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[No.106]
December 10, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
The allegations of
newspaper subscribers whose home was burglarized while they were on vacation
were insufficient to establish that the newspaper owner had a legal duty to
maintain their "stop delivery" request as confidential and breached
that duty. The course of conduct undertaken by the owner was newspaper delivery
and stopping that delivery while the subscribers were on vacation. The
subscribers' complaint alleged no breach by the owner of its duty to use
ordinary care in performing that course of conduct. Further, the subscribers
failed to allege a causal relationship between any possible breach by the
newspaper owner and the loss they sustained during the break-in.
Lambeth v. Media
General, Inc.
In an en banc
opinion, the Third Circuit has ruled that part numbers used by a manufacturer of
screw fasteners were not entitled to copyright protection. The numbers were not
original, because each number was rigidly dictated by the inflexible rules of
the manufacturer's numbering system. Therefore, an essential attribute of the
numbering process and the resulting numbers was an utter absence of creativity.
Southco, Inc. v.
Kanebridge Corp.
The exception to the
two-year limitations period governing medical malpractice actions that allowed
actions brought on behalf of children until their eighth birthday applied to a
malpractice suit that was brought by the parents of a child who sustained severe
brain injuries during birth after the child's death more than two years after
his birth against the physician who delivered the child. In analyzing the
application of the statute of limitations for medical malpractice actions in the
context of the privileges and immunities clause of the constitution, the Court
of Appeals noted that the parents could reasonably wait until the child's eighth
birthday to pursue the medical malpractice action in order to receive
compensation for the injuries and the necessary treatment. The preclusion of
such a remedy simply on the basis of the child's death prior to his eighth
birthday but more than two years after the birth would unfairly deprive them of
their right to be compensated for the child's injuries and for the necessary,
and often exorbitant medical expenses.
Ellenwine v. Fairley
An Immigration Judge
(IJ) failed to follow the regulations governing withholding of removal when he
failed to make any finding regarding whether a Russian applicant suffered past
persecution. Instead, he determined that many of the alleged acts of
persecution, including beatings, occurred because the applicant, by displaying a
menorah candle in her window and attending a synagogue, "advertised to
passers by or observers that she was, in fact, practicing Judaism." The
Court of Appeals stated that the Immigration and Nationality Act (INA) and
related regulations do not require applicants who have faced persecution on
account of race or religion to avoid signaling to others that they are indeed
members of a particular race or adherents of a certain religion.
Antipova v. U.S.
Attorney General
Time temporary
laborers spent waiting and traveling between a temporary employment agency's
office and job sites was not compensable under the North Carolina Wage and Hour
Act The laborers signed agreements indicating they understood they would only be
compensated for time spent working at job sites. The laborers' wait and travel
time was not a "principal activity" that was compensable under
Portal-to-Portal Act. The agency did not require laborers to report at its
office at a certain time and they did not perform any work either at the office
or while in transit to job sites. The equipment the agency provided after
laborers received an assignment and before they reported to job site was general
protective equipment, not specialized equipment necessary to their assignments.
Hyman v. Efficiency,
Inc.
A bankruptcy court's
equitable powers to implement the Bankruptcy Code could not be used to extend an
injunction which, as part of the proposed Chapter 11 plan, channeled
asbestos-related personal injury claims against the debtor to a
post-confirmation trust so as to include the independent asbestos-related claims
against the debtor's non-debtor affiliates. Such relief violated the statute
that authorized injunctive relief supplementing a discharge under a Chapter 11
reorganization plan of a debtor dealing with asbestos-related liabilities. That
statute set forth requirements for extending a channeling injunction to
third-party actions against non-debtors, and did not provide for protection
against liability that was not derivative of the debtor. Extending the
injunction also improperly provided bankruptcy relief to non-debtors, allowing
the affiliates "to cleanse themselves of non-derivative asbestos liability
without enduring the rigors of bankruptcy," and jeopardized the interests
of the affiliates' future claimants.
In re Combustion
Engineering, Inc.
Multinational
corporations which did business in apartheid South Africa did not engage in
state action, as would support the District Court's jurisdiction under the Alien
Tort Claims Act (ATCA) in an action brought on behalf of individuals who
suffered damages as a result of the crimes of apartheid in South Africa. At
most, by engaging in business with the South African regime, the corporations
benefited from the unlawful state action of the apartheid government. Nor was
the Court's jurisdiction under ATCA supported by any violation by the
corporations of the law of nations. The corporations did not violate the law of
nations by allegedly aiding and abetting apartheid South Africa's international
law violations. Rather, aiding and abetting international law violations was not
itself an international law violation that was universally accepted as a legal
obligation. Nor did the corporations violate the law of nations by doing
business with apartheid South Africa. The authorities which condemned doing
business with apartheid South Africa did not create binding international law.
