August 2024 Longshore/Maritime Update (No. 303)
Notes from your Updater:
On June 21, 2024, Judge Wolfson of the United States District Court for the Eastern District of Pennsylvania found in favor of Eddystone Rail and awarded it more than $170 million in damages against Bridger Logistics, Bridger Energy, Bridger Transportation, and Ferrellgas Partners due to what were found to be a series of fraudulent transfers arising out of the rail-to-barge facility that Eddystone built in Eddystone, Pennsylvania to provide transloading services (unloading crude petroleum from trains and loading the petroleum onto barges, pipelines, or other facilities for transportation and storing the petroleum). Eddystone Rail Co. v. Bridger Logistics, LLC, No. 2:17-cv-495, 2024 U.S. Dist. LEXIS 10993 (E.D. Pa. June 21, 2024) (Wolfson).
On June 24, 2024, Judge Lamberth of the United States District Court for the District of Columbia declined to stay the federal approvals for the construction of the Revolution Wind Farm and Revolution Wind Export Cable Project, located off the coast of Rhode Island. See Green Oceans v. United States Department of the Interior, No. 1:24-cv-141, 2024 U.S. Dist. LEXIS 110396 (D.D.C. June 24, 2024).
On July 1, 2024, Judge Cain of the United States District Court for the Western District of Louisiana issued a preliminary injunction (sought by the states of Louisiana, Alabama, Alaska, Arkansas, Florida, Georgia, Kansas, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, and Wyoming), staying the Department of Energy’s ban on exportation of liquefied natural gas to countries without a free trade agreement. See Louisiana v. Biden, No. 2:24-cv-406, 2024 U.S. Dist. LEXIS 115999 (W.D. La. July 1, 2024).
On July 5, 2024, the United States Court of Appeals for the District of Columbia vacated the decision of the Federal Maritime Commission that Evergreen Shipping Agency (America) obtained against trucking company TCW, Inc. for unjust and unreasonable detention charges for the late return of a container insofar as the charges were for days when the relevant port was closed and could not have accepted the return of the container. Writing for the appellate court, Judge Ginsburg stated that the reasoning of the FMC is “charitably put, implausible.” Remanding the case, Judge Ginsburg concluded that the FMC must, at a minimum, provide a logical explanation for its view. Perhaps it can do so on remand, but so far it has done the very opposite.” See Evergreen Shipping Agency (America) Corp. v. Federal Maritime Commission, No. 23-1052, 2024 U.S. App. LEXIS 16457 (D.C. Cir. July 5, 2024).
On July 11, 2024, Judge Méndez-Miró of the United States District Court for the District of Puerto held that a liquid cargo surveyor, charged with measuring the amount of cargo on a vessel in San Juan, Puerto Rico, was not a statutory employee of the demise owner of the barge FLACO, and the owner was not immune from a tort suit based on the Puerto Rico Workmen’s Accident Compensation Act. See González-Pérez v. Harley Marine Financing LLC, No. 22-cv-1519, 2024 U.S. Dist. LEXIS 122427 (D.P.R. July 11, 2024).
On July 14, 2024, the Eleventh Circuit addressed the amount of damages that could properly be awarded in an unjust enrichment claim brought by a Chinese importer against an American importer when the American importer did not pay. The issue of damages arose because the goods “sold for orders of magnitude more in the United States than they did in China.” The Chinese importer asked the court to calculate damages based on the value of the goods in the United States (nearly $75 million), and the American importer asked the court to calculate damages based on the factory price for the goods plus a small commission (approximately $2 million). The district court used the United States valuation and awarded damages of almost $75 million, and the Eleventh Circuit affirmed the award based on the evidence that was presented. See T.T. International Co. v. BMP International, Inc., No. 23-13492, 2024 U.S. App. LEXIS 17237 (11th Cir. July 15, 2024) (per curiam).
On July 16, 2024, Judge Gleason of the United States District Court for the District of Alaska held that the Bureau of Ocean Energy Management violated the National Environmental Policy Act with respect to Lease Sale 258 (lease of Block 6255 in Cook Inlet, Alaska to Hilcorp Alaska). She did not believe that vacatur of the sale was proper in view of the directive of Congress, and she remanded the matter to the government to provide a supplemental Environmental Impact Statement. See Cook Inletkeeper v. United States Department of Interior, No. 3:22-cv-279, 2024 U.S. Dist. LEXIS 125431 (D. Alaska July 16, 2024).
On July 17, 2024, Judge Quereshi of the United States District Court for the District of Maryland held that government contractor BAE Systems failed to establish as a matter of law that its employee, Patrick Fisher, was a seaman who is exempt from overtime under the Fair Labor Standards Act. Fisher was an Engineering Technician IV who primarily worked on the IFF (identification friend or foe) system on U.S. Navy vessels. Magistrate Judge Quereshi agreed that Fisher’s work assisted in the maintenance of the ship, but he did not believe that BAE had established, as a matter of law, that the work aided vessels for the purposes of transportation (reasoning that Fisher collected data for the vessel’s military equipment, rather than its transportation). See Fisher v. BAE Systems Technology & Services Inc., No. 8:23-cv-225, 2024 U.S. Dist. LEXIS 125621 (D. Md. July 17, 2024).
On July 19, 2024, the Ninth Circuit held that a technician fueling airplanes that carry goods in interstate and foreign commerce qualified as a transportation worker for purposes of the exemption from the arbitration requirements of the Federal Arbitration Act. See Lopez v. Aircraft Service International, Inc., No. 23-55015, 2024 U.S. App. LEXIS 17784 (9th Cir. July 19, 2024) (Rawlinson).
On July 22, 2024, a jury in King County Superior Court in Washington found in favor of former police chief Rodney Covey at the Port of Seattle in his suit against the Port of Seattle for wrongful termination based on what he asserted were false claims of discrimination, retaliation, and racism. The jury awarded $1.7 million in economic damages and $24.2 million in non-economic damages. See Covey v. Port of Seattle, No. 22-2-20666-7, King County Superior Court.
On July 23, 2024, Judge Kennelly of the United States District Court for the Northern District of Illinois dismissed the suit brought by Mitchell Higgins and Tim McHenry alleging that Yamaha knowingly marketed and sold them each a Yamaha WaveRunner personal watercraft with a defective fuel gauge and trip computer. He dismissed the claim for breach of written warranty because the plaintiffs alleged a design defect that is not covered by a written warranty. He dismissed the claim for breach of an implied warranty of merchantability because the plaintiffs failed to allege what the ordinary purpose of the WaveRunners is and that the WaveRunners are unfit for that purpose. He dismissed the claim for fraud under the Illinois Consumer Fraud Act for failure to plausibly allege, under the heightened pleading standard of Rule 9(b), an affirmative misrepresentation (or any facts to support the claim that Yamaha’s conduct was unfair and deceptive). Finally, Judge Kennelly dismissed the claim for common-law fraud for statements made about the fuel gauge because the plaintiffs did not plausibly allege that they accessed those statements before purchasing the WaveRunners. See Higgins v. Yamaha Motor Corp., No. 23-cv-5611, 2024 U.S. Dist. LEXIS 129627 (N.D. Ill. July 23, 2024).
On July 26, 2024, the Fourth Circuit rejected the state-law claims of a hemp exporter (seeking to transport hemp by air from Oregon to Switzerland) against a charter aircraft company after the cargo was seized by U.S. Customs and destroyed because eight of the nine samples taken tested with a THC content that constituted marijuana and not hemp. The exporter asserted claims under state law against the charter aircraft carrier, but the Fourth Circuit held that the claims were “well within the preemptive scope of the Montreal Convention” and affirmed summary judgment dismissing the claims. See We CBD, LLC v. Planet Nine Private Air, LLC, No. 23-1707, 2024 U.S. App. LEXIS 18500 (4th Cir. July 26, 2024) (King).
After the decision of the Supreme Court in Sackett v. EPA on the scope of “Waters of the United States” under the Clean Water Act (see 2023 Update), the Environmental Protection Agency issued a revised definition of Waters of the United States (see September 2023 Update). On July 29, 2024, the Sixth Circuit recognized that the amendment, “borne out of” the Sackett decision had “alleviated the vast majority of” the harms asserted by several states that had challenged the federal definition prior to the Sackett decision. The district court had dismissed the suit, sua sponte, for lack of standing, but the Sixth Circuit vacated that ruling and gave the states challenging the WOTUS Rule an opportunity to amend their complaint in light of the revised Rule. See Kentucky v. Environmental Protection Agency, No. 23-5343/5345 (6th Cir. July 29, 2024 (per curiam).
On the LHWCA Front . . .
From the federal appellate courts
Steve Bussanich suffered from degenerative joint disease in his neck since 2004. On December 1, 2013, he was hit by a turnbuckle swinging from a crane and was transported to the hospital where he was diagnosed with a head and neck injury. He has not returned to work since his injury. The claim was tried to Administrative Law Judge Gee, who found that Bussanich had sustained a temporary cervical strain that did not aggravate his pre-existing degenerative disc disease, that his strain had resolved by October 17, 2014, and that his employer (Marine Terminals Corp. d/b/a Ports America) had established the availability of suitable alternate employment as of March 21, 2014. Bussanich appealed to the Benefits Review Board and asserted that the ALJ had erred in finding that the work injury did not permanently aggravate his pre-existing condition and result in permanent disability. The BRB and the Ninth Circuit affirmed Judge Gee’s decision. Before turning to the dispute over benefits, the Ninth Circuit rejected the claimant’s Lucia argument (from Lucia v. SEC, 138 S. Ct. 2044 (2018)) that Judge Gee was not properly appointed under the Appointments Clause of the Constitution as the issue was not raised to the BRB. The Ninth Circuit then addressed the several arguments raised by the claimant that Judge Gee’s decision was not supported by substantial evidence. It was not error for Judge Gee to give less weight to the opinion of the claimant’s primary care physician as he was not a specialist in neck injuries. Judge Gee’s evaluation of the opinions of other doctors was not erroneous when one testified that it was possible that the claimant’s condition was the result of a natural progression of his neck and did not testify whether the aggravation was temporary or permanent and another testified that the injury did not permanently aggravate the underlying condition but acknowledged uncertainty. As the medical evidence was “equivocal,” Judge Gee’s finding that the claimant did not meet his burden of proof was affirmed. Finally, the Ninth Circuit affirmed Judge Gee’s giving of less weight to the timeline of the claimant’s symptoms and treatment. She noted that he had small improvements but continued to experience the same symptoms as before his accident. See January 2020 Update.
Bussanich filed an application for modification on December 3, 2020, pursuant to Section 22 of the LHWCA, within one year after the decision of the Ninth Circuit but more than one year after the date of the last payment of compensation. His employer filed a motion for summary decision that the application was untimely, and Administrative Law Judge Alford agreed because the application was not submitted for more than three years after the delivery of the last check to Bussanich. Bussanich appealed to the Benefits Review Board, arguing that the ALJ should have counted the time for the modification application from the date of the final decision on appeal, which was within one year of the modification application. The Benefits Review Board cited the language of Section 22 that a party may seek modification of a compensation order “at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim.” The BRB reasoned that when benefits are awarded, the time runs from the date of the last payment of compensation, but when a claim has been rejected, the time runs from the date of the rejection (one year after the conclusion of the appellate process). In this case, ALJ Gee granted the claim in part and denied the claim in part. The BRB explained: “Because Claimant’s appeal was still pending after the date of the last payment of compensation, the time for filing modification runs from the date of the final decision on the appeal rather than from the date of the last payment.” Accordingly, the BRB remanded the case to the ALJ to consider the modification request.
Bussanich’s employer, Marine Terminals, appealed the decision of remand to the Ninth Circuit, and the Director filed a motion to dismiss, arguing that the BRB’s remand to the ALJ was not a final order that could be appealed. The employer responded that the BRB’s decision was separate from the merits of the modification (whether a modification was warranted based on a change in conditions). As such, it was a collateral order that could be appealed to the Ninth Circuit. The Ninth Circuit disagreed, noting that in order to be a collateral order, the employer would have to show that the order was effectively unreviewable on appeal. However, the court answered that a statute of limitations claim did not satisfy the requirement that the order be effectively unreviewable on appeal, citing its decision stating: “It is well-established that interlocutory appeals are not available to address statute of limitations issues because a statute of limitations does not give rise to a right not to stand trial, but rather creates a safeguard against unfair verdicts from delinquent suits.” Therefore, the remand order did not satisfy the elements for a collateral order and was not reviewable on appeal. The Ninth Circuit dismissed the appeal for lack of jurisdiction.
From the federal district courts
Randy Sherman was employed by Gulf Crane Services as a crane mechanic, and Gulf Crane had a contract with Quarternorth Energy (formerly Fieldwood Energy) to provide services on Quarternorth’s platforms. Quarternorth owns the Bullwinkle platform that is located on the outer Continental Shelf of the Gulf of Mexico, offshore Louisiana. Sherman claims that he was attempting to change the cables on a crane on the platform when he was injured by the negligent operation of the crane by Paxton Broom, an employee of Danos. Sherman brought this suit against Danos and Quarternorth in state court in Terrebonne Parish, Louisiana, and Quarternorth removed the case to federal court in Louisiana based on the Outer Continental Shelf Lands Act. Danos moved for summary judgment, arguing that both Sherman and Broom were borrowed servants of Quarternorth and that the exclusive remedy provision of the LHWCA barred the suit against Danos. Sherman responded that Danos and Gulf Crane were independent contractors, as reflected in the contracts between the parties, and that Quarternorth did not control the details of his work. Applying the factors set forth by the Fifth Circuit in Ruiz, Chief Judge Brown found several fact disputes whether Sherman was a borrowed employee of Quarternorth (so she did not have to reach the issue whether Broom was a borrowed employee). Accordingly, Chief Judge Brown declined to grant summary judgment to Danos.
Danny Kennedy was employed by Elite Workforce and assigned to work for HPC Industrial Services for barge cleaning at its facility on Bayou Black in Gibson, Louisiana pursuant to a contract between Elite Workforce and HPC Industrial. Kennedy was ordered to turn a valve on the liquid tank barge LMB 102, and pressure was released from the vessel’s tank, which knocked Kennedy overboard into Bayou Black. Kennedy brought this suit in federal court in Louisiana against HPC Industrial and the owner and charterer of the barge, and HPC Industrial moved for summary judgment that it was the borrowing employer of Kennedy and the suit against it was barred by the exclusive remedy provision of the LHWCA. Judge Barbier applied the Ruiz factors and found that six weighed in favor of borrowed servant status, including three of the most significant factors (HPC Industrial had more control over Kennedy than his nominal employer Elite Workforce, Kennedy was performing HPC’s work of cleaning the barge, HPC Industrial furnished the tools and equipment, HPC Industrial had the authority to terminate Kennedy’s employment with HPC Industrial, and HPC Industrial paid Elite Workforce for Kennedy’s services, although the contract between HPC Industrial and Elite Workforce provided that the workers provided by Elite Workforce were performing their work as independent contractors and not as employees of HPC Industrial). Therefore, Judge Barbier granted HPC Industrial’s motion for summary judgment and dismissed the claims against it with prejudice.
Robert Mondella was employed as a lasher by GCT New York to work on the JPO CAPRICORNUS, which was docked at Howland Hook Marine Terminal, Staten Island, New York. While departing from the vessel on April 11, 2019, he fell from what he described as a dangerous and defective gangway, resulting in this suit under LHWCA Section 5(b) against the owner/operator of the vessel in federal court in New York. After the entry of the initial scheduling order, Mondella served his first request for production, inspection, and preservation on July 14, 2020. Mondella requested an inspection of the vessel and preservation of any equipment and appurtenances involved in the accident. In June 2021, Judge Kuo adjourned the deadlines in the case pending resolution of Mondella’s workers’ compensation claim, which was resolved in 2022 followed by a new scheduling order. The parties reported that fact discovery was complete later in 2022 and in 2023, and the defendant advised the court that it was going to file a motion for summary judgment in February 2024. At that time Mondella indicated that he would seek sanctions, and he filed a motion for sanctions on May 1, 2024, asserting that the locking pin that allegedly caused the gangway to collapse was missing and that he did not have an adequate opportunity to inspect the pin. Judge Gonzalez explained that the motion turned on the first prong of the spoliation test, whether the defendant had an obligation to preserve the pin at the time it was lost. The issue presented for that prong was how long the obligation to preserve evidence continues. The defendant argued that Mondella evinced an abandonment of an interest in an inspection because he did not follow up on his preservation notice and had advised the court that discovery was complete. Judge Gonzalez agreed, adding that the duty to preserve evidence is not indefinite and that relief may have been appropriate had the plaintiff scheduled an inspection during the discovery period.
Joshua Johnson, a resident of Texas, was employed by Polar Rig Specialties as an oil rig builder/commercial climber on the VALARIS DS-16 drillship at a shipyard in Pascagoula, Mississippi. He was injured during the repair/replacement of the rigging when a pulley broke, resulting in Johnson being struck in the face by an 8-ton snatch block. Johnson brought this suit in state court in Harris County, Texas against the vessel owner/operator under Sections 5 and 33 of the LHWCA, and the defendants removed the case to federal court based on federal question jurisdiction (cases arising under the laws of the United States) because Johnson alleged the suit was permitted by the LHWCA. Johnson moved to remand the suit because the LHWCA does not create federal question jurisdiction when it is asserted as a defense and because the LHWCA does not create federal question jurisdiction. Judge Rosenthal agreed that, although the LHWCA preserves and codifies the worker’s common-law right to pursue third parties, it does not create or establish the cause of action. Therefore, his claims do not arise under federal law, and Judge Rosenthal remanded the case to the state court. Johnson requested that the defendants pay his fees and costs in responding to the removal, but Judge Rosenthal declined the request, stating: “Questions of removability for claims under the LHWCA, claims under state law, and claims under other statutes or case law brought by seamen or other maritime workers can be complicated. It was not objectively unreasonable for the defendants to seek removal in this case.”
And on the maritime front . . .
From the federal appellate courts
Brent Adkins worked for Marathon Petroleum as a tankerman, deckhand, and mate on the tug M/V ASHLAND from 2008 to 2012, helping in the loading and unloading of oil-based substances that emit hydrogen sulfide fumes. Adkins suffered from childhood asthma, and he was prescribed medication to help with his breathing (claiming that the medication was to treat seasonal allergies and bronchitis). His pre-employment physical reflected mild restrictive pulmonary function, and he reported working in environments that exposed him to dust and cleaning chemicals. Adkins suffered from obesity and had an episode of tachycardia in 2011, after which he was prescribed a beta blocker. Adkins and Marathon agreed that hydrogen sulfide can have harmful effects when inhaled, but they disagreed about the amount or concentration of inhalation that causes harm and whether Adkins’ current problems are attributable to exposure to hydrogen sulfide. Adkins did report that his badge for hydrogen sulfide was alerted on several occasions, and he was taken to the emergency room on one occasion where his complaint was feeling lightheaded. His pulmonary capacity deteriorated, and he was prescribed more intense bronchodilator treatment and eventually supplemental oxygen. His pulmonologist diagnosed him with toxic fume inhalation, and Adkins brought suit in Louisiana state court in 2015, seeking to recover damages for permanent damage to his respiratory system. The Louisiana court determined that the case would be better prosecuted closer to Adkins’ home in Portsmouth, Ohio, and Adkins filed this suit in federal court in Ohio, asserting claims for Jones Act negligence, unseaworthiness, and maintenance and cure. During the course of the litigation, Adkins hired Dr. Charles Pue to opine on medical causation, and Dr. Pue prepared a report that Adkins suffers from a chronic respiratory condition due to the inhalation of hydrogen sulfide fumes (the report did not address the concentrations required to cause injury, whether the exposure was cumulative, or the physiological mechanism by which Adkins’ asthma was aggravated by the exposure). In a supplemental report after the deadline passed for expert disclosures, Dr. Pue reaffirmed his original medical causation theory, but still provided no discussion of the details and cited no supporting medical studies/articles. Adkins also offered as an expert his treating pulmonologist, Dr. Glenn Gomes, who prepared a letter with his medical causation opinion. That letter did not cite any scientific studies, peer-reviewed articles, or similar sources to support the opinion. Marathon moved for summary judgment in the federal suit, arguing that Adkins did not carry his burden of proving whether long-term, low-level exposure to hydrogen sulfide can cause symptoms like those exhibited by Adkins (general causation) and that the hydrogen sulfide exposure did cause his symptoms (specific causation). Marathon also filed motions to strike or limit the testimony of Adkins’ experts. Judge Cole noted that Adkins had to establish a causal relationship between the exposure and his current conditions in order to succeed on his claims for Jones Act negligence and unseaworthiness. However, Judge Cole stated that causation “is not per se an element” for the maintenance and cure claim. Instead, causation plays a limited role when the injury manifests after the seaman has left the service of the vessel—he must show that the later arising injury arose from his service (the treatment related to an injury that occurred or was aggravated during the service of the vessel). After holding a Daubert hearing, Judge Cole held that Dr. Pue did not provide a reliable basis to opine that the exposure causes pulmonary injury to people with pre-existing asthma (general causation). Dr. Pue declined to cite any literature to support his opinion, testifying that it was “general knowledge” and “goes back to medical school mechanisms of development of asthma.” Additionally, Dr. Pue did not disclose his general causation opinion in accordance with the federal rules. Judge Cole also declined to permit Dr. Pue to testify as to specific causation, as he did not rely on his own differential diagnosis but on the differential diagnosis that was performed by Dr. Gomes. As Dr. Gomes did not perform a reliable differential diagnosis because he did not adequately “rule in” hydrogen sulfide fumes, Dr. Pue’s opinion as to specific causation was not allowed. Collins argued that Dr. Gomes could present opinions as to general and specific causation as a non-retained, treating physician. As a clinical pulmonologist, Dr. Gomes had medical training and experience recognizing and diagnosing respiratory injuries. However, Dr. Gomes was contacted by counsel for Adkins in anticipation of litigation, and he appeared to Judge Cole to have formed his causation opinion based on selective information provided by counsel and not in the course of treatment. Accordingly, Judge Cole concluded that Dr. Gomes was a traditional expert and that his testimony on general and specific causation could not be offered absent a report that complied with Rule 26(a)(2)(B), particularly when there were many potential causes for Adkins’ problems. Judge Cole then found that the failure to comply with the Rule was not substantially justified or harmless and excluded the opinion. In the absence of expert testimony on causation, Judge Cole granted summary judgment to Marathon. See June 2023 Update.
