[00:00:00] Speaker 00:
If I do, I'm going to take a nap.

[00:00:02] Speaker 00:
Case number 14-1044, Adla Adeezy Adanariwa, petitioner versus Federal Maritime Commission at L. Mr. Bachel for the petitioner, Mr. Wood for the respondents.

[00:00:49] Speaker 03:
Well, we don't get many cases from the Federal Maritime Commission.

[00:00:55] Speaker 03:
I think I've been here, well, I know I've been here 25 years.

[00:00:58] Speaker 03:
I think this is the first one I've had.

[00:01:00] Speaker 05:
This is my second, and I think I have one more case for this term.

[00:01:05] Speaker 01:
Yeah, hence the dearth of case law from these cases.

[00:01:09] Speaker 01:
May it please the court, my name is Daniel Bushell.

[00:01:12] Speaker 01:
I represent the petitioner.

[00:01:13] Speaker 01:
I'd like to reserve two minutes for rebuttal.

[00:01:15] Speaker 01:
I want to discuss three main issues.

[00:01:19] Speaker 01:
The first issue is mitigation of damages as to the second container, as we're calling it.

[00:01:26] Speaker 01:
This court has approved in one of its few cases on the Federal Maritime Commission the application of mitigation of damages principles.

[00:01:35] Speaker 01:
So I would submit that the application here had nothing to do with

[00:01:41] Speaker 01:
what American law recognizes as mitigation of damages.

[00:01:45] Speaker 01:
And in fact, contradicted one of the primary principles of it, which is mitigation of damages doesn't shift responsibility to the injured party for what the tortfeasor was supposed to do.

[00:02:05] Speaker 01:
In this case, that's exactly what happened.

[00:02:08] Speaker 01:
What was supposed as failure to mitigate was that the petitioner should have paid the demurrage charges, which was the basis on which the defendants violated the statute to begin with.

[00:02:29] Speaker 01:
were supposed to mitigate their violation of the statute by doing what they were supposed to do.

[00:02:35] Speaker 01:
And the case was very clear that that's not mitigating the damages.

[00:02:39] Speaker 01:
The APL case from the Second Circuit that we cite, I think, is the closest on point.

[00:02:44] Speaker 01:
And that's a case where it was a similar retry to shift demerit charges from the party that was supposed to pay them

[00:02:57] Speaker 01:
to the injured plaintiff who was suing, and the district court there reached a very similar decision to what the FMC said here, and the seconds are reversed for this very reason, basically because if the tortfeasor and the injured party are in equal position,

[00:03:17] Speaker 01:
to avoid the damages, the tortfeasor has to be responsible to do that.

[00:03:25] Speaker 01:
And this court also has a case called Shay S&M Ball, which is cited in our briefs, which basically applied the same principle and basically recognized the exact same limitation on the mitigation of damages principle.

[00:03:43] Speaker 01:
That case invited a construction site runoff

[00:03:46] Speaker 01:
and the supposed lack of mitigation was that the plaintiff should have built a dike to avoid the water runoff onto his property, but that was exactly what the defendant was supposed to do.

[00:03:59] Speaker 01:
So this court held that it was not proper to limit the plaintiff's damages based on the failure to build a dike because that was exactly what the defendant was supposed to do.

[00:04:09] Speaker 01:
I think that's quite analogous to what

[00:04:13] Speaker 01:
happened here.

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The opposite decision was reached here.

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So therefore, I would argue that that violated basic principles of mitigation of damages and was an error.

[00:04:28] Speaker 01:
Second issue I want to discuss is the statute of limitations with regard to the first container.

[00:04:37] Speaker 01:
The settlement officer found that the statute began to run here on April 30, 2008.

[00:04:44] Speaker 01:
What's remarkable is what she said triggered the statute of limitations, which is an email in which BDP, the freight forwarder, told Zim, the shipper, to issue an express release of the package.

[00:05:03] Speaker 01:
So in other words, BDP was trying to remedy the holding of the container.

[00:05:14] Speaker 01:
And on May 6th, BDG tells the petitioner that Zim authorized the suppressed release.

[00:05:22] Speaker 01:
Yet somehow, the petitioner being told that Zim was going to release the package somehow started the statute of limitations on the claim that Zim wouldn't release the package.

