December 2020 Longshore/Maritime Update

December 1

December 2020 Longshore/Maritime Update (No. 259)

Notes from your Updater:

In our September 2020 Update we discussed the opinion of the panel of the Fifth Circuit in Sanchez v. Smart Fabricators of Texas, L.L.C., No. 19-20506 (5th Cir. Aug. 14, 2020), holding that a welder who was injured on a drilling rig that was jacked up adjacent to an inland pier presented a fact question of seaman status. All three members of the panel concurred and suggested that the court’s precedents interpreting the nature element of the test of seaman status should be reconsidered by the full court in order “to bring our jurisprudence in line with Supreme Court case law.” On October 30, 2020, the Fifth Circuit agreed to rehear the case en banc.

On November 4, 2020, a jury in the Civil District Court for the Parish of Orleans, Louisiana, returned a verdict against two stevedoring companies and one shipping company of more than $10 million in favor of a longshore worker who was diagnosed with mesothelioma in connection with his exposure to asbestos while employed at the waterfront and his exposure to asbestos taken home by his father from work. The verdict is linked.


The dispute between China Shipping and Big Port Service over the supply of bunkers to China Shipping’s vessels resulted in the Second Circuit giving effect to a judgment in Singapore and affirming the injunction that enjoined the efforts of the bunker supplier to arbitrate the case (April 2020 Update and June and September 2020 Updates with respect to a request for attorneys’ fees). On November 16, 2020, the United States Supreme Court declined to grant Big Port’s petition for a writ of certiorari that posed the question: Whether the Second Circuit erred in recognizing a cause of action for a party seeking to avoid arbitration and in concluding that courts have remedial power—untethered to any federal statute and unconstrained by this Court’s precedents governing the grant of injunctive relief—to issue injunctions against arbitration?

The courts continue to address the ramifications of the Supreme Court’s decision in Lucia v. SEC (see October 2019, January 2020, and September 2020 Updates). On November 16, 2020, the Supreme Court agreed to hear two appeals in Social Security cases (Carr v. Saul, No. 19-1442, consolidated with Davis v. Saul, No. 20-105) to address whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings. Thanks to Professor Michael F. Sturley of the University of Texas Law School for bringing these cases to our attention.

On the LHWCA Front . . .

From the federal appellate courts:

Another suit by a laborer on a vessel was untimely when it was brought after the default date in a limitation action; Payne v. Double J. Marine, L.L.C., No. 19-30655 (5th Cir. Nov. 3, 2020) (per curiam).


In our May 2020 Update, we addressed the injury to a laborer on the M/V ATLANTIC GRACE when the vessel was struck by the M/V MISS SYLVIA. The owner of the MISS SYLVIA filed a limitation action, and the court ordered all claims to be filed by September 12, 2016. Four individuals and one insurer filed claims, and in May 2017, the court defaulted all claims that had not been filed. The owners of the MISS SYLVIA settled with the claimants on September 27, 2018, and the limitation action was closed on November 26, 2018. Thereafter, additional workers bought suit against the owners of the MISS SYLVIA, and the court dismissed their claims as untimely. In the Collins case discussed previously, Collins asserted that he did not learn of the limitation action until after it had been closed and that he had not received direct notice of the action as is required for known claimants. He did not dispute that the owner had properly given constructive notice by publication, but he claimed that he was a known claimant because he had filed federal and state workers’ compensation claims and was listed as a witness in the limitation action. However, listing Collins as a witness about the facts of the accident gave no hint that he was a known claimant. Whether he may have been able to file a late claim in the limitation action was not presented as he did not attempt to do so. His separate action was untimely, and the Fifth Circuit affirmed its dismissal. In this action, the claims of Cary Payne and Jerome Davis were dismissed for the same reason, and, having addressed the same issues in in the suit brought by Collins, the Fifth Circuit affirmed the dismissal of the Payne and Davis claims.

From the federal district courts:

Longshore worker failed to establish wrongful discharge in violation of the ADA; Wommack v. Ceres Marine Terminals, Inc., No. 19-1720, 2020 U.S. Dist. LEXIS (Nov. 2, 2020) (Breder).


James Wommack injured his foot in 2014 while working as a longshoreman for Ceres Marine. He received LHWCA compensation and underwent surgery on his right Achilles tendon. His benefits ended when Dr. Edward Cohen performed a medical examination on Wommack and declared that he had reached maximum medical improvement and could work at full duty. Wommack later asserted that he had a fractured foot, and Dr. Cohen eventually declared that he was capable of working in a full-duty capacity. Wommack then completed a driving job for Ceres on March 22, 2018, and after one day in that role strained his Achilles tendon. Although Wommack’s physician reported that Wommack was doing light duty work and could not go back to full activity, Dr. Cohen evaluated him and opined that he was capable of performing full duty, full time. In the meantime, Wommack and other longshore workers filed a complaint with the National Labor Relations Board, arguing that Ceres was not following its collective bargaining agreement with respect to workers receiving workers’ compensation payments (the complaint was dismissed on the basis that light-duty employees did not fall within the scope of the collective bargaining agreement). Ceres discontinued Wommack’s light-duty assignment because he was no longer eligible for workers’ compensation. Wommack brought this action alleging that he was wrongfully discharged by Ceres in violation of the Americans With Disabilities Act. Ceres moved for summary judgment, and Chief Judge Breder granted the motion. Although there was a fact question on whether Wommack’s employment was terminated, Wommack failed to establish that he was within the ADA’s protected class, that he was performing the job at a level that met his employer’s legitimate expectations, or that the discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination.

LHWCA carrier’s intervention to assert a lien under the LHWCA was not sufficient to support a Burnside cause of action, and the assertion of a Burnside action after the pleading deadline was untimely; Doucet v. R. & R. Boats, Inc., No. 3:17-cv-00421, 2020 U.S. Dist. LEXIS 207760 (M.D. La. Nov. 5, 2020) (Jackson).


Elroy Doucet, an employee of W&T Offshore, brought this action against R. & R. Boats, owner of the M/V LANDON JAMES, for an injury he suffered on the vessel while en route to an offshore platform. W&T Offshore’s LHWCA compensation carrier, American Longshore Mutual Association, paid benefits to and on behalf of Doucet under the LHWCA, as extended by the Outer Continental Shelf Lands Act, and filed an intervention seeking to recover those benefits from R. & R. “directly and by preference and priority from the first monies received by Elroy Doucet.” Long after the deadline to amend pleadings had passed, ALMA filed an opposition to R. & R.’s motion for partial summary judgment in which ALMA asserted that it had a direct Burnside claim for negligence against R. & R. (under Federal Marine Terminals, Inc. v. Burnside Shipping Co.) in addition to its lien claim. R. & R. filed a motion in limine to strike ALMA’s Burnside claim, and Judge Jackson agreed and struck the claim. The Burnside claim is a negligence claim that requires a pleading of the elements of negligence. Mentioning the word “directly” in the intervention was inadequate to plead “a cause of action outside the LHWCA as a basis for recovery.” The lesson for LHWCA carriers is to plead the negligence elements asserted by the injured worker as an alternative to the LHWCA intervention.

Tankerman’s injury claim against the vessel owner for a design defect was impermissible under Section 905(b), but he could proceed on a theory of failure to warn in violation of the turnover duty; Griffin v. Chembulk Maritime USA, LLC, No. 10-9793, 2020 U.S. Dist. LEXIS 210081 (Nov. 10, 2020) (Milazzo).


John Griffin was injured on the M/T CHEMBULK ULSAN, docked in Lake Charles, Louisiana, when he stepped into an unmarked hole in grating. He brought this action against the vessel owner under Section 905(b) of the LHWCA, and the owner moved for summary judgment. The owner first argued that the gap into which Griffin stepped had existed since the construction of the vessel, and that the claim was essentially one for unseaworthiness that was no longer available after the 1972 Amendments to the LHWCA. Judge Milazzo agreed that Griffin could not succeed in a Section 905(b) claim based on a design defect; however, she agreed with the owner that the gap in the grating was open and obvious so as to defeat the claim of breach of the Scindia turnover duty. She concluded that there was evidence that the hole was a hidden hazard because it may have been difficult to see and was not typically seen on similar vessels. As there was no evidence that the owner was in operational control of the area where Griffin was injured or that the condition arose during Griffin’s operations, Judge Milazzo dismissed the claims based on the Scindia active-control duty and duty to intervene.

And on the maritime front . . .

From the federal appellate courts:

Second Circuit affirmed district court’s decision declining to lift the stay in a limitation action where there was a claim for contribution and indemnity; In re D’Onofio General Contractor Corp., No. 19-4029, 2020 U.S. App. LEXIS 34889 (2d Cir. Nov. 2, 2020) (per curiam).


Edward Safer, Jr., a payroll employee of Avitus, was injured while serving as the captain of the LUCIE JO, a tugboat owned by D’Onofio. Safer bought suit under the Jones Act and general maritime law against D’Onofio and Avitus in state court, and D’Onofio filed this limitation action. Safer and Avitus filed claims in the limitation action, with Avitus’s claim seeking indemnity, attorney’s fees, and costs. Safer moved to lift the stay based on a single-claimant situation, stipulating to priority of Avitus’s claims for attorneys’ fees over his own claims. The district court declined to lift the stay, and the Second Circuit affirmed that decision. The court recognized that Avitus’s contract claims were not subject to the limitation proceeding, but its claims for common-law indemnity and contribution (including the claim for attorneys’ fees) could result in circumstances in which D’Onofio could be held liable in excess of the limitation fund.

