Petition for Writ of Certiorari — Stephen K. Walton, Sr., Petitioner v. Virginia International Terminals, LLC

Supreme Court briefJan 14, 2021

Ask Donna

What actually matters in this document.

Text

NO. ________

IN THE

Supreme Court of the United States

STEPHEN K. WALTON, SR.,

Petitioner,

VIRGINIA INTERNATIONAL TERMINALS, LLC,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

APPENDIX

Lance A. Jackson

Counsel of Record

MONTAGNA KLEIN CAMDEN, L.L.P.

425 Monticello Avenue

Norfolk, Virginia 23510

(757) 622-8100

ljackson@montagnalaw.com

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477

TABLE OF CONTENTS

Page

Supreme Court of Virginia Order Denying Petition for Appeal,

entered 09/11/20 ........................................................................................... A1

Opinion and Order of the Circuit Court of the City of Norfolk .................. A2

Statutes ...................................................................................................... A13

Complaint, filed 3/11/19 ............................................................................. A23

Amended Complaint, filed 7/12/19 ............................................................ A33

Brief in Support of Plea in Bar and Demurrer, filed 9/3/19 ..................... A48

Brief in Opposition to Plea in Bar and Demurrer, filed 9/13/19 ............ A135

Petition for Appeal to the Supreme Court of Virginia, filed 2/21/20...... A155

Ocean Shipping Reform Act Senate Report 1997 ................................... A195

VIRGINIA:

3n ~ Sup~tmre &uutt oj, Viltginia /Utd at~ Supwne &uvd !1luildiJu; in tAe

eJbj oj, !iliJunMul on 91tkimJ, tlu lltlt dmJ oj, Septemkt-, 2020.

Stephen K. Walton, Sr.,

against

Appellant,

Record No. 200275

Circuit Court No. CL19-2417

Virginia International Terminals, LLC,

Appellee.

From the Circuit Court of the City of Norfolk

Upon review ofthe record in this case and consideration of the argument submitted in

support of and in opposition to the granting of an appeal, the Court is of the opinion there is no

reversible error in the judgment complained of. Accordingly, the Court refuses the petition for

appeal.

A Copy,

Teste:

Douglas B. Robelen, Clerk

By:

Deputy Clerk

FOURTH JUDICIAL CIRCUIT OF VIRGINIA

CIRCUIT COURT OF THE CITY OF NORFOLK

MICHELLE J. ATKINS

150 ST. PAUL'S BOULEVARD

JUDGE

NORFOLK, VIRGINIA 23510

November 12,2019

Jon J. Montagna, Esq.

Montagna Klein Camden LLP

425 Monticello Avenue

Norfolk, Virginia 23510

John E. Holloway, Esq.

Ryan T. Gibson, Esq.

Troutman Sanders LLP

222 Central Park A venue, Suite 2000

Virginia Beach, Virginia 23462

Re: Stephen K. Walton, Sr. v. Virginia International Terminals, LLC, et al.

Civil Docket No.: CL19-2417

Dear Counsel:

Today the Court rules on Virginia International Terminals' ("VIT") Motion for Swnmary

Judgment on its Plea in Bar. This case was last before the Court on October 8, 2019, when it was

scheduled for a hearing (the "Hearing") on motions and responsive pleadings filed by both

parties whereupon the Court took the instant Motion under advisement.

The specific issue before the Court is whether VIT's Schedule of Rates ("SOR") is a

valid and enforceable contract. Because the Court fmds that the SOR is an implied contract

pursuant to 46 U.S.C. § 40501(f) with an enforceable time bar provision pursuant to VA Code§

8.01-243(A) the Court GRANTS VIT's Plea in bar. Consequently, the court also finds that there

are no material facts at issue and GRANTS VIT's Motion for Summary Judgment on its plea in

bar.

Background

On March 15, 2017, Plaintiff, Stephen K. Walton Sr, ("Walton") was performing work as

a reefer mechanic and container repair mechanic at Norfolk International Terminals ("NIT"),

within his employment as a longshoreman for Marine Repair Services, Inc. ("MRS"). (Pl.'s

Amend. Compl., 4, 8.) At all pertinent times, Defendant Virginia International Terminals

("VIT'') operated, occupied, and maintained the NIT premises. (Id ~ 9-10.) Several business

entities operated at NIT on a daily basis including Walton's employer MRS and defendants VIT,

Ceres, and CP&O. (ld ~ 14.) MRS performed all of the container maintenance and repair work

at NIT. (Id ~ 18.) Specifically, MRS employees, like Walton, were in charge of disconnecting

reefer containers stored at "reefer row" to prepare the reefers for transportation away from NIT.

(Id.) VIT typically stored its equipment, including its forklifts, at the VIT maintenance facility

next to reefer row, and no other entities were permitted to park or store equipment at the

maintenance facility. (Id ~ 25.) At all relevant times, VIT's forklifts at the NIT facility were

used by three entities: VIT, Ceres, and CP&O. (Id., 27.) VIT marked their forklifts with a VIT

sticker. (Id)

On the day in question, VIT maintained exclusive control over the VIT maintenance

facility, including the lighting and all available forklifts, permitting only VIT employees to drive

equipment on to the VIT maintenance facility. (Id ~ 30,49.) Moreover, VIT occupied, controlled,

and maintained a walkway that ran along the south side of the N4 row (''the walkway"), where

Walton was injured. (Id ~ 31.) After Walton fmished disconnecting reefer units in the walkway,

he proceeded a short distance down the walkway when he tripped over the blade of a VIT forklift

projected out into the walkway from the VIT maintenance area, causing him to fall and be

injured. (Id, 40.) The blade of the forklift was obscured by shadows in the walkway. (Id ~ 41.)

On previous occasions, VIT usually stored and placed its forklifts at the northern border of the

maintenance facility, either facing away from the walkway or with the blades removed. ·(Jd ~

42.)

· On March 11, 2019, Walton, filed the initial complaint for an action by a longshoreman

for personal injuries that occurred at a marine terminal in Norfolk, Virginia. (Pl.'s. Compl.) On

May 20,2019, Defendants responded with a demurrer. (Def.'s Dem.) Defendants also filed a

Motion Craving Oyer on May 20, 2019, the Court entered an Order on July 3, 2019, upon

consent of the parties on the Motion Craving Oyer. The Order granted Walton leave to amend

the complaint and stayed Defendant's Motion Craving Oyer. (Order 7/3/19.) On July 12,2019,

Walton filed an Amended Complaint. (Pl.'s Am. Compl.) Defendants filed a Plea in Bar and

Demurrer (Def. Plea in Bar & Dem.), and a Motion for Summary Judgment on its Plea in Bar,

(Mot. Sum. Jon Plea in Bar). Both parties have filed briefs in support and opposition of the

aforementioned motions and VIT has filed a reply brief addressing Walton's opposition brief.

The parties also presented arguments before this Court at a hearing for VIT's Motion for

summary judgment on its plea in bar on October 8, 2019. (Hearing Transcript, Oct. 8, 2019.)

Party Positions

VIT' s Position

At all relevant times, VIT maintained a Schedule of Rates ("SOR") governing rates,

regulations, and practices at marine terminals operated by VIT, including NIT. (VIT's Brief in

Supp of Plea in Bar & Dem. & Mot. Sum. J. on Plea in Bar, 3.) VIT made their SOR available to

the public via VIT's website in accordance with FMC regulations. (Id at 7.) VIT argues that it's

SOR is enforceable, even without proof that Plaintiff had actual knowledge of its provisions. (/d.

at 6.) VIT argues that 46 U.S.C. § 40501(±), permits marine terminal operators to publish a

schedule of rates, which may include limited liability provisions. (!d) VIT further argues that

where a SOR is made public, it is enforceable as an implied contract without proof of actual

knowledge of its contents~ (Id at 7.) Accordingly, VIT argues that Walton, in his capacity as a

longshoreman using the NIT premises, is considered a "USER;' under the tenns of the SOR and

so agreed to the terms and provision of the SOR via implied contract, despite his lack of actual

knowledge. (/d at 8.) To the extent thatVIT's SOR is enforceable as an. implied contract, VIT

argues enforceability and implied consent extend to the entirety ofthe SOR, not just selected

provisions. (Id)

VIT specifically argues that its SOR provisions requiring notic~ of.injUry and limiting

time to bring suit are enforceable and bar Walton's claim. (/d. at 10.) VIT's SOR contains a ·

specific provision .that requires Users to notify VIT, in writing, of any occurrenc·e of loss, injury,

or damage to person or property caused by VIT within thirty days of the occurrence, and the·

injured party must bring suit within one year of the occurrence. (/d) Under VI::f's· SOR, ifnotiee

is not given or suit is not brought within one year, the ~!aim is time"barred. (/d.) VIT argues that

contractual provisions like the SOR time-bar provision are permissible and n,ot contrary to public

policy. (ld) In fact, VIT argues it assistS the public policy behind the statute oflimitations: · -, ·

preventing stale claims. (Id.) VIT further alleges that Virginia has permitted contractUal

linlitations period shorter than the relevant' statute of limitations period, as long as, the agreed

time is not unreasonably short. (/d) Moreover, VIT alleges that notice requirements and time-bar

provisions are a recognized aspect of general maritime "law, limit~, only by the reasonableness of

the provision. (ld. at 11.) VIT argues that the SOR provisio~ an~ the time frame ~ reasonable

because it investig~tes all claims of loss, injury, o.r damage occUrring on the marine t~ls it ·

operates. (Id at-13.) Accordingly, VIT defends its' thirty-~ay notice provision by noting that tqere

is a pressing need to acquire security footage and that time is of the essence in its investigations

b«:ause security footage is not held indefinitely. (/d)·

VIT also notes that WaltOn is not a party to any actual contract. that may nullify the

'soR's enforceability as an implied contract. (VIT's.Reply Brief in SuJ>p..ofMot. for Sum. J. on

Plea in Bar:& Dem.;3-4.) Alternatively, VIT argues that even if the actual contract between VIT

and MRS nullified t}J.e SORas an implied contract, the terms of the actual contract validly

incorporate the entire SOR by reference. (/d at 4-5.) Moreover, VIT argues that even ifWalton

were a party to the actual contract, the location of his injury was outside of the specified area· _

covered-by that contract. (Id at 5.) As such, the SOR was the only contract capab~e of governing

his conduct and presence at the terminal. (Id)

VIT also argues fu the alternative, that paragraph 60 of the Amended Compl¢nt, which

l.ists multiple defendants that may have breached a duty owed to ·Plaintiff, is deficient and should

be dismissed With.prejudice via demurrer. (VIT's Brief in Supp, ofPlea in Bar & Del,ll. & Mot.

for S~: ~L .on Plea "in Bar at 15.) VIT argues that Virginia dotis not permit plaintiffs to joih two

or more defendants• in the alternative where the facts pleaded indicate that oi1ly one" of the

defendants may be .liable. (Id at 16.) VIT argties that by joining the ~efendants. in the alternative,

Plaintiff fails to inform VIT and the otqer defendants of the trUe t:Utture of the cause of action.

(/dat 16.)_

Walton's Position

Walton asserts th~t VIT's Motion for Summary Judgment should be denied and its

Demurrer overruled. (PPs brief in Opp':p. to Def. Mot for Sum. J. on Plea in Bar & Opp'n to Def.

Deni., 1.) First, Walton argues, as a matter oflaw, the act upon'whichVIT relies to support tiie

eriforceability of the SOR's notice and time bar provision, is contrarY to Virgiltia law. (/d at 4.)

Accordingly, Walton argues that Virginia law applies, that he is not subject to the SOR's pre-suit

notice requirement, and his claim is not til;ne.barred under the· two-year statute of limitations for

Virginia personal injury claims. (Id at 4-5.) Walton argues that the Shipping Act of 1984,46

U.S.C. §40101, is the sole basis for VIT's argument that its SOR applies instead ofVirginia

pers6nal injury law. (/d. at 6.) Walton argues that VIT's reliance on the Shipping Act is flawed

because the purpose and language of the Act make it clear that it does n~t pre-empt applicable

Virginia Law. (/d at 6-8,) Moreover, .Walton point~ out that VIT never addresses the issue of

pre:.emption, i.\Ild simply asserts the authority of its SOR. (ld ·at 6.) Walton also attempts to

distinguish the ca8es VIT cited in support of its SOR and notes t_hat ali of the maritime cases

cited did not apply Virginia law, moreover, all of the non-maritime cases involved limitations

imposed by an actual written contract, unlike the SORs in place in this case. (Id at 9.)

'Walton.argues that there is no actual contractual relationship betwe~n VIT and·.himself.

(ld at 10.) Walton also argues that VIT's SORs and time limitations cannot be enforced against

him as. aD. implied contract because there were separate, actual contrac~ with his employer MRS,

that governed his terminal use. (ld. at 11-12.) Additi<;mally, Plaintiff bolsters its argument by

asserting that the SOR does not apply because or the multi-party Collective Bargaining ·

Agreement between VIT, MRS, and ILA Union Locall970. (Id at 14-15.) The collective

bargaining agreement specifically address the u8e of the kind ofm$tenance Walton was to

perform on waterfront.facilities.like NIT. (ld at 15.) Walton argues ihat the Collective

Bargaining Agreement was the act~l contract in place leaving no rooni for an implied contract

via VIT's SOR. (/d. at 15.)

.. Walton also argues that VIT's s·oR is not enfo.rceable as an implied in fact contract,

because'he ~as not aware of it and h~ perso'nally never agreed to it. (/d.; Trans. 34:--36.) Walton

notes that VIT has the burden of proving an implied in fact contract, which requires a mutuality

of assent. (Id at 16.) Plaintiff argues that VIT has failed to meet that burden as it applies to ,

VIT's·SOR. (ld.) Plaintiff also argues that VIT's SOR is not enfo~ceable unde~ the equitable

remedy as an implied-in-law contract because time-barring a perso~ injury claim through ari

implied-in-law contract is im~ermissibl~·as a matter of ~quity an~ good conscience; (ld at 18.)

Finally, Walton argues that the demurrer sho~d be overruled becalise Virginia law permits

a plaintiff to sue alternative parties where the allegation ofliability anses from the same·

transaction or occurrence. (ld. at 19.) Plaintiff clarifies that he is alleging liability of each

defendant named in the amended complaint based on their role in the same transaction and

occurrence. (Id)

·Discussion

Legal. Stan~ard .'

· A plea iii ·b13F presents a·distiriet issue offacfwhich, if proven, creates a bar to the

plaintiff's right of recovery, and the moving party has the burden ofproof on ~tissue. Hilton

v. Martin, 275 Va. 176, 177; 654-S.·E.2d 572 (2008). The function of a plea in bar is to narrow

the litigation by resolving ari· issue that'

d~termine whether a plaintiff may proceed tQ trial on

will

a particular cause of action. Hawthorne v. VanMarter, 279 Va. 566, 578, 692 S.E.2d 226 (2010).

The issue raised by a plea in bar may be submitted to the circuit court for decision based on a

discrete body of facts identified by the parties through their pleadings, or developed through the

presentation of evidence supporting or oppo~ing the plea. ld at 577.

If the facts underlying a plea in bar are contested, a party may demand that a jury decide

the factual issues raised by the plea Hawthorne, 279 Va. at 577. However, according to.Kohn v.

Marquis, 288 Va. 142, 146, 762 S.E.2d 755, 757, there is "no constitutional right to a jury trial if

the case can be determined as a matter of law based ~pon material facts not genuinely in

dispute." Conversely, if the facts are disputed and no demand for a jury is made, the "whole

matter oflaw and fact" may be decided by the court. /d. at 578. In addition, a trial court may

take evidence when considering a plea in bar. See, e.g., Cooper Indus., Inc. v. Melendez, 260 Va.

578, 594-95, 537 S.E.2d 580, 590 (2000) (acknowledging that the trial col.ll't heard evidence

pertaining to a plea in bar); Broad Run Vill., L.C. v. Loudoun County Bd ofSupervisors, 59 Va.

Cir. 96, 96 (Loudon 2002) ("To the extent the parties have sought to introduce evidence outside

the four comers of the pleadings in support of their positions, such evidence will only be

considered in relationship to the plea in bar.").

Any party may make a motion for summary jt,tdgment at any time after the parties

are at issue . . . . If it appears from the pleadings, the orders, if any, made at a

pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining

a motion to strike the evidence, that the moving party is entitled to judgment, the

court shall enter judgment in that party's favor .... Summary judgment shall not be·

entered if any material fact is genuinely·in dispute.

Va. Sup. Ct. R. 3:20.

A trial court considering a motion for summary judgment must "accept as true those

inferences from the facts that are most favorable to the nonmoving party, unless the inferences

are forced, strained, or contrary to reason." Fultz v. Delhaize Am., Inc., 278 Va. 84, 88 (2009)

(citing Dickerson v. Fatehi, 253 Va. 324, 327 (1997); Carson v. LeBlanc, 245 Va. 135, 139-40

(1993)). While summary judgment is available in certain circumstances, it is well settled that it

"is a drastic remedy, available only when there are no material facts genuinely in dispute." /d.

(citing Stockbridge v. Gemini Air Cargo, Inc., 269 Va. 609, 618 (2005); Smith v. Smith, 254 Va.

99, 103 (1997); Slone v. General Motors Corp., 249 Va 520, 522 (1995)). "[I]fthe evidence is

conflicting on a material point or if reasonable persons may draw different conclusions from the

evidence, summary judgment is not appropriate." ld (citing-Jenkins v. Pyles, 269 Va. 383

(2005)).

A. Demurrer

A demurrer tests the legal sufficiency of the. claims stated in the pleading challenged.

Drayv. New Mkt. Poultry Prods., Inc., 258 Va.l87, 189,518 S.E.2d 312,312 (1999). On

demurrer, the court must admit the truth of all material facts properly pleaded, facts that are

impliedly alleged, and facts that may be fairly and justly inferred from the alleged facts. Cox

Cable Hampton Rds., In_c. v. City ofNorfolk, 242 Va. 394, 397, 410 S.E.2d 65~, 653 (1991). A

demurrer does not admit the correctness of any conclusions of law. Ward's Equip., Inc. v. New

Holland N Am., Inc., 254 Va. 379, 382, 493.S.E.2d 516, 518 (1997). The only question for the

court to decide is whether the facts are legally sufficient to state a cause of action against the

defendant. Thompson v. Skate Am., Inc., 261 Va. 121, 128, 540 S.E.2d 123, 126-27 (2001).

Even if imperfect, a complaint drafted such that a defendant cannot mistake the true

nature ofthe claim should withstand demurrer. Catercorp, Inc. v. Catering Concepts, Inc., 246

Va. 22, 24,431 S.E.2d 277,279 (1993). The court will not consider any factual assertions

outside the pleadings for purposes of a demurrer. See Va. Code Ann. § 8.01-273.'

Virginia Courts have recognized,

[a] party asserting either a claim, counterclaim, cross-claim, or third-party claim

... may plead alternative facts and theories of recovery against alternative parties

... provided that such claims ... so joined arise out of the same transaction or

occurrence.

