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Recent Trial Experience
Philip N. Davey
In the Matter of the Complaint of JR&C Marine, Inc. as Owner of the Tug CHEYENNE, for Exoneration from or Limitation of Liability, Civil Action No. 2:00cv878, Eastern District of Virginia, Norfolk Division.
Represented tug owner petitioning for exoneration from or limitation of liability arising out of a casualty in which crane barge in tow struck overhead power lines. Settled on favorable terms with power company for damages, and went to trial against crane operating company on issue of apportioned fault for contribution. Decision by the Court is pending.
Lloyd L. Myers, Jr. v. Trawler Christina Ann, Inc., At Law No. CL00-1978, Circuit Court for the City of Norfolk.
Represented Owner of scallop dredger in defense of personal injury claim alleging Jones Act negligence and unseaworthiness in causing deckhand to be struck by a wave, injuring his lower back. Took the case to trial in the face of Plaintiff's demand for policy limits, and settled on favorable terms just prior to closing on the third day of trial.
John Fernandez, III v. James B. Haynie aka Jim Haynie, Civil Action No. 4:00cv009, Eastern District of Virginia, Newport News Division.
Represented John Fernandez, the Owner of the F/V CAPTAIN LYMAN, in an Admiralty suit against his marine insurance broker other insurance intermediaries for broker malpractice and fraud in placing P&I coverage with a St. Kitts insurance company, then switching it to an Aruba, Netherlands Antilles company, without the Assured's knowledge or consent. The Court held that a contract to procure marine insurance is a maritime contract, within the Admiralty jurisdiction. Fernandez v. Haynie, 120 F.Supp.2d. 575, 2001 A.M.C. 786 (E.D.Va. 2000). On the eve of trial, Defendant Haynie admitted a breach of the standard of care. Following a two day trial on the merits, the Court found Defendant Haynie guilty of fraud and awarded Plaintiff Fernandez his attorneys' fees.
Atlantic Yacht Basin, Inc. v. Yacht STATION BREAK, in rem, Civil Action No. 2:00cv145, Eastern District of Virginia, Norfolk Division.
Represented yacht owner in defense of suit by yacht repair yard for unpaid repair bills on the grounds of negligent repair and excessive charges where engine failed upon start-up following winterization by repair yard. Defended against taxation of arrest costs on grounds that arrest was unnecessary and unreasonable. Decision by the Court is pending.
In the Matter of the Collision between M/V SAUDI MAKKAH and M/V TURTLE QUEEN, March 12, 1997, U.S.C.G. MSO Hampton Roads Case No. 0583MV98000-400.
Represented Pilot Captain Thomas D. Rutter, pilot aboard M/V TURTLE QUEEN during two week U.S, Coast Guard Formal Investigation into the collision of the M/V SAUDI MAKKAH while overtaking the M/V TURTLE QUEEN in Thimble Shoals Channel. Followed through with representation of Captain Rutter before Virginia Board for Branch Pilots and USCG Hearing Office penalty proceedings.
Eastern Technical Enterprises, Inc. v. United States of America, Civil Action No. 2:95cv138, Eastern District of Virginia, Norfolk Division.
Represented ETE, government contractor, in action to recover costs for rebuilding Auxiliary No. 1 Port Diesel Generator (MaK 6M282AK) which failed during sea trials following performance of contract to re-activate and de-activate the M/V CAPE TEXAS. After a seven day bench trial, the returned a judgment in favor of the Government.
Tidewater Yacht Agency, Inc, v. National Shipping Company of Saudi Arabia and Moran Towing Company of Virginia, At Law No. 94-1659, Circuit Court for the City of Portsmouth.
Represented NSCSA in defense of an oil pollution clean-up claim by a marina against ship-owner and tug owner claiming $500,000 in clean-up costs and property damage. Both defendants admitted liability under strict liability standards of Virginia's Oil Pollution Liability Statute. Prior to trial, plaintiff demanded settlement in the amount of $241,000. After five jury trial, jury returned a verdict against both defendants in the amount of $100,000.
