February 2023 Longshore/Maritime Update

February 13

February 2023 Longshore/Maritime Update (No. 285)

Notes from your Updater:

On December 23, 2022, President Biden signed legislation amending the 1851 Limitation of Liability Act to exclude “covered small passenger vessels.” A small passenger vessel is defined as a vessel of less than 100 gross tons carrying more than 6 passengers, including at least one passenger for hire; that is chartered with the crew provided or specified by the owner or the owner’s representative and carrying more than 6 passengers; that is chartered with no crew provided or specified by the owner or the owner’s representative and carrying more than 12 passengers; that is a submersible vessel carrying at least one passenger for hire; or that is a ferry carrying more than 5 passengers. A “covered small passenger vessel means a “small passenger vessel” as defined above that is carrying not more than 49 passengers on an overnight domestic voyage, not more than 150 passengers on a voyage that is not an overnight domestic voyage, and a wooden vessel constructed prior to March 11, 1996 carrying at least one passenger for hire. Additionally, the legislation provides that the owner, master, manager, or agent of a vessel transporting passengers or property between ports in the United States or between a port in the United States and a port in a foreign country may not limit the period for giving notice or for filing suit, in the case of covered small passenger vessels, to less than two years after the date of the injury or death.

On December 28, 2022, the EPA Administrator and the Assistant Secretary of the Army (Civil Works) signed the following final rule with the revised definition of “Waters of the United States” for the Clean Water Act:


As we noted in our April 2022 and June 2022 Updates, Judge Bloom of the Southern District of Florida held that four cruise lines violated the Helms-Burton Act (unlawfully trafficking in property confiscated by the Cuban Government) when they used the Havana Cruise Port Terminal. Havana Docks Corp. v. Carnival Corp., Nos. 19-cv-21724, 19-cv-23588, 19-23590, 19-cv-23591 (S.D. Fla. Mar. 21, 2022). The cruise lines moved to certify her order for an interlocutory appeal, but, on May 13, 2022, Judge Bloom declined the request. On December 30, 2022, Judge Bloom signed final judgments against MSC Cruises, Royal Caribbean Cruises, and Norwegian Cruise Line, each in the amount of $109,848,747.87 in treble damages (including interest) plus attorney fees and costs, and a final judgment against Carnival Corp. in the amount of $109,671,180.90 in treble damages (including interest) plus attorney fees and costs. (S.D. Fla. Dec. 30, 2022).

On January 5, 2023, the Fifth Circuit rejected an environmental challenge of Shrimpers and Fishermen of the Rio Grande Valley and the Sierra Club to the Clean Water Act permit issued by the Army Corps of Engineers that authorized the development of a natural gas pipeline and export facility in South Texas, partially upon wetland terrain. See Shrimpers and Fishermen of the RGV v. U.S. Army Corps of Engineers, No. 21-60889, 2023 U.S. App. LEXIS 248 (5th Cir. Jan. 5, 2023) (King).

In our December 2022 Update, we reported that the Eleventh Circuit held that Dr. Javier Garcia-Bengochea had standing to assert claims against cruise lines Royal Caribbean and Carnival under the Helms-Burton Act in connection with the confiscation of property in Cuba by the Cuban government that was then used by the cruise lines, but the appellate court affirmed that Dr. Garcia-Bengochea failed to satisfy the requirements of the statute to permit recovery. See Garcia-Bengochea v. Carnival Corp., No. 20-12960, 2022 U.S. App. LEXIS 32448 (11th Cir. Nov. 23, 2022) (per curiam). On January 10, 2023, the panel of the Eleventh Circuit granted a petition for panel rehearing and substituted an opinion with changes to the statutory citations and references to the Helms-Burton Act. 2023 U.S. App. LEXIS 544 (11th Cir. Jan. 10, 2023) (per curiam).

On the LHWCA Front . . .

From the federal appellate courts

Ninth Circuit gave lesson on appellate jurisdiction after a decision on remand to the ALJ; Dutra Group, Inc. v. Zaradnik, No. 21-71411, 2023 U.S. App. LEXIS 1427 (9th Cir. Jan. 20, 2023) (per curiam).