VA Code§ 8.01-281(A).

In their brief in support of Demurrer, VIT relies on Baker v. Doe, to prove that a plaintiff

in a personal injury case may not join multiple defendants in the alternative. Baker is both

factually and leg~ly distinguishable from the facts in this case. Legally, the aforementioned

governing statute and its relevant language incorporating the suit of alternative parties was

enacted in 1974. Notably, the statutory language was enacted after the cited authority, Baker v.

Doe, which VIT relies on in support of its argument that Plaintiff impermissibly joined

alternative parties, in its amended complaint. 211 Va. 15'8 (1970). While there is no case law

expressly overruling Baker, there is case law that expressly overrules Norfolk Union Bus Term.

v. Sheldon, 188 Va. 288, 296,49. S.E.2d 338, 341, the case .upon which Baker relies for its

interpretation of alternative joinder.

The defendants rely primarily upon Norfolk Bus Term. v. Sheldon ... Norfolk Bus Term.,

however, it was decided ... before the 1974 enactment of Code §8.01-281. ... the

foregoing statutes and rUle represent a radical departure from the common-law pleading

rule stated in Norfolk Bus Term.

Fox v. Deese, 234 Va. 412, 423, 362 S.E.2d 699, 705. Accordingly, the statutory language

governs and permits the naming of defendants in the alternative, so long rui, the nature of the

joinder arises out of the same transaction or occurrence.

Moreover, the Baker court specifies that defendants may not be named in the alternative

unless "their interests were joint ... In the case of tort feasors, they could be joined as party

defendants only if their acts concurred to produce a single injury to the plaintiff." Baker at 160,

176 S.E.2d at 427.

Factually, Baker is distinguishable as the party Plaintiff's sought to join in the alternative

was unknown. Here, Plaintiff is aware of everyone who had access and control of the forklift and

I·

walkway w:here he was injured, and he has named them as defendants in the alternative; pursuant

to§ 8.01-28l(A), alleging that theybreached a duty owed to him.

Amended Complaint~ 60 states that "the defendant VIT ... and/or the defendant Ceres ...

and/or the defendant CP&O" breached a duty owed to the Plaintiff. The specific duty owed

reference.s the negligent placement of the forklift that ullimately lead to the Plaintiff's injuries.

The placement and resulting inj~ are the transaction and occurrence at issue. Furthermore, all

three of the named defendants may properly be considered alternative parties under §8.01281(A), because the plaintiff is alleging liability pased on.their respective involvement. The

naming of the alternative defendants does not render the amended complaint deficient, nor is

there any other alleged grounds to find the complaint deficient, warranting a demurrer.

Therefore, VIT's Demurrer is OVERRULED.

B. VII's Schedule ofRates is anL/mplied Contract

Virginia Code§ 8.0l-243(A) states in·part, ·"Unles~ otherwis,e provided in this section ot

by other statute, every·action for personal injuries, whatever the theory of recovery . ;·.. shall be·

brought within two years after the cause of action accrues!' However, "parties· to a contract may

agr.ee that any action to enforce the contract must be filed within a shorter period of time than

that established by an otherwise applicable·statute of limitations." Massie v. Blue Cross & Blue

Shield, 256 Va. 161, 164,500 S.~.2ci 509, 509 (1998). Accordingly, VIT's SOR states,

USERS must notify VIT in writing of the occurrence·ofloss, injury, or damage to

person or property caused by VIT immediately upon discovery, and in no event

more that thjrty (30) days from occurrenpe, or all claims based on the loss, injury,

or damage shall be time-barred If suit ... based on th'e occurrence is not filed ·

within one (1) 'year after the occurrence, the claim shall be time-barred.

(SOR No. 207, Notification of Loss, Injury, or damage; time l~its; jurisdiction and venue;

applicable law) (emphasis in original).. The Schedule ofRates defines a ''USER" as "(i) each.

VESSEL and CARRIER, (ii) stevedore, (iii) shipper, consignee, and beneficial cargo owner, (iv)

contractor, subcontractors. and vendor ofVIT, VPA, HRCP II, or another USER, (v) licensee and

permittee, and (vi) and every other person or entity '!ISing, coming onto, or berthing at a

Terminal." (Sc?-edule of Rates, Section XI)

The Court finds that VIT' s SOR meets all ofthe requiremen~ ·of an effective contract.

Specifi.cally, the SOR functions as an implied contract pursuant to 46 U.S.C. § 40501. "A marine

terminal operator may make ~vailable to the public a schedule of rates, regulations .... Any

such schedule made available to the public is enforceable by an appropriate court as an implied

contract without proof of actual knowledge of its provisions." 46 U.S.C. § 40501(f). Walton, in·

his capacity-as a refrigerator mechanic for MRS, fell within the anticipated category of a USER

pursuant to SOR Section XI. Walton may reasonably be eonsidered either a licensee and

permittee ofVIT or a person coming onto a VIT Terminal, both of whom are subject'to.the SOR

as parties to the implied contract..

The Court accepts as true the inferences from Walton's brief, affidavit, and testimony at

the October 8, 2019, hearing. Specifically, the Court accepts Walton's representation that he was

not made aware of the SOR or any changes to the SOR. The Court also accepts Walton's

representation that he was familiar with the customs and practices of NIT and VIT based on his

time working at the facility and his role on the local union, ILA Local1970. However, Walton's

lmowledge, or lack thereof, does not nullify his status as a USER and the enforceability of the

SOR as an implied contract. Walton may have been misinformed as to what his reporting

responsibility was after the injury, but he was still a USER under the SOR obligated to comply

with all of its notice requirements.

C. Pre-suit Notice and Time Bar Requirements

The two relevant provisions at issue are the pre-·suit notice requirement and time bar

provision. Here, Walton argues that those provisions are not enforceable, and he is not a party to

the SOR. Walton specifically alleges that the existence of an actual con~act between MRS and

VIT nullify the enforceability of the SOR, he was not a signed party to any of the contracts in

place, and he lacked notice of the relevant SOR requirements. None of these arguments are

persuasive and the two relevant provisions are enforceable.

The SOR's time bar provision provides a maximum of thirty days to notify VIT of any

injury on the premises and one year to flle suit for any such injury. Walton violated both

requirements. Walton did not provide notice of the injury to VIT at all. Furthermore, VIT was

not notified of the injury until Walton filed suit two years later.

Walton's argument that the e~istence of an actual contract nullifies the iniplied

contractual nature of the SOR is moot. The actual contract between VIT and MRS incorporates

the entirety of the SOR, preserving any enforceability that would have otherwise been nullified

by the existence of an actual contract VIT correctly argued in their.brief and at the hearing that

Walton manifest his assent to the terms of the SOR, despite his lack of notice, by entering VIT's

premises. Both parties agree that Walton entered VIT's premises as a Reefer mechanic for MRS.

By entering the premises, Walton immediately qualified as a USER under the SOR and assented

to the terms required by every person on VIT property. It makes no difference.that Walton was

not made aware of the requirements in his individual capacity. Put simply, the enforceability of

the SOR is not contingent upon an individual user's failure to read its terms.

The SOR in this case anticipates that anyone on VIT premises may develop a claim

against VIT. Accordingly, the SOR specifically lays out definitional categories for its users and

procedUral requirements for notifying VIT of any injury or claim developed on the premises.

VIT alleged in their brief and proffered at the hearing that the time bar provision is reasonable

because time is of the essence after any injury on the terminal. The purpose of these

requirements is not merely to limit liability and litigation, instead these requirements ar~ in place

to ensure that VIT has adequate time to investigate and collect security footage of the injury.

Walton, a USER by the terms ofVIT's SOR, failed to adhere to these requirements and does not

present an adequate justification for why he should be exempt from the SOR's requirements.

The Court finds that the SOR is an enforceable implied contract between VIT and all

USERS of VIT' s premises, including Walton. Therefore, the court GRANTS the Plea in Bar

finding that the SOR's time bar provision applies to Walton as a USER and bars his right to

recovery against VIT. Accordingly, there are no material facts genuinely in dispute, so the court

also GRANTS VIT's motion for summary judgment.

Conclusion

In accordance with the analysis set forth in this opinion, the Court GRANTS VIT' s Plea

in Bar and Motion for Summary Judgment on its Plea in Bar.

The attorney for the Defendant (VIT) is directed to prepare an Order consistent with this

ruling within seven (7) days and forward same to the Court after counsel for the Plaintiff has

signed the Order and noted any objections.

Michelle J. Atkins

Judge

MJA/wmp

A10

VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF NORFOLK

STEPHEN K. WALTON, SR.,

Plaintiff,

VIRGINIA INTERNATIONAL

TERMINALS, LLC, et al.

Defendants.

.,*

Case No. CL 19·2417

ORDER ON DEFENDANT'S DEMURRER, PLEA IN BAR, AND

MOTION FORSUMMARY JUDGMENT ON ITS PLEA IN BAR

On October 8, 2019, the parties appeared, by counsel, upon the Demurrer and the Motion

for Summary Judgment on its Plea in Bar filed by Defendant Virginia International Terminals,

LLC ("VIT''). Upon due consideration of the parties' briefs and oral arguments, and for the

reasons set forth in detail in the Court's Opinion Letter dated November 12,2019, the Court

hereby ORDERS that:

Defendant VIT' s DemUll'Cl" is OVERRULED;

Defendant VIT's Plea in Bar and Motion for Summary Judgment on its Plea in

Bar are GRANTED; and

Plaintiff's Amended Complaint and all claims therein are hereby DISMISSED

WITH PREJUDICE ~ to Defendant VIT.

It is so ORDERED.

ENTERED:·_ ____./_ _~/2019

Michelle J. Atkins, Judge

November 25, 2019

Michelle J. Atkins, Judge

Page 1 of3

A11

The Foregoing Document Copy Teste:

George E. Schaefer, Clerk

Norfolk Circuit Court

~!rri~nto,

Deputy Clerk

Authorized to sign on behalf

of George E. Schaefer, Clerk

Date: November 25 , 2019

(

SEEN AND AGREED TO with resped; to the

niling on VIT's Plea in Bar and Motion for

Summa.rf Judgment on its Plea fn Bar and

OBJECTED TO with respect to the ruling on

VIT's Dem111Ter for the reasons set .f orth on

brlef and In oral argument

E. Holloway, Esq. (VSB No. 28145)

"el T. Berger, Esq. (VSB No. 81861)

yan T. Gibson, Esq. (VSB No. 83183)

TRoUTMAN SANDERS LLP

222 Central Park Avenue, Suite 2000

Vtrginia Beach, Virginia 23462

Telephone: 757-687-7724

Email: john.holloway@troutman.com

Email: daniel.berger@troutman.com

Email: ryan.g~'bson@troutman.com

Counael for Defendant Virginia International

Terminals, UC

SEEN AND OBJEGfED TO with respect to

the ruling on VIT's Plea in Bar and Motion

·cor Summary Judgment for reasons stated In

the Plaintiff's Brlef in Opposition to

Defendant VIT's Motion for Summary

Judgment on Plea In Bar and in Opposition

to Defendant VIr's Demurrer, ftled on

September 13, 2019, and for the reasons set

forth Jn oral argument on October 8,.2019;

and SEEN AND AGREED TO·witb. respect

to the

on Vll''s Demurrer.

Lance A. JacksOn, E .

JonJ. Montagna, Es .

MONTAGNA KLEIN CAMDEN, L.L.P.

425 Monticello Avenue

Norfolk, Virginia 23510

Tel: (757) 622-8100

Fax: (757) 622-8180

Email: ljack:son@montagnalaw.com

Email: jmontagna@mkclawyers.com

Cmmsel for Plaintiff

Page2 of3

A12

§40101

TITLE 46---SHIPPING

Sec.

40102.

40103.

40104.

Definitions.

Administrative exemptions.

Reports filed with the Commission.

§ 40101. Purposes

The purposes of this part are to(1) establish a nondiscriminatory regulatory

process for the common carriage of goods by

water in the foreign commerce of the United

States with a minimum of government intervention and regulatory costs;

(2) provide an efficient and economic transportation system in the ocean commerce of

the United States that is, insofar as possible,

in harmony with, and responsive to, international shipping practices;

(3) encourage the development of an economically sound and efficient liner fleet of

vessels of the United States capable of meeting national security needs; and

(4) promote the growth and development of

United States exports through competitive

and efficient ocean transportation and by

placing a greater reliance on the marketplace.

(Pub. L. 109-304, § 7, Oct. 6, 2006, 120 Stat. 1523.)

HISTORICAL AND REVISION NOTES

Revised

Section

40101 ..........

Source (U.S. Code)

46 App.:1701.

Source (Statutes at Large)

Pub. L. 98-237, §2, Mar. 20,

1984, 98 Stat. 67; Pub. L.

105-258, title I, § 101, Oct.

14, 1998, 112 Stat. 1902.

EFFECTS ON CERTAIN AGREEMENTS AND CONTRACTS

Pub. L. 98-237, §20(d), Mar. 20, 1984, 98 Stat. 90; Pub.

L. 105-258, title I, §117(1), Oct. 14, 1998, 112 Stat. 1914,

provided that; "All agreements, contracts, modifications, licenses, and exemptions previously issued, approved, or effective under the Shipping Act, 1916

[former 46 U.s.a. App. 801 et seq., see Disposition Table

preceding section 101 of this title], or the Shipping Act

of 1984 [former 46 u.s.a. App. 1701 et seq., see Disposition Table preceding section 101 of this title], shall continue in force and effect as if issued or effective under

this Act, as amended by the Ocean Shipping Reform

Act of 1998 [Pub. L. 105-258, Oct. 14, 1998, 112 Stat. 1902],

and all new agreements, contracts, and modifications

to existing, pending, or new contracts or agreements

shall be considered under this Act, as amended by the

Ocean Shipping Reform Act of 1998."

§ 40102. Definitions

In this part:

(1) AGREEMENT.-The term "agreement"(A) means a written or oral understanding,

arrangement, or association, and any modification or cancellation thereof; but

(B) does not include a maritime labor

agreement.

(2) ANTITRUST LAWS.-The term "antitrust

laws" means(A) the Sherman Act (15 U.S.C. 1 et seq.);

(B) sections 73 and 74 of the Wilson Tariff

Act (15 U.S.C. 8, 9);

(D) the Act of June 19, 1936 (15 U.S.C. 13,

13a, 13b, 21a);

(E) the Federal Trade Commission Act (15

U.S.C. 41 et seq.);

(F) the Antitrust Civil Process Act (15

U.S.C. 1311 et seq.); and

Page 242

(G) Acts supplementary to those Acts.

(3) ASSESSMENT AGREEMENT.-The term "assessment agreement" means an agreement,

whether part of a collective bargaining agreement or negotiated separately, to the extent

the agreement provides for the funding of collectively bargained fringe-benefit obligations

on other than a uniform worker-hour basis, regardless of the cargo handled or type of vessel

or equipment used.

(4) BULK CARGO.-The term "bulk cargo"

means cargo that is loaded and carried in bulk

without mark or count.

(5) CHEMICAL PARCEL-TANKER.-The term

"chemical parcel-tanker" means a vessel that

has(A) a cargo-carrying capability consisting

of individual cargo tanks for bulk chemicals

that(i) are a permanent part of the vessel;

and

(ii) have segregation capability with piping systems to permit simultaneous carriage of several bulk chemical cargoes

with minimum risk of cross-contamination; and

(B) a valid certificate of fitness under the

International Maritime Organization Code

for the Construction and Equipment of Ships

Carrying Dangerous Chemicals in Bulk.

(6) COMMON CARRIER.-The term "common

carrier"(A) means a person that-(i) holds itself out to the general public

to provide transportation by water of passengers or cargo between the United

States and a foreign country for compensation;

(ii) assumes responsibility for the transportation from the port or point of receipt

to the port or point of destination; and

(iii) uses, for all or part of that transportation, a vessel operating on the high seas

or the Great Lakes between a port in the

United States and a port in a foreign country; but

(B) does not include a carrier engaged in

ocean transportation by ferry boat, ocean

tramp, or chemical parcel-tanker, or by vessel when primarily engaged in the carriage

of perishable agricultural commodities(i) if the carrier and the owner of those

commodities are wholly-owned, directly or

indirectly , by a person primarily engaged

in the marketing and distribution of those

commodities; and

(ii) only with respect to the carriage of

those commodities.

(7) CONFERENCE.-The term "conference"(A) means an association of ocean common

carriers permitted, pursuant to an approved

or effective agreement, to engage in concerted activity and to use a common tariff;

but

(B) does not include a joint service, consortium, pooling, sailing, or transshipment

agreement.

(8) CONTROLLED CARRIER.-The term "controlled carrier" means an ocean common car-

A13

Page 271

TITLE 46--SIDPPING

sponse to a request under section 40304(a)(2) of title

46, United States Code; or

"(3) to limit the authority of the Commission torequest information under section 40304(d) of title 46,

United States Code."

§ 40305. Assessment agreements

(a) FILING REQUIREMENT.-An assessment

agreement shall be filed with the Federal Maritime Commission and is effective on filing.

(b) COMPLAINTS.-!! a complaint is filed with

the Commission within 2 years after the date of

an assessment agreement, the Commission shall

disapprove, cancel, or modify the agreement, or

an assessment or charge pursuant to the agreement, that the Commission finds, after notice

and opportunity for a hearing, to be unjustly

discriminatory or unfair as between carriers,

shippers, or ports. The Commission shall issue

its final decision in the proceeding within one

year after the date the complaint is filed.

CHARGES.-To the extent that the Commission

finds under subsection (b) that an assessment or

charge is unjustly discriminatory or unfair as

between carriers, shippers, or ports, the Commission shall adjust the assessment or charge

for the period between the filing of the complaint and the final decision by awarding prospective credits or debits to future assessments

and charges. However, if the complainant has

ceased activities subject to the assessment or

charge, the Commission may award reparations.

(Pub. L. 109-304, § 7, Oct. 6, 2006, 120 Stat. 1531.)

HISTORICAL AND REVISION NOTES

Revised

Section

Source (U.S. Code)

Source (Statutes at Large)

40305 ..........

46 App.:1704(e) (less

last sentence).

Pub. L. 98--237, §5(e) (less

last sentence), Mar. 20,

1984, 98 Stat. 70; Pub. L.

105-258, title I, § 104(a)(2),

(b)(1), Oct. 14, 1998, 112

Stat. 1904, 1905.

§ 40306. Nondisclosure of information

Information and documents (other than an

agreement) filed with the Federal Maritime

Commission under this chapter are exempt from

disclosure under section 552 of title 5 and may

not be made public except as may be relevant to

an administrative or judicial proceeding. This

section does not prevent disclosure to either

House of Congress or to a duly authorized committee or subcommittee of Congress.

(Pub. L. 109-304, § 7, Oct. 6, 2006, 120 Stat. 1531.)