Court affirmed decision that a passenger, who is deaf, mute, visually impaired, and functionally illiterate, did not lack capacity to consent, regardless of ADA requirements, and she was bound by the time limitation in her ticket; Melancon v. Carnival Corp., No. 20-30217, 2020 U.S. App. LEXIS 35287 (5th Cir. Nov. 6, 2020) (per curiam).


This case arises out of an appeal by injured CARNIVAL DREAM passenger Marion Melancon of the granting of Carnival’s motion to dismiss by Judge Lemelle of the Eastern District of Louisiana (April 2020 Update). The Fifth Circuit affirmed dismissal because Melancon’s claims regarding her slip and fall aboard the ship while docked at the Port of New Orleans, asserted three years later, were untimely based on the time limitation for suit in her ticket. Melancon claimed she lacked capacity to consent to the ticket contract because she was deaf, mute, visually impaired, and functionally illiterate, and she was therefore not bound by the period of limitations baring the claim. Melancon argued that under Americans With Disabilities Act, Carnival failed to provide accommodations, thus rendering her contractually incapacitated. The court noted that both parties agreed that Melancon’s disabilities fell within the ADA; however, her argument assumed that the ADA required Carnival to provide aids and services while contracting via the internet. Although the court did not address whether such a duty was owed, Melancon failed to show that an ADA violation of the kind would negate contractual capacity. The court reasoned that Melancon’s claim confused concepts of capacity and mutual assent and failed to explain how the presence of one party’s duty negated the other’s contractual capacity. Basic contract law does not require that a signing party read or understand a contract in order to be bound, and it thus does not require that the drafting party employ any particular method of communication. Additionally, the Fifth Circuit denied Melancon’s request for leave to amend her complaint (on appeal) because the proposed amendment would be futile. As Melancon could not establish a lack of capacity to consent to the terms of the ticket contract, she was bound by the one-year period of limitation, which barred her claim.

Defense attorney’s appeal of sanctions issued against him was dismissed for lack of appellate jurisdiction; REC Marine Logistics, L.L.C. v. Richard, Nos. 20-30170, 20-30341 (5th Cir. Nov. 6, 2020) (per curiam).


The former attorney for REC Marine was sanctioned twice by the district court (for failure to comply with discovery and vessel inspection requests and for disruptive behavior in a deposition) (see April 2020 Update), and he brought these interlocutory appeals. As the underlying matter was ongoing and no final judgment had been entered, the Fifth Circuit held that it did not have jurisdiction over the appeals and dismissed them.

Liability of land-based maintenance company for crash of F-16 on the high seas was governed by DOHSA, foreclosing state claims and non-pecuniary damages; government contractor defense precluded liability; LaCourse v. PAE Worldwide Inc., No. 19-13883, 2020 U.S. App. LEXIS 36021 (11th Cir. Nov. 17, 2020) (Newsome).


Lieutenant Colonel Matthew LaCourse was killed when the F-16 fighter jet that he was piloting crashed in the Gulf of Mexico more than 12 nautical miles from the Florida coast. His widow brought this action in Florida state court against the company that serviced and maintained the jet, alleging claims for negligence, breach of warranty, and breach of contract under Florida law. The maintenance company removed the case based on jurisdiction of the Federal Officer Removal Statute, diversity, and the Death on the High Seas Act, and moved for summary judgment. The first issue was whether DOHSA applied to a death on the high seas that was caused by negligent conduct on the land. As the Supreme Court and the federal appellate courts have repeatedly held that DOHSA applies to deaths on the high seas even though the negligence that caused the accident occurred on land, Judge Newsome held that DOHSA applied.  Application of DOHSA limited the damages available to pecuniary losses and preempted application of the state causes of action, leaving only a maritime negligence cause of action. Judge Newsome further noted that it was not necessary to comply with the nexus requirement (a significant relationship to traditional maritime activity) for admiralty law to apply to the death on the high seas. Turning to the negligence remedy that was available under DOHSA, Judge Newsome held that LaCourse was unable to produce any evidence to create a fact issue on whether the maintenance company had violated government procedures. Consequently, the defendant was entitled to the government-contractor defense and the summary judgment in its favor was affirmed. Judge Newsome wrote a separate opinion, concurring in his panel opinion, which was joined by Judge Wilson, to note that the decision with respect to the application of DOHSA was written while “holding his nose.”

City was not entitled to sovereign immunity for maritime claim arising from capsizing of police boat during sea trial; Glover v. City of Norfolk, No. 20-1169, 2020 U.S. App. LEXIS 36230 (4th Cir. Nov. 18, 2020) (per curiam).


The claims of two workers, Timothy Pridemore and David Glover, who were injured from the capsizing of a police boat during a sea trial have turned their focus to federal court after litigation on sovereign immunity for the City of Norfolk was addressed by state courts in Virginia (August and November 2019 Updates). Pridemore and Glover brought suit against the City of Norfolk in federal court, and the City asserted that it was entitled to sovereign immunity. Noting that the United States Supreme Court has held that municipalities are not entitled to sovereign immunity for maritime claims, the district court rejected the City’s defense and the Fourth Circuit agreed, declining to limit or overturn the decision of the Supreme Court. The Fourth Circuit also rejected the City’s argument that it was entitled to immunity as an arm of the State as the State would not pay a judgment against the City in this case. The Fourth Circuit declined to address the question of whether the workers could proceed on their vicarious liability claims against the City (even though the police officer who was operating the vessel was entitled to qualified immunity) as the order was not a final order.

Eleventh Circuit rejected a specific time limit for constructive notice of small pieces of food on the deck of a cruise ship and affirmed summary judgment to the cruise line on the failure-to-warn claim of a passenger who slipped on a piece of watermelon. Francis v. MSC Cruises, S.A., No. 19-13605, 2019 U.S. App. LEXIS 36538 (11th Cir. Nov. 20, 2020) (per curiam).


Janet Francis, a passenger on MSC’s cruise ship DIVINA, slipped on a piece of watermelon in a passageway leading from the buffet. She had noticed that there was a lot of food on the deck of the passageway on her way to the buffet, putting her on heightened awareness. When she exited the buffet, ten to fifteen minutes later, she observed that the deck had been cleaned, but she was still cautious, looking for fruit on the floor. Nonetheless, she slipped on a piece of watermelon. The cruise line moved for summary judgment on the failure-to-warn claim on the ground that it owed no duty to Francis because it had no actual knowledge of the piece of watermelon and it had not experienced evidence of substantially similar incidents to put it on notice of the dangerous condition and have a duty to warn its passengers. As the deck had been cleaned within the ten to fifteen minutes that Francis was at the buffet, Magistrate Judge Seltzer held that there was insufficient evidence that the condition had been present to impute constructive notice to the cruise line (see October 2019 Update). Although the cruise line was aware that food could be spilled on its decks and that food on the deck would be a slipping hazard, without a history of accidents of this sort, the cruise line was not on notice that the passageway was hazardous. Additionally, Magistrate Judge Seltzer concluded that the condition of the fruit on the deck was open and obvious so that the cruise line would not have had a duty to warn Francis in any event. Having concluded that the condition was open and obvious, Magistrate Judge Seltzer also dismissed Francis’ claims of negligent design and negligent maintenance, even though the cruise line had not moved for summary judgment on those claims. The Eleventh Circuit agreed with the dismissal of the failure-to-warn claim, as there was only speculation as to how long the watermelon had been on the floor. The appellate court distinguished a decision holding that 30 minutes was sufficient time to invite corrective measures, as that case involved large puddles that were more obvious than a piece of watermelon that was small enough that Francis did not notice it: “Our law does not require crew members to be on notice within 10 to 30 minutes of every small piece of food that falls to the floor, on a ship where hundreds of passengers are walking with food every day.” However, the Eleventh Circuit held that it was error for the magistrate judge to dismiss the negligent design and negligent maintenance claims sua sponte without giving Francis notice that he was going to rule on those claims. The appellate court rejected the argument that Francis had to file a motion for reconsideration to preserve that error, holding that a motion for reconsideration is not necessary to preserve objections to sua sponte grants of summary judgment.

Second Circuit found no valid reasons against enforcing a Philippine arbitral award that a cruise line seaman argued was inadequate under United States law; Pagaduan v. Carnival Corp., No. 19-3400-cv, 2020 U.S. App. LEXIS 37350 (2d Cir. Nov. 25, 2020) (per curiam).