[00:05:38] Speaker 01:
I mean, I think even if it would have started on April 30th, on May 6th, the representation that it was going to be released, I would say would toll it in any event.

[00:05:47] Speaker 05:
When would you say the statute began to run if at all?

[00:05:53] Speaker 01:
I think it began to run in August 2008 when basically Zim repudiated the obligation to take care of the demerge and placed it all on my client to do that.

[00:06:07] Speaker 03:
How about our jurisdiction to hear your petition with respect to container one?

[00:06:14] Speaker 01:
Yeah.

[00:06:15] Speaker 01:
As we explained in our briefs, this court has held that an appeal from an administrative agency decision, you apply the same principles as with this court decision, which is all claims between all parties must be adjudicated

[00:06:33] Speaker 01:
before it's right for appeal.

[00:06:36] Speaker 03:
But these are two separate small claims and in March of 2013 the Nelson, the SO, affirms on reconsideration her decision to dismiss container one and she issues on that same day a separate decision awarding mitigated damages to your client on the

[00:07:03] Speaker 03:
container two.

[00:07:06] Speaker 03:
So why did the time not begin to run on container one?

[00:07:10] Speaker 03:
on March 7th of 2013.

[00:07:14] Speaker 03:
Excuse me, 2013.

[00:07:16] Speaker 01:
Because the separation of the containers into two separate docket numbers was merely a matter of convenience.

[00:07:23] Speaker 01:
These were two identical complaints that were filed just for, it was basically a procedural maneuver.

[00:07:29] Speaker 05:
I understand your client was acting pro se, but when you get two claims and you use two docket numbers and they are, it is a,

[00:07:39] Speaker 05:
relevant consideration where you have the damages limitation in the formal proceeding, wasn't it perfectly reasonable to separate them as an adjudicatory matter, not just as an administrative matter?

[00:07:55] Speaker 05:
In effect, didn't the court sever the two claims into the two different documents?

[00:08:01] Speaker 05:
By issuing two separate orders as well?

[00:08:03] Speaker 05:
By issuing two separate orders.

[00:08:05] Speaker 01:
Well, I would say that the court

[00:08:10] Speaker 01:
did not, except for more administrative matter.

[00:08:14] Speaker 01:
I mean, the fact that the order dismissing as to the first container addresses both claims as to both containers.

[00:08:24] Speaker 01:
And as I said, the complaints here were identical.

[00:08:28] Speaker 01:
The claims were identical.

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I mean, you can't get more intertwined than that.

[00:08:32] Speaker 04:
But the agency declined to review container one in March 22, 2013.

[00:08:38] Speaker 04:
So the agency's disposition ended with respect to that then, right?

[00:08:42] Speaker 04:
It wasn't until February 2014 that they addressed the second container.

[00:08:49] Speaker 01:
That's correct.

[00:08:49] Speaker 01:
And I would say that that's no different than if a district court grants partial summary judgment as to some defendants or as to some claims.

[00:08:57] Speaker 05:
If a district court got two exactly identical complaints, the district court would dismiss one of them, because it's already under litigate.

[00:09:07] Speaker 05:
It would be the same case if it's followed by two identical complaints.

[00:09:12] Speaker 05:
The district court would dismiss one.

[00:09:14] Speaker 05:
You really came out better, by the way, this administrator handled it, than you would have if I were sitting on it as this.

[00:09:22] Speaker 05:
You really think if district court would entertain two identical complaints at the same time?

[00:09:27] Speaker 01:
No, I don't.

[00:09:28] Speaker 01:
But I think that this is a

[00:09:32] Speaker 05:
a result of this informal procedure that has its artificial limitations.

[00:09:55] Speaker 01:
Yeah, but I would say that's not my argument, and my argument is that despite treating them as different, you know, docket numbers, whatever that means, that doesn't mean that it wasn't all part of one controversy.

[00:10:09] Speaker 01:
You know, whether, however, it may be designated docket-wise, it still remains the same controversy.

[00:10:19] Speaker 01:
well it's two in terms of the limitation of damages which like as I said is artificial in this case because his damages were much greater than was allowed under either one but it's

[00:10:47] Speaker 01:
When you're looking holistically at what was done, it's the same.

[00:10:53] Speaker 01:
I mean, one's a formality, and one is a practical analysis.