§40307

(2) an agreement that is exempt under section 40103 of this title from any requirement of

this part;

(3) an agreement or activity within the

scope of this part, whether permitted under or

prohibited by this part, undertaken or entered

into with a reasonable basis to conclude that

it is(A) pursuant to an agreement on file with

the Federal Maritime Commission and in effect when the activity takes place; or

(B) exempt under section 40103 of this title

from any filing or publication requirement

of this part;

(4) an agreement or activity relating to

transportation services within or between foreign countries, whether or not via the United

States, unless the agreement or activity has a

direct, substantial, and reasonably foreseeable

effect on the commerce of the United States;

(5) an agreement or activity relating to the

foreign inland segment of through transportation that is part of transportation provided

in a United States import or export trade;

(6) an agreement or activity to provide

wharfage, dock, warehouse, or other terminal

facilities outside the United States; or

(7) an agreement, modification, or cancellation approved before June 18, 1984, by the Commission under section 15 of the Shipping Act,

1916, or permitted under section 14b of that

Act, and any properly published tariff, rate,

fare, or charge, or classification, rule, or regulation explanatory thereof implementing that

agreement, modification, or cancellation.

(b) EXCEPTIONS.-This part does not extend

antitrust immunity to(1) an agreement with or among air carriers,

rail carriers, motor carriers, tug operators, or

common carriers by water not subject to this

part relating to transportation within the

United States;

(2) a discussion or agreement among common carriers subject to this part relating to

the inland divisions (as opposed to the inland

portions) of through rates within the United

States;

(3) an agreement among common carriers

subject to this part to establish, operate, or

maintain a marine terminal in the United

States; or

(4) a loyalty contract.

HISTORICAL AND REVISION NOTES

Revised

Section

40306 ..........

Source (U.S. Code)

46 App.:1705(j) .

Source (Statutes at Large)

Pub. L. 98--237, § 6(j), Mar. 20,

1984, 98 Stat. 73.

The words "judicial proceeding" are substituted for

"judicial action or proceeding" to eliminate unnecessary words.

§ 40307. Exemption from antitrust laws

(a) IN GENERAL.-The antitrust laws do not

apply to(1) an agreement (including an assessment

agreement) that has been filed and is effective

under this chapter;

(c) RETROACTIVE EFFECT OF DETERMINATIONS.A determination by an agency or court that results in the denial or removal of the immunity

to the antitrust laws under subsection (a) does

not remove or alter the antitrust immunity for

the period before the determination.

(d) RELIEF UNDER CLAYTON ACT.-A person

may not recover damages under section 4 of the

Clayton Act (15 U.S.C. 15), or obtain injunctive

relief under section 16 of that Act (15 U.S.C. 26),

for conduct prohibited by this part.

(Pub. L. 109-304, §7, Oct. 6, 2006, 120 Stat. 1531;

Pub. L. 115-282, title VII, §709(c), Dec. 4, 2018, 132

Stat. 4297.)

A14

HISTORICAL AND REVISION NOTES

Revised

Source (U.S. Code)

Section

40307 ..........

46 App. :1706.

Source (Statutes at Large)

Pub. L. 98--237, §7, Mar. 20,

1984, 98 Stat. 73; Pub. L.

105-258, title l, § 105, Oct.

14, 1998, 112 Stat. 1905.

Subsection (a)(1) is substituted for "any agreement

that has been filed under section 1704 of this Appendix

and is effective under section 1704(d) [redesignated as

(e)] or section 1705 of this Appendix" for clarity and to

eliminate unnecessary words.

Subsection (a)(2) is substituted for "any agreement

that ... is exempt under section 1715 of this Appendix

from any requirement of this chapter" in 46 App. U.S.a.

1706(a)(1) for clarity.

In subsection (a)(7), the words "subject to section

1719(e)(2) of this Appendix" are omitted as obsolete.

REFERENCES lN TEXT

Section 15 of the Shipping Act, 1916, referred to in

subsec. (a)(7), which was classified to section 814 of the

former Appendix to this title, was repealed by Pub. L.

104-88, title III. §335(b)(3), Dec. 29, 1996, 109 Stat. 954.

Section 14b of the Shipping Act, 1916, referred to in

subsec. (a)(7), which was classified to section 813a of

former Title 46, Shipping, was repealed by Pub. L.

98-237, §20(a), Mar. 20, 1984, 98 Stat. 88.

AMENDMENTS

2018-Subsec. (b)(1). Pub. L. 115--282 inserted "tug operators," after "motor carriers,".

CHAPTER 405-TARIFFS, SERVICE

CONTRACTS, REFUNDS, AND WAIVERS

Sec.

40501.

40502.

40503.

Page 272

TITLE 46-SHIPPING

§40501

General rate and tariff requirements.

Service contracts.

Refunds and waivers.

§ 40501. General rate and tariff requirements

(a) AUTOMATED TARIFF SYSTEM.(1) IN GENERAL.-Each common carrier and

conference shall keep open to public inspection in an automated tariff system, tariffs

showing all its rates, charges, classifications,

rules, and practices between all points or ports

on its own route and on any through transportation route that has been established. However, a common carrier is not required to state

separately or otherwise reveal in tariffs the

inland divisions of a through rate.

(2) ExcEPTIONS.-Paragraph (1) does not

apply with respect to bulk cargo, forest products, recycled metal scrap, new assembled

motor vehicles, waste paper, or paper waste.

(b) CONTENTS OF TARIFFS.-A tariff under subsection (a) shall(1) state the places between which cargo will

be carried;

(2) list each classification of cargo in use;

(3) state the level of compensation, if any, of

any ocean freight forwarder by a carrier or

conference;

(4) state separately each terminal or other

charge, privilege, or facility under the control

of the carrier or conference and any rules that

in any way change, affect, or determine any

part or the total of the rates or charges;

(5) include sample copies of any bill of lading, contract of affreightment, or other document evidencing the transportation agreement; and

(6) include copies of any loyalty contract,

omitting the shipper's name.

(c) ELECTRONIC ACCESS.-A tariff under subsection (a) shall be made available electronically to any person, without time, quantity, or

other limitation, through appropriate access

from remote locations. A reasonable fee may be

charged for such access, except that no fee may

be charged for access by a Federal agency.

(d) TIME-VOLUME RATES.-A rate contained in

a tariff under subsection (a) may vary with the

volume of cargo offered over a specified period

of time.

(e) EFFECTIVE DATES.(1) !NCREASES.-A new or initial rate or

change in an existing rate that results in an

increased cost to a shipper may not become effective earlier than 30 days after publication.

However, for good cause, the Federal Maritime

Commission may allow the rate to become effective sooner.

(2) DECREASES.-A change in an existing rate

that results in a decreased cost to a shipper

may become effective on publication.

(f) MARINE TERMINAL OPERATOR SCHEDULES.A marine terminal operator may make available

to the public a schedule of rates, regulations,

and practices, including limitations of liability

for cargo loss or damage, pertaining to receiving, delivering, handling, or storing property at

its marine terminal. Any such schedule made

available to the public is enforceable by an appropriate court as an implied contract without

proof of actual knowledge of its provisions.

(g) REOULATIONS.(1) IN GENERAL.-The Commission shall by

regulation prescribe the requirements for the

accessibility and accuracy of automated tariff

systems established under this section. The

Commission, after periodic review, may prohibit the use of any automated tariff system

that fails to meet the requirements established under this section.

(2) REMOTE TERMINALS.-The Commission

may not require a common carrier to provide

a remote terminal for electronic access under

subsection (c).

(3) MARINE TERMINAL OPERATOR SCHEDULES.The Commission shall by regulation prescribe

the form and manner in which marine terminal operator schedules authorized by this section shall be published.

(Pub. L. 109-304, § 7, Oct. 6, 2006, 120 Stat. 1532.)

HISTORICAL AND REVISION NOTES

Revised

Section

40501(a) ......

Source (U.S. Code)

46 App.:1707(a)(1)

(1st, 2d sen-

tences).

Source (Statutes at Large)

Pub. L. 98-237, §8(a), (b), (d),

(0 , (g), Mar. 20, 1984. 98

Stat. 74; Pub. L. 105-258,

title I, §106(a), (c), (e), (f),

Oct. 14, 1998, 112 Stat. 1905,

1907.

4050l(b) ...... 46 App.:1707(a)(1)

(last sentence).

40501(c) ...... 46 App.:1707(a)(2).

4050l(d) ...... 46 App.:1707(b).

4050l(e) ... .. . 46 App.:l707(d).

40501(1') ....... 46 App.:l707(f).

40501(g) ...... 46 App.:1707(g).

In subsection (b)(3), the words "ocean freight forwarder" are substituted for " ocean transportation

intermediary, as defined in section 1702(17)(A) of this

A15

§40501

TITLE 46---SHIPPING

relief under section 16 of that Act (15 U.S.C. 26),

for conduct prohibited by this part.

(Pub. L. 109-304, §7, Oct. 6, 2006, 120 Stat. 1531.)

HISTORICAL AND REVISION NOTES

Revised

Source (U.S. Code)

Section

40307 ..........

46 App.:1706.

Source (Statutes at Large)

Pub. L. 98-237, §7, Mar. 20,

1984, 98 Stat. 73; Pub. L.

105-258, title I, § 105, Oct.

14, 1998, 112 Stat. 1905.

Subsection (a)(1) is substituted for "any agreement

that has been filed under section 1704 of this Appendix

and is effective under section 1704(d) [redesignated as

(e)] or section 1705 of this Appendix" for clarity and to

eliminate unnecessary words.

Subsection (a)(2) is substituted for "any agreement

that ... is exempt under section 1715 of this Appendix

from any requirement of this chapter" in 46 App. U.S.C.

1706(a)(1) for clarity.

In subsection (a)(7), the words "subject to section

1719(e)(2) of this Appendix" are omitted as obsolete.

REFERENCES IN TEXT

Section 15 of the Shipping Act, 1916, referred to in

subsec. (a)(7), which was classified to section 814 of the

former Appendix to this title, was repealed by Pub. L.

104-88, title III, §335(b)(3), Dec. 29, 1996, 109 Stat. 954.

Section 14b of the Shipping Act, 1916, referred to in

subsec. (a)(7), which was classified to section 813a of

former Title 46, Shipping, was repealed by Pub. L.

98-237, §20(a), Mar. 20, 1984, 98 Stat. 88.

CHAPTER 405-TARIFFS, SERVICE

CONTRACTS, REFUNDS, AND WAIVERS

Sec.

40501.

40502.

40503.

General rate and tariff requirements.

Service contracts.

Refunds and waivers.

§ 40501. General rate and tariff requirements

(a) AUTOMATED TARIFF SYSTEM.(1) IN GENERAL.-Each common carrier and

conference shall keep open to public inspection in an automated tariff system, tariffs

showing all its rates, charges, classifications,

rules, and practices between all points or ports

on its own route and on any through transportation route that has been established. However, a common carrier is not required to state

separately or otherwise reveal in tariffs the

inland divisions of a through rate.

(2) EXCEPTIONS.-Paragraph (1) does not

apply with respect to bulk cargo, forest products, recycled metal scrap, new assembled

motor vehicles, waste paper, or paper waste.

(b) CONTENTS OF TARIFFS.-A tariff under subsection (a) shall(1) state the places between which cargo will

be carried;

(2) list each classification of cargo in use;

(3) state the level of compensation, if any, of

any ocean freight forwarder by a carrier or

conference;

(4) state separately each terminal or other

charge, privilege, or facility under the control

of the carrier or conference and any rules that

in any way change, affect, or determine any

part or the total of the rates or charges;

(5) include sample copies of any bill of lading, contract of affreightment, or other document evidencing the transportation agreement; and

Page 248

(6) include copies of any loyalty contract,

omitting the shipper's name.

(c) ELECTRONIC ACCESS.-A tariff under subsection (a) shall be made available electronically to any person, without time, quantity, or

other limitation, through appropriate access

from remote locations. A reasonable fee may be

charged for such access, except that no fee may

be charged for access by a Federal agency.

(d) TIME-VOLUME RATES.-A rate contained in

a tariff under subsection (a) may vary with the

volume of cargo offered over a specified period

of time.

(e) EFFECTIVE DATES.(1) INCREASES.-A new or initial rate or

change in an existing rate that results in an

increased cost to a shipper may not become effective earlier than 30 days after publication.

However, for good cause, the Federal Maritime

Commission may allow the rate to become effective sooner.

(2) DECREASES.-A change in an existing rate

that results in a decreased cost to a shipper

may become effective on publication.

(f) MARINE TERMINAL OPERATOR SCHEDULES.A marine terminal operator may make available

to the public a schedule of rates, regulations,

and practices, including limitations of liability

for cargo loss or damage, pertaining to receiving, delivering, handling, or storing property at

its marine terminal. Any such schedule made

available to the public is enforceable by an appropriate court as an implied contract without

proof of actual knowledge of its provisions.

(g) REGULATIONS.(!) IN GENERAL.-The Commission shall by

regulation prescribe the requirements for the

accessibility and accuracy of automated tariff

systems established under this section. The

Commission, after periodic review, may prohibit the use of any automated tariff system

that fails to meet the requirements established under this section.

(2) REMOTE TERMINALS.-The Commission

may not require a common carrier to provide

a remote terminal for electronic access under

subsection (c).

(3) MARINE TERMINAL OPERATOR SCHEDULES.The Commission shall by regulation prescribe

the form and manner in which marine terminal operator schedules authorized by this section shall be published.

(Pub. L. 109-304, §7, Oct. 6, 2006, 120 Stat. 1532.)

HISTORICAL AND REVISION NOTES

Revised

Section

Source (U.S. Code)

40501(a) ......

46 App.:l707(a)(l)

(1st, 2d sentences).

40501(b) ......

46 App.:1707(a)(l)

(last sentence).

46 App.:1707(a)(2).

46 App.:1707(b).

46 App.:1707(d).

46 App.:1707(f).

46 App.:1707(g).

40501(c) ......

4050l(d) ......

40501(e) ......

40501(f) .......

40501(g) ......

Source (Statutes at Large)

Pub. L. 98-237, §8(a), (b), (d),

(f), (g), Mar. 20, 1984, 98

Stat. 74; Pub. L. 105-258,

title I, § 106(a), (c), (e), (f),

Oct. 14, 1998, 112 Stat. 1905,

1907.

In subsection (b)(3), the words "ocean freight forwarder" are substituted for "ocean transportation

intermediary, as defined in section 1702(17)(A) of this

A16

Page 249

TITLE 46---SHIPPING

Appendix" because the definition of "ocean transportation intermediary" in section 1702(17)(A) contains a

definition of "ocean freight forwarder" which is restated as a separate definition.

In subsection (e), the word "calendar" is omitted as

unnecessary.

In subsection (f)(l), the words "subject to section

1709(d) of this Appendix" are omitted as unnecessary.

§ 40502. Service contracts

(a) IN GENERAL.-An individual ocean common

carrier or an agreement between or among

ocean common carriers may enter into a service

contract with one or more shippers subject to

the requirements of this part.

(b) FILING REQUIREMENTS.(!) IN GENERAL.-Each service contract entered into under this section by an individual

ocean common carrier or an agreement shall

be filed confidentially with the Federal Maritime Commission.

(2) EXCEPTIONS.-Paragraph (1) does not

apply to contracts regarding bulk cargo, forest

products, recycled metal scrap, new assembled

motor vehicles, waste paper, or paper waste.

shall include(1) the origin and destination port ranges;

(2) the origin and destination geographic

areas in the case of through intermodal movements;

(3) the commodities involved;

(4) the minimum volume or portion;

(5) the line-haul rate;

(6) the duration;

(7) service commitments; and

(8) the liquidated damages for nonperformance, if any.

(d) PUBLICATION OF CERTAIN TERMS.-When a

service contract is filed confidentially with the

Commission, a concise statement of the essential terms specified in paragraphs (1), (3), (4),

and (6) of subsection (c) shall be published and

made available to the general public in tariff

format.

(e) DISCLOSURE OF CERTAIN TERMS.(1) DEFINITIONS.-In this subsection, the

terms "dock area" and "within the port area"

have the same meaning and scope as in the applicable collective bargaining agreement between the requesting labor organization and

the carrier.

(2) DISCLOSURE.-An ocean common carrier

that is a party to or is otherwise subject to a

collective bargaining agreement with a labor

organization shall, in response to a written request by the labor organization, state whether

it is responsible for the following work at a

dock area or within a port area in the United

States with respect to cargo transportation

under a service contract:

(A) The movement of the shipper's cargo

on a dock area or within the port area or to

or from railroad cars on a dock area or within the port area.

(B) The assignment of intraport carriage

of the shipper's cargo between areas on a

dock or within the port area.

shipper's cargo between a container yard on

a dock area or within the port area and a

rail yard adjacent to the container yard.

§40502

(D) The assignment of container freight

station work and container maintenance and

repair work performed at a dock area or

within the port area.

(3) WITHIN REASONABLE TIME.-The common

carrier shall provide the information described

in paragraph (2) to the requesting labor organization within a reasonable period of time.

(4) EXISTENCE OF COLLECTIVE BARGAINING

AGREEMENT.-This subsection does not require

the disclosure of information by an ocean

common carrier unless there exists an applicable and otherwise lawful collective bargaining

agreement pertaining to that carrier. A disclosure by an ocean common carrier may not be

deemed an admission or an agreement that

any work is covered by a collective bargaining

agreement. A dispute about whether any work

is covered by a collective bargaining agreement and the responsibility of an ocean common carrier under a collective bargaining

agreement shall be resolved solely in accordance with the dispute resolution procedures

contained in the collective bargaining agreement and the National Labor Relations Act (29

U.S.C. 151 et seq.), and without reference to

this subsection.

(5) EFFECT UNDER OTHER LAWS.-This subsection does not affect the lawfulness or unlawfulness under this part or any other Federal or State law of any collective bargaining

agreement or element thereof, including any

element that constitutes an essential term of

a service contract.

(f) REMEDY FOR BREACH.-Unless the parties

agree otherwise, the exclusive remedy for a

breach of a service contract is an action in an

appropriate court. The contract dispute resolution forum may not be controlled by or in any

way affiliated with a controlled carrier or by the

government that owns or controls the carrier.

(Pub. L. 109-S04, §7, Oct. 6, 2006, 120 Stat. 1533.)

HISTORICAL AND REVISION NOTES

Revised

Section

Source (U.S. Code)

40502(a) .... ..

46 App.:1707(c)(1)

(1st sentence).

40502(b) ......

46 App.:1707(c)(2)

(1st sentence).

46 App.:1707(c)(2)

(last sentence).

46 App.:1707(c)(3).

46 App.:1707(c)(4).

46 App. :1707(c)(l)

(2d, last sentences).

40502(c) ......

40502(d) ......

40502(e) .... ..

40502(f) .. .. ...

Source (Statutes at Large)

Pub. L. 98-237, §8(c), Mar.

20, 1984, 98 Stat. 75; restated Pub. L. 105-258,

title I, §106(b), Oct. 14,

199e, 112 Stat. 1905.