Rodrigo R. Pagaduan was injured while serving as a motorman on a Carnival Cruise Lines’ vessel, and his case was ordered to be arbitrated in the Philippines. The Philippine Labor Arbiter granted Pagaduan $5,100 in sickness allowance plus attorney’s fees of 10% of the award. Pagaduan cited two grounds under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as reasons that the award should not be confirmed. He first argued that he had not been given proper notice of the proceedings and was unable to present his case, but Pagaduan submitted multiple lengthy briefs, medical records, and affidavits. He spent considerable time arguing that the only issue that mattered in the case was whether the Arbiter had jurisdiction over the subject matter, leaving him limited room to argue the merits of his case (such as how the Jones Act or Philippine law would provide a greater recovery). Although he pointed to errors in the proceedings, none of them suggested that he was denied the opportunity to be heard in a meaningful time or manner. Therefore, the Second Circuit did not believe that the first ground applied. Pagaduan also argued that the award contravened United States policy to provide special solicitude to seamen under the Jones Act. However, the fact that the award was arguably smaller than Pagaduan might have recovered under the Jones Act was not so contrary to public policy as to “violate our most basic notions of morality and justice.” As federal public policy is not violated “merely because foreign law would provide a lesser or different remedy in a particular area of the law,” the Second Circuit declined to set aside the award.

From the federal district courts:

Court declined to strike a supplement to the opinion of the seaman’s economist and held that the opinion was sufficient under Daubert; Sanders v. Marquette Transportation Co., No. 19-12046, 2020 U.S. Dist. LEXIS 199498, 2020 U.S. Dist. LEXIS 199504 (E.D. La. Oct. 27, 2020) (Guidry).

Opinion on Motion in Limine

Opinion on Motion to Strike

Marcus Sanders brought this action to recover for injuries he sustained as a deckhand trainee on Marquette Transportation’s M/V ST CHRISTOPHER. Sanders submitted the report of economist Kenneth McCoin to support his claim for economic losses, and Marquette Transportation objected that McCoin’s calculations were based on unsupported assumptions and should be excluded based on Daubert. Sanders responded to the motion and included a declaration from McCoin with further explanation regarding the data upon which McCoin relied in formulating his opinions. Marquette Transportation then sought to strike that declaration. Judge Guidry denied both motions. First, he held that the objections to the assumptions on which McCoin’s opinions were based went to the weight of his testimony and not to its admissibility. Then, as the declaration did not offer new opinions and only attempted to explain the methodology, Judge Guidry held that it need not be stricken.

Passenger ticket was not incorporated into the passenger’s complaint to support a motion to dismiss based on the time limitation for suit in the ticket; complaint sufficiently alleged notice of a dangerous condition and proximate cause; negligent design theory could not be premised on vicarious liability of the cruise line for the negligence of its contracted architect; Barksdale-Starkes v. Carnival Corp., No. 20-22204, 2020 U.S. Dist. LEXIS 200925 (S.D. Fla. Oct. 27, 2020) (Torres).


Earlene G. Barksdale-Starkes slipped and fell on a wet substance while walking on the Promenade Deck of the CARNIVAL MAGIC. She negotiated several extensions of time to file suit against the cruise line and eventually brought this action against the cruise line and the architect responsible for the interior design of the vessel more than a year after the accident. The defendants moved to dismiss the complaint, and Magistrate Judge Torres recommended that it be dismissed in part. The suit was timely against the cruise line because of the extensions it granted, but those extensions did not apply to the architect. The architect contended that the provisions of the ticket required that the suit be brought against it within a year (and that the passenger provide notice within 185 days), but the ticket was not attached to the complaint and was not essential to the allegations in the complaint that sounded in tort. Therefore, Magistrate Judge Torres held that its provisions could not be considered for a motion to dismiss. Magistrate Judge Torres considered the negligence and proximate cause allegations of the complaint to be sufficient to survive a motion to dismiss and then addressed the allegation that the cruise line was vicariously liable for the negligence of the architect who was contracted to design the area where the passenger fell. Magistrate Judge Torres reasoned that a negligent design case required that the cruise line actually create, participate in, or approve the design and did not support vicarious liability of the cruise line for the negligence of its apparent or actual agents. Therefore, he recommended dismissal of the vicarious liability claim against the cruise line.

One-year time limitation in sea waybill barred cargo damage action against inland trucker; ELCO Insurance Co. v. Spirit Trucking Co., No. 18 C 6800, 2020 U.S. Dist. LEXIS 201176 (N.D. Ill. Oct. 29, 2020) (Lee).


Eli Lilly’s animal health division retained DHL Global Forwarding to arrange the transportation of six tons of Pulmotil (a treatment for bovine respiratory disease) from England to Nebraska. DHL issued a sea waybill for the transportation, listing Eli Lilly as the shipper and Nebraska as the place of delivery. DHL engaged Hapag-Lloyd, which issued its own sea waybill (designating DHL as the shipper and consignee with no mention of Eli Lilly). The Hapag-Lloyd waybill contained a Himalaya Clause that allowed the carrier to subcontract any part of the carriage and that contained a one-year time-for-suit clause. The Pulmotil was successfully carried across the ocean and then by rail to Chicago. Hapag-Lloyd then contracted with Spirit Trucking to deliver the Pulmotil to another railway line for transit to Iowa and then Nebraska. However, one of Spirit Trucking’s mechanics decided to remove a placard on the Pulmotil container using a blowtorch rather than a scraper or his own fingernails. This ignited the combustible Pulmotil, which led to this suit nearly four years later by the cargo insurer. As Spirit was hired by Hapag-Lloyd, it invoked the time limit in the Hapag-Lloyd sea waybill. The cargo insurer objected that sea waybill’s terms violated the Carmack Amendment, but Judge Lee responded that the Carmack Amendment did not apply to the inland segment of an overseas import shipment under the Supreme Court’s Kawasaki case. Judge Lee also agreed that the Supreme Court’s decision in Kirby defeated the insurer’s efforts to avoid application of the Hapag-Lloyd sea waybill to Eli Lilly. Eli Lilly may not have been named on the Hapag-Lloyd sea waybill, but it was bound by it. Judge Lee did note that the insurer might choose to bring an action against DHL pursuant to the terms of the sea waybill that was issued by DHL listing Eli Lilly as shipper.

Court applied Louisiana law to determine respondeat superior in a Jones Act case involving an injury to a worker who was struck by a crew boat while boarding a platform; waiver of subrogation for the compensation carrier was not invalidated by Louisiana law; Delozier v. S2 Energy Operating, LLC, No. 18-14094, 2020 U.S. Dist. LEXIS 202625, 211649 (E.D. La. Oct. 30, 2020, Nov. 13, 2020) (Morgan).

Opinion on Wood Group

Opinion on Intervention

Correy Delozier’s claims return to the Update (see November 2020 Update). Delozier was nominally employed by Pioneer as an operator. Pioneer contracted with S2 Energy to provide Delozier to work on S2’s platforms in the Timbalier Bay Oil Field in Louisiana waters. Delozier was injured when he was crushed between an oil well and a crew boat during an attempted transfer from a crew boat to an S2 Energy platform. Delozier and his wife brought suit against S2, Pioneer, and the Wood Group, asserting claims under the Jones Act and general maritime law. After Judge Morgan declined motions for summary judgment on Delozier’s status as a seaman and as a borrowed employee of Wood Group, Wood Group moved for summary judgment on the negligence claims filed by Delozier (respondeat superior for the negligence of Stephen Dauzat for failing to properly operate, maintain, navigate, and control the M/V MISS MICHELLE and failure to properly hire, train, and retain employees). Judge Morgan first addressed the applicable law for the respondeat superior allegation and held that Louisiana law applied the negligent navigation of the crewboat by Dauzat causing the boat to strike Delozier who had stepped off the crewboat and was scrambling onto the fixed platform. She held that the locality prong of the admiralty jurisdiction test was not satisfied because the fault was in the navigation of the vessel and not with the vessel or its appurtenances. She also held that the nexus test was not satisfied because the activity involved was oil and gas operations on a fixed platform. Thus, fault in the navigation of a crew boat that resulted in the crew boat crushing its passenger was not governed by maritime law. Citing the dual employer doctrine under Louisiana law, Judge Morgan found fact disputes that precluded summary judgment. Judge Morgan also found fact disputes with respect to the claim for negligent hiring, training, and retention. Judge Morgan also addressed the intervention of the workers’ compensation carrier for Pioneer, seeking to recover the state compensation benefits paid for this accident involving a platform worker in Louisiana waters. The Master Service Agreement signed by Pioneer provided for the application of Louisiana law and contained a waiver of subrogation against the defendants to the extent of the indemnity obligations in the agreement. The first question was whether Louisiana law or maritime law applied to the agreement, but Judge Morgan did not have to decide that issue because maritime law would enforce the choice of Louisiana law if maritime law were applicable. Under the Louisiana Oilfield Indemnity Act, the waiver of subrogation is invalid if the defendant has made an indemnity demand. As the defendants did not seek indemnity and as the indemnity was not valid under Louisiana law (S2 did not pay for a Marcel endorsement to avoid the anti-indemnity law), the waiver of subrogation was not invalidated, and Judge Morgan held that the carrier had waived its right of subrogation.

State law claims and jury demand in limitation action arising from collision on Mississippi River were stricken; In re American River Transportation Co., No. 20-416, 2020 U.S. Dist. LEXIS  202270 (E.D. La. Oct. 30, 2020) (Guidry).


American River Transportation filed this limitation action after the collision in the Mississippi River between the tow of its M/V COOPERATIVE SPIRIT and the M/V R.C. CREPPEL. Another limitation action was filed by the owner of the GLORY FIRST, which was not in the collision. Beneficiaries of seamen on the R.C. CREPPEL who were killed in the collision brought claims in the limitation actions seeking to recover damages under Louisiana state law and also demanding a jury trial in the limitation actions. The vessel owners moved to dismiss the claims that were based on Louisiana law and to strike the jury demand, and Judge Guidry agreed. As the claims involved survivors of seamen arising from a collision of two commercial vessels, Judge Guidry held that maritime law applied, not Louisiana law. Similarly, the jury demand was unavailable for a limitation action with respect to the determination of limitation and exoneration.