Adkins appealed to the Sixth Circuit, and, writing for the appellate court, Judge Mathis noted that Adkins had abandoned his primary argument to the district court that exposure to hydrogen sulfide and other hydrocarbon fumes caused his lung damage. Instead, he argued that his claims for negligence, unseaworthiness, and maintenance and cure did not relate to his hydrocarbon exposure and that he could prove them without expert medical testimony on causation (and without any causation evidence for his maintenance and cure claim). Before addressing the merits, Judge Adkins considered the exclusion of the testimony of Dr. Gomes and Dr. Pue. Judge Mathis reasoned that Judge Cole had ample reason to believe that Dr. Gomes formed his causation opinion at the request of Adkins’ counsel and in support of the litigation (it was not anticipation of litigation as the litigation had already begun). Thus, his failure to submit an expert report warranted exclusion of his testimony. Judge Mathis believed that Judge Cole did not abuse his discretion in excluding the opinions of Dr. Pue because his report was conclusory and did not meet the level of rigor and detail required by Rule 26. Adkins argued that Judge Cole should have allowed Dr. Pue to testify that other factors besides hydrocarbon exposure caused Adkins’ injuries, but there was a “simple reason why the district court focused only on that theory—it was the sole causation theory Dr. Pue offered.” As the only opinion in Dr. Pue’s report was that hydrocarbon fumes caused Adkins’ lung damage, Judge Cole correctly held that Dr. Pue could not testify that something else caused it. Judge Mathis then turned to the summary judgment on the Jones Act claims of negligent assignment and medical negligence. Adkins argued that he did not need medical expert testimony to establish that Marathon caused his lung damage as the jury was capable of making that finding without expert testimony. Judge Mathis noted that the Sixth Circuit had not specified when Jones Act claims require expert medical proof; however, other circuit courts have. Adkins claimed that Marathon’s negligence caused his lung function to slowly deteriorate during his work on the barge, akin to a cumulative trauma case. Although the focus changed from hydrocarbon exposure to other potential etiologies, Judge Mathis believed that his injury was not easily understood based on ordinary knowledge and experience. Therefore, he needed expert medical proof to show causation for his Jones Act negligence claims, and the claims failed as a matter of law in the absence of admissible testimony on causation. Adkins also argued that he was entitled to a presumption of causation based on THE PENNSYLVANIA Rule. Judge Mathis noted that the Sixth Circuit had not extended the Rule from collisions to other accidents. However, it did not matter whether the Rule extended to accidents because Adkins did not assert that his lung damage arose from an accident, stating that the “slow deterioration of Adkins’s lung function over four years is not an ‘event’ and thus does not fit the definition of an accident.” The same lack of causation evidence doomed Adkins’ unseaworthiness claim. Although Judge Mathis affirmed the summary judgment on the negligence and unseaworthiness claims, he found that there were fact questions whether Adkins’ lung problems manifested while he was in the service of Marathon. Judge Mathis added that even if the lung problems originated before Adkins went to work for Marathon, his declining condition could indicate that his condition was aggravated during his service. Adkins did have a hospital stay, and he might be entitled to recover for that incident even if it was unrelated to his lung problems. Finally, even for lung issues that were diagnosed after his service with Marathon, there was an issue whether the injuries manifested before they were diagnosed. Accordingly, Judge Mathis reversed the summary judgment on the maintenance and cure claim (although he noted that Adkins was not out of the water yet because there were issues whether his condition was permanent and whether his cure was covered by insurance or some other source).
Dr. Mauricio Usme, Lukasz Zuterek, Carolina Vasquez, Javier Perez, Johan Ortiz, Luz Gavilan, and Marvin Paz worked as seamen on the GREG MORTIMER, a small cruise ship owned by Infinity Owner, Ltd. All of the seamen, except Zuterek, claimed that they contracted COVID-19 on the vessel, all of the workers were confined in their cabins, and Zuterek was fired after voicing objections to the plan for repatriation of the seamen. They brought this suit in federal court in Florida under the Jones Act and general maritime law against CMI Leisure Management and Cruise Management International, and the defendants moved to dismiss the case for improper venue/forum non conveniens. The seamen signed employment agreements that designated entities other than the defendants as their employer, and the agreements provided that any dispute arising out of their employment would be governed by the law of the flag of the vessel (The Bahamas) and with a forum-selection clause for The Bahamas only. The seamen argued that the forum-selection clause was not applicable because the action was not brought against the parties designated as employer in the employment agreements. Judge Gayles disagreed, reasoning that the seamen could not allege the benefits of the employment agreements while arguing that the defendants could not enforce the forum-selection clauses in the agreements. Finding the agreements were enforceable under the equitable estoppel doctrine, Judge Gayles dismissed the action without prejudice on the basis of forum non conveniens. See May 2022 Update.
The seamen appealed to the Eleventh Circuit, challenging the application of equitable estoppel. Writing for the Eleventh Circuit, Judge Jordan stated that Judge Gayles’ reasoning appeared, at first glance, to be reasonable, but under established equitable estoppel principles and nuances of federal maritime law, it was incorrect. Judge Jordan did not agree that the seamen relied on their employment contracts to assert their claims under the Jones Act and general maritime law. He reasoned that the Jones Act employment relationship may arise without a written contract, and as such, the seamen’s claims did “not necessarily arise out of the crewmembers’ employment agreements with the non-party entities.” Therefore, the claims did not depend on the agreement. Judge Jordan also rejected the argument that but for the agreements with the non-party signatory entities, the crewmembers would not have been employed on the GREG MORTIMER. However, Judge Jordan held that this sort of but-for relationship was insufficient to warrant application of equitable estoppel. Finally, the seamen’s borrowed servant allegations against the non-signatories did not change the result because the crewmembers were not seeking to hold the non-parties to the terms of the employment agreements, only to hold them to their obligations as employers under the Jones Act/general maritime law. Therefore, Judge Jordan reversed the decision to dismiss the case for forum non conveniens based on equitable estoppel.
Wapiti Energy owns oil storage barges in Louisiana waterways and insured the barges with hull and P&I coverage issued by Clear Spring. When Hurricane Ida struck Louisiana in 2021, Wapiti’s barge SMI 315 broke free and washed aground on marshland owned by ConocoPhillips (coincidentally, Conoco was the charterer of the barge in the leading wreck removal case in the Fifth Circuit interpreting the requirement that the removal be compulsory by law). The barge’s hull remained intact, no oil leaked, and there was no immediate threat of leakage from the grounded barge. Wapiti received bids for removal of the barge and submitted them to Clear Spring pursuant to the wreck removal coverage in the P&I policy (when removal is compulsory by law). Clear Spring paid for the hull damage under the hull policy, but it declined to pay the $926,840.32 for the removal of the barge. Wapiti brought this suit against Clear Spring in federal court in Texas under admiralty and diversity jurisdiction for breach of contract (citing the wreck removal provision in the P&I policy and the sue and labor clause in the hull policy) and for extracontractual remedies under Texas law. The parties brought opposing motions for summary judgment, and Judge Ellison granted the insurer’s motion. With respect to the wreck removal coverage, Judge Ellison cited the interpretation from the Fifth Circuit that there must be a governmental order for removal or a legal duty imposed by statute or by the general maritime law. Wapiti argued that it had an obligation to the landowner to remove the barge, particularly because the barge was carrying crude oil. Judge Ellison disagreed, stating that Wapiti had not identified authority establishing that a non-negligent owner was liable for the cost of removing a wrecked vessel on a third party’s land. ConocoPhillips made no formal demand for removal, and the barge did not interfere with its operations. Judge Ellison did not foreclose the possibility that environmental risks may impose obligations on owners of wrecked ships, but there was no immediate threat of pollution from the barge. Wapiti also argued that the removal was compulsory pursuant to the Wreck Act (applicable to a wreck in a navigable channel). Although the barge ended up primarily in marshland, Wapiti argued that the barge was partially within the navigable waterway. Noting that ships do not use the waterway for navigation, Judge Ellison held that the barge was not blocking traffic and the Wreck Act did not apply. Turning to the sue and labor clause in the hull policy, Judge Ellison reasoned that coverage was for expenditures made by the owner to benefit the insurer to reduce or eliminate a covered loss. Concluding that Wapiti did not establish that its efforts were designed to mitigate the insurer’s losses, Judge Ellison held that there was no coverage for the removal under the hull policy. See April 2023 Update.
Wapiti appealed to the Fifth Circuit, and Judge Wiener began with the ruling from the en banc Fifth Circuit that removal is compulsory by law “when a reasonable owner, fully informed, would conclude that failure to remove would likely expose him to liability imposed by law sufficiently great in amount and probability of occurrence to justify the expense of removal.” He noted that the legal duty can be imposed by statute or under the maritime law, but left unanswered was whether state law could be the source of potential liability that is sufficient to compel removal of a wreck. The Fifth Circuit held that the compulsion could arise from state law, and Judge Wiener then addressed whether the possibility of a possessory action brought by the possessor of property to restore enjoyment of his property (removal of the barge) made removal of the SMI 315 compulsory by law. The court agreed with Wapiti that the Louisiana possessory action make the removal compulsory by law and that a reasonable vessel owner would consider the stranding of the barge on the property of a third party to expose the vessel owner to the cost of removal. Therefore, Judge Wiener held that the possibility of a Louisiana possessory action made removal of the barge compulsory by law and that Judge Ellison erred in granting summary judgment to Clear Spring.
This case involves damage to an electrical cable owned by Baltimore Gas & Electric that is buried under the waters of Eli Cove, near Baltimore, Maryland. Candice Bateman and Raymond Bostic purchased property in Pasadena, Maryland and contracted with Coastline Commercial Contracting to extend an existing pier into the waters of Eli Cove. The project required that Coastline excavate portions of the bottom of Eli Cove and install new pilings for the extension of the pier. During the transport of a barge and pilings, Coastline struck the cable, causing damage for which Baltimore Gas & Electric brought this suit in federal court in Maryland under the court’s admiralty jurisdiction. Coastline moved to dismiss the suit for lack of admiralty jurisdiction, and Judge Griggsby began by addressing whether Eli Cove was a navigable waterway. The facts established that Eli Cove is a part of the tidal waters of Chesapeake Bay and that its waters flow into Stoney Creek, which flows into the Patapsco River and Chesapeake Bay. However, Judge Griggsby was persuaded by the fact that Eli Cove is “a separate body of water that is distinct from Stoney Creek” and that abuts residential properties. She reasoned that “the cove allows for water access from these residential properties to Stoney Creek, but it is not part of Stoney Creek.” Judge Griggsby then noted that there are marinas and a boat launch on Stoney Creek, but not on Eli Cove. Therefore, although Stoney Creek was used or susceptible of being used as a highway for commerce, she did not believe that Eli Cove, which had access to Stoney Creek, was similarly used or susceptible of being used as a highway for commerce. Consequently, she held that Eli Cove was not a navigable waterway and that the court lacked admiralty jurisdiction. Judge Griggsby added that Baltimore Gas & Electric also failed to establish that the incident had the potential to disrupt maritime commerce and that it had a substantial relationship to maritime activity. She rejected the argument that in an emergency the Coast Guard and other rescue vessels would have to go to Eli Cove via the Patapsco River and Stoney Creek to render aid, creating a potentially disruptive impact on maritime activity, and she rejected the argument that the presence of a barge on the water to extend a pier had a substantial relationship to maritime activity. See August 2023 Update.
Baltimore Gas appealed to the Fourth Circuit, and, writing for the appellate court, Judge Wilkinson disagreed with Judge Griggsby’s analysis. He held that her finding that Eli Cove was not being used (or susceptible of use) as a highway of commerce because it was a residential inlet with water that was too shallow to support commercial navigation was belied by the facts of the case—the Cove is lined with commercially built piers, and Coastline was engaged in commercial activity when it allegedly struck the cable. He added that the Cove flows into Stoney Creek, which flows into the Patapsco River and Chesapeake Bay so that one could travel on an uninterrupted route to the Atlantic Ocean, stating: “This is quintessential navigability.” Judge Wilkinson likewise rejected the argument that the current use for the Cove was residential, answering that admiralty jurisdiction extends to waters used exclusively for recreational navigation if they are capable of commercial navigation. Additionally, he noted that the boundary of admiralty jurisdiction for tidal waters extends not just to shallow water but to the mean high-water mark. Judge Wilkinson then addressed the connection test and held that the action “plainly” had the potential to disrupt maritime commerce, reasoning that the inquiry turns not on the incident’s actual effect on maritime commerce but looks to whether the general features fall within a class of incidents that pose more than a fanciful risk to commercial shipping. Characterizing the incident as damage to an underwater cable by a barge, Judge Wilkinson answered: “To ask the question is to answer it.” He reasoned that the striking of the cable could lead to a fire, an explosion, or an electrocution of those on the vessel or in the surrounding water. Although Coastline stressed the lack of disruption to commerce from this incident, Judge Wilkinson held that Coastline’s argument would read the word “potential” out of the test. Finally, Judge Wilkinson addressed whether there was a substantial relationship to traditional maritime activity. The complaint alleged that Coastline struck the cable while transporting a barge full of tools for construction of a pier. Judge Wilkinson concluded that the activity not only had a substantial relationship to traditional maritime activity but was “the epitome of it.” Accordingly, the Fourth Circuit held that “admiralty jurisdiction plainly lies.” Thanks to Michael F. Sturley, Fannie Coplin Regents Chair at the University of Texas School of Law, for bringing this decision to our attention.
Harvey Smith brought this suit in federal court in California seeking to recover for injuries that he suffered as a crew member on the M/V HORIZON SPIRIT (ultimately asserting that Sunrise Operations was his Jones Act employer and the operator of the vessel). Smith alleged that he injured his back while moving crates at the direction of the captain. The case was tried with a jury verdict on March 9, 2023, finding that Smith was 95% at fault and Sunrise was 5% at fault. The jury awarded damages of $7,620,000, and the court entered judgment on the verdict in the amount of $381,000. Smith moved to set aside the finding of contributory negligence, claiming that the determination was based on a finding that Smith was not ordered to perform the task that resulted in his injury. Judge Chesney noted that the captain testified that it was his practice to “request” rather than to “order” the crew to perform tasks and that Smith could have given a reasonable response that he wanted to “go get something” or that he wanted to “do something different.” Smith argued that the court should treat “requests” by superior officers as the equivalent of orders, but Judge Chesney pointed out that the Ninth Circuit has recognized a distinction between requests and orders, explaining: “When a seaman completes an ordinary task, even if requested by a superior, contributory negligence may mitigate damages if an injured seaman has alternatives available, and chose the unreasonable course in completing the task.” Accordingly, Judge Chesney declined to alter the judgment. Smith also moved for a new trial in light of the “stronger testimony” that he was ordered to perform the task and because the court erred in not admitting a report about the condition of the vessel and in admitting two weather reports submitted by the defendant. Judge Chesney rejected the testimonial argument as it is up to the jury to resolve conflicting testimony, and she declined to change her rulings on the reports. Therefore, she denied the motion for a new trial. See August 2023 Update.
Smith appealed to the Ninth Circuit, which held that Judge Chesney did not err in applying comparative negligence in Smith’s Jones Act claim. The Ninth Circuit recognized the exception when a seaman is injured while following orders, but the court cited the testimony that Captain Kluck typically requests, rather than ordering. As there was evidence to support the jury verdict that Smith was not ordered to perform the task that resulted in his injury (despite Smith’s testimony to the contrary), the court affirmed the judgment of the district court.
Zariz is a trucking business that contracts with its customers to provide inland transportation of containers that are offloaded from vessels (Zariz does not unload the containers from ships). Zariz leases Trend’s intermodal chassis to facilitate the inland transportation of containers. Zariz admitted that it owed more than $500,000 to Trend, and Trend filed this action in federal court in Texas and sought attachments of Zariz’s accounts with JP Morgan Chase Bank and Kuehne + Nagel. Zariz filed an emergency motion to vacate the attachments, arguing that the court lacked subject matter jurisdiction, and Magistrate Judge Horan began his determination with the requirement that the plaintiff had to have a prima facie maritime claim against the defendant for an attachment. Trend argued that the principal objective of its contract with Zariz was maritime commerce—to transport marine containers that arrive at ports on vessels. Magistrate Judge Horan reviewed the contract and found nothing indicating that the parties agreed (or expected) that a vessel would play a substantial role in the completion of the contract. Magistrate Judge Horan noted that there are cases in which chassis have been considered to be maritime property, but he responded that not all contracts concerning chassis are maritime contracts. He concluded that the lease agreement in this case was not maritime, that the court lacked subject matter jurisdiction, and that the attachments should be vacated. He also declined to stay his ruling pending appeal, stating that he was unwilling to continue holding the garnishees’ money when he did not believe there was a likelihood of success on appeal. See February 2024 Update.
Trend appealed to the Fifth Circuit, which noted that a Rule B attachment is only available under the court’s admiralty jurisdiction, presenting the issue whether the lease agreement was maritime. Citing its decisions in Barrios and Doiron, the Fifth Circuit required that the contract be for services to facilitate activity on navigable waters and the parties must expect that a vessel will play a substantial role in the completion of the contract. Neither prong was satisfied as the chassis were used for transportation of containers on land, after the containers were unloaded from vessels, and there was no vessel involvement in the lease (the previous carriage of the containers on vessels was not relevant to the lease). As the contract was not maritime, the attachments were properly vacated.
Marek Matthews worked overseas as a seaman and captain for Tidewater from 1982 to 2016, becoming a lawful permanent resident alien in Miami, Florida in 2007. Matthews signed multiple Working Agreements with Tidewater through the years that included an English choice-of-law provision and a forum-selection clause for the High Court of Justice in London. Matthews alleged that he sustained kidney damage and prostate and bone cancer from exposures on Tidewater vessels in the Red Sea, and he brought this action in Louisiana state court under the Jones Act and general maritime law (invoking the Saving-to-Suitors Clause), asserting that he was hired from Tidewater’s New Orleans office, underwent physical examinations over the years in Houma, Louisiana, and called his boss in New Orleans when he had a major problem. Tidewater removed the suit to federal court and moved to dismiss the case on the basis of forum non conveniens, arguing that Matthews had no claim under the Jones Act or general maritime law because he was not a citizen or permanent resident alien of the United States at the time of the exposure, the exposure occurred outside the territorial waters of the United States, and Matthews was injured while employed on vessels servicing oil wells in the Red Sea (arguing that Egyptian law applied by application of the Lauritzen/Rhoditis factors). Although Matthews argued that the court must first determine the applicable law before considering the forum non conveniens argument, Judge Vitter held that order of proceeding advocated by Matthews contradicted the Fifth Circuit’s analysis in In re Air Crash based on the Supreme Court’s Piper decision. Judge Vitter then considered the mandatory London forum-selection clause and held that it was valid and enforceable. As the clause was valid, Judge Vitter reviewed the public interest factors in light of the rule that the factors would justify refusal to enforce the clause only in “truly exceptional circumstances.” As her analysis of the factors weighed in favor of dismissal, Judge Vitter dismissed the case on the basis of forum non conveniens. See April 2023 Update.