In subsection (e)(5), the words "the National Labor

Relations Act [29 U .S.C. 151 et seq.] , the Taft-Hartley

Act [29 U.S .C. 141 et seq.], the Federal Trade Commission Act [15 U.S.C. 41 et seq.], the antitrust laws" are

omitted as unnecessary because of the reference to

"any other Federal or State law".

REFERENCES IN TEXT

The National Labor Relations Act, referred to in subsec. (e)(4), is act July 5, 1935, ch. 372, 49 Stat. 449, which

is classified generally to subchapter II (§ 151 et seq.) of

chapter 7 of Title 29, Labor. For complete classification

of this Act to the Code, see section 167 of Title 29 and

Tables.

A17

cP;f

Page 237

TITLE 46-SIDPPING

the definition of "ocean transportation intermediary"

in section 1702(17)(A) contains a definition of "ocean

freight forwarder" which is restated as a separate definition.

In subsection (d)(l), the word "calendar" is omitted

as unnecessary.

§41103

HISTORICAL AND REVISION NOTEs-CONTINUED

Revised

Section

41102(c) ......

Source (U.S. Code)

46 App.:1709(d)(1).

CHAPTER 411-PROHffiiTIONS AND

PENALTIES

Joint ventures and consortiums.

General prohibitions.

Disclosure of information.

Common carriers.

Concerted action.

Marine terminal operators.

Monetary penalties.

Additional penalties.

Assessment of penalties.

§ 41101. Joint ventures and consortiums

In this chapter, a joint venture or consortium

of two or more common carriers operating as a

single entity is deemed to be a single common

carrier.

(Pub. L. 109-304, § 7, Oct. 6, 2006, 120 Stat. 1540.)

HISTORICAL AND REVISION NOTES

Revised

Section

41101 ..........

Source (U.S. Code)

46 App.:1709(e).

Source (Statutes at Large)

Pub. L. 98-237, §10(e), Mar.

20, 1984, 98 Stat. 80.

§ 41102. General prohibitions

(a) OBTAINING TRANSPORTATION AT LESS THAN

APPLICABLE RATES.-A person may not knowingly and willfully, directly or indirectly, by

means of false billing, false classification, false

weighing, false report of weight, false measurement, or any other unjust or unfair device or

means, obtain or attempt to obtain ocean transportation for property at less than the rates or

charges that would otherwise apply.

(b) OPERATING CONTRARY TO AGREEMENT.-A

person may not operate under an agreement required to be filed under section 40302 or 40305 of

this title if(1) the agreement has not become effective

under section 40304 of this title or has been rejected, disapproved, or canceled; or

(2) the operation is not in accordance with

the terms of the agreement or any modifications to the agreement made by the Federal

Maritime Commission.

transportation intermediary may not fail to establish, observe, and enforce just and reasonable

regulations and practices relating to or connected with receiving, handling, storing, or delivering property.

(Pub. L. 109-304, § 7, Oct. 6, 2006, 120 Stat. 1540.)

(a) PROHIBITION.-A common carrier, marine

terminal operator, or ocean freight forwarder,

either alone or in conjunction with any other

person, directly or indirectly, may not knowingly disclose, offer, solicit, or receive any information concerning the nature, kind, quantity,

destination, consignee, or routing of any property tendered or delivered to a common carrier,

without the consent of the shipper or consignee,

if the information(1) may be used to the detriment or prejudice of the shipper, the consignee, or any common carrier; or

(2) may improperly disclose its business

transaction to a competitor.

(b) EXCEPTIONS.-Subsection (a) does not prevent providing the information(1) in response to legal process;

(2) to the Federal Maritime Commission or

an agency of the United States Government;

(3) to an independent neutral body operating

within the scope of its authority to fulfill the

policing obligations of the parties to an agreement effective under this part.

COMPILING STATISTICS.-An ocean common carrier that is a party to a conference agreement

approved under this part, a receiver, trustee,

lessee, agent, or employee of the carrier, or any

other person authorized by the carrier to receive

information(1) may give information to the conference

or any person or agency designated by the conference, for the purpose of(A) determining whether a shipper or consignee has breached an agreement with the

conference or its member lines;

(B) determining whether a member of the

conference has breached the conference

agreement; or

(2) may not prevent the conference or its

designee from soliciting or receiving information for any of those purposes.

(Pub. L. 109-304, §7, Oct. 6, 2006, 120 Stat. 1540.)

HISTORICAL AND REVISION NOTES

Revised

Section

Source (U.S. Code)

Source (Statutes at Large)

4l103(a) ......

46 App.:1709(b)(13),

(d)(3) (related to

(b)(13)), (5).

Pub. L. 98-237, §10(b)(13),

(words after cl. (13)), (d)(3)

(related to (b)(13)), (5),

Mar. 20, 1984, 98 Stat. 79,

80; Pub. L. 101-595, title

VII, §710(c)(1), (2), Nov. 16,

1990, 104 Stat. 2997; Pub. L.

105-258, title I, §109(a)(10),

(11), (16), (17), (c)(3), Oct.

14, 1998, 112 Stat. 1910,

1911.

HISTORICAL AND REVISION NOTES

Revised

Section

Pub. L. 98-237, § 10(d)(1),

Mar. 20, 1984, 98 Stat. 77;

Pub. L. 105-258, title I,

§ 109(c)(2), Oct. 14, 1998, 112

Stat. 1909.

§ 41103. Disclosure of information

Sec.

41101.

41102.

41103.

41104.

41105.

41106.

41107.

41108.

41109.

Source (Statutes at Large)

Source (U.S. Code)

41102(a) ......

46 App. :1709(a)(1).

41102(b) ......

46 App.:1709(a)(2),

Source (Statutes at Large)

Pub. L. 98-237, §10(a), Mar.

20, 1984, 98 Stat. 77.

(3).

A18

···-·· · ···c·Po_?

TITLE 46---SHIPPING

§41109

quired for a vessel operated by the carrier,

and when so requested, the Secretary shall

refuse or revoke the clearance.

(2) DEFENSE BASED ON FOREIGN LAW.-If, in

defense of its failure to comply with a subpoena or discovery order, a common carrier alleges that information or documents located

in a foreign country cannot be produced because of the laws of that country, the Commission shall immediately notify the Secretary of

State of the failure to comply and of the allegation relating to foreign laws. On receiving

the notification, the Secretary of State shall

promptly consult with the government of the

nation within which the information or documents are alleged to be located for the purpose

of assisting the Commission in obtaining the

information or documents.

(d) IMPAIRING ACCESS TO FOREIGN TRADE.-If

the Commission finds, after notice and opportunity for a hearing, that the action of a common carrier, acting alone or in concert with another person, or a foreign government has unduly impaired access of a vessel documented

under the laws of the United States to ocean

trade between foreign ports, the Commission

shall take action that it finds appropriate, including imposing any of the penalties authorized

by this section. The Commission also may take

any of the actions authorized by sections 42304

and 42305 of this title .

(e) SUBMISSION OF ORDER TO PRESIDENT.-Before an order under this section becomes effective, it shall be submitted immediately to the

President. The President, within 10 days after

receiving it, may disapprove it if the President

finds that disapproval is required for reasons of

national defense or foreign policy.

(Pub. L. 109-304, §7, Oct. 6, 2006, 120 Stat. 1543.)

HISTORICAL AND REVISION NOTES

Revised

Section

41108(a) ......

41108(b) ......

41108(c) ......

Source (U.S. Code)

46 App.:1712(b}(1).

Pub. L. 98-237, §13(b), Mar.

20, 1984, 98 Stat. 82; Pub.

L. 101>-258, title I , § 112(b),

Oct . 14, 1998, 112 Stat. 1911.

41108(e) ......

46 App.:1712(b)(7).

HISTORICAL AND REVISION NOTES

Revised

Section

Source (U.S. Code)

Source (Statutes at Large)

41109(a) ......

46 App.:l712(c) (1st,

last sentences).

Pub . L. 98-237, §13(c)-(f),

Mar. 20, 1984, 98 Stat. 82;

Pub. L. 10!>-258, title l ,

§112(c), Oct. 14, 1998. 112

Stat. 1912.

41109(b) ... .. .

46 App.:1712(c) (2d

sentence).

46 App.:1712(f)(l)

(1st sentence).

46 App.:1712(f)(l)

(last sentence).

46 App.:1712(f)(2).

46 App.:l712(d) .

46 App.:1712(e ).

41109(c) .... ..

41109(d) .... ..

(4), (5).

46 App.:l712(b)(6).

46 App.:1710a(h) (related to

1712(b)(6)).

(b) FACTORS IN DETERMINING AMOUNT.-In determining the amount of a civil penalty, the

Commission shall take into account the nature,

circumstances, extent, and gravity of the violation committed and, with respect to the violator, the degree of culpability, history of prior offenses, ability to pay, and other matters justice

may require.

or 41104(1) or (2) of this title or to defraud the

Commission by concealing such a violation.

(d) PROIDBITED BASIS OF PENALTY.-The Commission or a court may not order a person to

pay the difference between the amount billed

and agreed upon in writing with a common carrier or its agent and the amount set forth in a

tariff or service contract by that common carrier for the transportation service provided.

(e) TIME LIMIT.-A proceeding to assess a civil

penalty under this section must be commenced

within 5 years after the date of the violation.

(f) REVIEW OF CIVIL PENALTY.-A person

against whom a civil penalty is assessed under

this section may obtain review under chapter 158

of title 28.

(g) CIVIL ACTIONS To COLLECT.-lf a person

does not pay an assessment of a civil penalty

after it has become final or after the appropriate

court has entered final judgment in favor of the

Commission, the Attorney General at the request of the Commission may seek to collect the

amount assessed in an appropriate district court

of the United States. The court shall enforce the

order of the Commission unless it finds that the

order was not regularly made and duly issued.

(Pub. L. 109-304, § 7, Oct. 6, 2006, 120 Stat. 1544.)

Source (Statutes at Large)

46 App.:l712(b)(3} .

46 App.:1712(b)(2},

41108(d) ......

Page 240

Pub. L . 100-418, title X,

§ 10002(b)

(related

§13(b)(6)), Aug. 23, 1988, 102

Stat. 1572; Pub. L. 10!>-258,

title I , § 111(7), Oct. 14,

1998, 112 Stat. 1911.

41109(e) ... .. .

41109(f) ..... ..

41109(g)

CHAPTER 413-ENFORCEMENT

Sec.

Complaints.

Investigations.

Discovery and subpoenas.

Hearings and orders.

Award of reparations.

Injunctive relief sought by complainants.

Injunctive r elief sought by the Commission.

Enforcement of subpoenas and orders.

Enforcement of reparation orders.

In subsection (c)(1)(B), the words " Secretary of

Homeland Security" are substituted for "Secretary of

the Treasury" because the functions of the Secretary of

the Treasury relating to the Customs Service were

transferred to the Secretary of Homeland Security by

section 403(1) of the Homeland Security Act of 2002

(Pub. L. 107-296, 116 Stat. 2178).

41301.

41302.

41303.

41304.

41305.

41306.

41307.

41308.

41309.

§ 41109. Assessment of penalties

§ 41301. Complaints

(a) GENERAL AUTHORITY.-Until a matter is referred to the Attorney General, the Federal

Maritime Commission may, after notice and opportunity for a hearing, assess a civil penalty

provided for in this part. The Commission may

compromise, modify, or remit, with or without

conditions, a civil penalty.

(a) IN GENERAL.-A person may file with the

Federal Maritime Commission a sworn complaint alleging a violation of this part, except

section 41307(b)(l). If the complaint is filed within 3 years after the claim accrues, the complainant may seek reparations for an injury to the

complainant caused by the violation.

A19

(b) NOTICE AND RESPONSE.-The Commission

shall provide a copy of the complaint to the person named in the complaint. Within a reasonable time specified by the Commission, the person shall satisfy the complaint or answer it in

writing.

(C) IF COMPLAINT NOT SATISFIED.-If the complaint is not satisfied, the Commission shall investigate the complaint in an appropriate manner and make an appropriate order.

(Pub. L. 109-304, §7, Oct. 6, 2006, 120 Stat. 1545.)

HISTORICAL AND REVISION NOTES

Revised

Section

Source (U.S. Code)

41301(a) . .. .. . 46 App. :1710(a), (g)

(related to time

limit).

41301(b) ......

41301(c) ......

§41304

TITLE 46-SHIPPING

Page 241

Source (Statutes at Large)

Pub. L. 98-237, § ll(a), (b), (g)

(related to time limit),

Mar. 20, 1984, 98 Stat. 80;

Pub. L. 98-595, §3(b)(2),

Oct. 30, 1984, 98 Stat. 3132;

Pub. L. 105-258, title I,

§110, Oct. 14, 1998, 112

Stat. 1911.

46 App.:1710(b) (1st

sentence).

46 App.:1710(b) (last

sentence).

In subsection (a), the words "If the complaint is filed

within 3 years after the claim accrues" are substituted

for "For any complaint filed within 3 years after the

cause of action accrued" in 46 App. U.S.C. 1710(g) to

alert the reader to that time limitation.

HISTORICAL AND REVISION NOTES

Revised

Section

41302(a) ..... . 46 App.:1710(c) (1st,

3d sentences).

46 App.:1710(c) (2d

sentence).

11302(c) ..... . 46 App.:l710(d).

41302(d) ······ 46 App.:l710(e).

41302(e) ..... . 46 App.:1710(f).

(a) IN GENERAL.-The Federal Maritime Commission, on complaint or its own motion, may

investigate any conduct or agreement that the

Commission believes may be in violation of this

part. The Commission may by order disapprove,

cancel, or modify any agreement that operates

in violation of this part.

(b) EFFECTIVENESS OF AGREEMENT DURING INVESTIGATION.-Unless an injunction is issued

under section 41306 or 41307 of this title, an

agreement under investigation by the Commission remains in effect until the Commission issues its order.

the initiation of a proceeding under this section

or section 41301 of this title, the Commission

shall set a date by which it will issue its final

decision. The Commission by order may extend

the date for good cause.

(d) SANCTIONS FOR DELAY.-If, within the period for final decision under subsection (c), the

Commission determines that it is unable to

issue a final decision because of undue delay

caused by a party to the proceeding, the Commission may impose sanctions, including issuing

a decision adverse to the delaying party.

(e) REPORT.-The Commission shall make a

written report of every investigation under this

part in which a hearing was held, stating its

conclusions, decisions, findings of fact, and

order. The Commission shall provide a copy of

the report to all parties and publish the report

for public information. A published report is

competent evidence in a court of the United

States.

(Pub. L. 109-304, § 7, Oct. 6, 2006, 120 Stat. 1545.)

Source (Statutes at Large)

Pub. L. 911-237, §11(c)-(f),

Mar. 20, 1984, 98 Stat. 80.

41302(b) ······

§ 41303. Discovery and subpoenas

(a) IN GENERAL.-In an investigation or adjudicatory proceeding under this part-(1) the Federal Maritime Commission may

subpoena witnesses and evidence; and

(2) a party may use depositions, written interrogatories, and discovery procedures under

regulations prescribed by the Commission

that, to the extent practicable, shall conform

to the Federal Rules of Civil Procedure (28

App. U.S.C.).

(b) WITNESS FEES.-Unless otherwise prohibited by law, a witness is entitled to the same

fees and mileage as in the courts of the United

States.

(Pub. L. 109-304, §7, Oct. 6, 2006, 120 Stat. 1545.)

HISTORICAL AND REVISION NOTES

Revised

Section

41303 ... . . . . ...

§ 41302. Investigations

Source (U.S. Code)

46 App. :1711.

Source (Statutes at Large)

Pub. L. 98-237, §12, Mar. 20,

1984, 98 Stat. 81.

In subsection (a)(l), the words "may subpoena witnesses and evidence" are substituted for "may by subpena compel the attendance of witnesses and the production of books, papers, documents, and other evidence" to eliminate unnecessary words.

In subsection (a)(2), the words "shall conform to the

Federal Rules of Civil Procedure (28 App. U.S.C.)" are

substituted for "shall be in conformity with the rules

applicable in civil proceedings in the district courts of

the United States" for clarity.

§ 41304. Hearings and orders

(a) OPPORTUNITY FOR HEARING.-The Federal

Maritime Commission shall provide an opportunity for a hearing before issuing an order relating to a violation of this part or a regulation

prescribed under this part.

(b) MODIFICATION OF 0RDER.-The Commission

may reverse, suspend, or modify any of its orders.

proceeding, the Commission may grant a rehearing of the same or any matter determined in the

proceeding. Except by order of the Commission,

a rehearing does not operate as a stay of an

order.

(d) PERIOD OF EFFECTIVENESS.-An order of the

Commission remains in effect for the period

specified in the order or until suspended, modified, or set aside by the Commission or a court

of competent jurisdiction.

(Pub. L . 109-304, §7, Oct. 6, 2006, 120 Stat. 1546.)

HISTORICAL AND REVISION NOTES

Revised

Section

Source (U.S. Code)

Source (Statutes at Large)

41304(a) ......

46 App.:l713(a) (1st

sentence).

Pub. L. 911-237, § 14(a), (b),

Mar. 20, 1984, 98 Stat. 83.

A20

GENERAL PROVISIONS

§ 1-200

. ofd utles

. ass1gne

. d t o po litic

. al subdiVISion.

. .

section

1-213. De1egation

1-214. Effective dates.

1-215. Ex officio.

1-216. Gender.

1-217. Headlines of sections.

1-218. Includes.

1-219. Land; real estate.

1-219.1. Limitations on eminent domain.

1-220. Local ordinances incorporating state law by reference.

1-221. Locality.

1-222. Majority authority.

1-222.1. Manufacturer.

1-223. Month; year.

1-224. Municipality; incorporated communities; municipal corporation.

1-225. Nonlegislative citizen member.

1-226. Notary.

1-227. Number.

1-228. Oath.

1-229. Optional form of county government; effect of change in form.

1-230. Person.

1-231. When "person" includes business trust and limited liability company.

1-232. Person under disability.

1-233. Personal estate.

1-234. Personal representative.

1-235. Population; inhabitants.

1-236. Population classifications.

1-237. Process.

1-238. Reenacted.

1-239. Repeal not to affect liabilities; mitigation of punishment.

1-240. Repeal not to revive former act.

1-240.1. Rights of parents.

1-241. Seal.

1-242. Senate Committee on Privileges and Elections.

1-243. Severability.

1-244. Short title citations.

1-245. State.

1-246. Stricken language or italics.

1-247. Summaries oflegislation.

1-248. Supremacy offederal and sta~e law.

1-249. Supreme Court.

1-250. Swear; sworn.

1-251. Systems of state highways.

1-252. Tier-city.

1-253. Time zone.

1-254. Town.

1-255. United States.

1-256. Weights and measurements; metric equivalents.

1-257. Written; writing; in writing.

ARTICLE 1.

COMMON LAW AND ACTS OF PARLIAMENT.

§ 1-200. The common law.

The common law of England, insofar as it is not repugnant to the principles

of the Bill of Rights and Constitution <if this Commonwealth, shall continue in

full force within the same, and be the rule of decision, except as altered by the

General Assembly.