Letters from counsel for injured rider on jet boat excursion were insufficient to trigger the running of the six-month period to file an action seeking limitation of liability; In re Devils Hole Jetboat, LLC, No. 17-cv-166, 2020 U.S. Dist. LEXIS 202785 (W.D.N.Y Oct. 30, 2020) (Vilardo).


This is one of four cases in this month’s Update discussing the trigger of the six-month period in which a vessel owner may file an action seeking limitation of liability. Sarah Witkowski was injured during a jet boat excursion with Niagara Jet on July 15, 2016. She said she was fine after the accident, but she later went to the emergency room and told the owner of Niagara Jet. The owner agreed to pay for her emergency room copay and to give her a free boating trip. Her husband followed up in a text message to the owner advising that she was still having medical problems and that they wanted to “meet and take care of this.” The owner replied that if she needed more than his prior offer, she would need to file a claim so the insurance could take care of it. On August 4, 2016, the attorney for the Witkowskis sent Niagara Jet a letter advising of the representation, requesting that there be no contact with Mrs. Witkowski, noting her serious injuries, and requesting that the letter be forwarded to the insurance company so that the carrier could contact the attorney. A week later the attorney sent another letter with the same points but adding a request that Niagara Jet retain videotape of the incident. The Witkowskis brought a negligence action against Niagara Jet on September 29, 2016, which was removed to federal court. Almost six months later, on February 22, 2017 (more than six months after the letters from counsel), Niagara Jet and Devils Hole Jetboat (owner of the jetboat) brought an action in the same federal court seeking limitation of liability. The Witkowskis moved to dismiss the limitation action as untimely (not filed within six months of the August 4 letter). Judge Vilardo disagreed that the limitation action was untimely. Although the letters suggested that Witkowski had suffered more than a minor injury, they did not suggest that the case was worth more than the value of the vessel at $245,000 (the initial offer was $120 and a free boat ride). Additionally, the letters did not give notice of an intent to pursue a negligence claim. As the letters did not advise Niagara Jet of the extent of Witkowski’s injuries, how much they were seeking in compensation, or the type of compensation they were expecting to pursue, Judge Vilardo did not find a “reasonable possibility” that the claim might exceed $245,000.

Attorney’s letter to vessel owner that he would like to avoid naming the vessel owner in a lawsuit was sufficient to trigger the running of the six-month period to file an action seeking limitation of liability; In re Martz, No. 3:20-cv-152, 2020 U.S. Dist. LEXIS 206603 (D. Alaska Nov. 3, 2020) (Gleason).


Jennifer Horazdovsky was killed on Flat Lake, Alaska, when the raft in which she was riding in tow of a vessel operated by her husband, Andrew, was involved in a collision with a 21-foot recreational vessel being operated by Reagan Martz, son of the boat’s owners, William and Jane Martz. Andrew Horazdovsky’s attorney Timothy Lamb sent a letter to Reagan Martz on June 18, 2018, advising that he was searching for insurance coverage and inquiring about insurance for the accident. Four months later, attorney Carl Cook emailed counsel for the Martzes and requested insurance on the boat and information on the property where Reagan Martz was staying. There was an exchange between counsel about the absence of insurance, property ownership, and whether an insurer was paying for the attorney for the Martzes, including a criminal lawyer for Reagan Martz. On December 4, 2018, a third attorney, Robert Stone, wrote to counsel for the Martzes to seek clarification of the insurance coverage, noting that Reagan was a permissive user of the boat, and advising of the investigation of whether William or Jane Martz would bear any responsibility. He advised that he “would like to avoid unnecessarily naming parties to a lawsuit.” On June 4, 2020, Andrew Horazdovsky brought an action in Alaska state court against Jane and William Martz, and the Martzes filed this limitation action three weeks later on June 25, 2020. Horazdovsky moved for summary judgment on the timeliness of the action, and Judge Gleason considered the letters that were sent by the three lawyers for Horazdovsky. Although the first two letters were “fairly limited in scope,” Judge Gleason found the third letter to be far more substantive, “outlining a theory of liability that implicated the Martzes (the notation that Reagan Martz was a permissive user of the boat). The letter mentioned a lawsuit by stating that the lawyer would like to avoid unnecessarily naming parties to the suit, and Judge Gleason used that language to conclude that the language that the lawyer wanted to avoid unnecessarily naming parties to the suit was notice that the Horazdovsky intended to bring a lawsuit. Although the letter was “undoubtedly tentative,” Judge Gleason held that it was sufficient notice to trigger the running of the period to file the limitation action.

Payment processing company did not become a Jones Act employer of a seaman on a drilling rig in foreign operation; rig owner was not entitled to coverage on contractor’s policy because of a coverage territory exclusion; Hollies v. Triton Asset Leasing GmbH, No. 19-11592, 2020 U.S. Dist. LEXIS 205092, 205097, 205101, 217325 (Nov. 3, 20, 2020) (Guidry).

Opinion Kinsale

Opinion 6Cats

Opinion Borison

Opinion Transocean

Roderick Hollies was injured while working as a roustabout on the vessel D/S DISCOVERER INDIA while the vessel was sailing in the Atlantic Ocean en route from the Gulf of Mexico to the Ivory Coast. Hollies was hired by Spencer Ogden, but when he was working on international jobs, Spencer Ogden referred Hollies to 6Cats to handle the processing of his earnings. Spencer Ogden and 6Cats entered into a contract (Terms of Business for the Supply of an Independent Contract), and 6Cats entered into a contract with Hollies (Payment Processing Contract), although the contract was not signed until after his accident. Hollies brought this suit against Spencer Ogden, 6Cats, and Triton/Transocean (owner and operator of the vessel), asserting claims as a Jones Act seaman. 6Cats moved for summary judgment based on the argument that it was not Hollies’ employer, and Judge Guidry agreed. The terms of the contracts between Spencer Ogden and 6Cats and between 6Cats and Hollies (even though signed after the injury) demonstrated that Spencer Ogden did not transfer obligations of employment to 6Cats and that 6Cats was only providing the service of payment processing. As Judge Guidry found that Hollies was an employee of Spencer Ogden, Transocean was held to be entitled to indemnity from Spencer Ogden pursuant to the contract between the parties as Hollies was part of the “Supplier Group” that owed indemnity to Transocean. Transocean also sought coverage on the insurance policy issued by Kinsale Insurance Company to Spencer Ogden pursuant to the additional insurance requirement of the contract between Spencer Ogden and Transocean, but Judge Guidry held that the accident did not fall within the coverage territory specified in the policy. The coverage territory included the United States, Puerto Rico, Canada, and the waters of the Gulf of Mexico. It also included international waters other than the waters of the Gulf of Mexico if the injury occurred in the course of travel or transportation between the places enumerated above. Finally, the coverage territory included all other parts of the world if the injury arose out of the activities of a person who is in the coverage territory but was away for a short time on the insured’s business. Transocean and Spencer Ogden argued that Hollies was away for a short time as he was only serving during the transit to the Ivory Coast and was going to be replaced by a local resident once the vessel arrived. However, Judge Guidry held that the use of the word “other” in the exception for all other parts of the world only applied to parts of the world other than the parts of the world that were previously referenced. As the injury occurred in international waters and international waters were enumerated, Judge Guidry held that the injury did not occur within the coverage territory and was excluded. Finally, Judge Guidry agreed to exclude the testimony of Robert E. Borison on behalf of Hollies’ negligence claims. Judge Guidry noted that Borison’s opinion was based primarily on deposition testimony and photographs, not scientific or technical knowledge that was beyond the understanding of an ordinary person. Therefore, Judge Guidry did not believe that Borison’s expertise was required to assist the court in resolving the negligence issues.

Courts dismissed more BELO claims; costs were awarded to BP in one case; In re: DEEPWATER HORIZON BELO cases, No. 3:19-cv-963, 2020 U.S. Dist. LEXIS 213309 (N.D. Fla. Nov. 4, 2020) (Rodgers); Ibarra v. BP Exploration & Production Inc., No. H-19-2898, 2020 U.S. Dist. LEXIS 209973 (S.D. Tex. Nov. 10, 2020) (Rosenthal); Johnson v. BP Exploration & Production Inc., No. 19-10090 (E.D. La. Nov. 17, 2020) (Barbier); Moreta v. BP Exploration & Production Inc., No. 19-1204 (E.D. La. Nov. 20, 2020) (Milazzo); Werchan v. BP Exploration & Production Inc., No. 19-1428, 2020 U.S. Dist. LEXIS 218805 (E.D. La. Nov. 23, 2020) (Vance).