In fact, as history indicated, Congress, consistent with most other world
powers, supported and encouraged business investment in apartheid South Africa.
In re South African
Apartheid Litigation
The provisions of a
workers' compensation insurance policy did not shield the insurer from liability
for a 15 percent increase in a workers' compensation award that was imposed as a
result of the employer's failure to follow safety regulations. The Workers'
Compensation Act required employers to be fully covered by their insurance
carriers in order to ensure adequate compensation for employees, and to prevent
employers' funds from depletion before adequate compensation could be recovered.
There was no indication that the 15 percent increase in compensation was
intended to fall outside the framework of workers' compensation benefits.
AIG/AIU Ins. Co. v.
South Akers Mining Co., LLC
Addressing an issue
of apparent first impression for the circuit, the Court of Appeals for the
Eleventh Circuit has upheld the constitutionality of section 3 of the Religious
Land Use and Institutionalized Persons Act, which requires state prisons that
receive federal funds to refrain from burdening the religious exercise of
prisoners. Congress properly exercised its spending power by unambiguously
conditioning the use of federal funds for state prisons on the related
accommodation of the religious exercise of prisoners, the Court of Appeals
ruled. Moreover, RLUIPA did not violate either the Tenth Amendment or the
establishment clause of the First Amendment.
Benning v. Georgia
A provision in an
automobile lease agreement that allowed the lessee to impose a late charge of
seven-and-one-half percent of the scheduled payment due if the lessor failed to
make the payment within ten days of the due date did not violate the state
constitutional provision prohibiting an interest rate that exceeded six percent
per annum "unless otherwise provided by the General Assembly." The
General Assembly had enacted a statute that allowed for the imposition of late
fees under such contracts, and the statute did not characterize the late charges
as interest.
Simpkins v. Ford
Motor Credit Co.
Under Pennsylvania
law, no employment contract was formed between a school board and a prospective
teacher. As a matter of law, the school board's eligibility list form which
listed eligible teachers in order of rank or standing, pursuant to the School
Code which prohibited a teacher from being hired whose name was not within the
top 10% of the names on the list, was not an offer. Instead, the form was an
invitation for persons, such as the prospective teacher, to apply for a teaching
position. While the teacher fulfilled the requirements to be on the eligibility
list, the school board did not make any further manifestation of assent to hire
the teacher, and therefore, no employment contract was formed.
Reed v. Pittsburgh
Bd. of Public Educ.
A hospital owed no
duty under the Health Care Surrogate Act to inquire into the availability of a
surrogate to make the decision whether to forego life-sustaining medical
treatment with respect to a patient who had no neurological function at the time
he was admitted to the hospital until the attending physician made a written
determination that the patient lacked decisional capacity. In the instant case,
neither of the patient's two attending physicians made such a written
determination. Neither did the statutory requirement that the attending
physician implement the directions of the surrogate apply to the hospital.
Collins v. Lake
Forest Hosp.
A regional
transportation authority's rejection of three advertisements raising questions
on marijuana laws constituted viewpoint discrimination in violation of the First
Amendment. The authority's purported justification of protecting children was
undermined by evidence that its actual justification was a distaste for the
viewpoint expressed, and by evidence that rejecting the advertisements did not
actually protect children. Two of the advertisements were not aimed at children,
and the third, although directed at teenagers, said "smoking pot is not
cool," and its clearest message was that marijuana should be
decriminalized.
Ridley v.
Massachusetts Bay Transp. Authority
The FDA could change
its final approval of an abbreviated new drug application (ANDA) for a generic
version of a patented drug to tentative approval, following a district court
order in a patent infringement action finding that the generic version of the
drug infringed the patent and ruling that approval of the ANDA could not become
effective until the date that the patent on the brand name version of the drug
expired.
Mylan Laboratories,
Inc. v. Thompson
A risk management
pool for political subdivisions was a "public body" subject to New
Hampshire's Right-to-Know Law. The pool was a quasi-public entity governed
entirely by public officials and employees and operated for the sole benefit of
its constituent governmental entities and for the sole purpose of managing and
providing health insurance benefits for public employees. The pool managed money
collected from governmental entities and enjoyed the tax-exempt status of public
entities. It performed the essential government function of providing insurance
and pooled risk management programs to political subdivisions.