[00:11:00] Speaker 01:
I see I'm out of time.

[00:11:01] Speaker 03:
All right, we'll give you some time in reply.

[00:11:03] Speaker 03:
Thank you.

[00:11:03] Speaker 03:
Mr. Ward?

[00:11:13] Speaker 06:
It may have pleased the Court, Tyler Wood on behalf of the respondents.

[00:11:16] Speaker 06:
The petitioner finds himself in this position because of three critical decisions that he made.

[00:11:20] Speaker 06:
First, he chose to pursue discovery under the Commission's informal process.

[00:11:24] Speaker 06:
Second, he chose to split his claims in an effort to increase his potential recovery.

[00:11:29] Speaker 06:
And third, he chose not to take reasonable steps to recover his cargo once it became clear that it would not be released until payment of demerit charges had accrued in Nigeria.

[00:11:38] Speaker 03:
Which was illegal.

[00:11:40] Speaker 03:
At least with respect to Container 2.

[00:11:44] Speaker 03:
Why do we insist that someone mitigate damages because of the illegal conduct of someone else and then later seek reimbursement?

[00:11:55] Speaker 03:
At least it doesn't conserve judicial resources.

[00:12:01] Speaker 06:
Perhaps it doesn't conserve judicial resources, Your Honor, but what it does is it gets the parties focused on whatever the issue is at the time, reserves rights, potentially reserves rights on the back end.

[00:12:12] Speaker 04:
I mean, is there any case law with respect to this agency and this notion of mitigation?

[00:12:17] Speaker 04:
I think what my colleague is suggesting, it's hardly intuitive that if I'm being, if someone's about to do something bad to me or is doing something bad, I now become blameworthy?

[00:12:28] Speaker 06:
There's not a lot of case law on it.

[00:12:31] Speaker 06:
Well, is there any case law?

[00:12:33] Speaker 04:
Are we going clean on this?

[00:12:34] Speaker 04:
Because the intuition doesn't go your way.

[00:12:36] Speaker 06:
Our position is that you are clean on this, Your Honor.

[00:12:38] Speaker 06:
There's one case from 1967, Florida, Mercante, Grand Columbia, versus Federal Maritime Commission, in which the Court deferred to the Commission's review of mitigation principles.

[00:12:49] Speaker 06:
I think the broader concern for the agency is that these arguments about the Equal Footing Doctrine weren't presented to the agency.

[00:12:56] Speaker 06:
This all could have been sorted out had they been presented at the time.

[00:13:00] Speaker 06:
The commission and the settlement officer were just faced with the general question of mitigation and it correctly held that the duty was on the respondents below to make a case in chief regarding the affirmative defense.

[00:13:11] Speaker 05:
Mostly we've seen mitigation over the

[00:13:14] Speaker 05:
eons in situations in which the damages are caused and then further damages occur because the injury party fails to take beneficial action.

[00:13:28] Speaker 05:
A supplier for a baby food company done something tainted, and the baby food company surfaced $2 million damages when they could have suffered $750,000 worth of damages if they tasted the baby food the way they were supposed to.

[00:13:43] Speaker 05:
It takes a further act and some further damages before we get to it.

[00:13:47] Speaker 05:
This is one where you're saying, well, the torque phaser has acted and the damaged party should have acted to undo what the torque phaser had done when the torque phaser could have acted themselves.

[00:14:00] Speaker 05:
That's different, isn't it?

[00:14:02] Speaker 05:
Isn't it beyond our prison?

[00:14:04] Speaker 04:
And pursuant to conditions that are being determined by the tort visa, which is really weird to me.

[00:14:09] Speaker 04:
They're essentially saying, well, we want you to pay X. They had no right to X. And if you refuse to oblige with or go along with that condition, which they had no right to set, you have failed to mitigate?

[00:14:24] Speaker 06:
It is a unique situation, Your Honor.

[00:14:25] Speaker 06:
And I think the additional concern is that much of this expresses frustration with the general principle of mitigation generally.

[00:14:35] Speaker 05:
In an employment context, you're always going... No, no, no.

[00:14:38] Speaker 05:
It's not the same thing.

[00:14:39] Speaker 05:
We've had mediation generally where there has been further damage due to the Injury Purpose Fair to Act to prevent further damage.