Florida cases

Ibarra opinion

Johnson opinion

Moreta opinion

Werchan opinion

The Florida case involved consolidated cases of cleanup workers and coastal residents of North Florida who claimed medical conditions as a result of exposure to crude oil and other chemicals following the DEEPWATER HORIZON/Macondo blowout. The settlement agreement with BP of personal injury plaintiffs allowed Back-End Litigation Option claimants to bring actions for later-manifested physical conditions, but the claimants have to establish causation. The lack of evidence of causation has caused many of these cases to be dismissed. In the Florida case, the plaintiffs sought to establish causation with the opinions of toxicologist Patricia Williams, Ph.D. However, Judge Rodgers agreed with BP that her opinions were unreliable and should be excluded. Without her opinion there was no evidence of causation, and Judge Rodgers granted summary judgment to BP. The lack of expert evidence to support causation also caused Judges Barbier, Milazzo, and Vance in Louisiana to dismiss the BELO suits brought by Lee Autry Johnson, Jr., Franklin Betance Moreta, and Jeffrey Werchan. In the Texas case, Pedro Ibarra filed a stipulation of dismissal, and his case was dismissed with prejudice. BP then applied for costs, and Chief Judge Rosenthal awarded taxable costs to BP in the amount of $5,872.42, despite Ibarra’s argument that the case presented a close and difficult legal issue, that he had limited financial resources, and that BP has enormous financial resources.

Court declined to apply the Twombly/Iqbal pleading standards to affirmative defenses asserted by cruise line in suit for injuries to passengers; Birren v. Royal Caribbean Cruises, Ltd., No. 20-cv-22783, 2020 U.S. Dist. LEXIS 205890 (S.D. Fla. Nov. 4, 2020) (Bloom).


Kathryn Birren and her daughter Mandy Birren brought this suit against Royal Caribbean for injuries they sustained on the HARMONY OF THE SEAS. The cruise line responded with twelve affirmative defenses, and the passengers moved to strike seven of the defenses. Before addressing the sufficiency of the pleading, Judge Bloom first had to resolve what standard to apply in assessing the sufficiency. She noted that there are two schools of thought on the sufficiency of pleading defenses and that the Eleventh Circuit has not resolved that split in authority. Comparing the language in Rule 8 (a), (b), and (c), Judge Bloom held that affirmative defenses are not subject to the heightened pleading standard enunciated by the Supreme Court in the Twombly and Iqbal decisions. She then reviewed the defenses asserted and denied the motion to strike as to the allegations of comparative fault, pre-existing conditions, and superseding cause. Judge Bloom also declined to strike the defense that the passengers failed to state a cause of action upon which relief can be granted, treating it as a denial. She did strike the defense that the action was governed by the terms and limitations of the passenger ticket, as limitations on liability are not enforceable against negligence claims. She struck the defense of a set-off for money paid from third parties for medical expenses, reasoning that it was inconsistent with the Higgs case from the Eleventh Circuit (see September 2020 Update); however, she granted the cruise line leave to replead the defense in accordance with the Higgs case. The cruise line withdrew its defense that the passengers’ claims were barred by knowledge of the danger.

Seaman presented fact questions on whether he had reached maximum cure, and the court allowed the seaman additional time to provide evidence of damages for failure to provide maintenance and cure; Zalimeni v. Cooper Marine & Timberlands Corp., No. 1:19-245, 2020 U.S. Dist. LEXIS 207073 (S.D. Ala. Nov. 5, 2020) (DuBose).


Donald A. Zalimeni, Jr., operator of the derrick crane on the MOODY, moored in the Port of Mobile, Alabama, was injured when his left hand was pulled into the sheave of the crane. His employer, Cooper Marine, paid him $560 in maintenance and $1,606 in supplemental wages every two weeks for three years, plus medical care until he was found to be at maximum cure. Cooper Marine moved for summary judgment on the maintenance and cure claim in Zalimeni’s suit as a seaman against Cooper Marine, asserting that all of Zalimeni’s physicians had concluded that Zalimeni had reached maximum cure (his negligence and unseaworthiness claims were previously dismissed as untimely; see April 2020 Update). Cooper Marine moved to exclude the testimony of Zalimeni’s expert, Dr. Bartholomew, with respect to maximum cure on the grounds that it was not timely disclosed, that it was speculative, and that Dr. Zalimeni, who was not an orthopedist, was not qualified to provide an opinion on Zalimeni’s back or hand treatment. As Zalimeni designated Dr. Bartholomew as a treating physician as opposed to an expert witness, Chief Judge DuBose held that the disclosure of his opinions was sufficient. She also held that she would consider the objection to his qualifications and speculation at trial. His opinion created fact questions as to whether Zalimeni had reached maximum cure, which precluded summary judgment. Zalimeni also claimed consequential damages for Cooper Marine’s wrongful termination of maintenance and cure, but Zalimeni had not specified or disclosed the damages he was seeking. Reasoning that seamen are the wards of the admiralty, Chief Judge DuBose exercised her discretion to decline to grant summary judgment to Cooper Marine and ordered Zalimeni to submit detailed disclosures and supporting documentation to support the failure-to-pay claim.

Cruise passenger who contracted COVID-19 and his wife adequately pled claims of negligence and negligent infliction of emotional distress against cruise line; Hook v. Holland America Line N.V., No. C20-1009, 2020 U.S. Dist. LEXIS 207475 (W.D. Wash. Nov. 5, 2020) (Zilly).


Kenneth Hook contracted COVID-19 aboard the Holland America Line cruise ship ZAANDAM as a passenger. Kenneth and his wife Nora Hook filed a negligence suit in federal court against Holland America Line, and their amended complaint alleged both negligence and negligent infliction of emotional distress. Judge Zilly denied the cruise line’s motion to dismiss both of the negligence claims. The cruise line’s motion argued that the Hooks failed to prove that the cruise line had actual or constructive notice of the risk-creating condition when they permitted the sailing of the ship. However, Judge Zilly found that the Hooks adequately alleged that the cruise line had actual and/or constructive notice of the COVID-19 pandemic when the World Health Organization declared that COVID-19 was a world health emergency on January 20, 2020, and when Holland America Line’s sister company, Princess, was quarantined due to an outbreak aboard a vessel prior to the March 7, 2020, boarding of the ZAANDAM. Additionally, Judge Zilly denied the cruise line’s motion to dismiss Nora Hook’s negligent infliction of emotional distress claim, finding that she properly alleged her claim under the zone of danger test. Under the maritime law, plaintiffs may recover for emotional injury when they have sustained physical impact as a result of the alleged negligence or were placed in immediate risk of physical harm by that conduct. Under this test, Judge Zilly ruled that Mrs. Hook sufficiently alleged a NIED claim for recovery based on exposure to COVID-19 because she manifested symptoms associated with COVID-19 including a sore throat, cough, rash, and fatigue (compare Lebeouf v. Palfinger Marine discussed below).

All-risk insurer established that damage to the engine of the vessel was not from an external cause even though the exact cause of the damage was unknown; Great Lakes Insurance SE v. Wave Cruiser LLC, No. 20-20397, 2020 U.S. Dist. LEXIS 207827 (S.D. Fla. Nov. 5, 2020) (Graham).


Wave Cruiser’s sport fishing vessel HOOKM suffered a sudden and catastrophic failure of its port engine, causing severe damage to the engine block, crankshaft, camshaft, connecting rods, pistons, and internal components. The engines were properly maintained and serviced by professional marine diesel technicians, including a recent inspection that confirmed that the engines were mechanically sound. The failure occurred well before the next maintenance was scheduled and well within the lifespan of the engines. The vessel was insured on an all-risk marine insurance policy with Great Lakes Insurance. The insurer engaged an inspector to investigate the cause of the loss, and he opined that there was no evidence that the failure was caused by an external cause, but he could not determine with certainty what caused the internal failure. The insurer denied the claim and brought this action in federal court seeking a declaration that the policy did not afford coverage for the engine damage. As an all-risk policy covers all fortuitous losses that are not expressly excluded, Judge Graham first addressed whether the loss was from a fortuitous event (losses due to intentional conduct of the insured, inherent defect in the object damaged, fraud, and normal wear and tear are excluded). The insured met its burden on this issue (“not a particularly onerous one”) by the evidence of its proper maintenance and sudden failure within its expected life. The burden then shifted to the insurer to establish the exclusion in the policy for damage to the engines and mechanical parts unless caused by an accidental external event, such as collision, impact with a fixed or floating object, grounding, stranding, ingestion of a foreign object, lightning, or fire. The insured argued that because the precipitating cause of the damage was unknown, an external event could not be excluded. Judge Graham disagreed. The insured’s inspector could not opine what the internal cause was, but he did state that the cause was not external (addressing the possible external causes and advising why they were not the cause in this incident). Therefore, the exclusion barred coverage under the policy.

Preservation-of-evidence letter was sufficient to trigger the running of the six-month period to file an action seeking limitation of liability; In re Fish N Dive LLC, No. 19-604, 2020 U.S. Dist. LEXIS 207942 (Nov. 6, 2020) (D. Haw. Nov. 6, 2020) (Kobayashi).