Matthews appealed, and, writing for the Fifth Circuit, Judge Southwick reviewed the analysis of the forum-selection clause de novo. Matthews argued that the forum-selection clause was neither valid nor enforceable, asserting 1) that his health constituted such an inconvenience as to render the clause unenforceable and 2) enforcement of the clause would contravene a strong public policy of the forum. As to the first argument, Judge Southwick answered that technology allows plaintiffs to remotely litigate in foreign forums. Therefore, his “health conditions, though serious, do not give him a right to bring suit in Louisiana state court.” For the second argument, Matthews relied on Louisiana public policy (as he brought the suit in Louisiana state court) whose statute voids forum-selection clauses in employment agreements unless voluntarily ratified/agreed to after the incident. This argument presented the question whether the Supreme Court in Bremen was referring to the state or federal forum when it stated that a forum-selection clause was unenforceable if its enforcement “would contravene a strong public policy of the forum in which suit is brought.” Citing the court’s Lim decision, Judge Southwick considered both federal and Louisiana public policy in its reasonableness analysis. Thus, there is a state policy against the enforcement of an unratified clause, but maritime law provides that such clauses are presumptively valid and enforceable. As in Lim, the plaintiff was not a resident of Louisiana, and the employment was not in Louisiana. There was scant connection to Louisiana, and his protection was not the object of the statute. Judge Southwick was wary of creating any inconsistency with federal policy when maritime law strains to prevent inconsistencies and when Louisiana interests are not implicated. Consequently, he held that the forum-selection clause was reasonable and enforceable and that Judge Vitter did not err in dismissing Matthews’ case on the basis of forum non conveniens.
The litigation arose out of alleged property damage to oyster leases from oil and gas exploration and production activities in Louisiana territorial waters. The oyster growers alleged that two vessel owners and more than a dozen other entities involved in oil and gas operations introduced brine, produced water, and other toxic substances in the vicinity of their oyster leases (as byproducts of oil and gas operations), causing significant oyster mortality. The growers brought suit in state court in Plaquemines Parish, Louisiana, and the case was removed to federal court. The owners and operators of the M/V PHILOMENE P. PERERA and the M/V ARCHIE C. SETTOON brought an action in federal court in Louisiana seeking to limit liability after the suit was filed in state court. The vessel owners asked the court to accept as security their promise to pay into the registry of the court the value of their interest in the vessels and pending freight or to post a bond or a letter of undertaking. Reasoning that the promise to pay, particularly a promise signed by counsel without a surety or evidence of authority to bind the petitioners, was insufficient to create a limitation concursus, Judge Milazzo declined the motion seeking an order approving security. After the case was transferred to Judge Fallon and the owners filed letters of undertaking, Judge Fallon issued the order approving security and restraining claims. See July 2022 Update.
The oyster growers pleaded violations of maritime law and Louisiana law against the defendants for failing to take precautions to prevent the release of toxic substances from the defendants’ vessels, pipelines, and platforms and for failing to report the releases so that the plaintiffs could take remedial measures. The defendants moved to dismiss the claims, arguing that the growers failed to plead particularized facts about any single defendant and complaining that the claims improperly asserted that the defendants were collectively involved in the activities that caused their damage. Judge Fallon agreed with the defendants and dismissed the claims, reasoning that the allegations were “speculative, conclusory, and unspecific to any individual defendant.” The oyster growers appealed to the Fifth Circuit, asserting that they presented “a strong circumstantial case” against the defendants because the only possible cause for the oyster mortality was “a sudden release of brine or produced water,” and the defendants’ activities involve brine and produced water.” The growers added that they could not establish the details about which of the defendants were responsible because the defendants are “holding all of the cards” as to “which entity and what activity caused the sudden increase in brine or produced water.” The Fifth Circuit rejected the growers’ arguments that they had presented a sufficient circumstantial case or a claim for res ipsa loquitur, because there were eighteen defendants, not one. The growers could not nudge their claims against each of the defendants across the line from conceivable to plausible. The Fifth Circuit also declined to overturn Judge Fallon’s decision to allow the growers to request additional discovery because they had failed to allege sufficient facts in their complaint to state a plausible claim for relief.
The collision between the destroyer U.S.S. JOHN S. MCCAIN and the Liberian merchant vessel M/V ALNIC MC, resulting in the deaths of ten sailors and injuries to more than 40 others, returns to the Update (see January, February, April, July, and November 2022 and April 2023 Updates). Both ships were bound for destinations in Singapore, and they collided approximately 24 nautical miles from the Singapore mainland. The claimants sought to apply the test set forth by the Supreme Court in Jones Act cases in Lauritzen v. Larsen (as expanded by the Court in Hellenic Lines Ltd. v. Rhoditis). However, Judge Crotty held that the Lauritzen/Rhoditis test was unsuited to deciding a choice-of-law question involving a collision halfway around the globe involving a U.S. Navy warship based in Japan and a Liberian-flagged vessel. Although there was a dispute between Malaysia and Singapore over sovereignty of the area in question, Judge Crotty applied Singapore law to the collision based on the fact that the vessels were both headed to Singapore and were in the Singapore Traffic Separation Scheme.
Judge Crotty split the trial of the case into two phases and tried the liability issues in five days in November 2021. In a 70-page opinion, Judge Crotty apportioned 80% of the fault to the JOHN S. MCCAIN and 20% of the fault to the ALNIC. He then addressed whether the owner of the ALNIC was entitled to limit its liability to $16,768,480. As the owner engaged Stealth Maritime to manage the vessel, Judge Crotty looked to its privity or knowledge “as a proxy” for the owner. In this case, Stealth Maritime was aware of deficient staffing practices and other “risky behavior” and “allowed ALNIC—one of the worst vessels the Stealth Marine Superintendent had ever audited—to again travel through one of the busiest shipping lanes in the world.” This was sufficient to establish privity or knowledge. However, Judge Crotty noted that the Limitation Act, as amended, broadens the privity or knowledge for seagoing vessels to the master at or at the beginning of the voyage. Finding that the captain planned, before the voyage, to understaff the bridge, Judge Crotty ruled that there was additional support for denying limitation to the owner of the ALNIC. Applying Singapore law, Judge Crotty held that the United States should recover 20% of its damages, and the owner of the ALNIC should recover 80% of its damages, with those damages offset. He awarded prejudgment interest in accordance with Singapore law. Going forward, Judge Crotty held that the wrongful death and injury claims for the sailor-claimants would proceed with a Phase II trial, and he reserved the questions whether the sailor-claimants would be entitled to a jury and whether the owner of the ALNIC would be entitled to contribution from the United States. Both the United States and Energetic Tank filed interlocutory appeals.
After issuing a correcting order, nunc pro tunc, with respect to damages and certifying the decision for appeal pursuant to Rule 54(b), Judge Crotty addressed the contribution claim brought by the owner of the ALNIC against the United States in connection with the claims of the sailors on the JOHN S. MCCAIN. Judge Crotty set forth the issue: The sailor-claimants brought suit against the owner of the ALNIC but not against the United States. Under admiralty law, a tortfeasor, such as the owner of the ALNIC, which pays more than its apportioned share of an injured party’s damages, may generally seek contribution from the other tortfeasors. However, the United States, which was found to be 80% at fault, is a sovereign with sovereign immunity. Although Judge Crotty previously held that Singapore law applied to the substantive issues of liability and damages, the question was presented whether Singapore law would incorporate American sovereign immunity law to bar the contribution claim. Judge Crotty noted that federal sovereign immunity is a jurisdictional matter, and he could apply American sovereign immunity principles even though foreign law provided the applicable substantive law for the case. One jurisdictional bar is the Feres–Stencel doctrine, which provides sovereign immunity against certain claims by military service members (and claims for contribution/indemnity with respect to those claims). The owner of the ALNIC argued that the United States waived its claim to sovereign immunity through the Public Vessels Act and the Suits in Admiralty Act. However, Judge Crotty held that both statutes incorporate an exception to their waiver of immunity: the Feres–Stencel doctrine. Reasoning that Feres and Stencel are directly on point, and declining to overrule the cases as wrongly decided, Judge Crotty dismissed the contribution claim for lack of jurisdiction.
Having addressed the allocation of fault, Judge Crotty turned to the determination of damages. Although he held that Singapore law governed the substantive aspects of the case, he agreed with the parties that the issue whether a jury would decide the damages was governed by federal law. Judge Crotty noted the conflict between the concursus of claims in a limitation action and the Saving-to-Suitors Clause, which preserves common law remedies that include the right to a jury trial and the balance whereby an independent basis for jurisdiction, such as diversity, may provide for the right to a jury. As limitation was denied to the owner of the ALNIC, the issues were whether the requirements for diversity jurisdiction were satisfied for the claimants and what was the effect of the Death on the High Seas Act. Judge Crotty found that there was diversity over the claims and then addressed the effect of the application of DOHSA, which, according to the Supreme Court in Tallentire, was designed to “provide a uniform and effective wrongful death remedy for survivors of persons killed on the high seas.” In contrast to Judge Durkin’s decision In re Lion Air Flight JT 610 Crash (discussed in our February 2023 Update), that the presence of diversity did not give the claimants the right to a jury trial in federal court on DOHSA claims (there were no survivors and, consequently, no injury claims), Judge Crotty was persuaded that there was an exception to the non-jury result when there is a wholly independent jurisdictional predicate and an independent cause of action. In this case, the wrongful death claimants did not allege any independent causes of action that would entitle them to a jury trial. However, claims were also brought by injured claimants, who did not allege a cause of action under DOHSA, and there was diversity jurisdiction for their claims. As the wrongful death and injury claims arose from the same accident, Judge Crotty held that a jury trial should be held on both the wrongful death and injury claims based on principles of judicial economy.
The Second Circuit heard appeals from Energetic and the plaintiffs and affirmed the rulings on apportionment of liability of liability and sovereign immunity; however, the appellate court declined to rule on the plaintiffs’ appeal of the decision on choice of law, finding it to be a non-appealable collateral order. Writing for the Second Circuit, Judge Walker first addressed the jurisdiction over the several appeals. As to the decision in Phase I, apportioning fault, Judge Walker agreed that the district court properly certified the case for an interlocutory appeal under Rule 54(b). He also agreed that there was appellate jurisdiction over the dismissal of Energetic’s contribution claim as an interlocutory admiralty order under Section 1292(a)(3), but he did not believe that the appeal by the plaintiffs of the decision on the application of Singapore law was appealable. Judge Walker agreed with Judge Crotty that Singapore law applied in determining liability for the collision, although he stated that the elements of negligence were substantially the same under Singapore law and United States maritime law. Judge Walker then turned to the merits of Energetic’s challenge to the apportionment of fault and rejected all of its arguments, affirming Judge Crotty’s apportionment of fault (20% to the ALNIC and 80% to the JOHN S. MCCAIN). Judge Walker then addressed Energetic’s appeal of the decision that it must pay the full amount of the Plaintiffs’ damages even though the ALNIC was only 20% at fault, with no right of contribution or indemnity against the United States. Energetic argued that the Feres doctrine should not apply to a suit under the Public Vessels Act or the Suits in Admiralty Act, but Judge Walker responded that the Second Circuit had already applied the doctrine to claims against the United States under the Public Vessels Act and the Suits in Admiralty Act, despite the immunity waivers in those statutes. Judge Walker recognized that some jurists have criticized the Feres doctrine, but he concluded: “It is not for us to say that the United States’s assertion of immunity here goes too far.”
The United States brought this suit in federal court in Texas against the State of Texas and its Governor, Greg Abbott, after Texas installed a 1,000-foot floating barrier in the Rio Grande River near Eagle Pass, Texas (“one of the nation’s busiest hotspots for illegal border crossings”). The United States asserted that Texas violated the Rivers and Harbors Act of 1899 by obstructing the navigable capacity of the River. Judge Ezra granted a preliminary junction, ordering Texas to reposition the barrier to the Texas riverbank, and Texas appealed to the Fifth Circuit. A panel of the appellate court affirmed the preliminary injunction, and the full court granted rehearing en banc. A majority of the en banc court held that the United States was not likely to prove that the barrier is in navigable water and was not likely to succeed on its claim under the Rivers and Harbors Act. Writing for the majority, Judge Willett explained that navigability in a case under the Rivers and Harbors Act (Commerce Clause power) is a question of fact based on whether the waterway is used or susceptible of being used in its ordinary condition as a highway for interstate or foreign commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. He added that a waterway is navigable if non-commercial uses evince its suitability for commercial traffic, even though the river is not currently being used for commerce or if reasonable improvements could make it suitable for commercial use. He noted that the river does not have to be suitable for commercial traffic during all seasons of the year, and the river remains navigable even if natural or artificial changes later render it incapable of commercial use. Judge Willett then addressed “where” the court must look for navigability when evaluating the regulatory power of the United States, and the majority held that the court must consider navigability for the stretch of the river containing the obstruction. After reviewing the evidence presented, Judge Willett concluded that the River’s navigability was obstructed by rocks and ledges at lower water stages and that the question was whether ferries transporting cotton across the River at Eagle Pass in the 19th century established that the River was navigable. Citing the decisions in which the Supreme Court looked for trade or travel “up” or “down” the river, Judge Willett answered that “bank-to-bank” ferry travel did not suffice, as it did not “leverage the river’s flow and course to transport goods or people along the river, as they would if they used the river as a highway” (reasoning that ferries are an extension of land-based transportation in which the river is an obstacle to the transportation). Judge Willett added that, even if ferry traffic established navigability, the evidence did not demonstrate that the ferries were historically located in the 1,000-foot area where Texas put the barrier. Finally, Judge Willett addressed the argument that the Rio Grande could be made to be navigable with improvements (citing a 1975 study of the Corps of Engineers that improvement of the River for navigation was physically possible). However, he rejected the argument because the study and evidence from the United States did not establish that improvements would be cost-effective. As the majority concluded that the barrier was not in a navigable stretch of the Rio Grande River and that the Rivers and Harbors Act did not apply, the United States did not show a likelihood of success, and the full Fifth Circuit reversed the preliminary injunction.
From the federal district courts
Venita Michel, a passenger on the CARNIVAL CONQUEST, claims that she was injured while descending the ladder attached to the top bunk in her cabin when the ladder shifted violently to one side. She brought this suit in federal court in Florida, alleging vicarious liability for the fault of the crewmember who improperly and insufficiently secured the ladder and direct liability of the cruise line for negligent failure to warn and failure to maintain. The cruise line moved to dismiss all of the counts for failure to sufficiently plead notice. Judge Cohn agreed with respect to the counts alleging direct liability. Michel simply pleaded conclusions that the cruise line should have known of the condition because it existed for a sufficient length of time and because the cruise line should have acquired knowledge through prior incidents and maintenance and inspection of the area. As there were no factual allegations, the pleading was insufficient. Michel did refer to a case involving a ladder for a bunk bed on a different vessel, but the situation was too dissimilar to afford notice in this case. Michel also argued that she satisfied the notice requirement because of the nature of the hazard and the involvement of a crewmember with the hazard, but Judge Cohn answered that the contention lacked legal support because the Eleventh Circuit has rejected the argument that the cruise line can be liable without notice simply because its crewmember created the dangerous condition. And the condition was readily distinguishable from the hot soup in the Fadraga case (see June 2024 Update) in which the high temperature of the soup was readily observable by the preparer. Accordingly, Judge Cohn required that the direct liability counts be repleaded with respect to notice. Judge Cohn rejected the cruise line’s argument that notice of the cruise line had to be pleaded in the count alleging vicarious liability, disagreeing with the position that the count was actually a direct negligence count disguised as a count for vicarious liability. Judge Cohn believed that Michel had sufficiently pleaded a claim for the crewmember’s failure to properly secure the ladder. The cruise line also objected to the count for failure to warn on the ground that Michel did not plead that the danger was not open and obvious. Although Michel did not use the words “open and obvious,” she did “just barely” plead facts that would allow the court to infer that a reasonable person would have been unable to readily appreciate how the ladder was meant to be secured and the risk associated with the ladder not being secured. Finally, Judge Cohn agreed that Michel had commingled some direct and vicarious allegations that should be properly separated in the amended pleading.
William Petery purchased a sea/land package from Princess Cruise Lines that included a two-night stay at the Denali Princess Wilderness Lodge, operated by Alaska Hotel Properties, and an Alaskan cruise on the ROYAL PRINCESS. Petrey was injured in the bathroom at the lodge when he fell backward over the shower ledge, complaining that the toilet was too close to the ledge of the open shower stall so that the user of the toilet was likely to stumble or trip on the raised ledge of the open shower stall. Petrey brought this action against the cruise line and the owner/operator of the lodge in federal court in California based on the court’s diversity jurisdiction, asserting a claim for negligence. The parties agreed that maritime law applied to the suit based on a choice-of-law provision in the land/sea package. The defendants moved for summary judgment that Petrey did not proffer evidence of notice of the dangerous condition (shower ledge being too close to the toilet). Judge Staton noted that there had been no similar incidents at the lodge, and no employees were aware of any similar incidents. Petrey argued for an exception when the defendant had a role in creating the dangerous condition, but Judge Staton noted that the cases cited by Petrey had been recognized as wrongly decided by the Eleventh Circuit, and she held that maritime law does not recognize such an exception to the notice requirement. Petrey also argued that the defendants were liable on a negligence per se theory, asserting that a violation of an applicable building code provision caused the injury. As there is not a well-developed theory of negligence per se under the general maritime law, the parties cited California law. Petrey did not cite the specific provisions of the building code that were violated, but Judge Staton reviewed the code and did not find that any provision was violated or contributed to the injury. Accordingly, Judge Staton granted summary judgment to the defendants.