A21

§ 8.01-243

;le

.e s

that the limitation may be extended by recordation of a certificate within the

twenty-year period in the manner set forth in § 8.01-241. No credit line deed

of trust described in§ 55-58.2 in which no date is fixed for the maturity of the ·

debt secured thereby shall be enforced after forty years from the date of the

credit line deed of trust; provided that the period of one year from the death of

any party in interest shall be excluded from the computation of tit;ne.

tal

Ly-

.1-

.185

CIVIL REMEDIES AND PROCEDURE

Iiistory.

· Code 1950, § 8-12; 1977, c. 617; 1994, c. 547;

1999, c. 788.

Law Review.

For survey article on judicial decisions in real

V"e

11e

tis

§ 8.01-243

estate law from June 1, 2002 through June 1,

2003, see 38 U . Rich. L. Rev. 223 (2003) .

Michie's Jurisprudence.

For related discussion, see 13A M.J. Mortgages and Deeds of Trust, § 166.

CASE NOTES

Junior lienor was a party in interest. Junior lienor, who was the mortgagor of the

property which was the subject of the foreclo.sure and the holder of a second deed of trust

:which secured his note, was a necessary party,

aS well as a party in interest to foreclosure suit

for the purposes of this section; therefore, his

d~th extended the statute of limitations by one

year, as provided in this section. Allen v. Chapn:iiin, 242 Va. 94, 406 S.E.2d 186 (1991).

Federal agency's immunity did not apply to private trustee. - Although § 8.01242 could not bar a federal agency, such as the

United States Smail Business Administration,

from initiating foreclosure proceedings on real

property, a private _entity (a trustee) to which

the Administration assigned a deed of trust did

not, merely by virtue of that assignment, enjoy

the same immunity from the statute of limitation. Long, Long & Kellerman, P.C. v. Wheeler,

264 Va. 531, 570 S.E.2d 822, 2002 Va. LEXIS

152 (2002).

Foreclosure action was time-barred. Where a deed of trust contained no maturity

date, the 20-year statute oflimitation set forth

in § 8.01-242 applied and barred a trustee's

action to foreClose on the deed of trust where

the foreclosure action was initiated more than

20 years after the date of the deed of trust.

Long, Long & Kellerman, P.C. v. Wheeler, 264

Va. 531, 570 S.E.2d 822, 2002 Va. LEXIS 152

(2002).

ARTICLE 3.

PERSONAL ACTIONS GENERALLY.

§ 8.01-243. Personal action for injury to person or property generally;

extension in actions for malpractice against health care

provider.

ile

ill

A. Unless otherwise provided in this section or by other statute, every action

for· personal injuries, whatever the theory of recovery, and every action for

dW;nages resulting from fraud, shall be brought within two years after the

cause of action accrues.

B. Every action for injury to property, including actions by a parent or

guardian of an infant against a tort-feasor for expenses of curing or attempting

to sure such infant from the result of a personal injury or loss of services of

sllch infant, shall be brought within five years after the cause of action accrues.

An infant's claim for medical expenses pursuant to subsection B of§ 8.01-36

accruing on or after July 1, 2013, shall be governed by the applicable statute

of limitations that applies tO the infant's cause of action.

Q. The two-year limitations period specified in subsection A shall be

extended in actions for malpractice against a health care provider as follows:

1. In cases arising out of a foreign object having no therapeutic or diagnostic

effect being left in a patient's body, for a period of one year from the date the

object is discovered or reasonably should have been discovered;

453

A22

Montagna Klein Camden L.L.P.

Counselors at law

Charles S. Montagna

March 11, 2019

Jolm H. Klein

Gregory E. Camden

Lance A. Jackson

Jon J. Montagna*

Anthony L. Montagna, lli

*Also licensed in

Washington, D.C.

and New Jersey

VIA HAND DELIVERY

The Honorable George E. Schaefer, III, Clerk

Norfolk Circuit Court-Civil Division

7th Floor

150 St. Paul's Boulevard

Re:

Stephen K. Walton, Sr. v. Virginia International Terminals, LLC,

Ceres Marine Terminals, Inc., and CP&O, LLC

Norfolk Circuit Court, Case No.

Dear Mr. Schaefer:

Enclosed is an original Complaint, civil action cover sheet, and a check in the

amount of $354.00 to cover the cost of filing. Please file the Complaint. Jury trial is

demanded. I expect this case will take three (3) days to try. Please have this case

assigned to a judge.

425 Monticello Avenue

Also enclosed is a copy of the Complaint. Please prepare a summons for the

defendant named below for service of process at the following address:

Norfolk, VA23510

Norfolk:

Virginia International Terminals, LLC

c/o Sarah Jayne McCoy, Esq., registered agent

600 World Trade Center

Norfolk, VA 2351 Q

757.622.8100

Virginia Beach:

757.499.7800

I AM HAVING PROCESS SERVED THROUGH THE MARSTON

AGENCY.

Peninsula:

757.380.8100

Toll Free:

Please call me if you have any questions. My direct no. is 757-739-4227.

Thanking you for your help in this matter, I am

877.622.8100

~un,

Fax:

757.622.8180

:Cance A. Jackson

Enclosures

cc:

Stephen K. Walton, Sr. (via first class mail)(w/encl.)

Donita Malloy, Marston Agency (via email dmalloy@mai-va.com)(w/out encl.)

A23

COVER SHEET FOR FILING CML ACTIONS

Case No . ............................................................................ .

COMMONWEALTH OF VllWINIA

(CLERK'S OFFICE USE ONLY)

..................................................................................................... .N~.if.~~¥............................... ;...................................................................... Circuit Court

......................................... ~.~~P.~~~-~·..~~~~.?.~:..~.~:......... ................................ v.lln re: .................... .Y~.rg.i~~.~~.e.~~Y?.n..~!.T..C.:.~~~~~,. ~~-g! .................... .

PLAINTIFF(S)

DEFENDANI'(S)

...............................................................................................................................

.. .......... f.e.~~..M~rt~e..I~~~~.I:l:!~~- ~-~. .!.~~~..9~.~9.~.~~g........... ..

I, the undersigned [ ] plaintiff [ ] defendant [X] attorney for [X] plaintiff [ ] defendant hereby notify the Clerk of Court that I am filing

the following civil action. (Please indicate by checking box that most closely identifies the claim being asserted or relief sought.)

ADMINISTRATIVE LAW

GENERAL CIVIL

Subsequent Actions

[ ] Claim Impleading Third Party Defendant

[ ] Monetary Damages

[ ] No Monetary Damages

[ ] Counterclaim

[ ] Monetary Damages

[ ] No Monetary Damages

[ ] Cross Claim

[ ] Interpleader

[ ] Reinstatement (other than divorce or

driving privileges)

[ ] Removal of Case to Federal Court

Business & Contract

[ ] Attachment

[ ] Confessed Judgment

[ ] Contract Action

[ ] Contract Specific Performance

[ ] Detinue

[ ] Garnishment

Property

[ ] Annexation

[ ] Condemnation

[ ] Ejectment

[ ] Encumber/Sell Real Estate

[ ] Enforce Vendor's Lien

[ ] Escheatment

[ ] Establish Boundaries

[ ] Landlord/Tenant

[ ] Unlawful Detainer

[ ] Mechanics Lien

[ ] Partition

[ ] Quiet Title

[ ] Termination of Mineral Rights

Tort

[ ] Asbestos Litigation

[ ] Compromise Settlement

[ ] Intentional Tort

[ ] Medical Malpractice

[ ] Motor Vehicle Tort

[ ] Product Liability

[ ] Wrongful Death

[X] Other General Tort Liability

[ ] Accounting

[ ] Aid and Guidance

[ ] Appointment (select one)

[ ] Guardian/Conservator

[ ] Standby Guardian/Conservator

[ ] Custodian/Successor Custodian (UTMA)

[ ) Trust (select one)

[ ] Impress/Declare/Create

[ ] Reformation

[ ] Will (select one)

[ ] Construe

[ ] Contested

MISCELLANEOUS

DOMESTIC/FAMILY

[ ] Adoption

[ ] Adoption - Foreign

[ ] Adult Protection

[ ] Annulment

[ ] Annulment - Counterclaim/Responsive

Pleading

[ ] Child Abuse and Neglect- Unfounded

Complaint

[ ] Civil Contempt

[ ] Divorce (select one)

[ ] Complaint- Contested*

[ ] Complaint- Uncontested*

[ ] Counterclaim/Responsive Pleading

[ ] Reinstatement CustodyN isitation!Support!Equitable

Distribution

[ ] Separate Maintenance

[ ] Separate Maintenance Counterclaim

WRITS

[ ] Certiorari

[ ) Habeas Corpus

[ ] Mandamus

[ ] Prohibition

[ ] Quo Warranto

~~9g9.~99.9:9.9.................................... : e claf d )

[X] Damages in the amount of$ ..

W!~V~O.!~

PROBATE/WILLS AND TRUSTS

[ ] Appeal!Judicial Review of Decision of

(select one)

[]ABC Board

[ ] Board of Zoning

[ ] Compensation Board

[ ] DMV License Suspension

[ ] Employee Grievance Decision

[ ] Employment Commission

[ ] Local Government

[ ] Marine Resources Commission

[ ] School Board

[ ] Voter Registration

[ ] Other Administrative Appeal

[ ] Amend Death Certificate

[ ] Appointment (select one)

[ ] Church Trustee

[ ] Conservator of Peace

[ ] Marriage Celebrant

[ ] Approval of Transfer of Structured

Settlement

[ ] Bond Forfeiture Appeal

[ ] Declaratory Judgment

[ ] Declare Death

[ ] Driving Privileges (select one)

[ ] Reinstatement pursuant to§ 46.2-427

[ ] Restoration - Habitual Offender or 3nl

Offense

[ ] Expungement

[ ] Firearms Rights - Restoration

[ ] Forfeiture of Property or Money

[ ] Freedom of Information

[ ] Injunction

[ ] Interdiction

[ ] Interrogatory

[ ] Judgment Lien-Bill to Enforce

[ ] Law Enforcement/Public Official Petition

[ ] Name Change

[ ] Referendum Elections

[ ] Sever Order

[ ] Taxes (select one)

[ ] Correct Erroneous State/Local

[ ] Delinquent

[ ] Vehicle Confiscation

[ ] Voting Rights - Restoration

[ ]

~-~~~-~~=~~.~~~~~~~

'"~- ~

..........

...........~~~~.A:.!.~~~~~!?:l.M.Q~~Q~A.~EQi.gAMP.E~~..~. .~:~:......... ..

PRINT NAME

...........................4~.?. . M.QI1:~!.1?.c::.H9..!.\Y.~P.-.~~~--N9.if.9~~~- .YA.~}?.J9...........................

ADDRESS!rELEPHONE NUMBER OF SIGNATOR

.........................................................7.?..?.~.~~:?:~.~~ .9.9....................................................... .

..........................................u~~~.9.~®~9.r...~~SP.~.~~:.~.9.!P.: ........................................ .

EMAIL ADDRESS OF SIGNATOR (OPTIONAL)

FORM CC-1416 (MASTER) PAGE ONE 07/ 16

A24

*"Contested" divorce means any of the following matters are in

dispute: grounds of divorce, spousal support and maintenance,

child custody and/or visitation, child support, property distribution

or debt allocation. An "Uncontested" divorce is filed on no fault

grounds and none of the above issues are in dispute.

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

STEPHENK. WALTON, SR.,

Plaintiff,

Case No.

PLAINTIFF DEMANDS TRIAL BY JURY

VIRGINIA INTERNATIONAL

TERMINALS, LLC,

Serve: Virginia International Terminals, LLC

c/o Sarah Jayne McCoy, Esq., registered agent

Virginia Port Authority

600 World Trade Center

Norfolk, VA 23510

CERES MARINE TERMINALS, INC.,

and

CP&O, LLC,

Defendants.

COMPLAINT

The plaintiff, Stephen K. Walton, Sr., by counsel, for his Complaint against the

defendants Virginia International Terminals, LLC, Ceres Marine Terminals, Inc., and CP&O,

LLC, states as follows:

This is an action by a longshoreman for personal injuries that occurred at a marine

terminal in the City ofNorfolk, Virginia, on or about March 15, 2017, and is being brought

pursuant to the laws of the Commonwealth ofVirginia and Section 933 of the Longshore and

Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.

A25

Venue for this action lies in the Circuit Court of the City of Norfolk, pursuant

to Virginia Code §8.01-262, because the cause of action herein arose within the City of

Norfolk.

The plaintiff Stephen K. Walton, Sr., is a citizen of the United States of America

who is domiciled in the Commonwealth of Virginia, in the City of Portsmouth.

The defendant Virginia International Terminals, LLC, (hereinafter referred to as

"VIT") is a Virginia limited liability company, which converted from being the corporation

known as Virginia International Terminals, Inc., to a limited liability company, on or about

August 17,2013.

The defendant Ceres Marine Terminals, Inc., (hereinafter referred to as "Ceres")

is a corporation formed pursuant to the laws of the State of Maryland, and it maintains its

principal place ofbusiness in the State ofNew Jersey.

The defendant CP&O, LLC, (hereinafter referred to as "CP&O") is a Virginia

limited liability company which was formed in October, 2004.

Norfolk International Terminals is a marine terminal located within the City of

Norfolk, on the Elizabeth River and the Lafayette River, both of which are navigable waters

of the United States. Hereinafter, this marine terminal will be referred to as ''the terminal" and/or

"NIT."

At all times pertinent herein, including March 15, 2017, the defendant VIT owned

and/or leased and/or occupied and/or maintained the premises at the NIT terminal, including a

maintenance and repair facility, an adjacent area used for the temporary storage of refrigerated

cargo containers known as "reefers," and a walkway or roadway that runs between the

maintenance and repair facility and the container storage area.

A26

At all times pertinent herein, including March 15, 2017, the plaintiff Stephen K.

Walton, Sr., was a longshoreman working as a reefer mechanic and container repair mechanic at

the NIT marine terminal, and he was employed by Marine Repair Services, Inc.

10.

The plaintiff Stephen K. Walton, Sr., was not an employee of the defendant VIT,

on March 15, 2017, nor was he an employee ofVIT at any other time pertinent herein.

11.

The plaintiff Stephen K. Walton, Sr., was not an employee of the defendant Ceres

on March 15, 2017, nor was he an employee of Ceres at any other time pertinent herein.

12.

The plaintiff Stephen K. Walton, Sr., was not an employee of the defendant

CP&O on March 15, 2017, nor was he an employee ofCP&O at any other time pertinent herein.

13.

At all times pertinent herein, including March 15, 2017, the marine terminal at

NIT was not open to members of the general public.

14.

At all times pertinent herein, including March 15, 2017, the defendant VIT, in

cooperation with the Virginia Port Authority, controlled who entered the premises ofNIT.

15.

At all times pertinent herein, including March 15, 2017, there was an agreement

in place between the defendant VIT and the plaintiffs employer Marine Repair Services, under

which employees of Marine Repair Services were authorized to perform work on cargo

containers at NIT, including checking the condition of reefers temporarily stored at NIT and

unplugging reefers so that they can be loaded onto cargo vessels calling at the terminal.

16.

At all times pertinent herein, including March 15, 2017, the plaintiff Stephen K.

Walton, Sr., was a business invitee of the defendant VIT on the aforesaid premises at NIT,

including the aforesaid container storage area and the walkway or roadway running between the

container storage area and VIT's maintenance and repair facility.

A27

17.

At all times pertinent herein, including March 15, 2017, electrical boxes were

installed at intervals along the afo.resaid walkway or roadway, close to or adjacent to VIT's

maintenance and repair facility. The electrical boxes were used to supply power to refrigerated

cargo containers which were in the aforesaid container storage area.

18.

At all times pertinent herein, including March 15, 2017, business invitees of the

defendant VIT, including employees of Marine Repair Services, regularly visited the aforesaid

container storage area and the aforesaid walkway or roadway at NIT to perform their work on

the premises, at all hours of the day and night; and the defendant VIT, through its agents and

employees, knew, or in the exercise of reasonable care should have known, this fact.

19.

At all times pertinent herein, including March 15, 2017, container repair

mechanics, including employees of Marine Repair Services, regularly visited the aforesaid

container storage area and the aforesaid walkway or roadway to check on the condition of reefer

units, and to unplug reefer units so that they could be moved, at all hours of the day and night;

and the defendant VIT, through its agents and employees, knew or in the exercise of reasonable

care should have known, this fact.

20.

On information and belief, at all times pertinent herein, including March 15, 2017,

the defendant VIT, through its agents and employees, maintained exclusive control over its

maintenance and repair facility at NIT, including control over how and where forklifts and other

equipment were parked and/or stored at the facility.

21.

On information and belief, at all times pertinent herein, including March 15, 2017,

the defendant VIT, through its agents and employees, controlled the location of and maintained

the artificial lighting on its premises at NIT, including the lighting for the container storage area

and the adjacent walkway or roadway.

A28

22.

On or about March 15, 2017, during the nighttime, the plaintiff Stephen K.

Walton, Sr., was performing his work-related duties at the aforesaid container storage area and

the aforesaid walkway or roadway at NIT.

23.

The area which the plaintiff was using was a walkway that was regularIy used by

employees of Marine Repair Services, Inc., and others, and it was an area that the defendant VIT

knew and expected, or in the exercise of reasonable care under the circumstances, should have

known and expected that its invitees would use while performing their work on the premises at

night.

24.

At the aforesaid time and place, the plaintiff Stephen K. Walton, Sr., was

unplugging reefer units so that they could be moved from the container storage area and loaded

onto a cargo ship calling at the terminal.

25.

As the plaintiff Stephen K. Walton, Sr., was performing his work, he was walking

along the aforesaid walkway or roadway when he tripped over the blade of a forklift projecting

out into the walkway, causing him to fall and be injured.

26.

At the aforesaid time and place, the blade of the forklift over which the plaintiff

tripped and fell was obscured by a shadow or shadows caused by cargo containers blocking the

artificial light in the area and/or by the otherwise poor lighting conditions present in the area,

such that the lighting was insufficient to illuminate the trip-and-fall hazard.

27.

On March 15, 2017, and for months or years beforehand, the defendant VIT,

through its agents and employees, knew or in the exercise of reasonable care should have known,

that the lighting in the aforesaid walkway or roadway was poor and unsafe for persons doing

their work on the premises.

A29

28.

At the aforesaid time and place, the blade of the forklift over which the plaintiff

tripped and fell was not open and obvious.

29.

Before the aforesaid incident in which the plaintiff was injured, the defendant

VIT, through its agents and employees, and/or the defendant Ceres, through its agents and

employees, and/or the defendant CP&O, through its agents and employees, placed the forklift in

its dangerous position, with the blades of the forklift projecting into the aforesaid walkway.

30.

Before the aforesaid incident in which the plaintiff was injured, the defendant

VIT, through its agents and employees, and/or the defendant Ceres, through its agents and

employees, and/or the defendant CP&O, through its agents and employees, knew or in the

exercise of reasonable care under the circumstances should have known, that the forklift had

been placed in a position so as to make it a trip-and-fall hazard to persons using the walkway at

night.