[00:14:48] Speaker 05:
I don't recall any where we've said they don't know the first damages because they didn't

[00:14:54] Speaker 05:
I mean, you didn't come up with any.

[00:14:57] Speaker 04:
Yeah, I was looking for some analogous cases because it's not intuitive.

[00:15:01] Speaker 04:
This does not make sense.

[00:15:03] Speaker 04:
When I was preparing this case, it's really strange that the tort fees can set conditions which has no right to set.

[00:15:11] Speaker 04:
And if not met, that will be used against the injured party.

[00:15:15] Speaker 06:
Well, the petitioner did recover.

[00:15:18] Speaker 06:
The question is the extent to which he recovered.

[00:15:21] Speaker 04:
It's a huge difference in what he got and what he could get.

[00:15:24] Speaker 06:
It can be a big difference.

[00:15:25] Speaker 04:
Yeah, it is a big difference in this case.

[00:15:27] Speaker 06:
But there may be conditions under the Shipping Act and the shipping industry generally where, with a full record and considering the principles illuminating the Shipping Act, the Commission might agree with the Equal Funding Doctrine.

[00:15:39] Speaker 06:
The basic issue, though, is that it wasn't presented to the Commission.

[00:15:42] Speaker 05:
The Commission didn't rule on it over the... Well, none of the informal hearings should have suggest the possibility that they may not get as full a presentation as if they had a representative party in a formal hearing.

[00:15:53] Speaker 05:
There are certainly more more processes and the full aren't you trying to impose the burdens of the formal proceeding on a claimant who's entitled to the more relaxed conditions of the informal.

[00:16:08] Speaker 06:
Well, I think the record reflects that the settlement officer and the commission allowed the petitioner not one, but two more additional offerings, both on facts and argument.

[00:16:18] Speaker 06:
The settlement officer, I think, gave the petitioner every opportunity to meet the standard.

[00:16:22] Speaker 04:
I thought the petitioner was arguing.

[00:16:23] Speaker 04:
This is unfair.

[00:16:25] Speaker 06:
He argued it wasn't fair.

[00:16:26] Speaker 04:
But that seems self-evident.

[00:16:27] Speaker 04:
He presented the argument.

[00:16:29] Speaker 04:
This makes no sense.

[00:16:30] Speaker 04:
How are you doing this to me?

[00:16:31] Speaker 06:
His argument was, I shouldn't have to pay this.

[00:16:33] Speaker 04:
Yes, that's exactly right.

[00:16:35] Speaker 04:
Bingo.

[00:16:36] Speaker 04:
That's exactly the argument.

[00:16:38] Speaker 04:
He didn't use lawyer's words.

[00:16:40] Speaker 04:
He made the argument the way he wanted.

[00:16:41] Speaker 04:
That's why I'm shocked when you say, of course he raised it.

[00:16:44] Speaker 04:
He said, I shouldn't have to pay this.

[00:16:45] Speaker 06:
He certainly contested mitigation, and I don't mean to argue otherwise.

[00:16:48] Speaker 06:
Our position is that the equal footing doctrine and the precise contours of how much of that the commission has to explore and the settlement officers have to explore in every case.

[00:16:57] Speaker 06:
Certainly, the equal footing doctrine is part of the fabric of mitigation principles.

[00:17:01] Speaker 06:
But what I don't think this court has ever required is that the commission or district courts run down every trap.

[00:17:07] Speaker 04:
No, no, no.

[00:17:07] Speaker 04:
What we require pursuant to the law is reasoned decision-making.

[00:17:10] Speaker 04:
And what we're suggesting to you, at least a couple of us, we're having trouble finding the reasoned decision-making here.

[00:17:17] Speaker 04:
And there was a protest about it, that what was presented to the decision-maker and now the obligation on the agency to show us reasoned decision-making.

[00:17:25] Speaker 04:
And I'm struggling with it.

[00:17:27] Speaker 06:
We respectfully submit that the substantial evidence in the record supports the conclusion drawn by the settlement officer and the commission and that the petitioner was afforded every possibility to lay out exactly what his arguments were.

[00:17:40] Speaker 06:
If the court disagrees with that finding, we would simply ask that the commission have the first opportunity to address reflecting the principles in the Shipping Act.

[00:17:48] Speaker 06:
what the contours of that doctrine might be, and if there are any unique reasons why the medication principles generalize.