Eulalia Martin-Viana and her family were passengers on the FREEDOM OF THE SEAS. She alleges that she was sitting in a reclining armchair on the balcony of her room when the locking mechanism gave in, causing her to fall backward and strike her head on the sliding glass door. She was flown to a hospital in Tampa, Florida where she underwent surgery on several vertebrae in her neck. Martin-Viana brought this suit against the cruise line in federal court in Florida, seeking compensatory and punitive damages, and the cruise line moved for summary judgment on the grounds that Martin-Viana failed to establish a dangerous condition, failed to establish that the locking mechanism failed, failed to establish that any dangerous condition was open and obvious, and failed to establish notice of any dangerous condition. The cruise line also moved to preclude the testimony of Martin-Viana’s safety, psychiatric, and seating experts, and Martin-Viana moved to strike the opinions of several of the cruise line’s experts. Judge Bloom agreed to strike the late opinions of Dr. Rolando Garcia (with respect to a preexisting degenerative condition) and Dr. Kenneth C. Fischer (with respect to a life care plan). The cruise line argued that Randall Jacques, a Maritime Safety Consultant and Accident Analysis Investigator, had been excluded under Daubert by some courts and provided no reliable methodology for his opinions. Judge Bloom noted that Jacques had been allowed to testify by other judges and that he was qualified by his role as security officer and investigator for several major cruise lines. She also found his re-creation of the incident with scientific equations regarding the weight needed to cause the chair to tip backward was sufficiently reliable, and she declined to strike his opinions. The cruise line objected to the psychiatric opinions of Dr. Richard Seely because they were based on a medical history and intake interviews, notes from his interview with Martin-Viana’s daughter, and a review of the record, without any tests or a proper differential diagnosis using the rule-in, rule-out methodology (in view of her prior anxiety and the cancer diagnosis of Martin-Viana’s daughter). Judge Bloom disagreed, noting Dr. Seely’s forty years of experience treating over 150,000 patients, which gave him the clinical knowledge to make his diagnosis based on his interviews and review of records. The cruise line objected to the opinions of Leonard Backer, who was retained to opine on seating and furniture in hospitality settings as unreliable and unhelpful, noting that he did little more than rely on Jacques’ findings. Judge Bloom answered that his methodology was to review the evidence and apply his more than 33 years of experience in seating design construction, selection, and placement to form his opinions. She found this helpful because he was “uniquely positioned to assist the jury in comprehending the intricacies of proper chair design and its implementation in a cruise ship setting” and in “determining whether the danger posed by the subject chair was open and obvious.” Judge Bloom then considered Martin-Viana’s Daubert objection to the cruise line’s Biomedical, Ergonomic, and Safety Engineer, Dr. Tyler Kress, on the ground that he has never worked in the cruise ship industry or as a safety officer on a vessel and has never worked with furniture design. She also objected to his reliance on CCTV footage of the incident whose quality was so poor that his testimony was conjecture. Judge Bloom did not believe that Dr. Kress’s lack of experience on vessels disqualified him from providing expert opinions, and the soundness of the facts on which he relied was an issue to be considered by the fact finder. Although Judge Bloom declined to allow Dr. Fischer to provide his late opinions on the life care plan, she did allow him to testify as to Martin-Viana’s future medical care, rejecting the argument that the state of her injuries was still unsettled so he could not testify as to her future treatment needs. Judge Bloom then turned to the cruise line’s motion for summary judgment. The cruise line argued, from the CCTV footage and the opinions of two experts, that Martin-Viana moved her body in a manner that caused the chair to tip backward, and that the locking mechanism did not fail. Martin-Viana argued the manufacturer warned the cruise line that the chair was not to be laid flat, but the cruise line did not pass the warning to the passengers and that there was no mechanism to prevent a passenger from lying flat. Additionally, there was no attachment of the chair to the floor to prevent it from tipping over. The cruise line pointed out that the pleading only asserted that the locking mechanism failed when she sat on the chair, but Judge Bloom held that the complaint was sufficient to put the cruise line on notice of the safety of the chair in a flat position, and she held that there was sufficient evidence of a dangerous condition to deny summary judgment. Although the cruise line cited case law granting summary judgment on the open and obvious argument when a patron tipped over in a chair, Judge Bloom found a fact question whether the dangerous condition of the chair was open and obvious because the manufacturer felt compelled to warn of the danger and because the passenger’s experts testified that it was reasonable to use the chair in the flat position. As to notice, the cruise line argued that the warning from the manufacturer that the flat position was for shipping only was insufficient to warn of the possibility of a passenger flipping over in the chair. Judge Bloom agreed that the warning was not explicit enough to rise to notice of an unreasonably dangerous condition; however, Martin-Viana provided expert testimony that cruise lines have thousands of passengers of all ages, weights, sizes, and levels of mobility, and there is a greater need to advise of specific use limits. Thus, Judge Bloom agreed that there was a fact question whether the cruise line had notice. Martin-Viana also moved for summary judgment, arguing that the cruise line had breached its duty to warn. Judge Bloom agreed that there was a failure to warn, but there was still a question whether the condition was dangerous and whether it was open and obvious. Therefore, summary judgment was inappropriate. Judge Bloom did grant summary judgment, however, on the affirmative defenses of failure to mitigate damages and preexisting injuries. See June 2024 Update.
The cruise line moved for reconsideration of the finding that the complaint was sufficient to put the cruise line on notice of the dangerous condition of the chair, arguing that Martin-Viana changed her theory of liability “drastically” from a claim of a failed locking mechanism to a claim that she should have been warned how to use the chair. Judge Bloom disagreed, answering that Martin-Viana has consistently asserted a negligence claim, and her allegations about the locking mechanism are not a theory of liability but rather an attempt to explain how the dangerous condition the chair caused her to suffer injuries. Judge Bloom explained that the passenger had not shifted her theory of liability and had sufficiently alleged a dangerous condition for the chair. With respect to the sufficiency of notice for the dangerous condition of the chair, the cruise line reiterated the arguments that the shipping document stating that the chair should “lay flat” was not notice that the passenger could be injured by placing her center of mass behind the base of support for the chair, and that there was no causal connection between the warning and the dangerous condition of the chair on the ship. Judge Bloom disagreed, reasoning that the “plain meaning” of the warning, “lay flat for shipping purposes only,” was that there was only one circumstance in which the chair should be laid flat—shipping. Therefore, Judge Bloom declined to reconsider her denial of summary judgment.
Angela Branyon, a passenger on the CARNIVAL FREEDOM, was walking through the Habana Bar area of the ship when her foot became caught by cables underneath an uneven or raised cable strip, causing her to trip and fall. Branyon brought this suit in federal court in Florida against the cruise line with counts of direct and vicarious liability for negligent maintenance and negligent failure to warn. The cruise line moved to dismiss the counts for vicarious liability for negligent maintenance and negligent failure to warn, arguing that these claims could only be asserted as direct liability counts and that they were duplicative of the direct liability counts. Judge Altman disagreed that the claims could only be asserted for direct liability, citing the language from the Eleventh Circuit in Yusko that the plaintiff is the master of his or her complaint and may “proceed under a theory of direct liability, vicarious liability, or both.” He also disagreed that the claims were duplicative, stating that the passenger could plead vicarious liability in the alternative, and adding that the requirements were different as the passenger did not have to plead notice to the cruise line for the vicarious liability claim. The cruise line also moved to dismiss the count for direct liability for negligent maintenance because it incorporated multiple claims for relief, including negligent failure to train. Judge Altman did not believe that the reference to failure to train within the count transformed the complaint to a shotgun pleading. He interpreted the pleading as setting forth one of the ways in which the cruise line failed to maintain the premises, “not as an attempt to sneak a failure-to-train claim inside a claim for negligent maintenance.” Therefore, Judge Altman declined to dismiss the count for direct liability for negligent maintenance.
Michael R. Marcus claims that he developed mesothelioma from exposure to products and equipment containing asbestos while working as a boiler technician and boiler repairman on U.S. Navy vessels in Naval shipyards. Marcus and his wife brought this suit in the Superior Court of Almeda County, California against sellers/suppliers of the products and equipment, and one of the defendants removed the case to federal court based on the Federal Officer Removal Statute. The parties filed Daubert motions with respect to expert witnesses, and some of the defendants filed motions for summary judgment. Judge Gilliam declined to exclude the testimony of Marcus’ expert on industrial hygiene, Michael Ellenbecker, as to an increased risk of developing disease from bystander exposure, answering that distinctions in the studies cited by Ellenbecker was a subject for cross examination. The defendants moved to exclude the testimony of Marcus’ expert epidemiologist, Murray Finkelstein, who opined that exposure to classes of products constituted a substantial contributing cause of Marcus’ mesothelioma, noting that he did not make the final leap from classes to specific products. Judge Gilliam declined to exclude the opinions, stating that the defendants could object if Finkelstein tried to testify beyond the opinions in his report or if Marcus tried to present an “every exposure” theory. Marcus moved to exclude the opinions of the defendants’ Naval expert, Christopher Herfel. Judge Gilliam believed that Herfel had expertise regarding Navy ship design, development, maintenance, construction, and repair, including Navy specifications, the level of control and supervision exercised by the Navy over the design, manufacture, and installation of equipment on Navy vessels, the use of asbestos on Navy ships and in shipyards, and the publications of the U.S. and the Navy concerning asbestos hazards. His review of documents allowed him to interpret the documents, but he would not be allowed to make the leap to testify about what actually happened. Thus, he would not be allowed to testify that Marcus could not have been exposed to asbestos from a specific product on a specific ship. Several of the suppliers moved for summary judgment based on the Boyle government contractor defense and the Yearsley derivative sovereign immunity defense. Judge Gilliam cited his own Elorreaga decision (see May and August 2023 Updates) that is on appeal to the Ninth Circuit (scheduled to be argued on September 11, 2024), declining to apply the Boyle defense to claims brought under the general maritime law, and he denied the motion based on the Boyle government contractor defense. Judge Gilliam was skeptical that a Yearsley defense would be applicable if the Ninth Circuit declined the Boyle defense, but he held that if the defense were available, there were fact questions, and he denied summary judgment. Judge Gilliam did agree that non-pecuniary damages for loss of consortium and punitive damages were not available under maritime law, and he granted summary judgment to the defendants on those claims. Judge Gilliam then turned to the evidence of causation and found fact questions to deny the motions for summary judgment of most of the defendants.
Michael Dorris, Jr., Christina Dorris, Jennifer Tressler, and twelve minors rented a 22-foot pontoon boat from Under the Bridge Watersports for pleasure cruising and tubing on Isle of Wight Bay, a coastal bay in Maryland. Prior to boarding the vessel, the adults signed a Participant Agreement by which they released Under the Bridge for any claims arising from the activity, including negligent acts or omissions of Under the Bridge. They also signed a portion of the Agreement by which they agreed to indemnify Under the Bridge for any claims on behalf of the minors. The vessel’s capacity plate stated that it could carry 16 people or 2,270 pounds, and Under the Bridge selected the vessel based on the number of guests (15) without considering their weight. Under the Bridge’s dockhand gave the guests instructions on navigation and safety and instructed them on “trimming” the vessel in the event the vessel became lodged on a sandbar (turn off the engine, lift the propeller, push the vessel off the sandbar, and restart the engine with the propeller down). Michael Dorris sailed the vessel into Chesapeake Bay, and the vessel became lodged on a sandbar. The passengers were unable, however, to power the vessel after they freed it from the sandbar and the vessel became caught in a strong current that pushed the vessel into a bridge. The passengers went overboard, but all were eventually rescued by the Coast Guard. Under the Bridge brought this limitation action in federal court in Maryland, and the passengers brought claims in the limitation action. They claimed that the vessel became stuck on the sandbar because it was overloaded and that the owner was negligent with respect to the mechanical failure in the trim mechanism. Under the Bridge and the claimants filed motions for summary judgment, and the claimants based their arguments on the opinion of Stephen B. Mason (who handles insurance claims and performs risk inspections for major watercraft insurance carriers). Mason opined that the vessel was overloaded for normal use and that the overloading, coupled with the mechanical failure, caused the accident. He testified that the failure of the trim mechanism would have left the vessel just as much at the mercy of the current with one passenger as it would with 15 passengers and that he did not have an opinion why the trim mechanism failed (Judge Russell found it notable that the Coast Guard Report stated that the trim mechanism was found in the down position after the incident and the investigation revealed that it was fully functional). Turning to the two allegations for fault, Judge Russell held that the claimants could not successfully argue that the owner was liable for negligence based on the alleged mechanical failure because their expert testified that he did not know what caused the failure and the failure could have occurred without any negligence on the part of the owner. That conclusion then doomed the theory of negligence for overloading the vessel because the expert testified that the vessel would have been equally at the mercy of the current if there were one person or 15 on the boat. Thus, the claimants could not demonstrate that the overweight condition was the proximate cause of the incident. Judge Russell also considered the owner’s argument that the passengers were barred by the release/indemnity in the Participant Agreement. He reasoned that exculpatory clauses and indemnity agreements are enforceable under both maritime law and Maryland law and that the provisions in the Participant Agreement were unambiguous and understandable, clearly providing for the release of liability for the negligence of the owner. Although the claimants argued that the clause should be unenforceable because the owner was grossly negligent, Judge Russell held that the claimants could not satisfy the more relaxed standard for simple negligence. Therefore, Judge Russell held that the indemnity provision in the Participant Agreement was valid and that the adult claimants had to indemnify Under the Bridge for its attorney fees and costs to enforce the Agreement. Accordingly, Judge Russell granted summary judgment to Under the Bridge and denied summary judgment to the passengers. See April 2023 Update.
The claimants appealed to the Fourth Circuit, raising arguments based on res ipsa loquitur, spoliation, negligence per se, and unconscionability that they did not raise in the district court. Based on a fundamental error standard, the Fourth Circuit affirmed Judge Russell’s conclusions on the liability of Under the Bridge and that the provisions of the Participant Agreement waived any claims the claimants had against Under the Bridge. The claimants challenged the award of attorney fees because the agreement provided that Under the Bridge could recover fees if it was “required to incur attorney’s fees and costs to enforce this agreement.” The claimants argued that Under the Bridge was not “required” to file the limitation action, but, writing for the Fourth Circuit, Judge Heytens disagreed. He reasoned: “Had UTB allowed the statutory six-month window to pass without initiating this litigation, it could have lost the ability to contest a challenge to the Act’s coverage or to have the matter litigated in a federal forum.” Once it filed the limitation action, the claimants filed claims seeking almost a million dollars. Under the Bridge faced significant liability and was entitled to indemnity for its fees and costs to enforce the provisions of the agreement. See March 2024 Update.
Under the Bridge requested that the court award $116,921.50 in attorney fees and $8,485.99 in costs for five attorneys and one paralegal who worked on the defense of Under the Bridge. No attorney, including partners with many years of experience, charged an hourly rate of more than $250, and the hourly rate for the paralegal was $105. Judge Russell found these rates to be reasonable and consistent with the rates customarily charged. Judge Russell also considered the more than 640 hours of work (with the extensive procedural history and complex issues of joinder and maritime law) and held that the amount of time spent was reasonable. Finally, Judge Russell rejected the claimants’ argument that fees should not be awarded until the claimants actually filed their claim, answering that the early efforts to shield Under the Bridge from liability were “necessary and worthy of an award” of fees and costs. Accordingly, he awarded Under the Bridge the fees and costs that it sought.
This litigation arises from an incident in the Empire Channel near Empire, Louisiana, involving the F/V MARY JUDITH, owned and operated by Westbank Fishing, and an oyster skiff, owned and operated by Picone Seafood. The versions of the incident differed: either the fishing vessel passed the oyster skiff at a high rate of speed, causing workers on the oyster skiff to be thrown into the water, or the oyster skiff sank because of improper operation/overloading. Westbank brought this limitation action in federal court in Louisiana on January 21, 2022; Arthur Etienne, Jr. Kenny Barthelemy, Sherold Manuel, Sr., and Picone Seafood filed claims in the suit; and Judge Lemelle issued an order defaulting anyone who had not filed a claim. Picone Seafood’s counsel filed a motion to withdraw as its counsel, and Judge Lemelle allowed the withdrawal, but advised that Picone Seafood would have to be represented by counsel. Picone Seafood did not obtain counsel, and Judge Lemelle dismissed its claim in the limitation action without prejudice on May 19, 2023. The individual claimants then filed a motion to lift the stay so that they could proceed against Westbank in state court on the issues of liability and damages. Westbank argued that the stay should not be lifted because not all claimants entered into the stipulations. Westbank argued that it was a claimant because it had asserted contribution and indemnity claims against Picone Seafood. Judge Papillion recognized the decisions in the Fifth Circuit requiring all claimants to enter into stipulations to lift the stay, but he noted that the claimants must be asserting claims against the limitation petitioner. Thus, Westbank’s failure to stipulate was “irrelevant to the Court’s determination of whether Westbank’s right to limitation will be fully protected if the stay is lifted.” Westbank also argued that Picone Seafood had made claims in the limitation action, but Judge Papillion answered that the claims had been dismissed. However, Judge Papillion could not say that Westbank’s right to limitation was sufficiently protected without a stipulation from Picone Seafood. The default order was issued before the dismissal of the claims filed by Picone Seafood, and its claim was dismissed without prejudice. He concluded that “Picone Seafood may seek to recover damages from Westbank and . . . it may still have the right to do so.” As Picone Seafood remained a potential claimant and had not submitted a stipulation, Judge Papillion declined to lift the stay.
This case arises from a fire at Lighthouse Marine’s shipyard in Port Bolivar, Texas. The fire started on the S/V NINO and spread to the M/V MS MONICA, owned by Boat Services of Galveston and chartered to Rodi Marine. Boat Services and Rodi Marine brought this suit in federal court in Texas against Lighthouse Marine, and they added Peninsula Marine as a defendant. They brought the suit under the court’s admiralty jurisdiction, and they added that the court had supplemental jurisdiction over state law claims in their amended complaint. The plaintiffs sought punitive damages under maritime law and Texas law. Believing that the fire was started by unknown arsonists, the defendants, Lighthouse Marine and Peninsula Marine, sought leave from the court to designate John Doe as a responsible third party under Texas law. Such a designation would, under Texas law, result in reduction of the damages for the fault of the John Doe defendant. The designation by Peninsula Marine was in accordance with Texas law, the plaintiffs did not object, and Magistrate Judge Edison granted leave for the designation by Peninsula Marine. The plaintiffs objected to the designation by Lighthouse Marine, because it was not filed within 60 days of its original answer, and Lighthouse Marine answered that the first time that the plaintiffs added state claims was in the amended complaint. Therefore, Lighthouse Marine filed the designation in its original answer to state claims. It was not necessary, however, for Magistrate Judge Edison to “wander down” the road to address this “fascinating academic debate on the meaning of the phrase ‘original answer,’” as he held that a person designated as a responsible third party by one defendant is available for apportionment of fault by any other defendant. Therefore, he denied the request of Lighthouse Marine to designate John Doe as a responsible third party as moot. See May 2024 Update.
As the suit was brought as an admiralty claim for breach of a maritime contract for vessel repairs together with a claim for state-law negligence and bailment, the issue was presented whether the case would be tried to a jury or to the bench. The plaintiffs requested a trial by jury, and the defendants opposed that request, moving to strike the jury demand. The Amended Complaint only alleged admiralty jurisdiction under Section 1333, but it did not contain a designation under Rule 9(h). The plaintiffs argued that they were entitled, under Rule 9(h), to choose between a jury or bench trial when a claim for relief is within the admiralty jurisdiction and also within the court’s subject-matter jurisdiction “on some other ground.” Magistrate Judge Edison agreed, but he added that the plaintiffs had overlooked that a claim brought under supplemental jurisdiction is not brought within the court’s subject-matter jurisdiction “on some other ground” (explaining that supplemental jurisdiction does not “operate to get a case into federal court” and only becomes relevant after the pleading has invoked an independent basis to get the case into federal court). As admiralty was the sole source of subject matter jurisdiction, Magistrate Judge Edison held that the plaintiffs had no right to a jury trial, and he granted the motion to strike the jury demand.
Deborah Haggerty, a passenger on the CARNIVAL ELATION, tripped and fell on an undetectable incline/sloped carpeted area on the ramp next to the glass door used to access Deck 10 from the interior of Deck 9. Haggerty brought this suit against the cruise line in federal court in Florida with eight counts of negligence based on direct liability and vicarious liability. The cruise line moved to dismiss all of the counts, and Magistrate Judge Goodman began his discussion with the cruise line’s argument that the four counts of direct negligence failed to allege facts demonstrating that the cruise line was on notice of the risk-creating condition. Haggerty argued that the cruise line had notice because the walkway was frequently used, but Magistrate Judge Goodman answered that the frequency of use did not mean that the danger had existed long enough to provide constructive notice. Haggerty also argued that the cruise line was on notice because it trains crewmembers to place warning signs or give other warnings to passengers of uneven and sloped walkways. Although the cruise line responded that Haggerty had not pinpointed a specific policy and that she was attempting to argue that the cruise line was automatically on notice of any condition implicated by a policy, Magistrate Judge Goodman held that Haggerty had sufficiently alleged policies that apply to the sloped walkway in this case, and, for a motion to dismiss, the allegations on training were sufficient for facial plausibility of notice (cautioning that Haggerty will to actually establish the relevant policies and procedures to avoid a summary judgment). The cruise line objected that the allegations of the similarity of five prior incidents involving tripping and falling on uneven/sloped walkways were too conclusory to establish notice. Magistrate Judge Goodman disagreed, reasoning that the descriptions were sufficient to establish notice in response to the motion to dismiss; however, he cautioned that discovery might reflect that the incidents were not sufficient. Therefore, Magistrate Goodman recommended that the direct liability claims not be dismissed for failure to adequately plead notice. As to the counts for negligent training and negligent design, the cruise line argued that the allegations were conclusory, but Magistrate Judge Goodman cited the ten ways that Haggerty alleged the cruise line failed to implement or operate its training program and the specific assertions for the selection, installation, and repair of the walkways in support of his recommendation that the motion to dismiss the counts for negligent training and negligent design be denied. Magistrate Judge Goodman then addressed the cruise line’s claim that the vicarious liability counts should be dismissed because they failed to specifically identify the crewmembers whose negligence caused Haggerty’s injury. He cited the decisions that reject that argument because it would be fundamentally unfair to require the passenger to remember the names of each of the crewmembers involved in the incident. The cruise line argued that passengers may not bring a claim of vicarious liability for negligent design, but Magistrate Judge Goodman held that this argument is outdated and conflicts with the Yusko decision of the Eleventh Circuit that approved imposition of vicarious liability of the cruise line. He also rejected the argument that the vicarious liability counts were nothing more than disguised claims for direct liability that were pleaded to circumvent the notice requirement for direct liability. Concluding that the vicarious liability counts adequately pleaded causes of action, Magistrate Judge Goodman recommended that the motion to dismiss be denied. The cruise line did not object to the recommendation, and Judge Williams affirmed and adopted the recommendation on July 15, 2024.