Kelly Zaradnik brought a claim under the LHWCA against her employer Dutra seeking to recover for cumulative trauma. Zaradnik was awarded benefits by an administrative law judge on August 25, 2013, and both parties appealed. On December 9, 2016, the Benefits Review Board affirmed the decision on all grounds, except the Board vacated the finding that Zaradnik’s disability was temporary in nature and remanded the case for further consideration on that issue. The Board denied Dutra’s motion for consideration, and Dutra filed a petition for review with the Ninth Circuit, which, on May 22, 2018, dismissed the appeal on the ground that the matter was not final and appealable because of the remand to the administrative law judge. On remand the parties resolved the dispute over the extent of Zaradnik’s disability (the issue remanded to the administrative law judge by the Benefits Review Board). The parties requested that the administrative law judge enter an order consistent with the stipulation, noting that the issue had to be resolved before the Ninth Circuit could take up the causation appeal, acknowledging: “the Trial level issues are complete such that the previously filed appeals can proceed.” Administrative Law Judge Larsen issued an Order Approving Stipulations that was filed with the OWCP on March 17, 2021. Dutra then filed a Motion with the BRB to render the Board’s decision of December 9, 2016 “final” so that Dutra could move forward with its appeal to the Ninth Circuit. The Board denied Dutra’s motion on the ground that Dutra had not appealed the Order Approving Stipulations and it also denied Dutra’s request for reconsideration. Dutra then petitioned to the Ninth Circuit for review of the Board’s decision on its jurisdiction and on reconsideration, and the Ninth Circuit agreed with the Board and denied the petition for review. The appellate court explained that after Judge Larsen issued his order resolving the issues on remand, Dutra could have preserved its ability to obtain judicial review of the Board’s 2016 order by timely obtaining a final order from the Board as the compensation order becomes final at the expiration of the thirtieth day after it is filed. That meant that Dutra had a thirty-day period within which an appeal had to be taken to the Board. Alternatively, the Ninth Circuit held that Dutra could have filed a timely petition for review with the Ninth Circuit directly from Judge Larsen’s order, reasoning that a “party aggrieved by an earlier Board order after remand to an ALJ may bypass Board review and file a petition for review in the court of appeals within 60 days from the ALJ’s final order on remand” where the Board has already determined the contested issue in the earlier decision. Thus, Dutra could have filed an appeal to the Board within 30 days of the decision on remand, or it could have filed a petition for review with the Ninth Circuit within 60 days. It did neither, and the stipulation that addressed the intent to proceed to the Ninth Circuit did not express an intent to appeal to the Board that might satisfy the regulation that allows a written communication (identifying the decision from which an appeal is sought) to satisfy the requirement of a notice to the Board, even where the notice is filed with the wrong entity (as it did not say anything about an intent to appeal to the Board).

Ninth Circuit affirmed denial of claim based on claimant’s lack of credibility; Flores v. Pacific Crane Maintenance Co., No. 20-71297, 2023 U.S. App. LEXIS 1434 (9th Cir. Jan. 20, 2023) (per curiam).


Allen B. Flores was employed by Pacific Crane Maintenance Co. from 2006 to 2012, including working with tire and chassis repair. On April 12, 2011, Flores reported to Pacific Crane that he had pain in his shoulders, neck, and back that he believed resulted from mounting and dismounting tires. He amended his claim in January 2012 to include his right elbow and “stress with hypertension and cardiopulmonary.” His claims were tried before Administrative Law Judge Clark with Flores being represented by his wife as a lay representative. In his post-hearing brief, Flores added a claim under Section 49 for discrimination because he filed an LHWCA claim. In an opinion of more than a hundred pages, Administrative Law Judge Clark found that Flores established a prima facie case and invoked the presumption under Section 20(a) for all of his claimed injuries, but he found that Pacific Crane had rebutted the presumption based on medical evidence that Flores’ injuries were not work related. Weighing the evidence, Judge Clark ruled that none of the injuries were work related, finding that Flores was not credible and not giving dispositive weight to medical evidence based on the claimant’s non-credible evidence. The Benefits Review Board declined to reweigh the evidence and affirmed Judge Clark’s denial of benefits. The Board denied the discrimination claim on the ground that it was not timely presented. Flores appealed to the Ninth Circuit, which held that the Board did not err in affirming Judge Clark’s decision based on his finding that Flores was not a credible witness.