[00:17:54] Speaker 04:
Well, you know, there's another way to do that, too.

[00:17:56] Speaker 04:
If you don't have an adjudication, whether it's informal or formal, you've lost it.

[00:18:02] Speaker 04:
You can define the contours in another case.

[00:18:06] Speaker 04:
But it's unfair to make parties continue to go back into an adjudication on which you have failed to carry your burden.

[00:18:12] Speaker 04:
Why should you get another shot at it?

[00:18:14] Speaker 04:
I realize the cases go both ways on this.

[00:18:17] Speaker 04:
But again, the instinct is, I already adjudicated my case.

[00:18:20] Speaker 04:
The agency couldn't make it.

[00:18:22] Speaker 04:
Why should I have to do it again?

[00:18:24] Speaker 06:
I think the record, I think, for example, is not clear on the exact amount of full damages the petitioner was alleging.

[00:18:30] Speaker 06:
There were different numbers in the record.

[00:18:32] Speaker 06:
Again, we simply ask that if the Court does disagree with the Commission's finding on general mitigation principles, that the Commission be the first to at least take the opportunity to examine that doctrine.

[00:18:44] Speaker 06:
And on the first claim, 1920i, the court has already noted that the Commission entered a final order on March 22nd.

[00:18:54] Speaker 06:
There could not have been a clear indication that the Commission had reached its terminus.

[00:18:59] Speaker 06:
It had consummated the proceedings and fixed the legal rights of the parties.

[00:19:04] Speaker 06:
The Commission doesn't have the equivalent of Federal Rule of Civil Procedure 54b.

[00:19:08] Speaker 06:
But what we do have is the commission in a clear indication saying we are done.

[00:19:13] Speaker 06:
The petitioner sought the opportunity to expand his damages by splitting his claim with that back end consequences.

[00:19:23] Speaker 05:
Is it really splitting a claim and you've got

[00:19:28] Speaker 05:
He's not splitting his claim.

[00:19:30] Speaker 05:
He's recognizing that he has two claims.

[00:19:32] Speaker 06:
That's a fair point, Your Honor.

[00:19:33] Speaker 06:
I guess it's not splitting his claim.

[00:19:34] Speaker 06:
It's proceeding for recovery under two.

[00:19:37] Speaker 06:
That's right, Your Honor.

[00:19:39] Speaker 06:
And on the question of statute of limitations, the court needn't even address that unless it disagrees with the commission on the timeliness of the petition and jurisdiction they're under.

[00:19:49] Speaker 06:
And unless there are any further questions, we will rest on our briefs.

[00:19:53] Speaker 03:
All right.

[00:19:53] Speaker 03:
Thank you.

[00:20:01] Speaker 01:
why don't you take one i just wanted to address a few points made by my colleague one is uh... he said that my client had you know in terms of the waiver issue i think as the court has recognized it was very clearly contested in layman's terms of course the

[00:20:21] Speaker 01:
application of the mitigation damages in this instance, and he was not given an opportunity.

[00:20:27] Speaker 01:
He sent a letter in, he wasn't a settlement officer, accepted it, but he never was requested to submit legal authority or anything like that, which is the only way he could have done that.

[00:20:39] Speaker 01:
In terms of the court's questions, before I just wanted to point out that the settlement officer is the one who said that it was administratively split.

[00:20:47] Speaker 01:
Her words were, for the sake of convenience, we're going to split them into two dockets and call one for one container, one for the other container.

[00:20:56] Speaker 05:
So would you just put them back in one docket and put one limitation on the top?

[00:21:01] Speaker 05:
I still don't say you can have that both ways.

[00:21:04] Speaker 05:
If you're going to have two proceedings for purposes of your limitation, then you've got two proceedings.

[00:21:11] Speaker 01:
And again, I think that's a function of the way that this whole small things process is set up.

[00:21:16] Speaker 01:
But you can't get away from it.

[00:21:17] Speaker 01:
It usually functions the way the rules say it.

[00:21:23] Speaker 01:
And the last thing I just want to say is that the damages were clearly specified in the record, and we definitely would support just a ruling in our favor and reversal of this order.

[00:21:41] Speaker 01:
Thank you, Court.

[00:21:43] Speaker 03:
Thank you.