More than 500 Back-End Litigation Option cases (medical conditions diagnosed after April 2012) arising from the Macondo/DEEPWATER HORIZON blowout were remanded to the United States District Court for the Northern District of Florida from the limitation/multidistrict litigation that was overseen by Judge Barbier in the United States District Court for the Eastern District of Louisiana. The Florida court advanced two sets of bellwether cases to judgment (resulting in summary judgment to BP after the exclusion of the plaintiffs’ experts). This opinion involves the third set of bellwether cases to advance through expert discovery. Plaintiffs Wesley Covert, Jeffrey Lawrence, Taurus Lewis, and Gill McGee claim that their exposure to chemicals during the response caused them to develop chronic dermatitis or eczema. The plaintiffs designated Dr. Peter Elsner to confirm the diagnosis of their dermal conditions and to opine on general causation (that exposure to petroleum, dispersants, and aerosols from the hydrocarbons and dispersants can cause chronic dermatitis). The plaintiffs also engaged Dr. Michael Freeman to provide an opinion on general causation with respect to an increased risk of chronic eczema and dermatitis. BP moved to exclude the opinions and for summary judgment based on the absence of expert evidence of general causation. The plaintiffs relied on the Master Settlement Agreement reached with BP to support their claim that exposure to oil and dispersants can cause chronic dermatitis and eczema, but Magistrate Judge Cannon noted that the court had rejected that argument. Accordingly, she required the plaintiffs to establish general causation through admissible expert testimony. Magistrate Judge Cannon then held that the general causation opinions were inadmissible because they did not identify a harmful dose of any chemical or mixture of chemicals, and they did not demonstrate a reliable basis for concluding that exposure to weathered crude oil or dispersants can cause chronic dermatitis or eczema. In the absence of expert testimony on general causation, Magistrate Judge Cannon recommended that BP’s motion for summary judgment be granted, and the plaintiffs objected on July 23, 2024.
Juan Deville, an employee of Supreme Service, was working on the M/V RAM XIX, offshore Lafourche Parish, Louisiana, when the crane operator allegedly failed to control a load that struck Deville. Deville filed suit against Aries Marine, owner of the RAM XIX, in Louisiana state court in East Baton Rouge Parish, and Aries Marine filed this suit in federal court in Louisiana seeking to limit its liability to $13,970,000. Deville filed a claim in the limitation action along with Supreme Service and its insurer, Gray Insurance. Deville moved to bifurcate the issues in the federal action, holding a bench trial on exoneration, limitation, and apportionment of fault and then allowing him to pursue his claim for damages in state court in the event limitation is denied. Aries Marine responded that in order to proceed in state court, all claimants in the limitation action would have to file stipulations, but Judge Jackson disagreed. He stated that the requirement for stipulations to lift the stay was only applicable when the claimant sought to proceed in state court prior to the determination of exoneration and limitation in the federal court. In contrast, Judge Jackson noted that partial bifurcation is routinely granted by the limitation court to allow trial of damages in state court in the event limitation is denied. Concluding that bifurcation would be more convenient, prevent prejudice, expedite proceedings, and harmonize judicial resources, Judge Jackson granted the motion to bifurcate.
Brandon Ducker was employed by Weeks Marine on the DAVID P. He claims that he was injured when he tripped over a survey tool sticking out of the vessel, and he brought suit in state court in Harris County, Texas against Weeks Marine as a Jones Act seaman, seeking to recover in excess of $100,000,000. Weeks Marine then filed this action in federal court in Texas seeking to limit its liability to $600,000. Ducker moved to lift the stay so that he could proceed in state court, stipulating that he would not seek to enforce any judgment greater than $600,000 until the federal court adjudicated the issues pertaining to limitation of liability. Weeks Marine opposed the motion and argued that the federal court should bifurcate the proceeding. Although Weeks Marine argued that the stipulations were insufficient, Magistrate Judge Palermo found them to be similar to those approved by the Fifth Circuit and held that the stay should be lifted. She then addressed the argument of Weeks Marine that bifurcation is the “preferred method” of resolving the competing interests of the claimant and vessel owner in this situation. Magistrate Judge Palermo responded that Weeks Marine had overlooked the fact that the cases it cited did not involve a single claimant who executed the required stipulations. Unlike the situation with multiple claimants and the failure of all claimants to stipulate (as in the Aries Marine case in this Update), Magistrate Judge Palermo considered it would be an abuse of discretion not to lift the stay when there is a single claimant who has submitted proper stipulations. Accordingly, she lifted the stay and denied the motion to bifurcate as moot.
Linda Lalusis was a passenger on the cruise ship NORWEGIAN BREAKAWAY for a cruise that began and ended in Civitavecchia, Italy (and visited cities in Italy, Greece, and Malta). Lalusis claims that she tripped and fell near the piano bar of the ship on an area that was camouflaged, poorly lit, unmarked, uneven, and unreasonably raised. She brought this suit against the cruise line in federal court in Florida, and the cruise line responded with fourteen affirmative defenses. Lalusis moved to strike the fourth and thirteenth affirmative defenses, and Judge Altman agreed to strike the fourth affirmative defense (asserting that the claims were barred by Florida statute because Lalusis had a blood alcohol level of .08 or higher and was more than 50% at fault for her harm). This opinion addresses the thirteenth affirmative defense, that Lalusis’ damages are limited by the application of the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, which is applicable in accordance with the Guest Ticket Contract. Lalusis argued that the cruise line failed to admit the essential facts of the complaint and pleaded no facts to support the defense. Judge Altman disagreed. He noted that the cruise line admitted that Lalusis was a fare paying passenger on the vessel and that the cruise line operated the vessel. Additionally, the cruise line pleaded that Lalusis agreed to the limitation of liability in the Athens Convention when she entered into the Guest Ticket Contract, and the cruise line attached the Contract as an exhibit. Judge Altman then addressed whether the Athens Convention was applicable and could be enforced in light of the prohibition on limitations of liability in 46 U.S.C. Section 30527. He noted that the Athens Convention carried no force of law on its own because the United States is not a signatory to the Convention. However, he added that the limitation could be applicable if a contract provision incorporated the Convention. As the contract incorporated the Convention, Judge Altman had to address whether the limitation could be enforced under Section 30527, which provides that a limitation on liability may not be enforced for a vessel transporting passengers between ports in the United States or between a port in the United States and a port in a foreign country. As the transportation of Lalusis did not involve a United States port, the federal statute did not prohibit incorporation of the limitation on liability in the Athens Convention. Therefore, Judge Altman declined to strike the thirteenth affirmative defense.
Daniel Howard participated in a scuba diving excursion while vacationing at the Sandals Emerald Bay Golf, Tennis & Spa Resort in The Bahamas. The excursion was managed by Unique Vacations and Sandals Resorts International. The guests were accompanied by a dive guide, and Howard was provided with a SCUBAPRO buoyancy control device, supplied or sold by Johnson Outdoors Diving. During a dive to a depth of about 100 feet, Howard began to experience buoyancy issues and kept ascending toward the surface despite emptying the air in his buoyancy control device. The dive guide checked Howard’s pressure gauge and quickly ascended to the surface without giving him time to decompress. Howard fell unconscious and by the time he could return to the marina, he was dead. Laura Howard brought suit in state court in Miami-Dade County, Florida against Unique Vacations, Sandals Resorts, and Johnson Outdoors Diving. Johnson Outdoors removed the case to federal court in Florida, and Unique Vacations and Sandals Resorts settled with the plaintiff. Johnson Outdoors then moved to transfer the case to federal court in California, and after the case was transferred, Johnson Outdoors moved to dismiss the case for forum non conveniens. Judge Miller began by holding that Johnson Outdoors had established that an adequate, alternative forum existed for the case in The Bahamas (Bahamian courts permit claims for compensatory damages, pain and suffering, loss of amenities, loss of income, and punitive damages). He then sought to balance the private and public interest factors, considering the amount of deference to give to the California forum in light of the fact that Howard is a resident of Florida who filed suit in Florida. Nonetheless, Judge Miller reasoned that Howard is a citizen of the United States who brought the suit in the United States, so her choice of forum should be accorded deference. Nearly all of the events relevant to the action occurred outside of California, the witnesses were not in the district, and Judge Miller was uncertain if he could compel foreign witnesses to trial in California. Some of the evidence was in The Bahamas, but Judge Miller noted that some of the evidence was located elsewhere, and many of the witnesses were not located in The Bahamas. Therefore, Judge Miller considered the private interest factors to be neutral. Similarly, Judge Miller considered the public interest factors to be largely neutral. Although The Bahamas has an interest in ensuring products used in The Bahamas are safe and do not injure persons in The Bahamas, California has an interest in holding businesses headquartered in California (Johnson Outdoors) accountable. Giving deference to the California forum (the parties jointly moved to transfer the case to California) and finding that the oppression and vexation to the California defendant was lower than the inconvenience to a Florida citizen litigating in The Bahamas, Judge Miller declined to dismiss the case.
David Lavan, an employee of Mike Hooks, was injured on the dredge MIKE HOOKS while it was dredging on the Calcasieu River in Louisiana, when a fire ignited after he lit a cigarette. Mike Hooks filed this limitation action in federal court in Louisiana, and Lavan was the only claimant. A default was entered against all other claimants in January 2021, and Judge Cain agreed to lift the stay so that Lavan could prosecute his claims against Mike Hooks in state court in Calcasieu Parish, Louisiana. In January 2024, Mike Hooks sought leave to file a third-party claim against Conrad Shipyard, and, when leave was granted, Conrad Shipyard argued that it had causes of action against Mike Hooks that must be set forth in the limitation action. Therefore, Conrad Shipyard asked the limitation court to set aside the default so that Conrad Shipyard could file a claim in the limitation action. Lavan did not oppose the motion and requested the court vacate its ruling lifting the stay on prosecuting the state court and to set the limitation action for trial. As Conrad Shipyard was blameless for the late filing, Judge Cain set aside the default and enlarged the time for Conrad Shipyard to file its claim. And, as Conrad did not participate in the stipulations, it was necessary to reinstate the stay to protect Mike Hooks’ rights as to the multiple claims in the limitation action. Therefore, Judge Cain ordered that the stay be reimposed and that the case be referred to the Magistrate Judge for a conference to set the limitation action for trial. See June 2024 Update.
Mike Hooks’ third-party claim against Conrad was based on breach of contract and breach of warranty, asserting that the repairs on the vessel resulted in the vessel’s degasser system not properly ventilating and causing the fire when Lavan lit a cigarette in the confined space of his bathroom where there was a no smoking sign posted. Conrad moved to dismiss the contractual claim for defense and indemnity, arguing that the 2003 Master Service Agreement on which Mike Hooks based its contract claim was inapplicable to the work performed on the MIKE HOOKS. Conrad cited the recitals in the Agreement that included the provision that the shipyard had the right to restrict access to the shipyard’s premises and that the vessel owner would insure the shipyard and indemnify it in consideration of permitted shipowner employees and contractors at the shipyard. As the incident did not arise out of Lavan being at the shipyard, Conrad asserted that the indemnity/insurance provisions were not applicable. Mike Hooks responded that the indemnity provision provided for defense and indemnity arising out of or as a result of Conrad’s work, materials, or services. As Mike Hooks alleged that the injury occurred as a result of the work performed by Conrad, the indemnity obligation was applicable. Judge Cain agreed with Mike Hooks that the allegations in the third-party complaint fell within the language of the indemnity provision, which was not limited in scope by the recital. Therefore, he denied the motion to dismiss.
Chartaries Wilson, a deckhand employed by Marquette on the M/V ST. MATTHEW, claims that he was injured when he was struck by a line and slammed against a wall of the vessel while it was operating in inland waters near Paducah, Kentucky. Wilson brought this suit against Marquette in federal court in Louisiana under the Jones Act and general maritime law, seeking to recover non-pecuniary damages, including loss of enjoyment of life, scarring, and disfigurement. Marquette moved for partial summary judgment, requesting dismissal of the enumerated categories of non-pecuniary damages, and Wilson conceded that he was not entitled to recover for loss of enjoyment of life, scarring, and disfigurement. However, he argued that he was entitled to recover other elements of non-pecuniary loss. Judge Ashe reviewed the decisions following the Fifth Circuit’s en banc decision in McBride, and he held that pain and suffering is a pecuniary loss that is recoverable in a Jones Act claim, but that damages for loss of enjoyment of life, mental anguish, loss of consortium, punitive damages, scarring, and disfigurement are not recoverable.
Kentavious Javon Hammond was charged by the Municipality of Dothan, Alabama with speeding in a school zone and failure to display insurance. Hammond removed the case to federal court in Alabama, stating: “This action against the defendant was commenced within the special maritime and territorial jurisdiction of the United States,” citing 28 U.S.C. Section 1333. The case was referred to Magistrate Judge Adams who concluded that Hammond had not demonstrated that plausible grounds existed for removal. Accordingly, Magistrate Judge Adams recommended that the case be summarily remanded to the municipal court.
Rhonda C. Hebert was hired by EPS Medical Solutions as a COVID tech to do land-based COVID testing and then began working as a medic on the M/V HOS WARLAND, operated by Hornbeck Offshore. EPS only provided her with minimal training before her offshore assignment as she had previously worked offshore and knew more about working offshore than anyone. On February 23, 2022, Hebert was in the shower with the exterior door to the infirmary locked when the door handle rattled incessantly. Hebert assumed that someone was hurt and needed her services. She stepped out of the shower and her ankle rolled, resulting in her striking her shin on the toilet. Hebert testified that she did not rush to get out of the shower and that there was no water or other substance on the floor that caused her ankle to roll. She discovered that there was no injury or emergency in connection with the rattling of the door handle, just a man who needed to ask a question about maritime laws. A year later, Hebert brought this suit in federal court in Louisiana against her employer EPS and vessel operator Hornbeck, asserting claims under the Jones Act and general maritime law. She then filed a motion for summary judgment seeking rulings that she was not comparatively at fault because her accident was caused by a sudden emergency and that EPS was at fault for failure to train her. EPS filed a cross-motion for summary judgment on the Jones Act negligence claim. Chief Judge Doughty cited the decisions of the Fifth Circuit that recognize an employer’s obligation to train its employees; however, Hebert was a highly qualified medic who had many years of experience working offshore. Chief Judge Doughty did not believe that it was negligent for EPS to assume that Hebert knew how to perform routine tasks like stepping out of the shower. As there was no issue with respect to a defect in the shower or substance that caused her to slip, Chief Judge Doughty granted summary judgment on the negligence of EPS. Chief Judge Doughty then considered Hebert’s argument that she was not at fault as a result of the sudden emergency doctrine—that the worker is not negligent if she fails to adopt a better or safer method in response to an imminent peril or emergency. Chief Judge Doughty answered that there were fact questions that precluded summary judgment, as Hebert stated that she was not rushed when she stepped out of the shower. Accordingly, he denied Hebert’s motion. See July 2024 Update.
Hornbeck then moved for summary judgment, seeking dismissal of the negligence and unseaworthiness claims against it because Hebert could not identify any defects in the vessel or negligent acts which caused or contributed to her rolling her ankle. For the same reasons that Chief Judge Doughty articulated when he granted summary judgment to EPS, he held that Hebert failed to produce any evidence of a breach of duty or defect in the vessel that contributed to Hebert’s injury. Therefore, he dismissed Hebert’s claims against Hornbeck with prejudice.
Arnold Edmonds claims that he contracted non-small cell lung carcinoma from exposure to asbestos while he served on the aircraft supercarrier USS SARATGOGA from 1962 to 1964. He brought suits in state court in Hillsborough County, Florida against suppliers of parts and machinery for the SARATOGA under theories of negligence and strict liability that were removed under the Federal Officer Removal Statute and consolidated in federal court in Florida. The defendants sought to exclude or limit the testimony of Edmonds’ industrial hygienist expert, Dr. Candace Su-Jung Tsai, primarily because her testimony did not opine on exposure from the products of the respective defendants. The defendants complained that Dr. Tsai opined generally on Edmonds’ exposure to asbestos on the vessel and other workplaces and not on whether a specific product caused his asbestos-related cancer. Judge Honeywell found no authority that the expert must opine on whether a specific product caused the cancer in order for the testimony to be admissible. Recognizing that maritime law requires evidence of the specific exposure for a defendant, Judge Honeywell explained that the argument presented by the defendants relates to the sufficiency of evidence of causation and not the admissibility of the expert’s testimony. Finding Dr. Tsai’s methodology to be sufficiently reliable, Judge Honeywell declined to exclude the opinions, stating that the arguments were “more appropriate for consideration on a summary judgment order, or as to the weight of the expert testimony, not its admissibility.”
Elvis Lopez claims that he was injured while offloading cargo from the M/V HARVEY INTERNATIONAL, owned by Harvey Gulf, when he tripped on the vessel’s stairs that were not braced and secured to the vessel. Lopez brought this suit in federal court in Louisiana under the Jones Act and general maritime law, and Harvey Gulf moved for summary judgment on Lopez’s maintenance and cure claim based on a McCorpen willful concealment defense. Lopez claimed injuries to his right knee, neck, and back, and Harvey Gulf cited the failure of Lopez to disclose injuries to his neck, back, and knee when he completed a medical questionnaire during his hiring process. Lopez answered that he misunderstood the questionnaire’s inquiry about injuries “in the past,” believing that he was only being asked about current conditions. He also argued that Harvey Gulf would have hired him even if it had known about the medical conditions because he had a good employment record with Harvey Gulf after he was hired. Judge Fallon evaluated each of the three McCorpen factors, and he found that the language of the questionnaire was clear and obviously designed to elicit information about prior knee, back, and neck injuries. As Lopez answered “no” to all of the questions “despite having an extensive history of neck, back and knee injuries spanning over twenty years and resulting from at least two prior work accidents,” Judge Fallon held that Lopez had intentionally concealed his medical history. As to the materiality factor, Judge Fallon reasoned that knee, neck, and back injuries were rationally related to the ability of the seaman to do his job as described by the affidavit from the Executive Vice President of Harvey Gulf that the injuries would have mattered to their hiring decision. Judge Fallon rejected Lopez’s argument that the materiality factor was not satisfied because he performed well in his job, answering that “post-hire performance is simply not relevant to whether Harvey Gulf would have made the same hiring decision.” As the undisclosed injuries were to the same areas of the body as were alleged in the suit, Judge Fallon held that the causal connection element was satisfied. Therefore, he granted summary judgment to Harvey Marine on the maintenance and cure claim, and he held that Harvey Marine could offset the payments it had made for maintenance and cure against any recovery of damages Lopez might receive on his other claims.
