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Tuesday, October 05, 2004
Cases for Wednesday, Oct. 6, 2005:

No. 02-1028 Norfolk S. Ry. Co. v. Kirby
Oh my, what a fascinating case. From the 11th Circuit's opinion: "This case, the facts of which began in Australia and ended in Alabama, is about Himalaya clauses, Clauses Paramount, COGSA, the package limitation defense, FBLs, FIATA, and the like. In short, it is a bill of lading case." I'm going to punt on this one and place my bets on the ample skills of Carter Phillips (arguing for the petitioner) and the fact that the Court reverses 70% of the time. REVERSE.

No. 02-1192 Cooper Industries, Inc. v. Aviall Services, Inc.
This case is about whether a company may seek contribution for environmental cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) from another company when there has been no actual civil action brought under CERCLA. A panel of the Fifth Circuit said that there can be no contribution in the absence of a civil suit. The panel held that the following language:

    Any person may seek contribution from any other person who is potentially liable under [CERCLA] during or following any civil action under [certain sections of CERCLA]. . . . Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil actuion under [those same sections].
The Fifth Circuit sitting en banc reversed panel. [Note, I relied heavily -- nay entirely -- on the summary of this case from Goldstein Howe's blog that can be found here to write the above.] While I wonder about the final sentence quoted from the statute above, I think that a contribution claim in absence of any liability to contribute to is against public policy, and that the Court therefore will REVERSE.