Denny O'Neal, Inc. v. William Drake, Civil Action No. 4:94cv21, U.S. District Court, Eastern District of Virginia, Newport News Division.
Filed an interpleader against seaman who deserted the F/V DENNY O'NEAL and U.S.A., tendering balance of wages into court. Seaman counterclaimed for Jones Act negligence and unseaworthiness, claiming a herniated disk which permanently disabled him from working as a deckhand and limited his wage earning capacity. Following a two and a half day trial, the jury found he was a deserter, and ordered his wages forfeit. On the counterclaim, the jury found the Master negligent and the seaman 50% contributorily negligent, assessing his damages at $7,000.95 and reducing the award to $3,500.48.
In the Matter of the Complaint of F/V CAPT. Wool, Inc., as Owner etc. Civil Action No. 4:93cv45, Eastern District of Virginia, Newport News Division, case reported at 914 F.Supp. 1300 (E.D.Va. 5/26/95).
Represented owner of one of two fishing vessels involved in a collision at sea. Settled the collision liabilities at 50/50, and presented joint defense with other vessel owner, to two personal injury claims by crewmen aboard the F/V CAPT. WOOL. Denied Maintenance & Cure on grounds that crewmen were fit for duty following care by initial treating physician, and care rendered by subsequent physician was unnecessary and unreasonable. Treating physician testified that both claimants suffered permanent back injuries rendering them not fit to return to sea. Judge Doumar found both seamen suffered back sprains, were fit to return to duty, and that most of the diagnostic tests and treatment prescribed by treating physician were unnecessary. He awarded Trevino damages of $15,879.25 and Charity damages of $10,300.24 against pre-trial settlement demands of $300,000 and $125,000 respectively.
F. Gregg Bemis v. The R.M.S. LUSITANIA, Civil Action No. 2:94cv226, U.S. District Court, Eastern District of Virginia, Norfolk Division.
Plaintiff brought an action in rem, using artifacts from the R.M.S. LUSITANIA recovered in 1982 and 1993, seeking to quiet his title to the wreck and to establish himself as salvor in possession of the unrecovered wreck. We represented Fifty Fathom Ventures, Inc., a group of American sport divers who made over 100 successful dives on Trimix during the Summer, 1994, seeking to dismiss for lack of jurisdiction over a wreck in the Irish territorial sea, and alternatively to establish their salvage rights in the wreck. After the first day of trial, the Court denied the divers' leave to file a late claim, but invited them to put on evidence contesting jurisdiction. Following a one day trial and briefing on jurisdiction, the Court retained jurisdiction to adjudicate title and to determine salvage rights. Ultimately, the Court awarded Plaintiff Bemis clear title to the wreck (hull & machinery, not cargo), but denied him continuing salvage rights and injunction.
Fulcher v. C&P Towing Co., Inc., At Law No. 27591-M, Circuit Court for the City of Chesapeake.
Represented towing company employer in action by seaman for personal injuries arising out of two separate accidents on different tugs within two days of one another. Seaman alleged negligence of Master in operating tug after both Master and seaman had been drinking. Seaman incurred approximately $50,000 in medical expenses for which owner had denied liability as unnecessary and unreasonable, and claimed permanent disability preventing further employment as seaman. Following five day trial, jury awarded $175,000 as against settlement demand of $200,000.
Forman Brothers, Inc. v. Evergreen Marine Corp. v. James A. Gibson, Inc., Civil Actions Nos. 2:92cv458 & 715, Eastern District of Virginia - Norfolk Division
Represented ocean carrier in defense of suit by cargo owner for freezing damage to a cargo of bottled wine carried in container. Settled the principal claim during bench trial on favorable terms, including recovery of container demurrage, and proceeded with third party claim against reefer contractor for contribution based on breach of warranty of workmanlike service. The Court held the reefer contractor to be a stevedore, and apportioned fault between carrier and stevedore, 75/25, resulting in a 25% recovery of the cargo settlement.