Beverly Dredging owns and operates the dredge BELLA ROSE, which was damaged during Hurricane Ida in 2021. Beverly Dredging entered into a Repair Contract with FMT Shipyard that included inspecting and rebuilding the hydraulic system on the dredge (Metso pump). FMT engaged subcontractor Boland Marine to rebuild the pump. The lead time to obtain a new impeller for the pump was too long, and a repair was made. Beverly Dredging continued to have problems with the hydraulic system and eventually brought this suit in federal court in Louisiana against FMT Shipyard and Boland Marine, asserting negligence, gross negligence, breach of contract, and breach of warranties of workmanlike performance and good faith and fair dealing. FMT Shipyard filed a counterclaim against Beverly Dredging for unpaid services and a crossclaim against Boland Marine for breach of contract, negligence, and indemnity/contribution. Boland Marine and FMT Shipyard filed motions for summary judgment. Boland Marine argued that Beverly Dredging’s tort claims were barred by the economic loss rule (as the only damage asserted was to the pump), and Judge Africk agreed that the contracts for repairs were encompassed within the class of contracts to which the Supreme Court’s East River decision applied. Beverly Dredging responded that Louisiana law had abandoned a mechanical application of the economic loss doctrine, but Judge Africk found no gap in maritime law that needed filling by reference to state law, and he held that a lack of privity did not bar application of the economic loss rule. He dismissed Beverly Dredging’s tort claims against Boland Marine and FMT Shipyard, and he dismissed FMT’s contribution claim. Boland Marine also sought summary judgment on Beverly Dredging’s claims for breach of the warranty of workmanlike performance based on lack of contractual privity, and FMT Shipyard argued that the WWLP was not applicable. Judge Africk reviewed the application of Ryan indemnity in the context of shipyard work. He reasoned that the Ryan WWLP requires a finding of negligence from which a party can be indemnified. As the tort claim was barred by the economic loss rule, Judge Africk concluded that no Ryan indemnity claim could stand. Further, in the absence of any contractual indemnity provision, he dismissed the claim for equitable indemnity (award of damages caused by the fault of another party). Boland Marine and FMT Shipyard also sought summary judgment on Beverly Dredging’s claim for breach of the implied duty of good faith and fair dealing based on the lack of privity between Beverly Dredging and Boland Marine and lack of third-party beneficiary status as to the contract between FMT Shipyard and Boland Marine. Judge Africk agreed that Beverly Dredging’s bad faith claim against Boland Marine should be dismissed because Beverly Dredging is not a third-party beneficiary of the contract between FMT Shipyard and Boland Marine. However, he found sufficient facts of FMT Shipyard rushing repairs and failing to fully inform Beverly Dredging of the temporary nature of the repair to decline to dismiss the bad faith claim of Beverly Dredging against FMT Shipyard. Finally, Judge Africk dismissed Beverly Dredging’s claim for breach of contract against Boland Marine for lack of privity and because Beverly Dredging is not a third-party beneficiary of the contract between FMT Shipyard and Boland Marine.
Laureen Pellegrino and Samantha Bower, passengers on the cruise ship WONDER OF THE SEAS, went on a Wave Jet Tour excursion off the coast of the cruise line’s private island, CocoCay, in The Bahamas. Pellegrino was operating the Sea-Doo vessel #228 when it was struck by the Sea-Doo vessel #232 that was being operated by Bower, resulting in injuries to Pellegrino. The cruise line brought this limitation action in federal court in Florida, seeking to limit its liability to the value of the two Sea-Doo vessels, and Pellegrino filed a claim in the limitation action seeking to recover for direct negligence and vicarious liability for the actions of the tour guides. The cruise line moved to dismiss the claims on the ground that Pellegrino failed to alleged sufficient facts to establish that the cruise line should have known of the dangerous condition (risk of collision). The cruise line focused on the sufficiency of the prior incidents cited by Pellegrino, but it did not address the four allegations of precautionary/corrective actions taken by the cruise line. Chief Judge Altonaga agreed with Pellegrino that her allegations that the cruise line implemented safety policies and trainings, showed a pre-ride safety video, provided a personal watercraft owner/operator manual, and removed advertising language after the incident welcoming beginners to the excursion plausibly alleged notice. Separately, Chief Judge Altonaga declined to find counts of negligent training and negligent entrustment to be duplicative, agreeing that Pellegrino properly pleaded them as separate counts, and she declined to strike Pellegrino’s references to statutes, rules, and industry standards, as she could not say that the material had no possible relation to the case. The cruise line then sought to turn the table on the claimant, moving to strike Pellegrino’s affirmative defenses to the cruise line’s limitation complaint. The cruise line argued that several of the affirmative defenses were impermissible bare legal conclusions that did not satisfy the Iqbal/Twombly pleading standards. Pellegrino responded that the defenses were actually specific denials, and Chief Judge Altonaga agreed. Therefore, she declined to strike the affirmative defenses, treating them as denials.
Elsa Quiñones, a passenger on the SEASCAPE, was injured when she tripped and fell while ascending dangerous stairs in poor lighting. She brought this suit in federal court in Florida against the cruise line, and the cruise line moved to dismiss the complaint for failing to adequately plead notice to the cruise line. Quiñones asserted that the cruise line was on notice because “an unnamed male crew member was close enough to the low-lit area to be in viewing distance and, significantly, close enough to have seen that the lighting was inadequate, and, also significantly, was looking right in the direction of the subject area.” The cruise line responded that Quiñones could not allege the name, rank, position or department of this “conveniently positioned” crewmember, “subtly suggesting that the allegations cannot be believed.” Magistrate Judge Goodman sided with Quiñones, reasoning that his task in resolving the motion to dismiss was not to determine if the allegation was actually true, stating that he could not ignore the allegation just because it was easy to allege. Therefore, Magistrate Judge Goodman recommended that the motion to dismiss be denied.
Rocky Gaspard has a medical history that includes a 2014 MRI of his lumbar spine showing a degenerated L5-S1 disc with bulge and a 2018 neck surgery. Gaspard began working a shift as a derrickhand on the inland barge BAYOU BLUE on February 19, 2019. He underwent a full pre-employment physical on February 1, 2019 after which he was released to full duty with no restrictions. On February 28, 2019, Gaspard tripped and fell on the BAYOU BLUE while dragging a hose that weighed approximately 55 pounds. An MRI revealed a large disc herniation at L5-S1 with a depression of the S-1 nerve root. Gaspard ultimately had multiple steroid injections and three back surgeries. Gaspard moved for partial summary judgment that the injury to his back (with pain to his leg) was caused by the fall on the BAYOU BLUE. Citing the “eggshell skull” principle that the defendant takes the plaintiff as he finds him, the evidence that Gaspard had passed his physical and returned to work without complaints, and the tests and opinions after the fall that supported the injury and causation, Judge Drell granted summary judgment that Gaspard’s injury to his back/leg was caused by his fall on the BAYOU BLUE.
This suit arises from a deal between SLT Imports and non-party Krishna Food Corp. by which SLT Imports provided financing (through a bank) so that Krishna Food (which had “creditworthiness issues”) could purchase food from an Indian supplier to be shipped to Krishna Food in New Jersey. The arrangement provided that SLT Imports would be the named consignee on the bills of lading and that the carrier would not release the cargo to Krishna Food without an endorsed bill of lading. SLT Imports contracted with SAR Transport for the carriage of the cargo. SAR Transport is an Ocean Transport Intermediary carrier based in Mumbai, India that uses other companies’ vessels for international shipments. The bills of lading that were issued by SAR Transport listed SLT Imports as the consignee and specified that the cargo could be released to Krishna Food only upon surrender of an endorsed bill of lading. However, SAR Transport caused the cargo to be released to Krishna without requiring that Krishna Food provide endorsed bills of lading. Instead, SAR Transport accepted letters of indemnity from Krishna Food promising to indemnify SAR Transport for releasing the cargo without the surrender of the bills of lading. Krishna Food did not pay SLT Imports for the cargo (more than a million dollars). As Krishna Food was insolvent, SLT Imports sought to collect from SAR Transport. SLT Imports originally brought this action against SAR Transport in federal court in California, and the suit was eventually transferred to the federal court in New Jersey. SLT Imports alleged claims for fraud in the execution of a maritime contract and, alternatively, breach of a maritime contract under the Carriage of Goods by Sea Act. SAR Transport moved for judgment on the pleadings that the case was governed by COGSA and was time-barred by COGSA’s one-year statute of limitations. Judge Padin agreed, reasoning that SLT Imports’ attempt to creatively plead around COGSA’s limitation by alleging fraud in the execution of the contract was unpersuasive: “Plaintiff, at most, pleads that Defendant knew it would breach the terms of the bills of lading when it issued them.” But there was no claim of misrepresenting the nature of the contract so as to allege a fraud claim. Accordingly, the claim was governed by COGSA. SLT Imports next alleged that the statute of limitations was not applicable because there was an unreasonable deviation, and the bills of lading were void ab initio. Judge Padin disagreed, answering that SLT Imports at most alleged a misdelivery to which the one-year limitation applied. Finally, Judge Padin found no inequitable conduct that would estop the carrier from relying on the one-year limitation (this was not a case where the carrier lulled the plaintiff into waiting to bring the suit). Therefore, Judge Padin dismissed the suit with prejudice.
This opinion in the district court arises from the collision between the destroyer U.S.S. JOHN S. MCCAIN and the Liberian merchant vessel M/V ALNIC MC, resulting in deaths and injuries to sailors on the MCCAIN (discussed above with respect to the decision of the Second Circuit on liability issues). This opinion addresses the standing to assert claims by the beneficiaries of Kevin Bushell, an officer in the Navy who served on the MCCAIN and was killed on the high seas as a result of the collision. Jennifer Simon, Kevin Bushell’s widow, and Karen Bushell, Kevin Bushell’s mother, both filed claims in the limitation action filed in federal court in New York by the owner of the ALNIC, and Jennifer Simon filed a petition in Maryland state court that resulted in her being substituted for Karen Bushell as the personal representative of the estate. Jennifer Simon then filed a motion in the limitation action to confirm her status as the personal representative so that she could recover damages on behalf of all of the dependents of her late husband, and Karen Bushell responded by not opposing Jennifer Simon’s confirmation as personal representative but requesting that Karen Bushell be allowed to maintain her own claim for damages in her individual capacity. Judge Preska noted that, under the Death on the High Seas Act, only the personal representative may bring the wrongful death suit, and the personal representative has a fiduciary duty to bargain for the rights of all beneficiaries. Thus, other beneficiaries generally lack standing to maintain their own wrongful death claims. However, Judge Preska did recognize an exception that allows a beneficiary to intervene in the case if the beneficiary can establish that his/her interests are at odds with those of the personal representative. Therefore, Judge Preska considered whether there was a conflict of interest between Karen Bushell and Jennifer Simon that would allow Karen to maintain a separate wrongful death claim. Judge Preska reasoned that Jennifer Simon had an incentive to maximize the size of recovery on behalf of all of the beneficiaries, but she also had an incentive to maximize the portion of that recovery that she receives and to minimize the portion received by the other beneficiaries. Consequently, Judge Preska concluded that there was a conflict of interest and that Karen Bushell would be allowed to maintain a separate claim in her individual capacity.
Platypus Marine performed maintenance and repair on the yacht ALASKAN GRANDEUR, owned by Alaska Legacy and operated by Glacier Guides, for more than 15 years before the dispute that resulted in this litigation. After Glacier Guides declined to pay what Platypus Marine charged for repairs conducted on the vessel during the winter of 2022, Platypus Marine brought this suit against the yacht, in rem, and its owner and operator, in personam. Alaska Legacy posted security of $178,091.85 for the release of the vessel and filed a counterclaim, alleging that Platypus Marine performed work that was unauthorized and that was defective. Alaska Legacy then sought countersecurity pursuant to Supplemental Rule E(7), and Platypus Marine objected, arguing that the counterclaim did not plead an amount in damages and was frivolous. Judge Holland rejected the arguments, stating that the court was “unpersuaded that it should read Rule E(7) out of existence if a counterclaim does not state a damages amount.” Alaska Legacy submitted a value for its counterclaim through its expert witness ($224,810), and Judge Holland ordered countersecurity in that amount. See August 2023 Update.
Platypus Marine and Glacier Guides each moved for summary judgment. Platypus Marine argued that the parties had entered into a contract on a time-and-materials basis, and that it was owed a balance of $272,253.74. Glacier Guides issued checks for that amount in order to obtain the release of the vessel and then immediately stopped payment on the checks. It defended the claim with evidence that the work performed was defective and incomplete and that a substantial amount had been performed without approved work orders or change orders. Platypus Marine argued that Glacier Guides was now prevented from disputing the amount owed under the doctrine of satisfaction and accord because Glacier Guides had issued checks in the full amount allegedly owed without protesting the amount. Glacier Guides responded that there was a bona fide dispute over the amount owed and that Glacier Guides had to make the payments so that it would not default on its contracts for the vessel. Reasoning that there was a factual dispute whether there was an agreement to settle the amount owed and that there were disputes as to whether Platypus Marine overcharged for its work, Judge Holland declined to grant summary judgment to Platypus Marine. Glacier Guides moved for summary judgment on its counterclaim, contending that the limited warranty in Platypus Marine’s terms and conditions (limiting contract and tort liability to $100,000, regardless of negligence) was invalid and unconscionable under the general maritime law. Platypus Marine argued that if it was successful on its claim of accord and satisfaction, the counterclaim would fail. As Judge Holland declined to grant summary judgment to Platypus Marine, he addressed Glacier Guides’ motion. Citing the decisions of the Ninth Circuit, Judge Holland noted that the parties to a repair contract could validly stipulate that the shipowner assumed all liability for damage to the vessel, even when occasioned by the negligence of the shipyard, as long as there was no evidence of overreaching. Although Glacier Guides argued that there was overreaching because the contract terms were presented on a “take it or leave it” basis, Judge Holland answered that the Ninth Circuit had refused to invalidate an exculpatory provision in a ship repair contract where the ship owner assented to the agreement without complaint. As Glacier Guides did not object, there was no fact question on overreaching. Glacier Guides also argued that the limitation on the warranty failed on its essential purpose under UCC principles (indicative of general maritime law). Judge Holland did not consider that there was a failure of the essential purpose of the limited warranty because Glacier Guides could still recover $100,000 in damages if there was defective work and Platypus Marine did not repair the defective work. Consequently, Judge Holland declined to grant summary judgment to Glacier Guides. See January 2024 Update.
The parties engaged in settlement discussions, and Glacier Guides did not seek to compel Platypus Marine to deposit the required countersecurity. When Glacier Guides did eventually move for the deposit of countersecurity, Platypus Marine responded that it would proceed solely in personam against Glacier Guides, and it proposed a stipulation to release the security posted by Glacier Guides so that Platypus Marine would not have to post countersecurity. However, Platypus Marine had not voluntarily dismissed its in rem claim or otherwise relinquished it. As its in rem claim remained, Judge Kindred ordered the deposit of the countersecurity in the amount of $224,810.
Dr. Frank Opaskar and South Shore Marine were negotiating the purchase of a new boat with the trade-in of Dr. Opaskar’s 33-foot vessel, THIRD LADY. Dr. Opaskar set out in the THIRD LADY across Lake Erie with Christopher Kedas, a salesman for South Shore, and Christopher’s minor son. The boat’s engine exhaust malfunctioned during the trip, and all three passengers on the boat were found dead on the vessel, probably from carbon monoxide poisoning. There was a dispute about whether ownership of the vessel had been transferred by the trade-in, and limitation actions were filed by South Shore Marine and Dr. Opaskar’s widow (Gail). A separate Rule D action was brought by Gail Opaskar to litigate ownership of the vessel between the Opaskars and South Shore Marine. Three motions to dismiss were filed in the limitation actions, challenging whether the petitioners adequately pleaded ownership of the vessel, as both limitation actions denied that the petitioner was the owner of the vessel and claimed the right to exoneration/limitation in the alternative in the event the petitioner was found to be the owner. Judge Gwin held that the injuries alleged by the petitioners were actual and concrete. The petitioners were subject of suits that had to be defended, and those suits gave the petitioners standing to seek exoneration/limitation. As to whether the pleadings satisfied the Iqbal/Twombly standard in connection with the assertions of lack of privity or knowledge, Judge Gwin held that, although sparse, the allegations were sufficient. See May 2022 Update.
Four claims were filed in the South Shore limitation action, and a default order was entered at the end of the period to file claims. Just over a month later, Chagrin River Marine filed a motion to reopen the time to file claims and to set aside the default. Chagrin River, a defendant in state-court suits, desired to present a contribution claim against South Shore Marine. As Chagrin River had not received actual notice of the limitation action (despite being named as an interested party), and as the addition of one claim would not result in prejudice or delay after four claims had been filed, Judge Gwin held that Chagrin River had met the “low bar” to file a late claim. Although South Shore Marine argued that Chagrin River had forfeited its right to file a claim in the limitation action by failing to sue South Shore Marine in state court, Judge Gwin found no authority to support that argument and set aside the default. See June 2022 Update.
After ruling that the limitation actions were appropriate, Judge Gwin asked the parties for briefing whether the limitation actions should be stayed in light of the fact that the issue of ownership of the vessel was being litigated in the Rule D action. After weighing the economy of time and effort and the competing interests, Judge Gwin exercised his discretion to stay both limitation suits so that the Rule D action could determine the ownership of the vessel. Thus, the stay of litigation from the limitation actions remained in place, except for the Rule D action. See September 2022 Update.
Gail Opaskar then sought, in the Rule D petitory action, to disclaim the Opaskars’ ownership of the THIRD LADY at the time of the accident, and the parties filed motions for summary judgment. Gail argued that South Shore Marine owned the vessel based on how far the parties had progressed in the trade-in process for the THIRD LADY. Gail and her daughter Amanda had identified a new vessel that they wished to purchase on June 15, 2021, and Christopher Kedas had looked over the THIRD LADY. The Opaskars put down an initial deposition on the new boat, and a Buyer’s Quote had been issued with the options for the boat and the buyers agreeing to close the sale no later than June 26, 2021. On June 21, 2021, Amanda and Gail went to South Shore Marine to discuss the financing, and they brought the title to the THIRD LADY, but South Shore Marine would not accept it, advising that a mechanical inspection of the THIRD LADY was necessary and that Frank Opaskar, title owner, would need to sign the title over in front of a notary. The inspection was arranged for June 23, 2021, and that is when Frank Opaskar, Christopher Kedas, and Kedas’ son left the dock to take the boat to South Shore Marine’s facility. At the time of the casualty, the title still remained in the name of Frank and Gail Opaskar. The first issue to be decided was whether the court had admiralty jurisdiction over the petitory action (there was no diversity among the parties). There were two possible bases for admiralty jurisdiction: 1) if the trade-in agreement was maritime in nature, and 2) if this action was a valid petitory suit to try title to the vessel under Rule D. Magistrate Judge Parker reasoned that Gail’s argument involved rights created under the purported trade-in agreement, and that agreement was analogous to a contract for sale of a vessel, which is not a maritime contract. In order to decide whether to place the burden of ownership of the vessel on South Shore Marine, the court would have to decide whether title passed. Accordingly, Magistrate Judge Parker held that the court lacked jurisdiction over the suit under a maritime-contract theory. Gail and South Shore Marine argued that the suit fell within Supplemental Rule D, providing: “(iii) a titled owner may bring a petitory action to ‘try title’ to the vessel.” Kedras’ Estate disagreed. Neither Gail and South Shore Marine, nor Magistrate Judge Parker could find a case in which the holder of title to a vessel sought to use Rule D in the “unprecedent manner” to disclaim ownership to the vessel. Although Magistrate Judge Parker did not believe that Rule D could be used in this fashion, he also rejected the attempt to try title to the vessel in the facts of this case. Gail was not trying to prove that title by documentary evidence. Instead, she argued that the court should base its decision on the conduct of South Shore Marine evincing indicia of ownership so that there was an equitable passage of title. However, Magistrate Judge Parker returned to the fact that the disagreement was nothing more than a contract dispute involving the trade-in agreement, which was not maritime. Characterizing the attempt to bring a petitory action out of an underlying non-maritime contract as “grasping,” Magistrate Judge Parker held that the court lacked jurisdiction over the petitory action. Thus, the title dispute would have to be decided by the judge handling the limitation actions: “It will simply be a different judge who decides whether the parties’ efforts to disclaim ownership of The Third Lady or to limit their liability can float.” See August 2023 Update.