From the federal district courts

After a suit alleging claims under the Jones Act, general maritime law, and LHWCA Section 5(b) was held to be removable under the OCSLA, the case was transferred to another federal court where an identical suit was filed and removed; Crochet v. Seadrill Americas Inc., No. 6:22-cv-1076, 2022 U.S. Dist. LEXIS 236777 (W.D. La. Dec. 19, 2022) (Ayo), recommendation adopted, 2023 U.S. Dist. LEXIS 13840 (W.D. La. Jan. 24, 2023) (Hicks).


Christopher Crochet, an employee of Franks Oilfield Services, died of a heart attack while serving on the M/V WEST NEPTUNE, a drillship owned by Seadrill that was located on the outer Continental Shelf off the Louisiana coast. Crochet’s wife and daughter brought suits in St. Tammany Parish and Lafayette Parish, Louisiana, against Franks Oilfield, Seadrill, and the well operator, LLOG, pleading claims under the Jones Act, the general maritime law, and, alternatively, under LHWCA Section 5(b) and Louisiana law. The defendants removed the suits to federal court (the Lafayette suit to the Western District of Louisiana and the St. Tammany suit to the Eastern District of Louisiana). Judge Lemmon stayed the suit in the Eastern District of Louisiana, and the plaintiffs’ motion to remand the suit in the Western District of Louisiana was referred to Magistrate Judge Ayo. Magistrate Judge Ayo began his analysis by noting that the fact that the case was brought under the Saving-to-Suitors Clause did not prevent removal under the federal question jurisdiction provided by the Outer Continental Shelf Lands Act. Magistrate Judge Ayo explained that choice-of-law and jurisdiction under the OCSLA are independent inquiries (citing the Fifth Circuit’s Baker decision, quoting Engerrand, Primer of Remedies on the Outer Continental Shelf). Thus, even though the Jones Act or general maritime law may be the applicable law under the OCSLA, there was federal question jurisdiction for the suit under the OCSLA. Magistrate Judge Ayo then addressed the plaintiffs’ argument that the case should be remanded because it contained a non-removable Jones Act claim that was not separate and independent from the other claims. Magistrate Judge Ayo rejected that argument because the 2011 Amendment to the Removal Statute eliminated the separate and independent issue for cases removed based on federal question jurisdiction. Although the plaintiffs argued that the defendants failed to allege that the Jones Act claim was fraudulently joined, Magistrate Judge Ayo answered that the Notice of Removal alleged that the Jones Act claim was not viable based on Crochet’s work history, and the defendants only had to prove that there was no possibility that Crochet was a seaman at the time of his death in order to avoid the non-removability of the Jones Act claim. Therefore, he stated that the court would review the viability of the Jones Act claim if it determined that a transfer to the Eastern District of Louisiana was not appropriate. Chief Judge Hicks agreed that Magistrate Judge Ayo’s recommendation was correct and adopted his findings and conclusions on November 7, 2022). See December 2022 Update.

Magistrate Judge Ayo then considered the motion to transfer venue and the plaintiffs’ argument that venue was proper in the Western District of Louisiana based on the domicile of the plaintiffs and defendant Franks Oilfield in the Western District of Louisiana. Seadrill and LLOG argued that the only defendant in the Western District was Franks, which they claimed was improperly joined. Magistrate Judge Ayo found that venue was proper in the Eastern District of Louisiana, where LLOG resides, noting also that Crochet’s death occurred off the coast of Louisiana in an area encompassed within the Eastern District. Magistrate Judge Ayo then considered the public and private interest factors and determined that the Eastern District of Louisiana was a more convenient venue. Consequently, he recommended that the case be transferred to the docket of Judge Lemmon in the Eastern District of Louisiana, before whom the identical suit was pending. Judge Hicks adopted the recommendation without objection on January 24, 2023, and the case was transferred.