Professional
Firefighter of New Hampshire v. Healthtrust, Inc.
A residential living
specialist's injury arose from a continuous traumatic event precipitated by a
great rush of force or uncontrollable power, as an element for accidental
disability retirement benefits from the Public Employees' Retirement System. The
specialist, while rescuing a delirious mental patient from a burning cottage,
slid down icy steps outside the cottage when the patient jerked his hand away
from hers. The patient's unexpected action had the same effect as if the patient
had pushed the specialist down the stairs.
Fairweather v.
Public Employees' Retirement System
Whether a
modification of the design of the roof of the 1989 Ford Escort would have
prevented the injuries incurred by a driver in a rollover accident was an issue
for the jury in the driver's products liability action against the Ford Motor
Company. The driver presented evidence that his injuries were caused by the loss
of occupant space in the vehicle that resulted from the crushing of the
vehicle's roof during a rollover accident. The driver also presented evidence
that an alternative design, existing at the time that the vehicle left Ford's
control, was capable of preventing the injuries that the driver suffered. There
was also evidence concerning the extent of risk that an alternative design would
have avoided, the frequency of similar accidents, and the economic costs
entailed by those accidents.
Garcia v. Brown
State action was
required for an employee's constitutional privacy cause of action against a
private supermarket employer who fired the employee after he refused to cut his
hair, and therefore the employee's action was subject to dismissal. The employee
failed to produce evidence that the voters who ratified the constitutional
privacy amendment intended the amendment to apply to private action.
Miller v. Safeway,
Inc.
News
A new Supreme Court
has been sworn in Ecuador. Earlier, the Ecuadorean President, Lucio Gutierrez
had sought an overhaul of the court, saying that the judges were biased in
favour of the opposition parties. This showdown began on Wednesday, when
Ecuador's assembly voted to dismiss 27 of the court's 31 judges. Immediately a
day after the Congress dismissed most of its members, a new Supreme Court has
been sworn in Ecuador. As a result, some of the sacked judges refused to leave
the courthouse at first, declaring the move as unconstitutional. But they
abandoned their protest, soon after police fired tear gas at an anti-government
rally outside the building.
Recently the
Parliament of New Zealand has passed a controversial “Civil Union Bill”
recognizing civil unions between gay couples. The said bill was passed by 65
votes to 55, also recognizes unions between men and women who do not want to
marry. The new law, would be effective from next April, and aims at giving
unmarried couples the same rights as married couples in areas like child
custody, tax and welfare. This bill has been severely criticized as it
undermines the concept of marriage itself and posed a threat to the family.
David Boim was
recently shot dead at a bus stop outside Jerusalem in 1996. Consequently his
family had sued under a federal anti-terror law. Three organizations - the
Quranic Literacy Institute, the Islamic Association for Palestine and the Holy
Land Foundation for Relief and Development had been found liable in this case.
Earlier, a federal jury had taken a day to decide that Stanley and Joyce Boim
were entitled to $52m (£27m) compensation, but Judge Arlander Keys had tripled
their initial award. Now, the Chicago Court has ordered a group of Islamic
charities, to pay $156m (£81m) to the parents of a US teenager, killed by Hamas
in the West Bank.
From now on certain
drugs would have a new “boxed” warning about possible side effects.
According to the Food and Drug Administration, the arthritis drug Bextra from
Pfizer would soon include a new warning about possible heart attack risk when
used by patients who recently had heart bypass surgery. The said drug “Bextra”
is said to be part of the same family of drugs, COX-2 selective non-steroidal
anti-inflammatory drug (NSAID). The said warning is said to strengthen previous
warnings about the risk of life-threatening skin reactions, and include a new
warning about possible heart attack, stroke, deep vein thrombosis (blood clots
in the leg), and pulmonary embolism (blood clot in the lung), when used by
patients who have just had coronary artery bypass graft (CABG) surgery.
The Zimbabwe
Parliament has passed a controversial bill banning foreign-funded human rights
groups from operating in the country and requiring all other rights groups to
register with the government. Pro-government legislators have accused certain
outside rights groups of being tools of western governments, opposed to the
regime of President Robert Mugabe. On the other hand, the critics of this
legislation see it as yet another manifestation of Mugabe's increasingly
dictatorial hold on Zimbabwe.
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SEBI
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Foreign
Institutional Investors
Circular No. IMD/FII/18/2004
Dated 02.12.2004: SEBI has circulated clarifications in relation to limit for
investment by Foreign Institutional Investors in Corporate Debt. A cumulative
sub-ceiling of US $500 million outstanding would be fixed on FII investments in
corporate debt and this would be over and above the sub-ceiling of US $1.75
billion for Government debt under the overall ECB ceiling.
