Interocean Ships, Inc. v. Samoan Gases
Interocean Ships, Inc. v. Samoan Gases
Opinion of the Court
Opinion and Interim Orders:
Defendant’s motions for reconsideration and continuance and plaintiff’s motion to amend the complaint came regularly for hearing on August 20, 1993. We consider them below.
I. Motion to Amend Complaint
Plaintiff asks the court’s permission to amend its complaint to include the major shareholder and president of Samoan Gases as an additional defendant, under the theory that he is the "alter ego" of
II. Motion for Reconsideration of Denial of Summary Judgment
Defendant notes that we misread the previous memorandum in support of its motion for summary judgment.
Having carefully reread, as requested, the memoranda in support of the initial motion and the motion for reconsideration, we find no serious error in the result of our August 3, 1993, opinion and interim orders. While it is true that we misinterpreted the basis of defendant’s initial motion, our further discussion in that opinion on the matter of subrogation supported our ultimate decision. We will restate our reasoning.
. Defendant’s position, as we understand it, is that there are five separate areas of claimed damage: 1) seamen injury and death settlements; 2) seamen maintenance-and-cure payments; 3) repairs for the
Defendant’s arguments fail to persuade. With respect to items one and two, defendant states that we misinterpreted, "without justification, or authority of any kind," Shambley v. Jobe-Blackley Plumbing and Heating Co., 142 S.E.2d 18 (N.C. 1965). Defendant argues that when the Shambley court said that an insurer becomes the real party in interest when it has compensated a plaintiff for its "entire loss," it meant by "entire loss" the entire amount of any single item of damages prayed for by a plaintiff. Therefore, the argument continues, with respect to the first two items of plaintiff’s damages, the real party in interest, and thus the only party entitled to recover these damages, is the insurer and not plaintiff. Defendant seeks to distinguish our citation of Howard v. Smoky Mountain Enterprises, 332 S.E.2d 200 (N.C. 1985), on the basis that it was "about one particular claim," implying that Shambley was, in contrast, "about" more than one claim. We ask defendant’s counsel to read Shambley once again.
With respect to the third and fourth areas of damages, defendant takes exception to our application of the pro rata rule to the apportionment of damages. Defendant cites a legal encyclopedia for the general statement that damages are to be apportioned pro tanto among joint tortfeasors. However, the rule in this area of admiralty is that damages are to be shared pro rata. Defendant has not attempted to distinguish the cases cited in our previous decision, nor has it cited other applicable case law to the contrary. The practice of law would be easier, and law libraries much smaller, if all legal research could begin and end with Am. Jur. Unfortunately for defendant’s argument, it does not. In this matter, damages are to be awarded in direct proportion to percentage of liability, regardless of the dollar amounts paid by other settling parties.
The motion for reconsideration is, therefore, denied.
III. Motion for Continuance
Defendant has made a motion to continue the remainder of this trial beyond September 13, 1993, stating that it requires additional time to locate and depose witnesses. Defendant professes "complete surprise" that it is required to bear the burden of showing the degree of fault of other alleged tortfeasors. Counsel for defendant have filed a memorandum in support of this motion, in which they have threatened to withdraw from representation if the court does not grant the continuance.
First, it should not be a "complete surprise" to such competent counsel that their client bears the burden of proof of an affirmative
Plaintiffs June 28, 1993, "Request for Clarification," evinced nothing more than that party’s uncertainty, at that time, of the court’s view of the applicable law.
Furthermore, the threat by defendant’s counsel to withdraw from defendant’s representation if the court refuses to grant the requested continuance is grossly inappropriate. It evinces a sorely deficient understanding of the ethical and legal responsibility an attorney bears towards his client and to the court. It is also poor trial strategy.
High Court Rule 104, as amended on May 17, 1993, states that the conduct of attorneys in American Samoa shall be governed by the
Model Rule 1.16(c) states that "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." See Permissive Withdrawal/Representation, Law. Man. on Prof. Conduct (ABA/BNA) 31:1101 (1984), and cases cited infra. See also Rakhshan v. Fuimaono, 18 A.S.R.2d 77 (Trial Div. 1991). The court has discretion in granting motions to withdraw. See, e.g., Hodcarriers, Building and Common Laborers Local Union No. 89 v. Miller, 53 Cal. Rptr. 251 (1966); Goldsmith v. Pyramid Communications, 362 F. Supp. 694 (S.D.N.Y. 1973). Improper withdrawal of representation may expose counsel to liability for the resultant harm to the client. In addition, any intentional breach of the Model Rules of Professional Responsibility is sufficient grounds for the imposition of disciplinary sanctions. H.C.R. Rule 155.
Setting aside these questionable trial tactics, defendant has plainly not presented any justification to continue the final stages of this trial. The motion for continuance is, therefore, denied. This further trial has been scheduled for September 13, 1993, at 9:00 a.m. Both of defendant’s counsel shall then personally appear.
It is so ordered.
Defendant has retained additional counsel, who appeared on his behalf at the hearing on the present motions and who, from the change in tone and approach, we assume has prepared the concomitant memoranda.
A necessary element in arriving at this solution is that item five (attorney’s fees) are not recoverable. We mention here, to avoid misunderstanding, that we have not yet ruled on the recoverability of attorney’s fees in this action.
We note that counsel was given several days to provide the court with additional authority for its arguments. Since we assume counsel capably researched the matter, the failure to provide such additional authority gives us that much more confidence in our "plain meaning" interpretation of the instant case law, as opposed to defendant’s rather strained interpretation. In the future, when confronted with a valid difference of interpretation, it would be wise for defendant’s counsel to find additional authority for his position, rather than baldly assert plain error on the court’s part. We remind counsel that the court is not
It seems somewhat ironic that the court’s first opinion and interim orders issued on August 3, 1993, rejected plaintiff’s argument that, having failed to raise the affirmative defense of third-party fault, defendant should be precluded from making a showing of such fault at trial.
Defendant’s memorandum suggests that the court and the plaintiff were in collusion, keeping silent as to the issue of burden of proof that they had mutually agreed to place upon the defendant. However, at this time at least, we decline to read into that document any deliberate intent by defendant to make such a serious, grave and blatantly false accusation.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.