The ownership was submitted to Judge Gwin in the limitation suits for a bench trial based on the summary judgment record. He concluded that the Opaskars owned the THIRD LADY because they held the legal title at the time of the accident. Although Gail Opaskar attempted to transfer title to South Shore before the accident, South Shore refused to accept the title. Judge Gwin reached the same result based on a dominion-and-control analysis, reasoning that the Opaskars had the final authority to order and approve maintenance work on the vessel. Accordingly, Judge Gwin held that the Opaskars could proceed with the limitation action as owners of the THIRD LADY. Judge Gwin then addressed the claim of South Shore to ownership of the vessel. Although the Opaskars held legal title, that did not end the discussion because South Shore might have some other interest in the title to the vessel (for example if there was a binding agreement to accept the vessel as a trade-in even though legal title had not yet passed). Judge Gwin cited the Sixth Circuit’s Leco decision that a trade-in that was subject to inspection was a final agreement that established ownership when it was an open price term that would adjust the trade-in value but was not a condition precedent to the sale. In this case, Judge Gwin found that South Shore intended to make the inspection a condition precedent with a final Purchase Agreement replacing the Buyer’s Quote after the inspection. The purchase of the new boat and the trade-in were related, but separate, and Judge Gwin found that the Opaskars could have purchased the new boat without trading in the THIRD LADY. As the inspection had not occurred, there was no trade-in contract giving South Shore a right to legal title. With respect to dominion and control, the Opaskars had given the keys to the boat to South Shore, and South Shore had arranged for the transportation. However, Judge Gwin found that these actions were taken so that South Shore could inspect the boat and were not sufficient evidence of dominion and control to constitute ownership. Accordingly, Judge Gwin held that the Opaskars’ limitation action would proceed, and he dismissed South Shore’s limitation action.
Nicholas Reed Magee was a deckhand on the M/V JOHN PASENTINE, owned by Florida Marine. He fell into the Ohio River near Catlettsburg, Kentucky while traversing a barge and dock to unload trash from the vessel. Magee brought this suit in federal court in Louisiana against Florida Marine under the Jones Act and general maritime law, and Florida Marine moved for summary judgment on the Jones Act and unseaworthiness counts. Magee responded that Florida Marine either misunderstood the bases of his theories of liability or mischaracterized them. Magee argued that Florida Marine failed to provide Magee with a safe method to accomplish the task of removing trash from the vessel, failed to provide an adequate number of crew, and failed to warn Magee of the wake from a passing vessel. Florida Marine argued that it had no duty to instruct Magee on matters known by an experienced seaman. Judge Papillion found sufficient evidence of failure to provide a safe place to work, including the fact that Magee had to step over a gap between the fuel flat and dock while the Master of the vessel was standing nearby. As to unseaworthiness, Judge Papillion noted that Florida Marine focused on the very specific task of disposing of the trash to argue that the crew was not engaged in an unsafe method of work. However, he found evidence that the vessel was undermanned because two of the three deckhands were “green” and required Magee’s assistance to perform their duties and that the Master and Wheelman of the vessel were ill-trained. Therefore, Judge Papillion declined to grant summary judgment to Florida Marine on the Jones Act and unseaworthiness claims.
Florida Marine sought to exclude the opinions of Magee’s liability experts, Steven Cunningham and Michael Berry, on the ground that their opinions were conclusions that the fact finder could reach by using common sense. Cunningham opined that the fuel barge was in motion at the time of the accident, and the movement was most likely a result of the vessel TRI STATE passing by a few minutes before. Cunningham used the Automatic Identification System records together with his experience on the effects of a passing vessel to reach his conclusion. Judge Papillion disagreed with Florida Marine, answering that it was likely that Cunningham’s testimony would be helpful to the jury. Florida Marine challenged Berry’s opinions that Florida Marine violated its company policies and federal regulations, and Judge Papillion agreed that the opinions were not helpful because the Court could make that determination itself after reviewing the policies and regulations (but he declined to strike the testimony as to the standard of care in the industry). As with Cunningham, Judge Papillion found helpful the opinion regarding movement of the fuel barge. Florida Marine objected to the opinions of Dr. Charles A Czeisler with respect to fatigue risk management on the ground that his opinions were beyond the scope of his expertise and unreliable. Judge Papillion disagreed and held that Dr. Czeisler is qualified to testify about whether fatigue was a factor in causing Magee’s injury and about whether the fatigue management policies of Florida Marine were sufficient. Florida Marine next sought to exclude the testimony of Dr. Susan Kahn as to the abilities of Magee because she did not perform a physical examination of Magee or ask him to demonstrate his abilities to perform the tasks addressed in her opinion. Judge Papillion disagreed, as Dr. Kahn was asked to assess whether she believed he would be able to perform the tasks. Similarly, Judge Papillion declined to exclude Florida Marine’s vocational and economic experts. Finally, Judge Papillion declined to exclude the job offer made by Florida Marine to Magee (Magee argued that it was not a “real” job offer but was only submitted to reduce his damage claim). Judge Papillion held that he would consider the weight to be given the offer after hearing all of the evidence.
Robert L. Jones, his wife, their children, and grandchildren were passengers on the CELEBRITY EQUINOX on a cruise from Fort Lauderdale, Florida to ports in the Caribbean. Robert suffered a cardiac event within a few days and passed away. His widow elected to disembark the vessel in St. Thomas, and her daughter coordinated and communicated with the cruise line about the family’s preferences for the body and burial. She decided to keep Robert’s body in the vessel’s morgue cooler until the vessel returned to Fort Lauderdale. There was a malfunction in the cooler’s evaporator sensor, and the condition of Jones’ body deteriorated. The crew decided to move his body to the ice-carving freezer without consulting with Jones’ family. However, his body was in a “non-viewable condition” due to advanced decomposition, and the funeral could not be conducted with an open casket and the family did not have the opportunity to see Robert one last time. The family brought this suit against the cruise line in federal court in Florida based on tortious interference with a body under Florida common law. The cruise line moved for summary judgment, and Judge Williams first addressed whether the state cause of action was applicable to the actions of the cruise line. Finding that the maritime law is silent as to a cause of action in this situation, Judge Williams turned to Florida law with respect to a cause of action for tortious interference with a body. She held that the family would have to prove either a physical injury to themselves or the body (which was not alleged), or willful or wanton misconduct (conduct that would arouse resentment from an average member of the community that would cause the person to exclaim, “outrageous”). The cruise line argued that it did nothing outrageous before moving the body and that its movement of the body to the ice-carving freezer was not outrageous. Judge Williams declined to grant summary judgment, however, noting that the cruise line had not carried its burden for summary judgment with respect to the temperature of the morgue cooler and timing of discovery, particularly as the logbook to record the morgue’s temperature was inexplicably missing. Judge Williams also believed that a jury could deduce that the cruise line outrageously failed to tell the family about the cooler’s malfunction.
Debra Land, a passenger on the CARNIVAL VALOR, was injured while walking on the exterior/open area of the Lido Deck of the vessel when she stepped on a wet, slippery, transitory, and/or foreign substance on the deck. Land brought this suit against the cruise line in federal court in Florida, alleging counts of negligent maintenance, negligent failure to correct, and negligent failure to warn. The cruise line moved to dismiss the counts on the ground that they failed to sufficiently allege that the cruise line had notice of the risk-creating condition and that they lack merit. Land argued that she sufficiently alleged constructive notice because the exterior/open deck area of the Lido Deck where she fell was in a high-traffic area where there was a risk of wet, slippery/transitory substances on the deck because of the proximity to the aft pool and nearby dining areas. Magistrate Judge Reid did not consider the allegations to be too conclusory, and she believed that it was plausible that the cruise line would have notice of the slippery condition because of the proximity to the pool. Magistrate Judge Reid also believed that the prior incidents pleaded by Land involving passengers who slipped and fell on the Lido Decks of other cruise ships owned by the cruise line were sufficiently similar and detailed as to the date, vessel name, and hazardous condition to provide the cruise line with constructive notice of the condition on the VALOR. On the merits, the cruise line argued that Land had actually pleaded a vicarious liability claim, but Magistrate Reid answered that the claims were pleaded as direct liability claims and that they would not be dismissed in light of the sufficient pleading of notice. She also declined to dismiss the claims on a motion to dismiss for lack of sufficient pleading that the condition was not open and obvious, reasoning that the question should only be resolved after development of the factual record.
Mohammad Farhan Mohammad, Adian H. Ali, Nariman Ali, and Ayman Mahmmad and Maytham Farouq operated four jet skis on San Diego Bay. Ali’s jet ski allided with the stopped jet ski operated by Mohammad, causing Mohammad to suffer a fatal injury. Ali rented the jet skis from Luxury Jet Ski Rentals with a Watersport Rental Agreement that contained waiver and indemnity provisions. Luxury Jet Ski Rentals brought this action in federal court in California, seeking to limit its liability to $9,592.64, the value of the jet ski operated by Mohammad. Mohammad’s father, brother, sisters, niece, and nephew filed claims for negligent entrustment and maritime negligence in the limitation action and a third-party complaint against the owner of Luxury Jet Ski Rentals (Tyler Peters) and against Ali. Luxury Jet Ski Rentals and Peters moved to dismiss the claims, arguing that they should be exonerated because the claimants had no evidence that they negligently entrusted the jet ski to Ali and because the contractual provisions barred liability against Luxury Jet Ski Rentals and Peters. The parties disputed whether the signature for Mohammad on the Agreement was actually his, and Judge Lopez held that there was evidence to authenticate his signature along with evidence that it was not his signature, but there was no dispute that Ali signed the Agreement. Judge Lopez then addressed the validity of the waiver, noting that maritime law permits waivers for recreational activities that disclaim the owner’s negligence. Judge Lopez considered the provision in 46 U.S.C. Section 30527, which prohibits waivers for vessels transporting passengers between ports in the United States or between a port in the United States and a foreign port. She agreed with the decisions holding that the statute does not apply to recreational activities with no set destination, and she held the waiver was enforceable as to Ali. She declined to enforce the waiver for the claims on behalf of Mohammad in light of the disagreement as to whether he signed the Agreement. Judge Lopez then addressed the argument of Luxury Jet Ski Rentals and Peters that they were not liable for negligence because a rental company owes no duty to warn of obvious dangers of jet skis or to train the renters. Judge Lopez agreed that there was no duty to warn of obvious dangers (such as collision/allision) and granted summary judgment with respect to failing to warn, but she declined to hold that there was no duty to train the renters for an activity with inherent risks. Judge Lopez then considered the argument of Luxury Jet Ski Rentals and Peters that Ali’s reckless operation of her jet ski was a superseding cause of the accident that terminated any liability of Luxury Jet Ski Rentals and Peters. The claimants argued that Ali’s conduct was not a superseding cause because it was foreseeable. Judge Lopez disagreed, noting that the intentional conduct violated not only the express terms of the rental agreement but also federal and state navigation rules and law. Accordingly, she held that Ali’s intentional conduct was a superseding cause that “cuts off proximate causation” by Luxury Jet Ski Rentals and Peters, and she dismissed the claims against them with prejudice. Therefore, she held that Luxury Jet Ski Rentals was entitled to exoneration of liability. The dismissal still left the issue whether the claimants were responsible for the defense costs of Luxury Jet Ski Rentals and Peters pursuant to the rental agreement. Judge Lopez held that the agreement was governed by maritime law, not California law, and that the failure of the agreement to use the word “defend” was fatal to the claim for defense costs.
Doe and her cabinmate, who were passengers on the Carnival MIRACLE, were returning to their cabin after having a drink in the cabin of other passengers, James and John. James attempted to walk them back to their cabin, but Doe kept hiding from them. At some point, Doe slipped and hit her head, and James gave up on escorting her back to her cabin. Doe ended up in a storage closet where she asserts that she was sexually assaulted by a crew member (Fredy Anggara). Doe does not recall going in or out of the closet, but she believed that the crewmember kept the door to the closet locked and would not let her leave. The cruise line asserted that Doe consented to the interaction and was free to leave the closet. Doe brought this suit against the cruise line, asserting several causes of action. The cruise line moved for summary judgment on the claim of false imprisonment, citing the FBI’s conclusion that Doe was free to leave the closet at any time (based on statements of the crewmember during the FBI investigation). Magistrate Judge Torres ruled that the statements of the crewmember were hearsay. As the crewmember was not available to corroborate his statements, there was no evidence to counter Doe’s allegation that she was locked in the closet, and Magistrate Judge Torres consequently granted summary judgment in favor of Doe on the false imprisonment claim. The cruise line moved for summary judgment on Doe’s claim for negligent infliction of emotional distress, and Magistrate Judge Torres agreed that the cause of action applies to mental or emotional harm that is not directly brought about by a physical injury but that manifests itself in physical symptoms. As Doe claimed emotional distress from a physical injury, Magistrate Judge Torres recommended that her claim for negligent infliction of emotional distress be dismissed. See July 2021 Update.
The case was tried to a jury before Judge Williams, and, on July 19, 2022, the jury returned a verdict that the passenger was falsely imprisoned by the cruise line’s crew member and that the crew member sexually assaulted the passenger. The jury declined to find that the crew member intentionally inflicted emotional distress on the passenger or that the cruise line was negligent. The jury awarded damages of $3,000 for medical and psychological treatment in the past, $240,000 for future medical and psychological expenses, $6,000,000 for pain, suffering, and anguish in the past, and $4,000,000 for future pain, suffering, and anguish (a total of $10,243,000). See August 2022 Update.
The cruise line filed a motion for new trial and a motion for remittitur, and Judge Williams denied the motions on May 11, 2023. Doe did not request any instruction to the jury on pre-judgment interest and asked the court to award pre-judgment interest on past damages in the final judgment. Doe sued under both admiralty and diversity, but she requested a jury trial based on the court’s diversity jurisdiction. The cruise line cited authority from other circuits that “arguably held” that failure to raise the issue of pre-judgment interest violates the province of the jury, but Magistrate Judge Torres did not believe that the decisions in the Eleventh Circuit precluded a judicial award of pre-judgment interest after a jury award as long as the past damages were properly segregated from future damages. Therefore, Magistrate Judge Torres recommended that pre-judgment interest be awarded on the discrete past damages found by the jury. See April 2024 Update.
Chief Magistrate Judge Torres then considered several requests for sanctions against the cruise line. Throughout the litigation, Doe requested the personnel file for crewmember Anggara, and the cruise line responded that the file, which was kept on the ship on which the crewmember worked, could not be located after he was terminated. After the cruise line’s corporate representative testified at trial about the height and weight of Anggara, Doe argued that the information could only have come from the personnel file and should have been produced. The corporate representative testified that the cruise line had diligently searched for the file and that the information came from the cruise line’s database and was not part of the personnel file. Chief Magistrate Judge Torres considered the electronic data to be relevant to the request and he awarded sanctions of attorney fees (for wasting the time of the litigants and court), concluding that there was no bad faith in the response. The second request for sanctions involved statements presented to the court that turned out to be untrue with respect to body-worn cameras used during interviews, including interviews with Doe and Anggara. Chief Magistrate Judge Torres concluded that the representations were reckless, but the records were eventually produced, over the objection of the cruise line, in time to avoid prejudice to Doe. Therefore, Chief Magistrate Judge Torres issued a sanction awarding fees directly caused by the errant conduct. Doe also sought sanctions for the cruise line’s conduct at trial in six particulars. Chief Magistrate Judge Torres answered that some of the incidents were not sanctionable, and the others were addressed sufficiently with warnings and actions taken during trial. Ultimately, Chief Magistrate Judge Torres reasoned that counsel for the cruise line “had an obligation to zealously advocate for his client and prevent a possible run-away verdict.” He found that “lead counsel’s testimony evidences subjective good faith at trying to walk that fine line,” even if counsel “at times crossed the line.” Therefore, the only sanctions were the two awards of attorney fees for the discovery violations.
The owner and owner pro hac vice of the M/V AIDEN’S ARRIVAL, a 22-foot Bennington pontoon vessel, brought this limitation action in federal court in Florida in connection with an incident involving the vessel in the navigable waters of Hillsborough County, Florida, near Gandy Bridge and Interstate 275 that resulted in injuries to Sonia Nunez. The petitioners filed an ad interim stipulation in the amount of $21,744 and stated that they were prepared to give a bond or stipulation if requested by any claimant or ordered by the court. The Petitioners then moved for approval of the ad interim stipulation and issuance of the monition. Magistrate Judge Adams denied the motion, noting that it was not backed up by assurance from the vessel’s insurer, such as a letter of undertaking. The stipulation suggested that the vessel was insured, but it did not even identify the insurer. As the stipulation was not “approved security” under Rule F, Magistrate Judge Adams declined, without prejudice, to issue the monition. See July 2024 Update.
The petitioners filed an amended motion seeking approval of an amended ad interim stipulation and issuance of a monition. This time, the petitioners provided a statement of the value of the vessel, an agreement to be liable for the vessel’s value, and a letter of undertaking from their insurer. Finding compliance with Rule F, Magistrate Judge Adams approved the security and the proposed monition.
Vincent Fleeton, a seaman on MADCON’s vessel M/V GULF FREEDOM, claims that he was injured while carrying batteries for winches on the vessel. He brought this suit against MADCON in federal court in Louisiana under the Jones Act and general maritime law, and MADCON engaged expert economists Holly Sharp and Ryan Kelly to opine about Fleeton’s damages. The calculation of past wage loss in the experts’ joint report deducted the amount that MADCON had paid in maintenance, and Fleeton filed a motion in limine to limit or exclude that testimony. Fleeton cited the Fifth Circuit’s Ceja decision, rejecting on offset of past lost wages with the maintenance paid by the employer, and MADCON conceded that principle. However, MADCON argued that the court should not exclude the testimony because the seaman could cross-examine the witnesses, and the jury could weigh the testimony and make a decision after receiving instructions with the governing law. Judge Africk disagreed with MADCON, reasoning that it was improper for the jury to consider testimony and argument that Judge Africk termed “irrelevant.” Consequently, he ordered that the experts would not be permitted to testify to any calculation of past lost wages reduced by maintenance payments.
RMK Merrill brought this action against the M/Y “LIFESTYLE” and its owners seeking to recover for repairs and storage for the vessel. The court granted a default judgment in favor of RMK Merrill, and the vessel was sold at a Marshal’s sale to RMK Merrill for a credit bid of $5,000. When RMK Merrill sought to sell the vessel, it discovered that there was still a lien on the vessel’s state title document in favor of USAA Federal Savings Bank in the state records despite the sale that “extinguished all liens and encumbrances” on the vessel. RMK Merrill contacted USAA to try to obtain release of the lien, but it received no response. RMK Merrill then amended its complaint to name USAA to seek an order to remove the lien and to require USAA to pay a share of the custodia legis expenses. Magistrate Judge Sanchez addressed the issue whether the court had supplemental jurisdiction over the amended claim and recommended that the claim did not arise from the same common nucleus of facts as the original action. He reasoned that the original claim involved the maritime agreement for repairs and storage, and the amended claim arose from subsequent acts/inactions of USAA in response to the default judgment against the vessel. Although Magistrate Judge Sanchez considered the court “powerless to grant a default judgment” on the amended claim, he also held that RMK Merrill had not stated a claim on which relief could be granted, reasoning that RMK Merrill had “failed to allege facts showing that USAA had an obligation to release its electronic lien where plaintiff acknowledges that the lien was already ‘terminated at the US Marshal Sale’ and ‘no longer exist[ed].’” As Magistrate Judge Sanchez did not believe that USAA had any obligation to act, there was no cognizable theory of recovery. RMK Merrill filed objections to the recommendation.
This litigation arises from the breakaway of two barges, owned by SCF Marine and Parker Towing, from the Lux Creek Fleet on the Tennessee Tombigbee Waterway near the Tom Bevill Lock and Dam. Watco Transloading operates a terminal on the Tennessee Tombigbee Waterway with a “private” fleet that it asserts is separate from the “public” Lux Creek Fleet in which the two barges were moored. Four actions were filed in federal court in Louisiana, and SCF Marine and Parker Towing asserted that Watco was responsible for failing to check the mooring lines of the barges before they broke away. Watco moved for partial summary judgment, arguing that the Lux Fleet is a public fleet so that each barge owner had a duty for its own vessel. Watco defined a public fleet as one that “was created by the Army Corps of Engineers as an open fleet for public use at no charge.” Watco supported its argument with evidence from the Congressional Record that the Lux Creek Fleet was built with public funds appropriated by Congress, and that the open fleet required neither payment nor approval from any entity to moor there. SCF Marine and Parker Towing responded that the ownership did not have any bearing on liability and that the true basis for liability was whether Watco conducted itself as the operator of the Lux Fleet. SCF Marine and Parker Towing argued that Watco told the parties where to place their barges in the fleet and that its crews maintained and checked the mooring lines. SCF Marine and Parker Towing argued that the public fleet theory did not exist and had no bearing on the determination of liability, and Judge Barbier agreed, stating: Although Watco’s motion is a creative attempt at a novel legal theory, it is, unfortunately, a theory with no discernable basis in law.”
