown on step-free 4H-SiC mesas. First, we report initial achievement of step-free 4H-SiC surfaces with carbon-face surface polarity. Next, we will describe further observations of how step-free 4H-SiC thin lateral cantilever evolution is significantly impacted by crystal faceting behavior that imposes non-uniform film thickness on cantilever undersides. Finally, recent investigations of in-plane lattice constant mismatch strain relief mechanisms observed for heteroepitaxial growth of 3C-SiC as well as 2H-AlN/GaN heterofilms on step-free 4H-SiC mesas will be reviewed. In both cases, the complete elimination of atomic heterointerface steps on the mesa structure enables uniquely well-ordered misfit dislocation arrays to form near the heterointerfaces with remarkable lack of dislocations threading vertically into the heteroepilayers. In the case of 3C-SiC heterofilms, it has been proposed that dislocation half-loops nucleate at mesa edges and glide laterally along the step-free 3C/4H interfaces. In contrast, 3C-SiC and 2H-AlN/GaN heterofilms grown on 4H-SiC mesas with steps exhibit highly disordered interface misfit dislocation structure coupled with 100X greater density of dislocations threading through the thickness of the heteroepilayers. These results indicate that the presence of steps at the heteroepitaxial interface (i.e., on the initial heteroepitaxial nucleation surface) plays a highly important role in the defect structure, quality, and relaxation mechanisms of single-crystal heteroepitaxial films

10-Year Outcomes after Monitoring, Surgery, or Radiotherapy for Localized Prostate Cancer.

Background The comparative effectiveness of treatments for prostate cancer that is detected by prostate-specific antigen (PSA) testing remains uncertain. Methods We compared active monitoring, radical prostatectomy, and external-beam radiotherapy for the treatment of clinically localized prostate cancer. Between 1999 and 2009, a total of 82,429 men 50 to 69 years of age received a PSA test; 2664 received a diagnosis of localized prostate cancer, and 1643 agreed to undergo randomization to active monitoring (545 men), surgery (553), or radiotherapy (545). The primary outcome was prostate-cancer mortality at a median of 10 years of follow-up. Secondary outcomes included the rates of disease progression, metastases, and all-cause deaths. Results There were 17 prostate-cancer-specific deaths overall: 8 in the active-monitoring group (1.5 deaths per 1000 person-years; 95% confidence interval [CI], 0.7 to 3.0), 5 in the surgery group (0.9 per 1000 person-years; 95% CI, 0.4 to 2.2), and 4 in the radiotherapy group (0.7 per 1000 person-years; 95% CI, 0.3 to 2.0); the difference among the groups was not significant (P=0.48 for the overall comparison). In addition, no significant difference was seen among the groups in the number of deaths from any cause (169 deaths overall; P=0.87 for the comparison among the three groups). Metastases developed in more men in the active-monitoring group (33 men; 6.3 events per 1000 person-years; 95% CI, 4.5 to 8.8) than in the surgery group (13 men; 2.4 per 1000 person-years; 95% CI, 1.4 to 4.2) or the radiotherapy group (16 men; 3.0 per 1000 person-years; 95% CI, 1.9 to 4.9) (P=0.004 for the overall comparison). Higher rates of disease progression were seen in the active-monitoring group (112 men; 22.9 events per 1000 person-years; 95% CI, 19.0 to 27.5) than in the surgery group (46 men; 8.9 events per 1000 person-years; 95% CI, 6.7 to 11.9) or the radiotherapy group (46 men; 9.0 events per 1000 person-years; 95% CI, 6.7 to 12.0) (P<0.001 for the overall comparison). Conclusions At a median of 10 years, prostate-cancer-specific mortality was low irrespective of the treatment assigned, with no significant difference among treatments. Surgery and radiotherapy were associated with lower incidences of disease progression and metastases than was active monitoring. (Funded by the National Institute for Health Research; Current Controlled Trials number, ISRCTN20141297 ; ClinicalTrials.gov number, NCT02044172 .)