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CBDT
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Notification No.
289/2004 Dated 02.12.2004: The Central Board of Direct Taxes, vide this
notification, has brought to the fore, the Income-tax (18th Amendment) Rules,
2004, which made amendments to Form No.16 carried in appendix-II to the
Income-tax Rules, 1962.
Notification No.
288/2004 Dated 01.12.2004: The Central Board of Direct Taxes, vide this
notification, has brought in, the Income-tax (17th Amendment) Rules, 2004, which
intended to expand base for Pan Quoting and filing of Annual Information Return,
as many more high value transactions have been notified herewith, for the such
purpose.
Notification No.
286/2004 Dated 30.11.2004: The Central Board of Direct Taxes, herewith this
notification, has amended the Income-tax Rules, 1962, relating to Section 206C
of the Income-tax Act, 1961 and notified new Form 27D related to Certificate of
Collection of Tax at source.
Notification No. 285/2004
Dated 30.11.2004: For the purpose of the report to be submitted by Chartered
Accountants or authorized auditors of companies, under section 32(1)(iia) of the
Income-tax Act, 1961, henceforth the said notification, 10% of increase in
capacity of production of an industrial undertaking as on 31st
March, 2002, would be considered as ‘substantial expansion’.
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Service Tax
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Notification No.
35/2004 Dated 03.12.2004: The Central Board of Excise and Customs, vide this
notification, notified Service Tax (Fifth Amendment) Rules, 2004, imposing tax
on goods transport agencies from January 1, 2005, putting the burden of
collection on corporate, ‘Society’ and Cooperative bodies.
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Department of Economic Affairs
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Notification No.
SO1314(E) Dated 23.11.2004: Vide the said notification, the Department of
Economic Affairs has brought about the rules to amend the Securities and
Exchange Board of India (Debenture Trustees) Rules, 1993.
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Telecom Regulatory Authority of India (Trai)
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Notification No.
301-31/2004-Eco. Dated 08.12.2004: TRAI, with this notification has brought
about further amendments to the Telecommunication Tariff Order, 1999. Clearing
its stance over ‘Non-discrimination’, which earlier restricted service
providers from offering differential tariff plans, within the same class of
subscribers, TRAI has agreed upon differential tariffs in the nature of Vertical
Price Squeeze.
Notification No.
1-29/2004-B&CS Dated 01.12.2004: TRAI, via this order has provided for new
rates, which shall be applied for the payments to be made by consumers, cable
operators, multi system operators from the month of January 2005. The 7%
increase will apply, as ceiling, to the charges, excluding taxes, payable as on
26.12.2003.
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Ministry of Home Affairs
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Notification No.
SO1325(E) Dated 03.12.2004: The Central Government, vide this notification, has
appointed 3rd day of December, 2004, as the day, on which the provisions of the
Citizenship (Amendment) Act, 2003, shall come into force.
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Press Information Bureau
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Dated 08.12.2004:
The Government of India has simplified the visa-regime for doctors, scholars and
recognized journalists of Pakistan. Now, doctors bringing down patients for
treatment here, at leading hospitals will be granted visa with exemption from
Police Reporting without prior reference to Ministry of Home Affairs.
Dated 01.12.2004:
The Union Cabinet has given its approval to establish an E-Committee, initially
for a period of one year, to formulate a national policy on computerization of
the Indian judiciary. This is another step forward in the sequence of ongoing
reforms of the judicial system.
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Ministry of
Shipping, Road Transport
and Highways |
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Department of
Shipping
Andaman and
Nicobar Islands (Fixation of Rates for the Use of Landing Places, Wharves,
Quays, Warehouses, Sheds and other Miscellaneous Services) Amendment Rules, 2004
Notification No.
GSR786(E) Dated 03.12.2004: Vide the said notification, the Department of
Shipping has introduced, further amendments to the Andaman and Nicobar Islands
(Fixation of Rates for the Use of Landing Places, Wharves, Quays. Warehouses,
Sheds and other Miscellaneous Services) Rules, 1991.
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Supreme Court |
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This is a an appeal
arising out of a petition for divorce filed by the husband and contested by the
wife, both the parties were doctors by profession and were living amicably for
thirteen years. Wife had also filed suit for injunction against the husband for
use of staff and certain portions of the hospital owned by him, her Petition
claiming maintenance from her husband was dismissed.