31.

The aforesaid injury which the plaintiff Stephen K. Walton, Sr., suffered on or

about March 15, 201 7, was an injury for which there was jurisdiction under the Longshore and

Harbor Workers' Compensation Act, '33 U.S.C. § 901 et seq., so that, pursuant to Virginia Code

§ 65.2-101, the plaintiff was not an "employee" within the purview of the Virginia Workers'

Compensation Act, Virginia Code§ 65.2-101 et seq., and the Virginia Workers' Compensation

Act does not apply to his injury herein.

32.

At all times relevant herein, including March 15, 2017, the defendant VIT had a

duty to exercise reasonable care for the safety of its invitees, including the plaintiff, ~ith respect

to the premises at NIT, including the duties of prevision, preparation, and lookout.

33.

At all times relevant herein, including March 15, 2017, the defendant Ceres had a

duty to exercise reasonable qare to avoid causing injury to others who were lawfully on the NIT

A30

premises, including the plaintiff.

34.

At all times relevant herein, including March 15, 2017, the defendant CP&O had

a duty to exercise reasonable care to avoid causing injury to others who were lawfully on the

NIT premises, including the plaintiff.

35.

Notwithstanding the foregoing, the defendant VIT, through its agents and

employees, and/or the defendant Ceres, through its agents and employees, and/or the defendant

CP&O, through its agents and employees, breached its/their duty to the plaintiff by its/their

affirmative conduct in placing or storing a forklift on the NIT premises with its blades sticking

out into the walkway next to the container storage area, creating a trip-and-fall hazard.

36.

Notwithstanding the foregoing and furthermore, the defendant VIT, through its

agents and employees, negligently breached its aforesaid duties in that it negligently maintained

its premises; negligently failed to supply sufficient lighting for its invitees to work at night;

negligently failed to keep its premises free of the aforesaid trip-and-fall hazard in an area where

its invitees could be expected to walk; and/or negligently failed to warn the plaintiff of the

aforesaid trip-and-fall hazard; and/or negligently failed to rope off, barricade, or otherwise bar

entry to the area where it was unsafe to walk; and/or in other particulars to be supplied at trial.

37.

As a direct and proximate result of the negligence of the defendant VIT and the

negligence of its employees and/or agents, and/or as a direct and proximate result ofthe

negligence of the defendant Ceres and the negligence of its employees and/or agents, and/or as a

direct and proximate result of the negligence of the defendant CP &0 and the negligence of its

employees and/or agents, the plaintiff Stephen K. Walton, Sr., suffered physical injuries to his

neck and other parts of his body; has undergone and continues to undergo physical pain, mental

anguish, and inconvenience; has been unable to work at his occupation; has lost income; has lost

A31

all or part of his capacity to earn income; and has incurred and continues to incur substantial

medical expenses for the care and treatment of his injuries.

WHEREFORE the plaintiff Stephen K. Walton, Sr., by counsel, asks for entry of a

judgment and award in his favor against the defendants Virginia International Terminals, LLC,

Ceres Marine Terminals, Inc., and CP&O, LLC,jointly and severally, in the amount ofFIVE

MILLION DOLLARS ($5,000,000.00), plus prejudgment interest, post judgment interest, and

legal costs incurred.

THE PLAINTIFF DEMANDS TRIAL BY JURY ON ALL ISSUES SO TRIABLE.

STEPHENK. WALTON, SR.

Lance A. Jackson, Esq. (VSB No. 26035)

Counsel for Stephen K. Walton, Sr.

MONTAGNA KLEIN CAMDEN, L.L.P.

425 Monticello Avenue

Norfolk, VA 23510

Ph: (757) 622-8100

Fax: (757) 622-8180

ljackson@montagnalaw .com

A32

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

STEPHENK. WALTON, SR.,

Plaintiff,

Case No. CL19-2417

THE PLAINTIFF DEMANDS TRIAL BY

JURY

VIRGINIA INTERNATIONAL TERMINALS, LLC,

Serve: Virginia International Terminals, LLC

c/o Sarah Jayne McCoy, Esq., registered agent

Virginia Port Authority

600 World Trade Center

Norfolk, VA 23510

CERES MARINE TERMINALS, INC.,

and

CP&O, LLC,

Defendants.

AMENDED COMPLAINT

The plaintiff, Stephen K. Walton, Sr., by counsel, for his Amended Complaint against the

defendants Virginia International Terminals, LLC, Ceres Marine Terminals, Inc., and CP&O,

LLC, states as follows:

This is an action by a longshoreman for personal injuries that occurred at a marine

terminal in the City ofNorfolk, Virginia, on or about March 15, 2017, and is being brought

pursuant to the laws of the Commonwealth ofVirginia and Section 933 ofthe Longshore and

Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq.

Venue for this action lies in the Circuit Court of the City ofNorfolk, pursuant to

Virginia Code §8.01-262, because the cause of action arose within the City ofNorfolk.

A33

The plaintiff Steven K. Walton, Sr., is a citizen of the United States of America

who is domiciled in the Commonwealth ofVirginia, in the City of Portsmouth.

At all times pertinent herein, including March 15, 2017, the plaintiff Steven K.

Walton, Sr., was employed as a longshoreman, by Marine Repair Services, Inc. (hereinafter

referred to as "MRS"), performing work as a reefer mechanic and container repair mechanic.

The defendant Virginia International Terminals, LLC (hereinafter referred to as

"VIT") is a Virginia limited liability company, which converted from being the corporation

known as Virginia International Terminals, Inc., to a limited liability company, on or about

August 17, 2013.

The defendant Ceres Marine Terminals, Inc. (hereinafter referred to as "Ceres") is

a corporation formed pursuant to the laws ofthe State of Maryland, and it maintains its principal

place ofbusiness in the State ofNew Jersey.

The defendant CP&O, LLC (hereinafter referred to as "CP&O") is a Virginia

limited liability company which was formed in October 2004.

Norfolk International Terminals is a marine terminal located within the City of

Norfolk, on the Elizabeth River and the Lafayette River, both of which are navigable waters of

the United States. Hereinafter, this marine terminal will be referred to as "the terminal" and/or

''NIT."

At all times pertinent herein, including March 15, 2017, the defendant VIT

operated, managed, occupied, and/or maintained the NIT premises.

10.

At all times pertinent herein, including March 15, 2017, the defendant VIT was in

the business of facilitating the transfer of cargo at the NIT terminal, including containerized

cargo, between sea-based modes of cargo transportation, including cargo ships and barges, and

A34

land-based modes of cargo transportation, including railroad and over-the-road trucks.

11.

At all times pertinent herein, a significant portion of the containerized cargo

which was transferred through the NIT terminal was refrigerated. The refrigerated cargo was

stowed in refrigerated containers known as "reefers."

12.

Reefers require an electrical power source in order to keep the cargo stowed

therein refrigerated. Reefers stowed aboard a cargo ship receive their electrical power from the

ship, transmitted through power cords. Reefers temporarily stored at a terminal, such as NIT,

receive their electrical power from the terminal transmitted through high-voltage power cords

connected to electrical boxes. Reefers which are not attached to a fixed source of electrical

power such as a ship or a terminal are powered by a generator installed onto the reefer container.

Such generators are referred to as "gen-sets."

13.

At all times pertinent herein, including March 15, 2017, cargo ships regularly

called at the NIT terminal, where they underwent loading and unloading of containerized cargo,

including reefers. Containerized cargo, including reefers, that was loaded onto these cargo

ships was regularly transported into the NIT terminal by rail and/or by over-the-road trucks.

Containerized cargo, including reefers, that was discharged from these cargo ships at the NIT

terminal was regularly transported out of the NIT terminal by rail and/or by over-the-road trucks.

On a regular basis, containerized cargo which was not immediately transferred from one mode of

transportation to another at the terminal was stored temporarily at the NIT terminal.

14.

At all times pertinent herein, including March 15, 2017, several business entities

operated at NIT on a daily basis, performing various jobs necessary and beneficial to the

defendant VIT's business at NIT. These entities included defendant VIT, the plaintiffs employer

MRS, and defendants Ceres and CP&O. The defendant VIT was the marine terminal operator.

A35

MRS performed maintenance and repair of cargo containers. The defendants Ceres and CP &0

performed stevedoring work. The work of each of these entities is more fully described below.

15.

At all times pertinent herein, including March 15, 2017, the defendant VIT,

through its employees, performed many but not all services necessary for NIT to function as a

marine terminal, including but not limited to the following: VIT employees worked as

linehandlers to facilitate mooring and unmooring of cargo vessels calling at the terminal. VIT

employees maintained the berths at the terminal where the cargo ships called. VIT employees

operated and maintained the cranes at the terminal docks used to load and unload containerized

cargo, including reefers, to and from cargo ships calling at the terminal. VIT owned and, through

its employees, maintained straddle carriers, which are vehicles used to transport cargo containers

from container storage places to points ofloading or unloading within the terminal. VIT,

through its employees, controlled rail operations within the NIT terminal, including

transportation of cargo containers, dry and refrigerated, in and out of the terminal. VIT

employees, kept track of all cargo entering and leaving the NIT terminal. VIT, in cooperation

with the Virginia Port Authority, controlled who entered the premises at NIT. VIT determined

whether other business entities, including the plaintiffs employer MRS, would perform their

work on the NIT premises. VIT, through its employees, maintained a cargo container storage

yard at NIT, where reefers were temporarily kept before they were transported out of the

terminal by rail, truck, or ship. VIT, through its employees, operated a maintenance and repair

facility at NIT, near the cargo container storage yard. VIT, through its employees, controlled and

maintained the entire NIT terminal premises.

16.

At all times pertinent herein, including March 15, 2017, the defendant VIT did

not, through its employees, perform some of the work at the NIT terminal which was

A36

necessary and beneficial to VIT's business at the terminal. This work included stevedoring

operations, and the maintenance and repair of cargo containers.

17.

The aforementioned stevedoring operations at NIT, including the loading and

discharging of containerized cargo onto and off ships calling at the terminal, and the

transportation of such cargo, including reefers, between temporary storage facilities on the

terminal and the docks, were performed by defendants CP &0 and Ceres.

18.

All of the aforementioned container maintenance and repair work at NIT which

the plaintiff's employer MRS performed, was necessary and beneficial to both MRS and to

defendant VIT, as the operator of the marine terminal. This work, which MRS performed at NIT

through its employees, is more particularly described as follows: At all times pertinent herein,

including March 15, 2017, MRS employees boarded cargo ships calling at the NIT terminal,

where they connected loaded reefers to the ships' power sources, disconnected reefers about to

be unloaded from the ships' power sources, and performed container repairs. MRS employees

repaired damaged cargo containers at the NIT terminal to facilitate their transfer out of the

terminal. MRS employees mounted generator sets ("gen-sets") onto reefer containers and

dismounted gen-sets from reefer containers as needed. MRS employees monitored the

refrigeration temperature of reefer containers kept at the NIT terminal. MRS employees

connected reefer containers being stored at defendant VIT's container storage facility at NIT,

more particularly described below as "reefer row," to power boxes at the facility. MRS

employees disconnected reefer containers stored at "reefer row" to prepare the reefers for

transportation away from NIT by cargo ship, rail, or over-the-road trucks.

19.

At all times pertinent herein, including March 15, 2017, the defendant VIT

controlled the entry of all visitors, including the plaintiff Stephen K. Walton, Sr., onto the NIT

A37

premises. The perimeters of NIT were fenced and gated. VIT opened its NIT premises only to

entities having business to perform on its premises, including the plaintiffs employer MRS and

its employees, and defendants Ceres and CP&O.

20.

At all times pertinent herein, including March 15, 2017, the defendant VIT

occupied and/or controlled and/or maintained a yard in the northern part of NIT premises for the

temporary storage of reefers. This area is referred to herein as "reefer row."

21.

The aforementioned reefer row was located to the north and east of a large

retention pond on the NIT premises, to the west of a straddle carrier repair shop at NIT, and next

to and north of an area that the defendant VIT reserved for its own use as a maintenance and

repatr area.

22.

The aforementioned reefer row was not located at 4th Street and Railroad Avenue

at NIT, nor was reefer row on 6th Street at NIT.

23.

At all times pertinent herein, including March 15, 2017, the aforementioned

reefer row consisted of several parallel rows, including the N6, N5, and N4 rows. Reefers were

temporarily stored in each of these rows. The N4 row was on the southern side of reefer row.

24.

At all times pertinent herein, including March 15, 2017, the defendant VIT

occupied, controlled, and maintained a maintenance and repair facility adjacent to the N4 row of

the aforementioned "reefer row" area at NIT. This facility will be referred to herein as the "VIT

maintenance facility."

25.

At all times pertinent herein, including March 15, 2017, the defendant VIT stored

its equipment, including its forklifts, at the VIT maintenance facility adjacent to reefer row. The

defendant VIT used this facility solely for its equipment. The defendant VIT did not permit other

entities to park or store their equipment at the facility.

A38

26.

At all times pertinent herein, including March 15, 2017, VIT owned forklifts

which were used at NIT. Older VIT -owned forklifts were orange. Newer VIT-owned forklifts

were blue.

27.

At all times pertinent herein, including March 15, 2017, VIT-owned forklifts at

NIT were used by three entities: VIT, Ceres, and CP&O. Defendants Ceres and CP&O leased

VIT-owned forklifts. The defendant VIT marked its ownership of each such forklift with a VIT

sticker.

28.

Upon information and belief, at all times pertinent herein, including March 15,

2017, the defendant VIT did not lease its forklifts at NIT to any entities other than Ceres and

CP&O.

29.

At all times pertinent herein, including March 15, 2017, neither Ceres nor CP&O

performed any work in reefer row with forklifts.

30.

At all times pertinent herein, including March 15, 2017, the defendant VIT

maintained exclusive control over the VIT maintenance facility, including control over how and

where forklifts and other equipment were parked and/or stored at the VIT maintenance facility.

The defendant VIT prohibited non-VIT employees from driving any equipment, including

forklifts, onto the VIT maintenance facility. Only VIT employees drove equipment, including

forklifts, onto the VIT maintenance facility.

31.

At all times pertinent herein, including March 15, 2017, the defendant VIT

occupied and/or controlled and/or maintained a walkway that ran along the south side of the N4

row of reefer row and adjacent to the VIT maintenance facility. This walkway will be referred to

as the ''walkway."

A39

32.

At all times pertinent herein, including March 15, 2017, the defendant VIT

opened and kept open, at all hours of night and day, the reefer row area and aforementioned

walkway to MRS to perform its work on the premises.

33.

At all times pertinent herein, including March 15, 2017, electrical boxes were

mounted on raised concrete slabs, which were situated at intervals along the aforesaid walkway

at NIT, close to or adjacent to the northern border ofVIT's aforesaid maintenance facility. These

electrical boxes were used to supply electrical power to reefers that were on the N4 row, next to

the VIT maintenance facility.

34.

The aforesaid raised concrete slabs and electrical boxes on the walkway referred to

herein made the walkway inaccessible to forklift use and travel.

35.

At all times pertinent herein, including March 15, 2017, VIT had in place

moveable barriers (sometimes referred to as "Jersey barriers") between the walkway and the

northern border ofVIT's maintenance facility. Only VIT personnel were authorized to move

these barriers.

36.

On March 15,2017, at approximately 12:30 a.m., the plaintiff Stephen K. Walton,

Sr., was working at NIT in reefer row as a longshoreman in the employment of MRS, performing

his job as a reefer mechanic and container repair mechanic.

37.

At the aforesaid time and place, the plaintiff was at the reefer row premises at the

express or implied invitation of the defendant VIT, which opened its premises to the plaintiff, so

that he could perform work on the premises, and his work was beneficial to VIT's business as

the operator of the NIT marine terminal. At no such time or place was the plaintiff on the NIT

premises for his own pleasure or convenience, nor was he on the premises because of the

defendant VIT's passive acquiescence.

A40

38.

At no time pertinent herein, including March 15, 2017, was the plaintiff Stephen

K. Walton, Sr., an employee of the defendant VIT, nor was he an employee of defendant CP&O,

nor was he an employee of defendant Ceres.

39.

At the aforesaid time and place, the plaintiff was unplugging reefer units so that

they could be moved from reefer row and transported off the NIT terminal. Upon information

and belief, the reefers which the plaintiff was unplugging were to be loaded onto a cargo ship

calling at the terminal. All of the work which the plaintiff was performing was beneficial to MRS

and to the defendant VIT.

40.

At the aforesaid time and place, as the plaintiff was performing his work, he

stepped off a raised concrete slab in the walkway and walked a short distance in a westerly

direction, when he tripped over the blade of a forklift projecting out into the walkway from the

VIT maintenance area, causing him to fall and be injured. A photograph of the walkway and the

forklift, depicting where the plaintiff was injured, is attached hereto as Exhibit 1. In the

background of the photograph, an electrical box mounted on a raised concrete slab in the

walkway, and moveable barriers, which VIT used to demarcate the northern boundary ofVIT's

maintenance facility, are visible.

41.

At the aforesaid time and place, the blade of the forklift which caused the plaintiff

to trip and fall was obscured by a shadow or shadows.

42.

On previous occasions, the defendant VIT had stored or placed its forklifts at the

northern border of its maintenance facility, near the aforesaid walkway. On such occasions, the

forklifts were either facing away from the walkway, or the blades were removed.

43.

At the aforesaid time and place, the blade of the forklift over which the plaintiff

tripped and fell was not open and obvious.

A41

44.

In the area where the plaintiff was injured, there was no warning sign posted

concerning the aforesaid trip-and-fall hazard, nor was the area roped off, taped off, or otherwise

marked as unsafe to visit.

45.

The forklift which caused the plaintiff to be injured had a VIT sticker on it and was

owned by the defendant VIT.

46.

Because the forklift which caused the plaintiff to be injured was owned by the

defendant VIT, the forklift would have been operated by employees of the defendant VIT, or by

the employees of defendant Ceres or defendant CP&O. No other entities operated such forklifts

at NIT at the aforesaid time. Furthermore, neither Ceres nor CP &0 operated or used forklifts in

the reefer row area at any time pertinent herein, including March 15, 2017.

4 7.

In the walkway where the aforementioned injury occurred, there were raised

concrete slabs with electrical boxes to the west of where the plaintiff tripped and fell, and there

were raised concrete slabs with electrical boxes to the east of the where the plaintiff tripped and

fell. These concrete slabs and electrical boxes made the walkway inaccessible to forklift use or

travel.

48.

Most of the aforesaid forklift was on VIT's maintenance area, as depicted in

Exhibit 1, and, at all times pertinent herein and on March 15, 2017, the defendant VIT controlled

that area exclusively.

49.

At all times pertinent herein, including March 15, 2019, the defendant VIT

controlled the location of and maintained the artificial lighting on its premises at NIT, including

the lighting for reefer row and the aforesaid walkway where the plaintiff was injured.

50.

