As required by the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), the Consumer Product Safety Commission published ANSI/SVIA 1-2007 as a mandatory consumer product safety standard for ATVs.  The standard became effective on April 13, 2009.  ANSI/SVIA has since issued a 2010 version of the standard.  The Commission issued a notice of proposed rulemaking on July 25, 2011 and is soon expected to issue a final rule amending the mandatory standard to reference the 2010 version. 

The Commission found that though most of the changes in the 2010 version are relatively minor, merely enhancing the standard’s clarity and consistency, the Commission thought it best to incorporate all of the provisions of ANSI/SVIA 1-2010 in order to avoid any confusion with two slightly different versions of the standard, the current mandatory standard and the revised voluntary standard. 

The most substantive of the changes noted by the Commission in the 2010 version are as follows: (1) elimination from the scope section of a provision calling for expiration of the definition and requirements for the Y-12+ youth ATV age category on July 28, 2011; (2) a change in how to calculate the speed for the braking test of youth ATVs; (3) a change in the force applied to passenger handholds during testing; (4) the addition of a requirement that youth ATVs shall not have a power take-off mechanism; (5) the addition of a requirement that youth ATVs shall not have a foldable, removable, or retractable structure in the ATV foot environment; (6) additional specificity concerning the location and method of operation of the brake control; (7) tightening the park brake performance requirement, by requiring the transmission to be in “neutral” during testing, rather than in “neutral” or “park”; and (8) the requirement that tire pressure information be on the label, when the previous requirement could be interpreted to allow tire pressure to be either on the label, the owner’s manual, or the tires. 

If the Commission issues a final rule, the 2010 standard will become effective 60 days after publication of the final rule in the Federal Register.  The rule will apply to all ATVs manufactured or imported on or after that date.

 

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The U.S. Supreme Court in Shute v. Carnival Cruise Lines, 499 U.S. 585 (1991) held the Shutes, who were injured on a Carnival Cruise ship in waters off Mexico, must file suit in Florida pursuant to the forum selection provision printed on the back of their ticket.   The Shutes filed suit in their home state of Washington.  The cruise ship departed from California.  Shute is still one of the most far reaching holdings enforcing adhesion-like forum selection provisions.  The Shutes also had a strong argument that they lacked notice of the forum selection/choice of law provisions.  

In the recent running aground of the Italian Costa Concordia operated by Costa Crocier, which is controlled by Carnival, the ship departed near Rome.  Approximately 120 United States citizens were on board and two may still be missing.  With respect to notice of the forum selection and choice of law provisions, information is much easier to obtain now than it was when Shute was decided.  For example, Carnival now posts its ticket contract online.  Carnival’s contract includes a mandatory arbitration provision as well as a forum selection clause, limits on liability, and restricted statute of limitations periods.   Costa Crocier also posts their ticket contract online.  The Costa contract includes forum selection, arbitration and choice of law provisions at Section 2.    

For claims involving personal injury or death, the Costa contract includes a forum selection clause for Broward County, Florida for cruises that depart from, visit or return to a U.S. port.  In contrast, U.S. port related economic loss claims are subject to an arbitration provision.  Under the Costa contract, any cruise that does not depart from, visit or return to a U.S. port, all claims must be filed in Genoa, Italy, and Italian law applies.  The Costa contract also includes a jury waiver provision.  

When a district court applies a forum selection provision, it usually does so via 28 U.S.C. § 1404, whereas a state court would dismiss the case.  Italy is not a district to which a federal case can be transferred, so dismissal is likely remedy if court enforces forum selection provisions for U.S. citizen cases filed in their home state, or even in Florida.  See e.g., Albemarle Corp. v. Astrazeneca U.K, Ltd., 628 F.3d 643, 651 (4th Cir. 2010) (applying English law / federal common law to enforce forum selection clause via dismissal).  Albemarle also suggests that Costa Concordia related claims filed in the U.S. would still be analyzed under the four factor “unreasonableness” test set forth in M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1 (1972) (holding forum selection clause may be found unreasonable if “(1) [its] formation was induced by fraud or over-reaching; (2) the complaining party ‘will for all practical purposes be deprived of his day in court’ because of the grave inconvenience or un-fairness of the selected forum; (3) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (4) [its] enforcement would contravene a strong public policy of the forum state.”).     

Here, proponents of avoiding Costa Crocier’s forum selection clause and choice of Italian law may argue factors two, three and four.  An analysis of Italian law related to factor three is beyond the scope of this blog post!
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Four Loko Wrongful Death Suit

Posted on May 25, 2011 05:06 by Michael Walker

This article was recently printed in the Chicago Tribune and discusses yet another law suit against the manufacturer of the alcoholic beverage Four Loko. We had discussed the rise of these suits in a previous blog.

This new case is a wrongful death suit brought against Phusion Projects, Four Loko’s manufacturer, alleging that a 15 year old boy was struck by a car after drinking two of these beverages and becoming disoriented. It appears this accident occurred subsequent to Phusion’s decision to remove caffeine, taurine and guarana from its product. Presumably, it was these ingredients that, when combined with alcohol, made the product dangerous as they were alleged to mask the effects of alcohol. As such, it will be interesting to see what new defenses will be used by Phusion’s attorneys in light of Phusion’s decision to remove the aforementioned ingredients from its product.

 

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