Marex Titanic, Inc. v. The Unidentified Wrecked and Abandoned Vessel...believed to e the R.M.S. TITANIC, Civil Actions No. 2:92cv618, Eastern District of Virginia - Norfolk Division
Represented potential salvor in salvage action, including motions for temporary retraining order and injunction. Working as co-counsel with David P. Horan of Key West, following a four day trial, Judge Clarke enjoined our client from conducting robotic salvage, and held that Titanic Ventures, a limited partnership, retained rights as "first salvor" notwithstanding passage of five years without actual salvage expedition. Reversed on procedural grounds.
In the Matter of the Complaint of D&H Corp. a Owner, and C&P Towing Company, Inc. (Tug ANN K.), Civil Action No. 2:91cv___, Eastern District of Virginia - Norfolk Division
Represented towing company in defense of action by owners of barge and its cargo of grain which capsized and sank while in tow on the Chesapeake Bay. Tried June 17-18, 1992, before the Honorable Robert M. Payne, U.S. District Judge. Settled on favorable terms (approximately one-thirds) following oral argument, while awaiting judgment.
CSX Transportation, Inc. v. S.S. UNITED STATES, in rem, Civil Action No. 91-141-NN, on appeal to U.S. Fourth Circuit Court of Appeals, Appeal No. 92-1677.
Represented buyer of the S.S. UNITED STATES at U.S. Marshal sale. Obtained confirmation of sale over objection of disappointed bidder who claimed that vessel could only be sold to a corporation owned 80% by U.S. citizens. Dismissed appeal to Fourth Circuit on grounds of untimely intervention by disappointed bidder.
In the Matter of the Complaint of William S. Wells as Owner of the F/V CAROLINA LADY for Exoneration from or Limitation of Liability, Civil Action No. 90-1916-N, Eastern District of Virginia - Norfolk Division
Represented owner of the F/V CAROLINA LADY in defending a personal injury claim by its Master who suffered a compound comminuted fracture of the wrist when it was crushed between the boat and the scallop dredge. Captain Araiza claimed total disability from work as a commercial fisherman. He brought a $2.0 Million suit in state court almost three years after the accident, and we stayed it pending a limitation proceeding. The Federal Court held that actual notice of the claim for over two years was not written notice, and denied Claimant's motion for summary judgment to dismiss the limitation proceeding. Following the first day of trial the claim was settled for the vessel's limitation fund.
IN RE: Formal Investigation Into the Collision Between the M/V NEPTUNE JADE and the M/V COLUMBUS AMERICA
Represented Pilot John A. Jones, Jr., in hearings from July 3-13, 1990, before a combined U. S. Coast Guard and National Transportation Safety Board formal investigation. Awaiting investigation reports.
Braithwaite v. C. V. Scheepv. Onderneming, Civil Action No. 89-781-N, Eastern District of Virginia - Norfolk Division
Represented owner of the M/V BONTEGRACHT against Longshoreman Braithwaite's personal injury action claiming total permanent disability. Tried to a jury before the Honorable J. Calvitt Clarke, Jr., from June 11-15, 1990, we admitted liability and tried on causation, distinguishing between two neck injuries; one accident related, the other, congenital. Turned down a $1.8 million settlement demand; jury returned a Plaintiff's verdict for $250,000.
Columbus America Discovery Group v. The Unidentified Wrecked & Abandoned Sailing Vessel (S.S. CENTRAL AMERICA), Civil Action No. 87-363-N, Eastern District of Virginia - Norfolk Division
In a highly publicized case concerning the ownership of sunken treasure, represented the finders, Columbus America Discovery Group [CADG], against 39 insurance companies. In a critical early action concerning a developing area of the law, appeared before the court to obtain initial order arresting salvaged artifacts and assuming in rem jurisdiction over the gold cargo on vessel that sank September 12, 1857.
As assistant trial counsel, petitioned the court for temporary restraining order and preliminary injunction to prevent competing salvor from interfering with salvage operations of CADG's oceanographic vessel operating robots approximately 200 miles off shore in water 2 miles deep. Later enforced the injunction through a civil contempt proceeding reported at 1989 A.M.C. 2957.