Keeping in view the
interests of the children, Family court granted a decree for judicial separation
instead of divorce and in separate appeals filed by both the parties the High
Court set aside the decree. The Apex Court was approached against the said
decision of the High Court substantially on the grounds of mental cruelty and
that the marriage had irretrievably broken down
The Supreme Court,
allowed the appeal of the husband while holding that the constant nagging by the
wife, by implication amounted to casting aspirations on the character of the
husband and in the absence of any evidence to substantiate the same, this by
itself was enough to constitute cruelty, it was also observed that subsequent
conduct amounting to cruelty could also be taken into consideration.
Two contempt
petitions were filed against the appellant, a public figure. It was alleged that
the Appellant had made utterances that tended to scandalize and lower the
authority of the court, in a public speech made by him. Persons belonging to the
opposite political camp had filed the petitions. The Appellant was found guilty
and was sentenced to undergo simple imprisonment for a period of one week and
fine of Rs 2000/-.
Against the said
judgment an appeal had been filed in the Supreme Court on the ground that the
specific directions given by the Apex Court regarding procedure to be followed
in cases for contempt of court had not been adhered to, it was also contended
that the Petitions had been filed without obtaining the consent of the
Advocate-General, which was a mandatory requirement.
The said appeal was
allowed by the Apex Court, it was observed that the directions previously given
by the court were in respect to cases where the courts had taken action on its
own, however mandatory provisions of the governing Act have not been followed,
and even though the Advocate General had appeared during the proceedings, it
could not be said that suo moto action had been initiated. However, the
directions laid down were re affirmed.
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High Courts |
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Andhra Pradesh
Petitioner has a
retail outlet dealership in the Indian Oil Company, the outlet had initially
been allotted under the freedom fighters category, the Respondent proposed to
start a retail outlet within a distance of 1KM of the retail outlet owned by the
Petitioner, excavation work had already started on the site. The Petitioner
filed a writ petition challenging the setting up of another outlet in such close
vicinity to the existing outlet of the Petitioner on the grounds that this would
cause huge traffic congestions and was against the guidelines issued by the
National Highways Authority in as much as the proposed outlet fell within 100
meters of the a crossing, therefore was prohibited.
Dismissing the case
of the Petitioner as motivated by rivalry, it was observed by the Andhra High
Court that even though guidelines are not disputed, the Petitioner has
failed to show that the said guidelines have any statutory force, business rival
cannot be permitted to object to the grant of permit to another person.
A scooterist who had
stopped by the road was hit by a car and died during treatment at the hospital,
in the proceedings before the Motor Accidents Claim Tribunal it was contended by
the insurance Company that policy was taken by the owner after the accident
therefore, it was not liable. An award of Rs. 5,50,780/- in favour of the
Petitioners along with interest @ 9% from the date of the Petition, insurance
company was held to be not liable.
An Appeal was
preferred by the owner and driver on the ground that the Tribunal had been
mislead about the payment of the premium. The policy became operative from 00:00
hrs of the date mentioned in the policy, it was further contended there was no negligence on the part of the driver,
insurance company contended that the policy came into force only at 10:30.
The Andhra Pradesh
High Court, allowed the appeals while observing that in the absence of any time
being mentioned on the policy, it has to be presumed that the it came into
operation from 00:00 hrs, as such the insurance company was liable. The tortuous
liability of the driver was fixed upon the insurance Company.
Punjab & Haryana
Petitioner was
running a hospital as a proprietorship concern, in a search conducted on his premises a
diary was seized, it contained records of certain payments expenditure, which
was from unknown sources of income, accordingly an addition of Rs 48,891/- was
added by the Assessment order. The Petitioner contested the addition before the
Commissioner of Income Tax (Appeals) who remanded the matter back to the
Assessing officer with a rider that the Assessing officer shall not exceed the
additions already made, at the instance of the revenue a reference was made to
the High Court for the opinion of the Court on the observations made in the
order of the Commissioner of Income Tax (Appeals).
It was the
contention of the revenue that the restrictions imposed while remanding the
matter back to the assessing officer are not based on legal principles, it was
contended that the Commissioner of Income Tax (Appeals) had wide ranging powers
including the power to remand a case back to the assessing officer for inquiring
into matters which were not the subject matter of appeal.
The Punjab and
Haryana High Court opined that the restrictions imposed by the Commissioner of
Income Tax (Appeals) on the revenue while remanding the matter were not
justified, held that the Tribunal was wrong in giving directions that Assessing
officer should not make an addition exceeding Rs 48,891/-.
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