Thirteen-year old T.T. drowned during the Discover Scuba Diving Experience provided by the owners and owners pro hac vice of the DIVE BARGE, who filed this limitation action. The incident occurred on January 5, 2019, and counsel for the boy’s personal representative wrote a letter to the owners requesting preservation of evidence related to the incident. There were no further communications from the claimant’s counsel prior to the filing of suit in Hawaii state court more than six months later on September 19, 2019. Within two months of the filing of the suit, but more than six months from the letter requesting preservation of evidence, the owners/owners pro hac vice of the DIVE BARGE filed this limitation action. The personal representative filed a claim in the proceeding and then sought dismissal or summary judgment that the limitation action was untimely. Judge Kobayashi declined to dismiss the action but addressed the timeliness issue on a summary judgment standard. The owners/owners pro hac vice argued that the preservation letter was insufficient to constitute written notice of a claim because it did not assign blame, fault, or liability for the death. However, Judge Kobayahsi considered the tenor of the letter as notice that there was a potential claim (why would the letter request any waivers and consents unless they were considering a claim?). If there were doubt as to whether the letter was giving notice of a claim, Judge Kobayashi stated that the owner/owners pro hac vice could have sought clarification.

Thin and conflicting evidence was sufficient to avoid summary judgment on seaman’s injury claim arising from vessel surge; Enclade v. Crowley Marine Services, Inc., No. 19-11201, 2020 U.S. Dist. LEXIS 208707 (E.D. La. Nov. 9, 2020) (Vitter).


Archie Enclade was injured while serving as a seaman on the M/V ALEXIA RAY, which was assisting a crane barge in the Mississippi River. He alleged that a wake stuck his vessel and knocked him from his chair when the vessels PATI R. MORAN (owned by Moran Towing) and LEGEND passed the ALEXIA RAY, causing the wake. Enclade told the Coast Guard that the wake from the PATI MORAN passed before he fell, and he only inquired with the Coast Guard about the LEGEND and not the PATI MORAN. Based on Enclade’s version, Moran filed a motion for summary judgment, but Enclade opposed the motion, citing the testimony of Captain Brock Smith, who testified that he went outside after the vessel was struck by the wave and identified the PATI MORAN. Although Captain Smith misidentified the color of the PATI MORAN as orange (it is actually black) and contradicted plaintiff Enclade, Judge Vitter held that the evidence was sufficient to create a fact question to avoid summary judgment, although it was “thin.”

Evidence was insufficient to pierce the corporate veil of the seaman’s employer or the company to which the employer’s commercial-use permit was transferred; Barnes v. Sea Hawai’i Rafting, LLC, No. 13-2, 2020 U.S. Dist. LEXIS 209964 (D. Haw. Nov. 9, 2020) (Kay).


How can there be a monthly Update without an opinion from Judge Kay on Barnes’ claim for maintenance and cure arising from the explosion on the M/V TEHANI in 2012? Barnes was awarded maintenance and cure of $279,406.12 and attorney’s fees and costs of $233,405.44 against his employer, Sea Hawai’i Rafting, but that employer sought bankruptcy and transferred its commercial-use permit to Aloha Ocean Excursions. Barnes then sought to pierce the corporate veil for SHR and AOE and hold their owner Kris Henry personally liable for the corporate debts. However, Judge Kay held that there was no reason to pierce AOE’s corporate veil because Henry was already personally liable for sanctions issued against AOE, and there were genuine issues of material fact that precluded piercing the veil of SHR. Judge Kay did direct that if Barnes intends to file a second motion for summary judgment seeking to pierce the corporate veil of SHR, that he develop the record first and point to the relevant evidence.

Virginia dredging company that hired a seaman in Louisiana was not subject to personal jurisdiction in Louisiana for an accident to the Louisiana seaman in Delaware; Shaneyfelt v. Norfolk Dredging Co., No. 20-1858, 2020 U.S. Dist. LEXIS 210071 (E.D. La. Nov. 10, 2020) (Zainey).


Ronald A. Shaneyfelt, Jr., a resident of Thibodaux, Louisiana, injured his hand while working on a dredge tender near Delaware City, Delaware. He brought this suit in federal court in Louisiana as a seaman, asserting that there was personal jurisdiction over his employer because it hired Louisiana residents for its dredging operations, had a designated primary place of business in Louisiana, and had a registered agent for service of process in Louisiana. Despite the hiring of Shaneyfelt in Louisiana, the accident did not occur in Louisiana to give the court specific jurisdiction. As the contacts with Louisiana were “woefully short of the systematic and continuous contacts” required for general jurisdiction, Judge Zainey dismissed the suit without prejudice for lack of personal jurisdiction.

Minnesota passenger’s suit for an injury on a transatlantic voyage was dismissed based on a Swiss forum-selection clause; Sheehan v. Viking River Cruises, No 20-cv-753, 2020 U.S. Dist. LEXIS 210243 (D. Minn. Nov. 10, 2020) (Wright).


Timothy Sheehan was injured on a transatlantic voyage on Viking Ocean Cruises’ VIKING STAR. Viking’s operational headquarters is in Basel, Switzerland, and the ticket issued to Sheehan contained a mandatory forum-selection clause for Basel-Stadt. Sheehan brought this suit in his home state of Minnesota, and Viking moved to dismiss the suit (on the ground of forum non conveniens) based on the forum-selection clause. Judge Wright rejected Sheehan’s argument that the clause violated the public policy of Minnesota (the cruise was not a necessary service, and Sheehan could have obtained a cruise vacation elsewhere) and found no public interest factors that weighed against enforcement of the clause. Therefore, she dismissed the case.

Italian cast member’s claims against his cruise line employer were subject to arbitration but not his claims against the owner of the vessel that repatriated him after the COVID-19 no-sail order; Sisca v. HAL Maritime, Ltd, No. 20-cv-22911, 2020 U.S. Dist. LEXIS 209722 (S.D. Fla. Nov. 10, 2020) (Bloom).


Antonio Sisca was employed by HAL Maritime as a cast member on the M/V VENDAAM. His contract expired on April 22, 2020, but the United States announced a no-sail order for cruise ships due to COVID-19 on March 14, 2020. HAL declined to disembark Sisca or repatriate him to Italy until April 23, 2020, when it transferred him to Princess Cruise Lines’ REGAL PRINCESS for the return voyage. Sisca was injured twice during the transit to the REGAL PRINCESS, and asserted that he did not receive adequate treatment on the REGAL PRINCESS during the transatlantic voyage, resulting in his paraplegia. He brought this suit in state court in Miami against HAL Maritime and Princess Cruise Lines, and the defendants removed the case, asserting that the case should be arbitrated under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards in accordance with the arbitration provision in Sisca’s employment contract. As Princess Cruise Lines was not party to the contract, Judge Bloom held that the Convention did not apply to Princess Cruise Lines. Therefore, she ruled that Princess Cruise Lines could not compel arbitration and that the case against Princess Cruise Lines would be remanded to state court. However, Judge Bloom rejected Sisca’s argument that his action against HAL Maritime occurred after the termination of his contract and that the arbitration clause was not enforceable against HAL Maritime. She followed the analysis of the Eleventh Circuit that Sisca’s causes of action would not be viable but for his service on the vessel. Thus, the dispute was arbitrable even though it arose after the termination of his contract. Consequently, Sisca’s claims against HAL Maritime fell within the Convention, could be removed, and were stayed pending arbitration.

Differing versions from the vessel owner and ship repairer over work performed on a vessel were resolved at trial in favor of the vessel owner; NextWave Marine Systems, Inc. v. M/V NELIDA, No. 3:19-cv-1354, 2020 U.S. Dist. LEXIS 211969 (D. Ore. Nov. 12, 2020) (Immergut).


Gerard Stascausky, owner of the M/V NELIDA, and his father entered into a contract with NextWave Marine Systems to replace the vessel’s hydrostatic transmission. The owner made the payments due under the contract, but, during a water test, the parties identified operational issues with the vessel that needed to be addressed. NextWave submitted an invoice for additional work, but the owner declined to pay it, and NextWave would not allow the owner to retrieve the vessel until its invoice had been paid. The Stascauskys then boarded the vessel and sailed it away without paying NextWave. NextWave then brought this action for breach of contract and quantum meruit, and the owner counterclaimed for failing to complete the contracted work. Both parties filed motions for summary judgment, presenting their respective sides of the negotiations between the parties. As there were fact disputes whether the written contract integrated the entire agreement, whether there were subsequent contract modifications, and whether extra work outside of the contract would support a quantum meruit claim, Judge Immergut denied the motions for summary judgment (see October 2020 Update). After holding a bench trial, Judge Immergut held that the written contract was a fully integrated, fixed-price contract that was not modified by the course of performance. Therefore, he denied most of the claims presented by NextWave, except for $1,133.66 (Canadian dollars) for hoses and a new power steering pump that was awarded on a quantum meruit claim. As there was no expert testimony to support the counterclaim that there were defects in the vessel caused by NextWave’s work, Judge Immergut denied the owner’s claims.

Crewmember who was sexually assaulted on a fishing boat was allowed to bring his Jones Act suit under the pseudonym John Doe; Doe v. Lund’s Fisheries, Inc., No. 20-11306, 2020 U.S. Dist. LEXIS 214653 (D.N.J. Nov. 17, 2020) (Schneider).


The plaintiff in this action, a seaman assigned to the scallop fishing boat BRIANNA LOUISE, claimed that he was drugged, beaten, and raped by crew members on the vessel. He brought this action under the Jones Act and general maritime law and moved to proceed under the name John Doe as the incident was embarrassing, hurtful, and outrageous and for fear of harm were his identity disclosed to the public. Finding that the seaman’s interest in remaining anonymous outweighed the public’s interest in his identity, Magistrate Judge Schneider granted the unopposed motion.