Following eight days of evidence and argument, the Honorable Richard G. Kellam declared CADG the absolute owners of the 130+ year old gold cargo. Decision reported at 1990 A.M.C. 2409, and previous proceedings at 1990 A.M.C.1955.
Harwood v. Partredereit af 15.5.81, Civil Action No. 89-638-N, Eastern District of Virginia - Norfolk Division
Represented owner of the Danish flag M/V CAPTAIN MOST in defense of a personal injury action by Virginia branch pilot Wallace S. Harwood, Jr. He claimed a torn rotator cuff injury sustained while boarding the CAPTAIN MOST disabled him as a pilot. Two months before trial, Captain Harwood retired early, after having worked as a pilot for 2 years following the accident. We declined a $650,000 settlement demand, and tried to a jury from March 13-16, 1990. The outcome was a Plaintiff's verdict for $700,000. The Fourth Circuit reversed and remanded for a new trial, holding that a compulsory pilot is not a seaman entitled to the warranty of seaworthiness. Harwood v. Partrederiet af 15.5.81, 1992 A.M.C. 375 (4th Cir. 1991), and the Supreme Court has denied certiorari. Related proceedings at 1990 A.M.C. 1384 (E.D. Va. 1990).
Cargill, Inc. v. C&P Towing Company, Inc. (Tug RANDY D.), Civil Action No. 89-378-N, Eastern District of Virginia - Norfolk Division
Represented towing company in defense of action by owner of barge and its cargo of grain which capsized and sank while in tow on the Chesapeake Bay. Tried from January 15-18, 1990, before the Honorable Tommy E. Miller, U.S. Magistrate. Effectively used expert witnesses to prove defense theory of the case and disprove Plaintiff's theories to exonerate the tug. Decision reported at 1991 A.M.C. 101, affirmed by the Fourth Circuit in an unpublished opinion noted at 943 F. 2d 48.
In the Matter of License No. 595582 (Brian Cook, Respondent), Docket No. 050034-PAF-89-N, U.S.Coast Guard MSO Hampton Roads.
Represented the Respondent in an administrative law proceeding to defend against the suspension or revocation of his small passenger vessel license. Tried during January 10-11, 1990. The Coast Guard alleged 11 specifications of negligence or misconduct, five of which the Investigating Officer dismissed outright. The Respondent pleaded guilty to three specifications and contested the remaining three. Acquitted on the contested charges and placed on six-month probation for the admitted violations.
Norfolk Shipbuilding & Drydock Corp. v. Bailey Refrigeration Co., Civil Action No. 88-062-N, Eastern District of Virginia - Norfolk Division
Defended Bailey Refrigeration Co. in a government contract dispute. NORSHIPCO, the primary contractor, sought damages from Bailey for its refusal to perform a subcontract in which an erroneous bid had been submitted. Bailey's estimator had calculated figures based on one refrigeration unit and neglected to extend his estimates by the number of units in the contract. This bid was one third the price for which Bailey was willing to perform and less than half any competing bid. We defended on the theory that NORSHIPCO could not reasonably have relied on this unreasonably low bid. The case was tried in August, 1988, before the Honorable Robert A. Doumar who ruled in Bailey's favor. The case was not appealed.
Flayer Corp. v. Schiller & Price Industrial Consultants, Inc. and Gary Lee Walker, et. al., Civil Action No. 88-238-N, Eastern District of Virginia - Norfolk Division
Represented plaintiff Flayer Corp., the owner of the U.S. documented drillship E.A. WILDER, in an action to try its title. Flayer had employed a lawyer in West Virginia to document the vessel. The lawyer fraudulently transferred title to Schiller & Price Industrial Consultants, who was preparing to sell her to foreign ship breakers and have her transferred to a foreign flag. The Commandant of the Coast Guard and the Secretary of Transportation were named defendants to prevent the sale and transfer. On June 24, 1988, petitioned the court for a temporary restraining order to suspend the proposed sale and transfer. The action to try title was before Honorable J. Calvitt Clarke, Jr. on July 11-14, 1988 who held in favor of Flayer Corp.