At all times pertinent herein, including March 15, 2017, the defendant VIT opened

its reefer row premises, at all hours of the day and night, to entities, including MRS, and

A42

defendants CP&O and Ceres, having business to perform on the premises, including stevedoring

and container maintenance and repair.

51.

At all times pertinent herein, including March 15, 2017, the defendant VIT,

through its agents and employees, knew, or in the exercise of reasonable care under the

circumstances should have known, that MRS employees regularly visited the reefer row

premises, including the walkway, at all hours of the day and night, to perform their work there.

Such work included monitoring the condition of reefer units, plugging in reefer units transported

to reefer row, and unplugging reefer units to prepare them for transportation away from reefer

row.

52.

At all times pertinent herein, including March 15, 2017, the defendant Ceres,

through its agents and employees, knew, or in the exercise of reasonable care under the

circumstances should have known, that MRS employees regularly visited the reefer row

premises, including the walkway, at all hours of the day and night, to perform their work there.

53.

At all times pertinent herein, including March 15, 2017, the defendant CP&O,

through its agents and employees, knew, or in the exercise of reasonable care under the

circumstances ~hould have known, that MRS employees regularly visited the reefer row

premises, including the walkway, at all hours of the day and night, to perform their work there.

54.

At all times pertinent herein, including March 15, 2017, the defendant VIT,

through its agents and employees, knew, or in the exercise of reasonable care under the

circumstances, that the lighting in the aforesaid walkway was insufficient to provide proper

illumination of the walkway for persons to work safely in the walkway.

55.

Before the plaintiff was injured as described above, the defendant VIT, through its

agents and employees, and/or the defendant Ceres, through its agents and employees, and/or the

A43

defendant CP&O, through its agents and employees, placed the aforementioned forklift in its

dangerous position, as depicted in the photograph attached hereto as Exhibit 1.

56.

At all times pertinent herein, including March 15, 2017, the defendant VIT,

through its agents and employees, and/or the defendant Ceres, through its agents and employees,

and/or the defendant CP&O, through its agents and employees, knew or in the exercise of

reasonable care under the circumstances should have known, that the aforementioned forklift

was a trip-and-fall hazard to persons using the walkway.

57.

The aforesaid injury which the plaintiff Stephen K. Walton, Sr., suffered on March

15, 2017, was an injury for which there was and is jurisdiction under the Longshore and Harbor

Workers' Compensation Act, 33 U.S.C. § 901, et seq., so that, pursuant to Virginia Code§ 65.2101, et seq., the plaintiff was not an "employee" within the purview of the Virginia Workers'

Compensation Act, Virginia Code§ 65.2-101, et seq., and the Virginia Workers' Compensation

Act, including Code§ 65.2-307, does not apply to him or his injury herein.

58.

At all times relevant herein, including March 15, 2017, and at the time and place

where the plaintiff was injured, the plaintiff was an invitee of the defendant VIT, and the

defendant VIT owed to the plaintiff the duty to exercise reasonable care for his safety, and to

have its premises, including the walkway, in a reasonably safe condition for his visit, including

duties of prevision, preparation, and lookout.

59.

At all times relevant herein, including March 15, 2017, and at the time and place

where the plaintiff was injured, the defendant Ceres and the defendant CP&O each had a duty to

exercise reasonable care to avoid causing injury to the plaintiff.

60.

Notwithstanding the foregoing, the defendant VIT, through its agents and

employees, and/or the defendant Ceres, through its agents and employees, and/or the defendant

A44

CP&O, through its agents and employees, negligently breached its duty and/or their duties to the

plaintiff by its/their affirmative conduct in storing or placing the forklift on the premises so as to

create a trip-and-fall hazard in the walkway.

61.

Notwithstanding and furthermore, the defendant VIT, through its agents and

employees, negligently breached its aforesaid duties to the plaintiff in that it failed to maintain its

walkway in reasonably safe condition; and/or failed to supply sufficient lighting for its invitees

to work in the walkway at night; and/or failed to maintain its premises free of the aforesaid tripand-fall hazard in the walkway; and/or failed to warn the plaintiff of the aforesaid trip-and-fall

hazard; and/or failed to rope off, barricade, or otherwise bar entry to the walkway; and/or in

other particulars that may disclosed during the course of discovery or supplied at trial.

62.

As a direct and proximate result of the negligence of the defendant VIT and the

negligence of its agents or employees, and/or as a direct and proximate result of the negligence

of the defendant Ceres and the negligence of its agents or employees, and/or as a direct and

proximate result of the negligence ofthe defendant CP&O and the negligence of its agents or

employees, the plaintiff Stephen K. Walton, Sr., suffered physical injuries to his neck and other

parts ofhis body; has undergone and continues to undergo physical pain, mental suffering, and

inconvenience; has been unable to work at his occupation because ofhis injuries; has lost income

because of his injuries; has lost all or part of his capacity to earn income because of his injuries;

and he has incurred and he continues to incur substantial medical expenses for the care and

treatment ofhis injuries.

WHEREFORE the plaintiff Stephen K. Walton, Sr., by counsel, asks for entry of a

judgment and award in his favor against the defendants, Virginia International Terminals, LLC,

Ceres Marine Terminals, Inc., and CP&O, LLC, jointly and severally, in the amount of FIVE

A45

MILLION DOLLARS ($5,000,000.00), plus prejudgment interest, post judgment interest, and

legal costs incurred.

THE PLAINTIFF DEMANDS TRIAL BY JURY ON ALL ISSUES SO TRIABLE.

Lance A. Jackson, Esq. (VSB No. 26035)

Counsel for Stephen K. Walton. Sr.

MONTAGNA KLEIN CAMDEN, L.L.P.

425 Monticello Avenue

Norfolk, VA23510

Ph: (757) 622-8100

Fax: (757) 622-8180

CERTIFICATE OF SERVICE

I the undersigned hereby certify that on July 12, 2019, a true copy of the foregoing

pleading was served via first class mail and email transmission on all counsel of record:

John E. Holloway, Esq. (VSB No. 28145)

Daniel T. Berger, Esq. (VSB No. 81861)

Counsel for Virginia International Terminals, LLC

TROUTMAN SANDERS, LLP

222 Central Park A venue, Suite 2000

Virginia Beach, VA 23462

john.hollowayfcl'troutman.com

daniel.beruerra troutman. com

A46

EXHIBIT

A47

VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF NORFOLK

STEPHENK. WALTON, SR.,

Plaintiff,

VIRGINIA INTERNATIONAL

TERMINALS, LLC, et al.

Defendants.

Case No. CL 19-2417

VIRGINIA INTERNATIONAL TERMINALS, LLC'S BRIEF IN SUPPORT OF

ITS PLEA IN BAR AND DEMURRER AND ITS

MOTION FOR SUMMARY JUDGMENT ON ITS PLEA IN BAR

COMES NOW, Defendant Virginia International Terminals, LLC ("VIT"), by counsel,

and submits its Brief in Support of its Plea in Bar and Demurrer as to the Amended Complaint

filed by Plaintiff Stephen K. Walton, Sr. ("Plaintiff") and its Motion for Summary Judgment on

its Plea in Bar, and states as follows:

SUMMARY

The Plaintiff alleges he was injured while working as a longshoreman at Norfolk

International Terminals on or about March 15, 2017 when he tripped over the blade of a forklift.

VIT is a marine terminal operator that manages Norfolk International Terminals and other

terminals in Virginia. Plaintiff filed this suit on March 11, 2019, alleging that VIT (or one of the

other two defendants in this case) negligently placed a forklift owned by VIT in a walkway

creating a trip-and-fall hazard that caused his injury. He also asserts an apparent premises

liability claim against VIT relating to the same incident.

As a marine terminal operator, VIT maintains a Schedule of Rates governing rates,

regulations, and practices at the marine terminals operated by VIT. By federal statute, VIT's

Page 1 of18

A48

Schedule of Rates is automatically binding and enforceable as an implied contract without proof

of actual knowledge of its provisions. Use of a terminal constitutes an agreement to the terms

and conditions of the Schedule of Rates, including a provision requiring every person coming

onto or using the terminal to notify VIT in writing of any injury caused by VIT within 30 days

and to bring suit within one year. If written notice is not given within 30 days, or if suit is not

brought within one year, all claims based on the injury are time-barred. These time frames are

reasonable and enforceable under Virginia law and general maritime law, and they are necessary

to allow VIT to investigate claims and preserve evidence on the busy terminals it operates.

By coming onto and using Norfolk International Terminals, Plaintiff agreed to and

became bound by VIT' s Schedule of Rates, including its limitation periods for written notice and

bringing suit. Though he appears to have immediately prepared for an injury claim against VIT

by obtaining a photograph of the forklift and walkway he alleges were involved in his injury,

Plaintiff did not notify VIT of his injury until he filed suit almost two years later. This not only

materially prejudiced VIT's ability to investigate Plaintiffs claims but also violated his

agreement with VIT. Because he failed to notify VIT in writing of his injuries within 30 days,

and (independently) because he failed to bring suit within one year, Plaintiffs claims are now

time-barred and should be dismissed with prejudice by this Court.

In the alternative, Plaintiffs allegation that one of three parties negligently stored or

placed a forklift in an inappropriate position is deficient as a matter of law. Because it fails to

allege who placed or stored the forklift this way, Plaintiffs claim runs counter to the rule that a

complaint must clearly inform the opposite party of the true nature of the cause of action asserted

against it. The Supreme Court of Virginia has, therefore, held that joining defendants in this

Page 2 of18

A49

manner is not permitted. To the extent it survives VIT's Plea in Bar, Plaintiffs "negligent

placement" claim should be dismissed with prejudice by this Court pursuant to VIT' s Demurrer.

II.

UNDISPUTED FACTS 1

Plaintiff alleges that he was injured at Norfolk International Terminals ("NIT") on

or about March 15, 2017, when he tripped over the blade of a forklift. (Amended Compl. ~~ 36

& 40). This lawsuit was filed on March 11, 2019.

Plaintiff alleges that although the forklift was owned by VIT (Amended Compl.

~~ 45 & 62), "the defendant VIT ... and/or the defendant Ceres ... and/or the defendant CP&O

... placed the aforementioned forklift in its dangerous position." (Amended Compl. ~55).

NIT is a marine terminal located within the City ofNorfolk, on the Elizabeth

River and the Lafayette River, both of which are navigable waters of the United States.

(Amended Compl. ~ 8).

At all times pertinent to this case, VIT was the marine terminal operator.

(Amended Compl. ~ 14).

At all times pertinent to this case, VIT, in its capacity as marine terminal operator,

made available to the public a Schedule of Rates governing rates, regulations, and practices at

marine terminals operated by VIT, including NIT. The Schedule of Rates was available to the

public during normal business hours and in electronic form and was accessible to the public via

VIT's website. The VIT Schedule of Rates in effect on or about March 15, 2017 (hereinafter the

"Schedule of Rates" or "SOR") was attached as Exhibit A to VIT's Plea in Bar and Demurrer

VIT cites to the allegations set forth in the Amended Complaint solely for the purpose of its

Plea in Bar and Demurrer and Motion for Summary Judgment on its Plea in Bar, as Plaintiff

cannot dispute his own allegations. VIT does not concede that these allegations are true. If any

claims survive, VIT reserves the right to challenge these allegations.

Page 3 of18

A50

and is attached hereto as Exhibit A for the Court's convenience. (See Plaintiffs Responses to

Defendant VIT's First Set of Requests for Admission (attached hereto as Exhibit B) ,~~ 1-3).

Item 100 ofthe Schedule of Rates reads, in relevant part:

100 GENERAL APPLICATION

A This SOR applies to the provision of TERMINAL SERVICES by VIT

at the TERMINALS, including without limitation NIT, VIG, PMT,

NNMT, VIP, and RMT (effective November 1, 2016). This SOR also

applies to USAGE of the TERMINALS, and to all other use or

occupancy of the TERMINALS. The parties covered by this SOR are

all USERS. If VIT has an actual contract with a party covering the

services rendered by VIT, then this SOR shall not apply to those

services, except to the extent this SOR is incorporated in the actual

contract. Use of the TERMINALS shall constitute an agreement to the

terms and conditions of this SOR including without limitation payment

of all applicable charges.

(SOR, Item 100) (emphasis added).

Item 207 of the Schedule of Rates, in pertinent part, reads as follows:

207 NOTIFICATION OF LOSS, INJURY, OR DAMAGE; TIME

LIMITS; JURISDICTION AND VENUE; APPLICABLE LAW

A USERS must notify VIT in writing of the occurrence of loss, injury, or

damage to person or property caused by VIT immediately upon

discovery, and in no event more than thirty (30) days from occurrence,

or all claims based on the loss, injury, or damage shall be time-barred.

If suit (or notice of arbitration if applicable) based on the occurrence is

not filed within one (1) year after the occurrence, the claim shall be

time-barred. If notice ofloss, injury, or damage is given, or if a claim is

made, VIT must be given the opportunity to investigate the claim,

including without limitation all evidence, at the earliest practical

opportunity. Time is material and of the essence.

C. The laws of the Commonwealth of Virginia without reference to its

choice of law rules and, to the extent not in conflict with the law of

Page 4 of18

A51

Virginia, the general maritime laws and statutes of the United States,

shall apply to all disputes arising from or related to this SOR.

(SOR, Item 207) (emphasis added).

Section XI of the Schedule of Rates defines "TERMINALS" as "the ocean marine

TERMINALS, inland TERMINALS, and ancillary facilities operated by VIT. 'TERMINAL'

means one of the TERMINALS .... " The "TERMINALS" include NIT. (SOR, Section XI).

Section XI ofthe Schedule of Rates defines "USER" as follows:

USER shall mean each (i) each VESSEL and CARRIER, (ii) stevedore,

(iii) shipper, consignee, and beneficial cargo owner, (iv) contractor,

subcontractors and vendor of VIT, VPA, HRCP II, or another USER,

(v) licensee and permittee, and (vi) and every other person or entity using,

coming onto, or berthing at a Terminal.

(SOR, Section XI) (emphasis added).

10.

Plaintiff claims that, at the time of his injury, he was on the NIT premises

working as a longshoreman in the employment of Marine Repair Services, Inc. He states this

was a business purpose that benefitted all parties and that "[a]t no such time was [he] on the NIT

premises for his own pleasure or convenience." (Amended Compl. ,-r,-r 36-39).

11.

Plaintiff did not notify VIT of his injury in writing or otherwise except by filing

the present suit. (Exhibit B, ,-r,-r 4-5). He filed suit against VIT on March 11, 2019, almost two

years after the injury he alleges.

III.

SUPPORT OF PLEA IN BAR AND MOTION FOR SUMMARY JUDGMENT

STANDARD OF REVIEW

"'A plea in bar asserts a single issue [of fact], which, if proved, creates a bar to a

plaintiff's recovery."' Cole v. Norfolk S. Ry. Co., 294 Va. 92, 104, 803 S.E.2d 346, 353 (2017)

(quoting Hawthorne v. VanMarter, 279 Va. 566, 577, 692 S.E.2d 226, 233 (2010)). The party

asserting a plea in bar bears the burden of proof on the issue presented. Hawthorne, 279 Va. at

Page 5 of18

A52

577, 692 S.E.2d at 233. "The issue raised by a plea in bar may be submitted to the circuit court

for decision based on a discrete body of facts identified by the parties through their pleadings, or

developed through the presentation of evidence supporting or opposing the plea." Id

Swnrnary judgment may be entered on a plea in bar. Kahn v. Marquis, 288 Va. 142, 762

S.E.2d 755 (2014) (affirming summary judgment on a plea in bar). Summary judgment

"provide[s] trial courts with authority to bring litigation to an end at an early stage, when it

clearly appears that one of the parties is entitled to judgment." Carwile v. Richmond

Newspapers, Inc., 196 Va. 1, 5, 82 S.E.2d 588, 590 (1954). In reviewing a motion for summary

judgment, a trial court must "accept as true those inferences from the facts that are most

favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to

reason." Fultz v. Delhaize Am., Inc., 278 Va. 84, 88, 677 S.E.2d 272, 274 (2009). Summary

judgment is "available only when there are no material facts genuinely in dispute." Id

However, "[i]f it appears from the pleadings, the orders, if any, made at a pretrial conference, the

admissions, if any, in the proceedings, that the moving party is entitled to judgment, the court

shall grant the motion." Va. Sup. Ct. R. 3:20.

ARGUMENT

Pursuant to federal statute, VIT's Schedule of Rates is enforceable without proof that

Plaintiffhad actual knowledge of its provisions

As a terminal schedule made available to the public by a marine terminal operator, VIT' s

SOR is automatical~y binding and enforceable as an implied contract. Under the Shipping Act of

1984 (the "1984 Act"), as amended by the Ocean Shipping Reform Act of 1998 ("OSRA"), "[a]

marine terminal operator may make available to the public a schedule of rates, regulations, and

practices, including limitations of liability for cargo loss or damage, pertaining to receiving,

delivering, handling, or storing property at its marine terminal." 46 U.S.C. § 40501(f). If a

Page 6 of18

A53

marine terminal operator chooses to make such a schedule available to the public, "[a]ny such

schedule ... is enforceable by an appropriate court as an implied contract without proof of actual

knowledge of its provisions." !d.

The Federal Maritime Commission ("FMC"), pursuant to authority granted under 46

U.S.C. § 40501(g)(3), has promulgated regulations on the availability of marine terminal

operator schedules. See 46 C.F.R. § 525.3 (2019). The regulations provide that "[a]ny terminal

schedule that is made available to the public shall be available during normal business hours and

in electronic form." !d. § 525 .3(a)(2). They further provide methods through which "[m]arine

terminal operators shall provide access to their terminal schedules via a personal computer

(PC)," including web browser-based access through the Internet. !d. § 525.3(b)(2)(i).

VIT is a marine terminal operator. (Amended Compl. ~ 14). At all pertinent times, VIT

maintained a Schedule of Rates governing rates, regulations, and practices at marine terminals

operated by VIT, including NIT (the "Schedule of Rates" or "SOR"). The SOR is available to

the public via VIT' s website in accordance with FMC regulations and was so available at the

time of Plaintiffs alleged accident. (See Exhibit B, ~~ 1-3). By its terms, the SOR applies "to all

. .. use or occupancy of the TERMINALS," and it provides that "[u]se of the TERMINALS shall

constitute an agreement to the terms and conditions ofth[e] SOR .... " (SOR, Item 100). "The

parties covered by th[e] SOR are all USERS," which include each and every "person or entity

using, coming onto, or berthing at a Terminal." (SOR, Item 100 & Section XI).

Plaintiff claims he was injured on the NIT premises while working as a longshoreman in

the employment of Marine Repair Services, Inc. (Amended Compl. ~~ 37 & 40). He has plainly

asserted that he was at NIT for a business purpose and that "[a]t no such time was [he] on the

NIT premises for his own pleasure or convenience." (Amended Compl. ~ 37). By coming onto

Page 7 of18

A54

and using the NIT premises, Plaintiff is a "USER" under the SOR and agreed to its terms and

conditions. Because VIT made the SOR available to the public in accordance with FMC

regulations, federal statute provides that it is enforceable by this Court as an implied contract

between VIT and Plaintiff whether or not Plaintiff had actual knowledge of the SOR.

