May 12, 2013
IN RE: PETITION OF FRESCATI SHIPPING COMPANY, LTD., AS OWNER OF THE M/T ATHOS I AND TSAKOS SHIPPING & TRADING, S.A., AS MANAGER OF THE ATHOS I FOR EXONERATION FROM OR LIMITATION OF LIABILITY
CITGO ASPHALT REFINING COMPANY; CITGO PETROLEUM CORPORATION; CITGO EAST COAST OIL CORPORATION UNITED STATES OF AMERICA, Appellant.
Dated: July 12, 2013
Argued September 20, 2012
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action Nos. 2-05-cv-00305 / 2-08-cv-02898) Trial District Judge: Honorable John P. Fullam District Judge: Honorable Joel H. Slomsky [*]
Before: AMBRO, GREENAWAY, Jr., and O'MALLEY, [**] Circuit Judge.
ORDER AMENDING PRECEDENTIAL OPINION
Thomas L. Ambro, Circuit Judge.
IT IS NOW ORDERED that the published Opinion in the above case filed May 16, 2013, be amended as follows:
On page 25, in the first full paragraph, first sentence, replace the word "that" with "with" and the first "in" with "that" so that the sentence reads: "We agree with the Second Circuit's reasoning that Crumady and Waterman counsel in favor of Frescati's third-party beneficiary status."
Following that same sentence, insert an additional footnote, which shall read:
CARCO makes a belated argument that Crumady and Waterman are of dubious precedential value in light of the 1972 amendments to the Longshore and Harbor Workers' Compensation Act. These amendments required negligence (as opposed to an unsafe condition) for a longshoreman to recover against a ship owner, and abolished the ship owner's right of indemnity against the stevedore. See 33 U.S.C. § 905(b); Scindia Steam Nav. Co., Ltd v. De Los Santos, 451 U.S. 156, 164-65 (1981). This legislative exclusion, however, does not undermine the fundamental premise that a ship owner may benefit from an arrangement between third parties. As such, Judge Posner has noted that, following this amendment, "indemnity has continued to be sought in cases not involving longshoremen and hence not within the scope of the Longshore and Harbor Workers' Compensation Act." Hillier v. S Towing Co., 714 F.2d 714, 718-19 (7th Cir. 1983) (Posner, J.).
On page 23, in the first paragraph, second sentence, replace "some" with "a compelling" so that the phrase reads: "there must be a compelling showing"