No sanctions were imposed on the cruise line for recording over video footage of an accident earlier in the day that did not result in an official report; opinions of the passenger’s liability expert were excluded, but the opinions of the cruise line’s expert were allowed; Easterwood v. Carnival Corp., No. 19-22932, 2020 U.S. Dist. LEXIS 215534 (S.D. Fla. Nov. 18, 2020) (Bloom).

Spoliation order

Daubert order

Mindy Easterwood was injured on June 7, 2019, while walking on the pool deck of Carnival’s PARADISE. An hour before Easterwood’s fall, Christy Baker fell in the same spot on the pool deck. Ms. Baker went to the ship’s medical center, but it was closed. The nurse on call noted no swelling or obvious deformity, applied an ACE bandage to Baker’s wrist, and told her to return to be seen by the doctor. Baker never returned, and no official incident report was created for the accident. Without an incident report, the CCTV footage of the incident was not reviewed or preserved. Two weeks later it was automatically overwritten. Ms. Easterwood did see the doctor on the ship, an incident report was prepared, and the CCTV footage of her fall was preserved. Six months after her accident, after reviewing the footage of her own accident, Easterwood requested the video footage of Baker’s accident. As it no longer existed, Easterwood moved for a spoliation sanction in her negligence suit against the cruise line. Judge Bloom was careful to differentiate between the general duty to preserve footage of the plaintiff’s accident and the narrower duty to preserve footage of other passengers’ injuries. The cruise line anticipated Easterwood’s suit and preserved the video footage together with medical records, photographs of the area where she fell, the incident report, etc. However, in view of the clear and credible evidence that the cruise line was unaware of the relevance of the footage of the prior fall because it was the responsibility of the doctor to initiate the investigation, Judge Bloom held that the loss of the footage was not due to the cruise line’s failure to take reasonable steps to preserve the video and was the result of routine, good-faith operation of the electronic information system that automatically taped over prior footage. Therefore, sanctions were not appropriate. In a subsequent order, Judge Bloom addressed the motions of both parties to exclude the expert opinions of the other party’s liability expert. She denied the passenger’s motion, concluding that the defense expert, Dr. Zdenek Hejzlar, was qualified and that his opinions on the coefficient of friction on the teakwood deck were sufficiently reliable under Daubert. However, Judge Bloom excluded the opinions of the passenger’s expert, Randall Jaques, as he was not qualified, his opinions were not supported by proper methodology, and his opinions not helpful to the fact finder.

Court declined to certify class of injured seaman seeking unearned overtime wages after being discharged from the vessel; Fisher v. United States, No. 2:19-cv-146, 2020 U.S. Dist. LEXIS 216939 (D.S.C. Nov. 19, 2020) (Hendricks).


Stephen Dillon was the original plaintiff in this class action on behalf of seamen claiming overtime wages as part of the general maritime law remedy for unearned wages. The purported class consisted of seamen who were injured on United States Military Sealift Command vessels who left the vessel before the end of the voyage and were only paid their base wages to the end of the voyage (without any unearned overtime). After Dillon’s claim was dismissed on the ground that his material misrepresentation of his medical condition barred his claim for unearned wages, Michael Fisher was substituted as the lead plaintiff. Fisher was injured on the USNS HENSON and was found not fit for duty. After he was discharged from the vessel, he was paid unearned wages for his daily base wages through the end of his maximum tour on the vessel. However, he was not paid unearned wages for the overtime that he claimed he would have earned during the remainder of the voyage on which he was injured. Concluding that individual issues predominated over the single common issue in the case, Judge Hendricks declined to certify the class of injured seamen seeking unearned overtime wages.

Passenger who slipped and fell on the stairs of a cruise ship sufficiently pled only her claim for negligent design of the area, and the court dismissed her other negligence claims. Donaldson v. Carnival Corp., No. 20-23258, 2020 U.S. Dist. LEXIS 216410 (S.D. Fla. Nov. 19, 2020) (Scola).


Lisa Donaldson, a passenger on the CARNIVAL DREAM, alleged that she slipped on wet and/or unreasonably slippery and poorly maintained steps and fell down a set of stairs. Donaldson brought this suit alleging negligent hiring, retention, supervision and training of the crew, negligent failure to warn and to take reasonable safety measures, negligent design and/or approval, as well as vicarious liability for the negligent acts of the medical staff aboard the ship. The cruise line moved to dismiss the suit in its entirety. Judge Scola granted the motion to dismiss the majority of the claims but declined to dismiss the passenger’s claim that the cruise line was liable based on negligent design of the stairs. Judge Scola dismissed Donaldson’s claims on the basis of negligent hiring, training and supervision of the crew, which argued the dangerous conditions on the steps were known or should have been known by the cruise line because crew members regularly used these steps; however, Donaldson failed to allege adequate facts to support the negligence claim. As for the claims of negligent failure to warn and take reasonable safety measures, Judge Scola found the claims to be merely conclusory, failing to provide details supporting the claim that the cruise line breached its duty of ordinary and reasonable care owed to passengers. Donaldson’s complaint also alleged that the medical staff aboard the vessel failed to adequately supply and equip the ship’s medical center to be able to properly examine, diagnose, and treat her injuries, but Judge Scola concluded that she insufficiently pled the claim. As for the claim that the cruise line was negligent in designing the area of the stairs, Judge Scola found Donaldson’s allegations that the stairs and handrails were uneven was sufficient to withstand scrutiny at the stage of a motion to dismiss.

Injured passenger’s claim failed to assert that cruise line’s alleged negligence caused her injury sustained during disembarkation; Taylor v. Royal Caribbean Cruises, No. 20-22161, 2020 U.S. Dist. LEXIS 217347 (S.D. Fla. Nov. 19, 2020) (Scola).


Pamela Taylor tripped and fell while disembarking Royal Caribbean’s ALLURE OF THE SEAS. She alleged that the cruise line failed to make the disembarkation process safe enough to handle the large quantity of passengers aboard the vessel. The cruise line filed a motion to dismiss Taylor’s claims for negligent failure to warn, negligent maintenance of the gangway flooring, and negligent failure to follow disembarkation policies and procedures. The cruise line asserted that Taylor’s complaint failed to establish that the alleged negligent acts either actually or proximately caused her injury and that she merely claimed that the purportedly dangerous conditions “can cause” injuries, but did not affirmatively state that the dangerous conditions did cause the injuries. Without alleging what specifically caused Taylor’s fall, the complaint did not give the cruise line notice as to what warnings would have been adequate to prevent injury, or what maintenance would remove the unevenness in the gangway. Judge Scola granted the cruise line’s motion to dismiss on all three counts.

Captain’s degree of control over the vessel while in the boatyard prevented summary judgment on the vessel owner’s damage claims when vessel fell over during a storm; court found no basis for spoliation for the boatyard’s securing a potentially dangerous scene after the accident; Vesper Maritime Ltd. v. Lyman Morse Boatbuilding, Inc., No. 2:19-cv-56, 2020 U.S. Dist. LEXIS 217888 (D. Me. Nov. 20, 2020) (Torresen).


Vesper Marine used a boatyard owned by Lyman Morse in Thomaston, Maine, for maintenance and repair of its 95-foot yacht, VESPER. When the vessel experienced difficulties with its steering system after departing the boatyard, Captain Henderson returned the vessel to the yard where it was hauled from the water and blocked in a storage yard on the land when it took longer than expected to perform the repair. Captain Henderson represented the owner in dealings with the yard, including decisions on whether the vessel was properly standed. In advance of a storm, Captain Henderson met with Lyman Morse’s service manager, Stephen Tofield, and they agreed that the vessel was secure without changes in the blocking. At some point during the storm, however, the vessel fell over onto its side. Concerned about a fuel spill, fire, or collapse of the vessel, the boatyard crew removed debris and equipment. Henderson did check with the vessel’s insurance representative about the removal of equipment, and he advised that the boatyard had a responsibility to mitigate further damage and should be allowed to do what was necessary. A Lyman Morse employee asked its insurance broker whether it could remove twisted and mangled boat stands, and the broker advised that they could remove anything deemed to be unsafe, including the stands, as long as they documented the scene. The owner’s investigation team sent a letter to the boatyard that requested the preservation of all equipment and fittings, including boat stands, in the state that existed immediately after the incident and that any equipment that had been moved be identified, returned, and secured for inspection. There were four joint inspections, including inspection of 14 of the 15 stands that had been in use. Vesper brought this action based on the admiralty causes of action of breach of the warranty of workmanlike performance, breach of contract, negligence, bailment, and res ipsa loquitur. The owner then sought summary judgment on these theories together with an adverse inference or the exclusion of evidence based on spoliation. Judge Torresen denied the owner’s motion. Captain Henderson’s participation presented a fact question on the extent of the boatyard’s control that prevented summary judgment on the res ips loquitur claim and that presented fact questions on the negligence and bailment claims. Likewise, as the participation of Captain Henderson implicated the obligations of the boatyard, Judge Torresen could not grant summary judgment on the contract and warranty theories. Turning to the spoliation claim, Judge Torresen noted that Lyman Morse acted in order to secure what was potentially a dangerous scene, consistent with the advice of the insurance representatives of both parties. Although she remained open to granting an adverse inference after a full hearing on the facts, she was “unconvinced” that there was spoliation based on the record to date.