Raiders Retreat Realty, a Pennsylvania company, insured its yacht RAIDERS with Great Lakes Insurance, headquartered in the United Kingdom, for $550,000. The vessel ran aground and incurred at least $300,000 in damage, but Great Lakes denied the claim on the ground that Raiders misrepresented the vessel’s fire-suppression system’s operating ability, so that the policy was void from its inception. Great Lakes brought this action in admiralty in federal court in Pennsylvania, seeking a declaration that the policy was void and that it owed no coverage for the grounding, and Raiders responded with a counterclaim that included several extra-contractual liability claims based on Pennsylvania law. Great Lakes moved for judgment on the pleadings that the extra-contractual claims were not valid under New York law, which was applicable to the policy under a choice-of-law provision. Judge Robreno held that New York law applied and dismissed the extra-contractual claims. Raiders filed an interlocutory admiralty appeal under Section 1292(a)(3) and, writing for the Third Circuit, Judge Ambro held that the interlocutory appeal was proper under Section 1292(a)(3) because the dismissal of the extra-contractual claims determined the rights of the parties on those claims. He then addressed the issue whether to enforce the New York choice-of-law clause and the argument that the principles enunciated by the Supreme Court in the Bremen and Shute cases with respect to forum-selection clauses should be used in determining the validity of choice-of-law provisions in maritime contracts such as the insurance policy on the yacht (the Supreme Court held that forum-selection clauses are facially valid and should be honored unless there is a compelling and countervailing reason rendering enforcement unreasonable, such as when the enforcement would contravene a strong public policy of the forum where the suit is brought). Great Lakes argued that the construct used for forum-selection clauses was “utterly irrelevant” in connection with choice-of-law clauses, and the district court agreed, concluding that public policy of a state where the case was filed could not override the presumptive validity under maritime law of choice-of-law clauses where the chosen forum has a substantial relationship to the parties or the transaction. Judge Ambro disagreed, reasoning that the principle of generally enforcing choice-of-law provisions in marine insurance contracts “is not altogether separate” from the regime for forum-selection clauses. Holding that the framework enunciated in Bremen and Shute extended to the choice-of-law provision in the Great Lakes policy, Judge Ambro remanded the case to the district court to consider whether Pennsylvania has a strong public policy that would be thwarted by application of New York law. See October 2022 Update.
Great Lakes sought a writ of certiorari from the Supreme Court, and Justice Kavanaugh wrote the opinion for the unanimous Court, reversing the decision of the Third Circuit. The initial question was whether there is an established federal maritime rule regarding the enforceability of choice-of-law provisions, and he held that there is a longstanding rule that choice-of-law provisions in maritime contracts are presumptively enforceable. Raiders argued that the decision in Wilburn Boat precluded application of the maritime rule, but Justice Kavanaugh disagreed, answering that Wilburn Boat simply applied state law to the breach-of-warranty claim in that case in the absence of an established maritime rule. He added that Wilburn Boat “held only that state law applied as a gap-filler,” and there was no gap in this case in which there is a uniform maritime rule on enforceability of choice-of-law clauses. Justice Kavanaugh specifically rejected the argument that state law should apply in marine insurance cases based on a principle of “insurance exceptionalism.” Justice Kavanaugh did recognize exceptions to the enforceability of choice-of-law provisions, such as when the clause would contravene a controlling federal statute, conflict with established federal maritime policy, or when the parties can furnish no reasonable basis for the chosen jurisdiction. Raiders argued for an exception when enforcing the chosen law would contravene the public policy of the state with the greatest interest in the dispute. Justice Kavanaugh disagreed, stating that this contention was “essentially a repackaged version of its initial argument that the enforceability of the choice-of-law provisions in maritime contracts should be determined by state law.” As “no federal maritime interest favors injecting that kind of disuniformity and unpredictability into maritime commerce,” Justice Kavanaugh held that there was no exception to the presumptive enforceability of the clause.
Although Justice Thomas joined the Court’s opinion in full, he wrote a concurrence to “highlight how Wilburn Boat rests on flawed premises and, more broadly, how the decision is at odds with the fundamental precept of admiralty law.” He explained: “This Court has already retreated from Wilburn Boat’s unsound holding, limiting it to local disputes.” Justice Thomas opined that the Raiders decision “further erodes” the foundation for Wilburn Boat and that “it is not clear what, if anything, is left of Wilburn Boat’s rationale.” He concluded: “Litigants and courts should heed our instruction that general maritime law applies in maritime contract disputes unless they ‘so implicate local interests as to beckon interpretation by state law.’ Wilburn Boat reaches no further.” See March 2024 Update.
Following the decision of the Supreme Court, Judge Brody held that the dispute would be adjudicated under entrenched maritime principles and New York law in the absence of established admiralty law. Although Raiders argued that the policy’s choice of law should not apply to its extracontractual claims, Judge Brody answered that Raiders had waived that issue before the appeal. Therefore, the contract provision applied to all of the pending claims (although Judge Brody noted that other courts had applied New York law to extracontractual claims based on the same choice-of-law provision). As there is no entrenched maritime rule on extracontractual remedies against insurers, Judge Brody applied New York law and dismissed the extracontractual claims. Judge Brody then addressed the warranty that the vessel be fitted with fire extinguishing equipment that is properly installed and maintained in good working order, which includes weighing the tanks once a year, certification/tagging and recharging as necessary. The fire extinguishing equipment had not been inspected or recertified in the past year, and its tags had expired. As maritime law and the maritime exception in New York law require strict compliance with the warranty, regardless of whether its breach was causally connected to the loss, Judge Brody held that the policy was void.
Rotocraft Leasing owned and operated a helicopter that crashed into the West Delta 106 platform located on the outer Continental Shelf of the Gulf of Mexico, offshore Louisiana. Three passengers and the pilot of the helicopter were killed in the accident. The beneficiaries of the passengers brought suits in federal court in Texas, claiming that the crash was caused by the gross negligence and/or wanton and reckless conduct of Rotocraft Leasing because the pilot operated the helicopter in an impaired and intoxicated state, allowing recovery of punitive damages. Rotocraft Leasing sought to strike the allegations seeking recovery of punitive damages, arguing that punitive damages for vicariously liable employers are unavailable under Louisiana law (applicable pursuant to the Outer Continental Shelf Lands Act). However, Magistrate Judge Palermo did not agree that Louisiana law precluded punitive damages in every circumstance. She held that there were sufficient allegations (and fact disputes) to support a finding that Rotocraft Leasing may have contributed to or failed to prevent the pilot’s intoxication (if he was intoxicated). Therefore, she declined to strike the allegations.
William Trahan, an employee of National Oilwell Varco, was working on the ENSCO 102, an offshore drilling rig that was owned by Ensco and operated by Renaissance Offshore. Trahan and Alex Stewart (another employee of National Oilwell) were sent to the rig to run and maintain vacuum equipment that was already rigged up. When they arrived, they determined that the National Oilwell equipment was rigged backwards, making it impossible to drill, and they reported the problem. Eventually, Trahan and Stewart began working their alternate shifts, and Trahan noticed that he was suffering pain but he could not tell what caused his injury. On the shift after Stewart was relieved of duties, Trahan ceased working and demanded to see the medic. He was then transported to shore for medical treatment. Trahan brought this action in federal court in Louisiana against Ensco, Renaissance Offshore, and National Oilwell, seeking to recover under the Jones Act, general maritime law, and Section 5(b) of the LHWCA. The defendants moved for summary judgment on the negligence and unseaworthiness claims, and they also sought to strike the lay opinions of Barrett Scoper, whose partner is related to Trahan. Scoper came forward to give testimony after he saw Trahan at the Funeral of Trahan’s mother-in-law. Scoper had not been designated as an expert, and Judge Cain agreed that he would not allow any testimony by Scoper that is an attempt to establish causation, that involves hearsay, that addresses industry standards for vacuuming personnel, and that addresses Trahan’s psychology, thoughts, and impressions. Judge Cain did agree that Scoper’s observations could be admitted subject to cross-examination from his contradictory statements. Turning to the summary judgment, the defendants argued that Trahan could not prove negligence or unseaworthiness because Trahan was the sole cause of his injury. Trahan did not ask for help, but his supervisor did not advise him that he should wait for help. He had previously asked for and obtained assistance from his co-worker (Stewart), but Trahan had to work alone on the day of his accident. Judge Cain found fact questions on negligence and unseaworthiness that precluded summary judgment.
Dewey T. Rhoades died from lung cancer that allegedly resulted from exposure to asbestos during his repair of Navy aircraft on the USS KITTY HAWK, USS SARATOGA, USS FORRESTAL, and USS AMERICA during extended voyages at sea, including to Vietnam, the West Pacific, and the Mediterranean Sea. His widow, Leona Rhoades, brought this suit in the Court of Common Pleas of Philadelphia County, Pennsylvania, and the case was removed to federal court. Eventually, the three remaining defendants moved for summary judgment, which required that Judge Slomsky address whether maritime law or state law applied the claims. As the plaintiff alleged that Rhoades was exposed to asbestos while the vessels were involved in sea voyages, Judge Slomsky considered that the locality test for admiralty jurisdiction was satisfied. He then addressed the connection test, beginning with the question whether the asbestos exposure had a potentially disruptive impact on maritime commerce. Judge Slomsky reasoned that Rhoades’ work required him to repair aircraft employed by the Navy in its defense. This was not directly tied to the operation of the ships (ability to proceed through the water); however, if the aircraft were not functional because the mechanics were ill, it would disrupt the Navy’s ability to protect other commercial ships at sea or inhibit the Navy’s ability to fight in times of war. Therefore, Judge Slomsky held that the first prong of the connection test was satisfied. Judge Slomsky then addressed whether the activity giving rise to the claim had a substantial relationship to traditional maritime activity. Judge Slomsky reasoned that the products (aircraft engines) were created for the proper functioning of the aircraft and were not integral to the proper functioning of the vessels. He quoted from the Supreme Court’s decision in Executive Jet: “The matters with which admiralty is basically concerned have no conceivable bearing on the operation of aircraft, whether over land or water.” Therefore, the connection test was not satisfied, and Judge Slomsky applied Florida law to the claims.
Colyn Rich borrowed $94,850 from Machias Savings to purchase the F/V RICH ENDEAVOR and granted Machias a first preferred mortgage on the vessel. Rich defaulted after two modifications of the terms of the loan, and Machias brought this action against the vessel on January 30, 2024, resulting in the arrest of the vessel on February 9, 2024. Rich filed an answer on February 20, 2024, in which he denied some of the statements in the complaint, but he did not answer requests for admissions or seek to release the vessel from the arrest. On June 14, 2024, Machias moved for an interlocutory sale (and for permission to submit a credit bid), asserting that the vessel was subject to deterioration and the cost of keeping the property was excessive/disproportionate. Rich did not respond, and Magistrate Judge Nivison ordered the interlocutory sale. Although the court had not entered a judgment in favor of Rich, Magistrate Judge Nivison ruled that Machias had established that it had a maritime lien of not less than $86,836.47 (plus interest, costs, and custodia legis expenses) and that no one else had asserted a lien. Therefore, he authorized Machias to submit a credit bid up to $86,838.47.
William Jones, an employee of FDF Energy Services, claims that he was injured when he was struck by a crane stinger while he was working in the Gulf of Mexico offshore Louisiana on the jack-up rig, ENTERPRISE 205, owned and operated by Enterprise Offshore Drilling. Enterprise Offshore Drilling was working for the oil and gas lease owner, Cantium, which hired FDF Energy, an oilfield contractor, to provide rig and vessel cleaning services (cleaning tanks on the ENTERPRISE 205). Jones filed a suit in Louisiana state court against Enterprise (and two of its employees), seeking to recover for negligence and unseaworthiness, and Enterprise tendered its defense and indemnity to Cantium pursuant to the drilling contract between Enterprise and Cantium. Cantium tendered the defense/indemnity of Enterprise to FDF Energy pursuant to the terms of the master service agreement between Cantium and FDF, which required FDF to defend and indemnify Cantium and the members of Cantium’s “Company Group” including the subcontractors of Cantium (such as Enterprise). FDF Energy’s insurer, Hartford, declined the tender of the defense/indemnity of Enterprise, asserting that the obligations were void under the Louisiana Oilfield Indemnity Act. Cantium then brought this suit in federal court in Louisiana against FDF Energy, arguing that the MSA was governed by the general maritime law under which the defense and indemnity provisions were valid. Cantium amended its complaint to seek defense and indemnity for its employees who were sued by Jones in the state suit, and moved for summary judgment that the MSA was governed by the general maritime law. Judge Fallon set the stage for the determinative choice-of-law issue by stating that the reciprocal indemnity provisions were valid under the general maritime law but were voidable under Louisiana law as Cantium had not paid for a Marcel Endorsement to bypass the effect of the LOIA. Judge Fallon applied the decision of the en banc Fifth Circuit in Doiron to determine whether the MSA is a maritime contract. FDF Energy argued that it did not expect a vessel to play a substantial role in the services it provided because the jack-up ENTERPRISE 205 was not a vessel in navigation when it was jacked up. Looking at the MSA together with the work order that provided for the tank cleaning on the jack-up, Judge Fallon rejected the argument. He answered that the ENTERPRISE 205 was a vessel and remained a vessel while it was jacked up. Consequently, the contract work contemplated a substantial role for a vessel, and the contract was a maritime contract. FDF Energy then presented a “unique twist” on the Doiron analysis, arguing that its incorrect belief that the work was not going to be performed on a vessel in navigation “transforms the contract.” Judge Fallon rejected the argument that “a party’s belief or expectation that is contrary to established law ought to negate the existence of a maritime contract.” FDF Energy also argued that the Fifth Circuit’s Corbitt decision, holding that an indemnity provision did not extend to the indemnitee’s contractual liability under a separate contract, demonstrated that the indemnity owed by FDF Energy only extended to Cantium and did not require that FDF Energy also defend and indemnify Enterprise Offshore. Judge Fallon easily rejected that argument because the language of the defense/indemnity obligation in the MSA (pass-through indemnity) extended directly to Cantium and its subcontractors, which included Enterprise Offshore. As FDF Energy was required to indemnify both Cantium and Enterprise, Judge Fallon held that Cantium was entitled to the defense costs it expended to defend Enterprise. And, as the contract provided for the recovery of attorney fees to enforce the indemnity, Judge Fallon held that Cantium could recover attorney fees for bringing the suit against FDF Energy (he also rejected the argument that Cantium did not have the right to bring the claim for attorney fees because they were paid by Cantium’s insurer). Finally, Judge Fallon held that FDF Energy was required to name Cantium and Enterprise Offshore as additional insureds based on the brief parenthetical addition to the insurance section: “including obtaining waivers of subrogation, adding Company Group as additional insured, and being primary).” See May 2024 Update.
FDF Energy moved for a new trial, arguing that Cantium was not entitled to recover attorney fees and costs for two reasons. First, the fees/costs were paid by its insurer. Second, the contract did not require defense and indemnity of the insurer. FDF Energy contended that the collateral source rule (prohibiting a tortfeasor from reducing its liability to an injured plaintiff by the amount the plaintiff received from insurance proceeds) does not apply in contract cases. Therefore, FDF Energy argued that Cantium should not be allowed to recover attorney fees from FDF Energy. Judge Fallon agreed that the argument had merit and required further analysis because the purpose of the collateral source rule is to address the situation where there is the potential for double recovery. However, Cantium would not receive a double recovery because its insurance policy gave the insurer the right to recover all sums paid under the policy and transferred the right of recovery to the insurer. Thus, Judge Fallon concluded that the collateral source rule was “not truly at issue here.” Judge Fallon also rejected the argument that Cantium’s insurer, which paid the fees, had no right to bring the action because it was not within the scope of the indemnity. It paid the fees on behalf of Cantium and was subrogated to Cantium’s rights. As Cantium was entitled to recover, its insurer was subrogated to that recovery.
From the state courts
Trampass Pritchett was employed as a tugboat pilot by Cooper Marine on the M/V YELLOW HAMMER. Pritchett is a resident of Alabama, and Cooper Marine is an Alabama corporation. Pritchett was injured when he fell while attempting to get out of his top bunk on the vessel that was secured to the dock at Michoud Slip in New Orleans, Louisiana. Pritchett brought this suit in the Civil District Court of Orleans Parish, Louisiana, and Cooper Marine moved to dismiss the case on the basis of forum non conveniens, arguing that it owns a fleet of 21 tugs and more than 400 barges that work in the Tennessee-Tombigbee River system as well as the Gulf Intracoastal Waterway from Texas to Florida and that the YELLOW HAMMER only spent 17% of the time at the Michoud Slip. Pritchett cited article 123(B) of the Louisiana Code of Civil Procedure, arguing that the statute only permits dismissal of a case based on forum non conveniens if the grounds for the plaintiff’s claims occurred outside of Louisiana. Additionally, Pritchett argued that even if the statute were applicable, the factors to be considered supported the case remaining in Louisiana. Judge Hazeur granted the motion, and Pritchett appealed to the Louisiana Fourth Circuit Court of Appeal. Writing for the Court of Appeal, Judge Herman began by ruling that Judge Hazeur did not abuse her discretion in considering the public and private interest factors. Judge Herman gave little weight to the choice of forum as Pritchett is a resident of Alabama. Pritchett sought medical treatment only in Alabama, and all but one of the crew were residents of Alabama. As maritime law applied, there was no public interest in the application of Louisiana law in a Louisiana court to a dispute between Alabama residents involving federal law. Judge Herman then addressed the language of the statute in article 123(B):
Upon the contradictory motion of any defendant in a civil case filed in a district court of this state in which a claim or cause of action is predicated upon acts or omissions originating outside the territorial boundaries of this state, when it is shown that there exists a more appropriate forum outside of this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice, the court may dismiss the suit without prejudice; however, no suit in which the plaintiff is domiciled in this state, and which is brought in a court which is otherwise a court of competent jurisdiction and proper venue, shall be dismissed pursuant to this Article.
Judge Herman noted that Louisiana courts had not restricted their interpretation of the statute so that the location of the act or omission was determinative as to whether to dismiss a case on the basis of forum non conveniens, answering that the location of the incident was but one factor to be considered. Judge Herman cited the reasoning from the Boudreaux decision that such a ruling “could make Louisiana a haven for forum shoppers who perceive some sort of tactical advantage to filing suit here.” As Judge Hazeur did not abuse her discretion in concluding that the private and public interest factors supported Alabama as the more convenient forum, the Court of Appeal affirmed the dismissal of the suit. Judge Belsome dissented. He agreed that the decisions from other Louisiana courts supported the majority’s interpretation of article 123(B); however, he disagreed with those rulings in light of the language of the statute. Judge Belsome reasoned that forum non conveniens was “strictly statutory” in Louisiana, and he focused on the language (“predicated upon acts or omissions originating outside the territorial boundaries of this state”) as a limitation on the territorial effect of the statute. He concluded: “In order to honor the directive of the legislative branch and maintain consistency with our civilian heritage, I would reverse the trial court and remand for further proceedings consistent with the language of La. CCP art 123.”
Kenneth G. Engerrand
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Quote:
From Justice Gorsuch in Erlinger v. United States, No. 23-370, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (U.S. June 21, 2024):
Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had “depriv[ed] [them] in many cases, of the benefits of Trial by Jury.” ¶20. For centuries, English law had recognized the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 151 (1968). Yet, as tensions grew between the British Empire and its American Colonies, imperial authorities responded by stripping away that ancient right. By their lights, colonial juries “‘were not to be trusted’” because they found for defendants too often. D. Lovejoy, Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764-1776, 16 Wm. & Mary Q. 459, 468 (1959). To secure more vigorous enforcement of the Stamp Act and other unpopular laws, authorities directed more and more cases to vice-admiralty courts where crown-appointed judges, rather than local juries, decided the defendant’s fate. Jones v. United States, 526 U.S. 227, 245-246 (1999). Just as authorities hoped, the tactic proved “‘most effective’” at securing the verdicts they wished. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 340, n.3 (1979) (Rehnquist, J., dissenting) (quoting 11 W. Holdsworth, A History of English Law 110 (1966)).
After securing their independence, the founding generation sought to ensure what happened before would not happen again. As John Adams put it, the founders saw representative government and trial by jury as “the heart and lungs” of liberty. Letter from Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed. 1977). “[W]ithout them,” he wrote, we “have no other fortification . . . against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.” Ibid.
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© Kenneth G. Engerrand July 31, 2024; redistribution permitted with proper attribution.