Enforceability extends to the entirety of the Schedule ofRates, not just select provisions

Courts have long held that "[a] party who makes use of the facilities or services offered

and rendered by another under the terms of a validly promulgated tariff impliedly consents to be

bound by the tarif:f s terms." At!. & Gulf Stevedores, Inc. v. Alter Co., 617 F .2d 397, 401 n.16

(5th Cir. 1980). This implied consent extended to those terms of which a person had actual or

constructive notice. See, e.g., Southern Pacific Co. v. United States, 272 U.S. 445 (1926).

Prior to the 1984 Act, terminal schedules were governed by the Shipping Act of 1916 (the

"1916 Act"). Under the 1916 Act and its associated regulations, marine terminal operators were

required to file a schedule showing all its rates, charges, rules, and regulations relating to or

connected with the receiving, handling, storing, and/or delivering of property at its terminal

facilities with the FMC and to make the schedule available for public inspection. 46 C.F.R.

§ 533.3 (1983) (amended and redesignated 1984). Case law interpreting the 1916 Act and its

associated regulations held that "the filing of a tariff [gave] constructive notice only of those

terms which [were] required by law to be filed." La Salle Mach. Tool, Inc. v. Maher Terminals,

Inc., 611 F.2d 56, 60 (4th Cir. 1979). Because "[n]othing in the Shipping Act of 1916 ... or in

the applicable regulations ... require[ d] a terminal operator to file provisions limiting its

liability," courts held that filing of a tariff did not provide constructive notice of such terms and,

therefore, that such terms were not binding without actual knowledge. Id.; accord Fed.

Commerce & Navigation Co. v. Calumet Harbor Terminals, Inc., 542 F.2d 437,441 (7th Cir.

Page 8 of18

A55

1976) (no constructive notice of limitation of liability or time bar); New Zealand Kiwifruit Mktg.

Bd v. Wilmington, 806 F. Supp. 501, 503 (D. Del. 1992) (no constructive notice oftime bar).

The provisions governing terminal schedules in the 1916 Act were substantially

overhauled by the 1984 Act, as amended in 1998 by OSRA. These revisions comprehensively

negate the reasoning underlying La Salle and related cases. First, terms limiting liability are now

expressly permitted, with the 1984 Act, as amended, clarifying that "rates, regulations, and

practices" include limitations of liability. See 46 U.S.C. § 40501 (f). Second, the 1984 Act, as

amended, and its associated regulations include no requirement to file a terminal schedule or any

of its terms with the FMC. Instead, a marine terminal operator may make a terminal schedule

available to the public if it wishes and must maintain a complete set of its terminal schedules for

five years to be available to FMC upon request. !d.; 46 C.F .R. § 525.3 (20 19). Rather than

leaving it to the courts to decide the effects of these changes on constructive notice, Congress

expressly provided that the schedule is enforceable as an implied contract, not just select terms

from the schedule. See 46 U.S.C. § 40501(f). Virginia courts have ascribed to this reasoning,

with the Virginia Supreme Court stating: "The Schedule of Rates prescribes certain conditions

that must be met by those doing business at any VIT facility. By using the facility, [the users]

agreed to those conditions." Hudson v. Jarrett, 269 Va. 24, 31,606 S.E.2d 827, 830 (2005).

As a terminal schedule made available to the public by a marine terminal operator,

federal law now provides that the entirety of VIT' s SOR is enforceable as an implied contract

without proof of actual knowledge of its provisions. This extends to limitations of liability and

time bars in the SOR.

Page 9 of18

A56

The Schedule ofRates provisions requiring notice of injury and limiting time to bring suit

are enforceable against Plaintiff and time bar his claim

The SOR includes time bars for injury claims. It requires that "USERS must notify VIT

-in writing of the occurrence ofloss, injury, or damage to person or property caused by VIT"

within 30 days of the occurrence and must bring suit within one year of the occurrence. (SOR,

Item 207(A)). It also clearly states that "[t]ime is material and ofthe essence." (/d). If written

notice is not given within 30 days, or if suit is not brought within one year, all claims based on

the loss, injury, or damage are time-barred pursuant to the SOR. (/d). These time frames are

reasonable and enforceable under Virginia law and the general maritime law, and they time bar

Plaintiffs claims in this case.

In general, courts hold that "parties can, by agreement in advance, limit the bringing of

suit upon a contract to a shorter period than that fixed by the otherwise applicable statute of

limitations. To do so is not contrary to public policy but rather assists the public policy behind

statutes oflimitations: preventing stale claims." 15 Corbin on Contracts§ 83.8 (2019). Courts

require that the period not be so short as to be unreasonable. Id The SOR provides that "[t]he

laws of the Commonwealth of Virginia without reference to its choice of law rules and, to the

extent not in conflict with the law of Virginia, the general maritime laws and statutes of the

United States, shall apply to all disputes arising from or related to this SOR." (SOR,

Item 207(C)). Both Virginia and the general maritime law broadly follow the general rule.

In Virginia, a contractual limitations period shorter than otherwise applicable statute of

limitations is enforceable "if the contractual provision is not against public policy and if the

agreed time is not unreasonably short. These are questions of law to be determined by the court."

Board ofSupervisors v. Sampson, 235 Va. 516, 520-21, 369 S.E.2d 178, 180 (1988) {upholding a

one-month limitation period); see Liquid Carbonic Co. v. Norfolk & W. Ry., 107 Va. 323, 326-

Page 10 of18

A57

30, 58 S.E. 569, 570-72 (1907). The Virginia Supreme Court has upheld provisions analogous to

those in VIT's Schedule of Rates. In Massie v. Blue Cross & Blue Shield, the court upheld a

one~ year limitation period without tolling in the context of a medical insurance claim.

256 Va.

161, 166, 500 S.E.2d 509, 512 (1998). Noting that the General Assembly has legislatively

established that one year constitutes a reasonable contractual limitation period for insurance

contracts, the court affirmed the trial court's decision that the plaintiffs' action for payment of

medical bills was time barred by the one-year contractual limitation period. Jd. In Liquid

Carbonic, a provision in a bill of lading requiring written notice of claims within 30 days was at

issue. 107 Va. at 324, 58 S.E. at 570. Finding that "[a] great number of cases hold that a

provision identical in terms, or in some cases less favorable to the shipper, than the one under

consideration, is reasonable, and should be enforced," the court held the term to be decisive and

affirmed the trial court's instruction to that effect. !d. at 326 & 330, 58 S.E. at 571 & 572. The

court noted that there is no hardship in requiring a claimant who has knowledge of his claim to

give notice within a reasonable time, but there is great hardship in requiring a carrier to account

for a loss '"when he has had no notice of any failure of duty on his part, and when the lapse of

time has made it difficult, if not impossible, to ascertain the actual facts."' !d. at 330, 58 S.E. at

572 (quoting Express Co. v. Caldwell, 88 U.S. (21 Wall.) 264, 268 (1874)). Further, in the

context of workers' compensation, the General Assembly has itself endorsed a requirement for

written notice of injury within 30 days-with limited exception, no compensation or medical

benefits are payable unless "written notice is given within thirty days after the occurrence of the

accident or death." See Va. Code Ann.§ 65.2-600(D).

Under the general maritime law, contractual requirements to notify of injuries and bring

suit within a specified period that is shorter than the applicable statute of limitations have long

Page 11 of18

A58

been enforced even in the context of passengers on seagoing vessels, who are traditionally

afforded significant protections. See, e.g., Murray v. Cunard S.S. Co., 235 N.Y. 162, 139 N.E.

226 (1923) (Cardozo, J.) (upholding requirement on passenger ticket for written notice of

injuries within 40 days and dismissing plaintiffs claim even though he spent most of the 40-day

period in the hospital for the injury incurred on board). Congress has endorsed the enforcement

of such time bars against passengers and has legislatively established what constitute reasonable

time limits for notice and suit in that context: at least six months to give notice and at least one

year to bring suit. See 46 U.S.C. § 30508. These provisions have recently been applied in the

case of Sobel v. lnst. for Shipboard Educ., 2017 U.S. Dist. LEXIS 10621 (W.D. Va. Jan. 26,

2017), appeal dismissed, 2017 U.S. App. LEXIS 16976 (4th Cir. June 2, 2017).

In Sobel, the plaintiff was a participant in the Semester at Sea program who sued the

program alleging sexual battery by a tour guide on a program-sponsored onshore field trip. ld. at

*5. In seeking admission to the program, the plaintiff had completed an online application, and

in the process, she'agreed to a "ticket contract" that included a term shortening the limitations

period to sue for bodily injury to one year. ld. at *2-4. Though it was not clear whether the

plaintiff had read the ticket contract, the court found that she had agreed to electronic delivery

and that the ticket contract was accessible to her through the program's website for over a year.

ld. at *3. Finding that the one-year limitation provision was reasonably communicated to the

plaintiff and was fundamentally fair, the court concluded the provision was valid and

enforceable. !d. at * 12-18. Because the plaintiff filed suit almost two years after the sexual

assault occurred, the court held that her claims against the program were time-barred by the oneyear limitation provision and awarded summary judgment to the program. ld. at *25 .

Page 12 of18

A59

Beyond the reasonableness requirement, the FMC regulations provide that "terminal

schedules cannot contain provisions that exculpate or relieve marine terminal operators from

liability for their own negligence, or that impose upon others the obligation to indemnify or holdharmless the terminals from liability for their own negligence." 46 C.P.R. § 525.2(a)(l). The

same is reflected in Item 106(A) ofVIT's SOR. However, this limitation is not applicable in this

case. The United States Supreme Court and the Virginia Supreme Court have both held that

such tl.me bars are not exculpatory. See Gooch v. Or. S. L. R. Co., 258 U.S. 22, 24, 42 S. Ct. 192,

193 (1922) ("a stipulation for written notice within a reasonable time stands on a different

footing [than exoneration from liability for negligence], and of this there is no doubt"), Liquid

Carbonic, 107 Va. at 329, 58 S.E. at 571-72 (quoting Express Co., 88 U.S. (21 Wall.) at 268) (an

agreement that a claim shall be made by within a reasonable period "contravenes no public

policy," "excuses no negligence," and "is perfectly consistent with holding [a common] carrier to

the fullest measure of good faith, of diligence and of capacity, which the strictest rules of the

common law ever required") (internal quotation marks omitted).

By coming onto and using the NIT premises in the capacity of a "USER," Plaintiff agreed

to notify VIT in writing of injuries caused by VIT within 30 days of the occurrence and to bring

suit within one year of the occurrence pursuant to Item 207(A) of the SOR. VIT has included

these time frames in its SOR because VIT investigates claims ofloss, injury, or damage

occurring on the marine terminal it operates. On these large and busy terminals, time is material

and of the essence in investigations. In fact, many areas of the terminals are under video

surveillance, but recordings cannot be retained indefinitely. If timely notified of a claim in

accordance with the SOR, relevant video evidence can be preserved. Without timely notice, the

actual facts and circumstances of the loss, injury, or damage may be difficult, if not impossible,

Page 13 of18

A60

to ascertain-video evidence may no longer be available, environmental factors may be

substantially changed, and any equipment involved may be moved, modified, or unavailable for

inspection. A witness's memory days after an incident is far more reliable than it is two years

later. The time frames are reasonable under Virginia law and the general maritime law and do

not exculpate VIT from liability for its own negligence.

Plaintiff alleges that he was injured on the NIT premises as "a direct and proximate result

of the negligence of defendant VIT" by a forklift that "had a VIT sticker on it and was owned by

the defendant VIT." (Amended Compl. fl~ 40, 45, & 62). In fact, Plaintiff apparently took "[a]

photograph of the walkway and the forklift" he alleges were involved in his injury, which he has

now attached to his Amended Complaint. (Amended Compl., Exhibit 1). While Plaintiff

immediately began preparing for an injury claim against VIT, he simultaneously deprived VIT of

an opportunity to investigate. Despite alleging that VIT caused his injury, Plaintiff "personally

did not notify VIT or any representative, agent or employee ofVIT, in writing or orally, of the

incident or his injuries" until two years later when he filed this suit. (Exhibit B, ~ 5). At this

point, VIT has no way to determine who owned the forklift, who operated the forklift, or even

whether any forklift was involved in the incident. Plaintiffs failure to give notice both

materially prejudiced VIT's ability to investigate his claims and violated the SOR. Plaintiffs

claims are now time-barred and should be dismissed with prejudice by this Court.

Plaintiff has demanded a trial by jury on the Plea in Bar. However, "[a] party does not

have a constitutional right to a jury trial if the case can be determined as a matter of law based

upon material facts not genuinely in dispute." Kohn, 288 Va. at 146, 762 S.E.2d at 757 (finding

no material facts genuinely in dispute and affirming summary judgment on a plea in bar). All

relevant facts have either been alleged by Plaintiff in his Amended Complaint or admitted by

Page 14 of18

A61

Plaintiff in response to VIT' s First Set of Requests for Admission. Because all facts relevant to

VIT's Plea in Bar are undisputed, swnmary judgment is appropriate in this case.

IV.

SUPPORT OF DEMURRER

STANDARD OF REVIEW

'"A demurrer tests the legal sufficiency of a [complaint] and admits the truth of all

material facts that are properly pleaded."' Robinson v. Nordquist, No. 180631, 2019 Va. LEXIS

82, at *14 (July 18, 2019) (quoting Harris v. Kreutzer, 271 Va. 188, 195,624 S.E.2d 24 (2006)).

"The trial court is not permitted on demurrer to evaluate and decide the merits of the allegations

set forth in a [complaint], but only may determine whether the factual allegations of the

[complaint] are sufficient to state a cause of action." Harris, 271 Va. at 195, 624 S.E.2d at 28.

"A demurrer is properly sustained when the pleading to which it is directed fails to allege facts

sufficient to state a cause of action. Francis v. Nat 'l Accrediting Comm 'n of Career Arts & Scis.,

Inc., 293 Va. 167, 171,796 S.E.2d 188, 190 (2017).

ARGUMENT

To the extent it survives VIT's Plea in Bar, Plaintiff's claim in Paragraph 60 of his

Amended Complaint that "the defendant VIT ... and/or the defendant Ceres ... and/or the

defendant CP&O" breached a duty to Plaintiff through "affirmative conduct in storing or placing

the forklift on the premises so as to create a trip-and-fall hazard in the walkway" is deficient and

should be dismissed with prejudice by this Court. The Virginia Supreme Court has held that

Virginia law "cannot be strained to permit the joinder of two or more defendants alternatively

where, upon the single set of facts pleaded, only one of the defendants might be liable." Baker v.

Doe, 211 Va. 158, 160, 176 S.E.2d 436, 438 (1970). Instead, the Rules ofthe Supreme Court of

Virginia require a complaint to clearly inform the opposite party of the true nature of the

Page 15 of18

A62

plaintiff's claim. Va. Sup. Ct. R. 1:4(d). This is not satisfied by an allegation that one of

multiple defendants is liable to the plaintiff. Baker, 211 Va. at 160, 176 S.E.2d at 438.

In Baker, the plaintiff filed a motion for judgment against two defendants alleging that .

one or the other was operating an automobile that forced her off the highway and caused her to

collide with a brick wall. Id at 159, 176 S.E.2d at 437. One of the defendants filed a demurrer,

it was sustained by the trial court, and that defendant was dismissed from the action. Id

Affirming the judgment of the trial court, the Supreme Court of Virginia held that such a joinder

in the alternative runs counter to the rule that a motion for judgment must clearly inform the

opposite party of the true nature of the cause of action asserted against it and, therefore, is not

permitted. Id at 161, 176 S.E.2d at 438.

In the case at hand, Plaintiff fails to allege who stored or placed the forklift in the

allegedly inappropriate position, instead claiming that it was one of three parties. (Amended

Compl. ~~55, 60, & 62). This allegation fails to inform VIT or the other defendants of the true

nature of the cause of action Plaintiff asserts against them and, therefore, fails to state a legally

viable claim. In fact, proof at trial ofPlaintiff's claim that "the defendant VIT ... and/or the

defendant Ceres ... and/or the defendant CP&O" was negligent would fail as a matter of law

because it leaves unanswered the basic question of which defendant is liable. See Baker, 211 Va.

at 160-61, 176 S.E.2d at 438. Because joining defendants in this manner is not permitted, VIT's

Demurrer should be sustained and Plaintiffs claim should be dismissed with prejudice.

CONCLUSION

WHEREFORE, for reasons set forth in its Plea in Bar and Demurrer, its Motion for

Summary Judgment on its Plea in Bar, and this Brief in Support, VIT respectfully requests that

the Court grant its Plea in Bar and enter an Order dismissing Plaintiffs suit against VIT with

Page 16 of18

A63

prejudice, and in the alternative, grant its Demurrer and dismiss with prejudice Plaintiffs claims

arising from his allegation that one of three entities negligently parked the forklift in an

inappropriate location, and grant VIT such other relief as the Court finds equitable and just.

Dated: September 3, 2019

Respectfully submitted,

VIRGINIA INTERNATIONAL

TERMINALS, LLC

. Holloway, Esq. (VSB o. 8145)

T. Berger, Esq. (VSB

. 1861)

Ryan T. Gibson, Esq. (VSB No. 83183)

TROUTMAN SANDERS LLP

222 Central Park A venue, Suite 2000

Virginia Beach, Virginia 23462

Telephone: 757-687-7724

Email: john.holloway@troutman.com

Email: daniel. berger@troutman.com

Email: ryan.gibson@troutman.com

Counsel for Virginia International Terminals, LLC

Page 17 of18

A64

CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of September, 2019, a true and exact copy of the

foregoing was sent via electronic mail and First-Class Mail to the following counsel of record:

Counsel for Plaintiff

Lance A. Jackson, Esq.

MONTAGNA KLEIN CAMDEN, L.L.P.

425 Monticello Avenue

Norfolk, Virginia 23510

Tel: (757) 622-8100

Fax: (757) 622-8180

Email: ljackson@montagnalaw.com

John E. Holloway, Es

TROUTMAN SANDERS~

222 Central Park A venue, Suite 2000

Virginia Beach, Virginia 23462

Telephone: 757-687-7724

Email: john.holloway@troutman.com

Counsel for Virginia International Terminals, LLC

39516982

Page 18 of18

A65

VIRGINIA INTERNATIONAL TERMINALS, LLC

SCHEDULE OF RATES NO. I

GOVERNING RATES, REGULATIONS, AND PRACTICES AT MARINE TERMINALS OPERATED BY VIRGINIA

INTERNATIONAL TERMINALS, LLC ("VIT") AT THE FOLLOWING MARINE TERMINALS AND THE VIRGINIA

INLAND PORT:

Virginia International Gateway ("VIG")

(Formerly known as "APM Terminals" or "APMT")

I 000 Virginia International Gateway Blvd.

Portsmouth, VA 23703

Norfolk International Terminals ("NIT")

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.