Bystander emotional distress claims of worker who tried to rescue his friend from drowning did not state a claim under maritime or state law; Lebeouf v. Palfinger Marine USA, Inc., No. 6:20-cv-813, 2020 U.S. Dist. LEXIS 218084 (W.D. La. Nov. 20, 2020) (Cain).


During a safety test on a lifeboat on the Shell Augur, a tension leg platform located on the outer Continental Shelf, offshore Louisiana, there was a malfunction that resulted in the lifeboat breaking loose and falling around 100 feet into the Gulf of Mexico. Daniel J. Lebeouf, Jr., a deck operator on the platform, alleged that he suffered physical injuries during his effort to save and retrieve his friend Brandon M. Dupre and post-traumatic stress disorder from witnessing Dupre’s death. He brought this action under general maritime law and Louisiana state law against the company responsible for the maintenance of the lifeboat as well as against Zurich Insurance Company as the party allegedly responsible for the annual inspection of the lifeboat. Zurich filed a motion to dismiss, arguing that the inspection actions against Zurich were insufficient and that Lebeouf was not entitled to recover emotional distress under maritime or state law. Finding that Lebeouf was not entitled to recover as a bystander under either maritime law or under Louisiana law, Judge Cain dismissed the claims for emotional distress and mental anguish. With respect to the allegations that Lebeouf had a claim against Zurich if it conducted an inspection and discovered a defective condition and did nothing about it, Judge Cain declined to dismiss the case based on a motion to dismiss before any discovery was conducted; however, he invited Zurich to file a motion for summary judgment “to flesh out the facts in this case as to Zurich’s duty and the physical injuries Plaintiff alleges he suffered.”

Exchange of emails between the representatives of vessel involved in an allision relating to an injured worker’s medical condition were sufficient to trigger the running of the six-month period to file an action seeking limitation of liability; In re Bonvillian Marine Service, Inc., No. 19-14651, 2020 U.S. Dist. LEXIS 218807 (E.D. La. Nov. 23, 2020) (Vitter).


On January 19, 2019, the M/V MISS APRIL, towing two barges, allided with the M/V MISS SADIE ELIZABETH near Port Sulphur, Louisiana. A month later, the claims adjuster working on behalf of Bonvillian Marine, owner of the MISS APRIL, emailed a claims representative for Baywater, owner of the MISS SADIE ELIZABETH, which employed Junior Joseph Pellegrin, Jr., who was injured in the allision. The adjuster for Bonvillian wanted to discuss the allision and in subsequent emails sought information and medical records on Pellegrin’s condition. By March, the information exchanged included information that Pellegrin had sustained a herniated lumbar disc with left lower extremity radiculopathy. Pellegrin brought suit against Bonvillian Marine in Louisiana state court on August 23, 2019, and Bonvillian filed this limitation action (seeking to limit liability to $328,000) on December 12, 2019, less than four months from filing of the state suit but more than six months from the exchanges of emails. Baywater moved to dismiss the limitation action as untimely, and Judge Vitter agreed and dismissed the limitation action. Bonvillian argued that its claims adjuster was its agent for purposes of resolving claims but was not an agent who could receive notice for a limitation action. As the adjuster represented that he was representing Bonvillian and that he was relaying information to his principals, Judge Vitter rejected the argument and held that the information about Pellegrin’s herniated disc was sufficient to put the vessel on notice that the claim might exceed the value of the vessel.

Facing a claim for punitive damages for failure to pay maintenance and cure was not a sufficient reason for the court to grant a preliminary injunction to the seaman’s employer that the seaman was not entitled to maintenance and cure; Armstrong Steamship Co. v. Batain, No. 20-11486, 2020 U.S. Dist. LEXIS 218565 (E.D. Mich. Nov. 23, 2020) (Edmunds).


Ida Batain reported pain in her arm when a corned beef brisket fell on her while she was serving as an assistant steward on a Great Lakes freighter. She departed the vessel the next day, and her employer paid her maintenance until she declined to submit medical documentation about her treatment. Ten months after the accident, she submitted medical records indicating that she had undergone a cervical fusion within three months before her accident on the vessel and that she had been in a motor vehicle accident the month before her accident. Her employer brought this action seeking a declaration that Batain was not entitled to maintenance and cure, and Batain filed a negligence counterclaim against her employer. Her employer then sought a preliminary injunction that Batain was not entitled to maintenance and cure, claiming that it was necessary to avoid paying benefits to which Batain was not owed and “to avoid the specter of punitive damages” for not paying maintenance and cure. Although Batain did not oppose the motion, Judge Edmunds did not grant the preliminary injunction. She considered that the preliminary injunction was not necessary as the employer was not paying benefits, and stated that the possibility that the seaman may be awarded punitive damages in the future was not a sufficient basis for granting relief.

DOHSA did not apply to claims of tortious interference with a dead body and the tort of outrage with respect to the handling of the body of a passenger who died on a cruise ship; the litigation privilege did not bar the tortious interference claim, but it did bar the outrage claim; Sexton v. Carnival Corp., No. 20-20990, 2020 U.S. Dist. LEXIS 220126 (S.D. Fla. Nov. 24, 2020) (Scola).


Kimberly Sexton and 18 of her family and friends were aboard the CARNIVAL SUNSHINE when she reported to the ship’s medical center with a sore throat and shortness of breath. After she died, cruise line personnel took 36 pictures of her nude body from every angle, without consent from her next of kin. Sexton’s beneficiaries initially brought this suit complaining of the medical treatment, but after the photographs were produced in discovery, the beneficiaries amended their complaint to allege causes of action for tortious interference with a dead body and the tort of outrage. The cruise line moved to dismiss the additional claims based on the limitation in the Death on the High Seas Act to recovery of pecuniary losses and based on immunity from the litigation privilege. As DOHSA applies to deaths caused by wrongful acts occurring on the high seas, the question was presented of whether the statute applied to claims that arose after death. Reasoning that the claims were unrelated to the cause of Sexton’s death, Judge Scola held that DOHSA’s pecuniary loss limitation was not applicable. The litigation privilege provides immunity to acts occurring during the course of a judicial proceeding. As the production of the photographs occurred during the litigation, the cruise line argued that the litigation privilege immunized it from liability arising from the production. As the tortious interference with the body began and ended on the ship, before the litigation commenced, Judge Scola declined to apply the litigation privilege to the tortious interference claim. However, the outrage complained of for the tort of outrage was the display of the photographs to Sexton’s son by the plaintiff’s attorney after they were produced during the litigation. Judge Scola held “narrowly and on the specific facts of this case,” that the tort of outrage was precluded by the litigation privilege. Note that the opinion which is attached is an amended version of the original opinion that changes the conclusion from closing the case to holding that the case remains open.

Court declined to dismiss a limitation action based on the vessel owner being the operator of the vessel at the time of an allision with an offshore platform; the injured and damaged parties were entitled to pursue a monetary damage claim under state law against the owner’s insurer for intentional spoliation (destruction of the vessel after the accident) but not for negligent spoliation; In re Lasala, No. 18-11057, 2020 U.S. Dist. LEXIS 221053 (E.D. La. Nov. 25, 2020), Nos. 18-11057, 18-11138, 19-9706, 19-9798, 19-9819 (E.D. La. Nov. 25, 2020) (Vitter).

Limitation order

Spoliation order

Gabriel Lasala was operating his pleasure boat with four passengers aboard when the vessel struck a platform in the Gulf of Mexico. Lasala brought this limitation action, and two of the passengers moved to dismiss the action, arguing that because Lasala was operating the boat at the time, the accident could not be said to have occurred without his privity or knowledge. The argument was based on the Fifth Circuit’s decision in Fecht v. Makowski that the limitation action should be dismissed when the owner is in control of and operating his pleasure boat. However, Judge Vitter noted that, subsequent to the decision in Fecht, the Fifth Circuit set forth a two-part test in Farrell Lines, Inc. v. Jones requiring that the acts of negligence and unseaworthiness must first be determined and then the privity or knowledge with those acts would be addressed. Without an uncontested showing of negligence of the owner or unseaworthiness of the vessel, Judge Vitter did not consider it appropriate to dismiss the limitation action. After the collision, Foremost Insurance Co., insurer for the vessel, took possession of the vessel, and the vessel was sold and destroyed. Injured and damaged parties brought claims against Foremost for spoliation of evidence under Louisiana law, seeking recovery of damages based on negligent and intentional spoliation. Judge Vitter held that the parties were entitled to pursue a claim for monetary damages for intentional spoliation, but that they were not entitled to pursue a claim for negligent spoliation.

Thanks to Monica Markovich and Katherine E. Kaplan for their help in preparing this Update.

Kenneth G. Engerrand
President, Brown Sims, P.C.

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The proverbial canary in the coal mine has died; it remains to be seen if the miners have noticed.

Petition for a writ of certiorari, Skidmore v. Led Zeppelin, No. 20-142, at 2 (Aug. 6, 2020) (attorney Alfred J. Fluehr) (challenging the ruling of the en banc Ninth Circuit that Led Zeppelin’s song, Stairway to Heaven, did not infringe on the song Taurus, written by Randy Wolfe of the rock band Spirit).

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