Kiewit Eastern Company v. The Tug MORANIA NO. 24 in rem, et. al., Civil Action No. 87-324-N, Eastern District of Virginia - Norfolk Division
Represented Morania Oil Tanker Corporation and its tug and barge in an action brought by Kiewit Eastern Company for damages arising out of an allision by Morania's tug and barge with Kiewit's cofferdam in use in constructing the new Campostella bridge over the Eastern Branch of the Elizabeth River. Kiewit claimed damages of $175,000, and Morania made an offer of judgment of $71,000. The case was tried before the Honorable J. Calvitt Clarke, Jr. from April 6-8, 1988. Morania defended on the grounds that the cofferdam was an obstruction to navigation not properly marked in accordance with Coast Guard requirements under the bridge permit and that the damages claimed by Kiewit were excessive.
Judge Clarke ruled in favor of Plaintiff on liability only. For damages, Judge Clarke not only accepted Defendant's theory, but used that theory to establish precedential guidelines for the computation of damages and entered a judgment order limiting Plaintiff's damages to $67,816.54.
Caterpillar Overseas, S.A. v. Farrell Lines, Inc. et. al., Civil Action No. 87-327-N, Eastern District of Virginia - Norfolk Division
Defended Farrell Lines, Inc. against Caterpillar Overseas' claim for $105,000 for the constructive total loss of a tractor being transported overland from Portsmouth Marine Terminal to Norfolk International Terminal. Tried the case in January, 1988, before the Honorable Richard B. Kellam who found in favor of the plaintiff; limited damages to only $69,894.22, the replacement cost for the tractor; and limited Farrell's liability to $500, the COGSA per package limitation as incorporated in the bill of lading. Judge Kellam declined to extend the per package limit of liability to Farrell's trucker under the Himalaya Clause in the bill of lading, holding that it was not specific enough. Opinion, reported at 1988 A.M.C. 2894. On appeal, the Fourth Circuit rejected plaintiff's deviation theory and affirmed on all other points. Reported at 1991 A.M.C. 75.
Bradley v. Cruise International and Holiday Cruises, Inc., At Law No. L86-2567, and Lintz v. Cruise International and Holiday Cruises, Inc., At Law No. L86-2669, Circuit Court for the City of Norfolk
Represented Holiday Cruises, Inc., the general partner owning the harbor cruise ship NEW SPIRIT in defense of actions brought by Bradley and Lintz claiming wrongful arrest, malicious prosecution, and personal injuries arising out of an incident aboard the NEW SPIRIT. After Plaintiffs were cut off from further drinking, a fight broke out among Plaintiffs and several of the hotel staff. As assistant counsel to Robert M. Hughes, tried the case in September, 1987 before the Honorable Moultrie Guerry, sitting with a jury, and resulted in a mistrial due to a hung jury. Mr. Hughes later tried the case before Judge Guerry and a new jury, resulting in a defense verdict.
St. Peter's Church v. Preston E. Berry, In Chancery No. C 87-974, Circuit Court for the City of Norfolk
Represented the Childrens Home Society of Virginia, Inc. in an action to set aside the sale of real estate by the executor of a will to a company owned and controlled by him. The suit was tried before the Honorable Thomas N. McNamara on March 13, 1989 who set aside the sale.
Kohls v. City of Virginia Beach, Circuit Court for the City of Virginia Beach
Represented a Virginia Beach volunteer rescue squad and its ambulance driver in a personal injury action brought by a passenger in a pickup truck. The pickup truck ran a stop sign and was struck by an ambulance which was speeding and not sounding its siren. The plaintiff had medical expenses and lost wages totalling $23,000. The case was tried before the Honorable John Moore, sitting with a jury, in December, 1987. The jury returned a verdict for plaintiff in the amount of $25,000 under which there was no financial responsibility by the defendant due to the plaintiff's prior settlement with her driver under a covenant not to sue for $25,000.
Professional Profile
List of Reported Cases
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