Stevedoring company was not sanctioned in its federal suit against a state judge because the federal suit was dismissed during the Rule 11 safe-harbor period; Ports America Gulfport, Inc. v. Johnson, No. 22-455, 2023 U.S. Dist. LEXIS 353 (E.D. La. Jan. 3, 2023) (Vance).


Ports America was a defendant in a case filed in Louisiana state court by the beneficiaries of a longshoreman employed by Ports America who died from mesothelioma, allegedly caused by exposure to asbestos while working for Ports America. Ports America moved for summary judgment in the state action based on the exclusive-remedy provision of the LHWCA (Section 5(a)), and Judge Rachel Johnson denied the motion. Ports America then brought this suit against Judge Johnson in federal court in Louisiana, seeking declaratory and injunctive relief that the remedies sought in state court are preempted by the LHWCA. After Judge Vance denied Ports America’s motion for a preliminary injunction, Ports America filed a motion for voluntary partial dismissal of its claims for injunctive and declaratory relief except to retain its claim for prospective declaratory relief (a declaratory judgment that the state remedies are preempted by the LHWCA). Judge Vance subsequently granted the Judge’s motion to dismiss that remaining claim less than 21 days after Judge Johnson served Ports America with a motion for sanctions under Rule 11 for bringing claims that were frivolous. Judge Vance noted that the safe-harbor provision in Rule 11 requires that the motion for sanctions be served but shall not be filed or presented to the court unless the challenged pleading is not withdrawn or appropriately corrected within 21 days. The parties disputed whether the claims of Ports America were frivolous, but Judge Vance held that, because she had ruled on the remaining claim during the pendency of the safe-harbor period, Ports America was not afforded the full period to withdraw it. As Ports America did not have the entire period to withdraw its claims, she held that sanctions were not available under Rule 11.

LHWCA did not bar indemnity sought by vessel owner against employer of worker injured during work on the outer Continental Shelf, but the contracts between the multiple parties did not provide third-party beneficiary status in favor of the vessel owner against the employer; Willis v. Barry Graham Oil Service LLC, No. 2:19-cv-165, 2023 U.S. Dist. LEXIS 2211 (W.D. La. Jan. 5, 2023) (Doughty).


Jon Willis, a platform operator, was injured while assisting in the offloading of a grocery box from Barry Graham Oil Service’s work vessel, MS. TAMI, to an offshore platform owned and operated by Fieldwood Energy. As the box was being lowered to the platform, Willis grabbed the tag line to guide the box to its landing spot on the platform; however, the line became loose and Willis fell from the boat onto the platform. Willis brought suit against Barry Graham in federal court in Louisiana, and Barry Graham asserted limitation of liability as a defense. Willis responded with a motion for summary judgment on the limitation defense. Willis submitted the report of his expert, Robert Borison, setting forth his opinion on the negligence of the defendant, and argued that if the fact finder found the defendant was negligent in that manner, then the defendant would have privity or knowledge. Barry Graham answered the motion by seeking to strike Borison’s expert report on the ground that it was not a sworn declaration itself but was attached to a declaration that was sworn as to the statements in the declaration. Judge Cain declined to strike the report, however, reasoning that it is improper to strike an expert report on summary judgment solely because it is unsworn (and also because the motion for summary judgment was premature). Judge Cain did not accept the argument that there would be no privity if Willis established the negligence that he alleged because it would shift the burden to Barry Graham to show that it lacked privity before there was a finding of fault. See January 2021 Update.

Barry Graham filed a third-party claim against Wood Group, asserting that Wood Group was liable for contribution or indemnity for the negligence of its employee who was operating the crane that was lowering the grocery box to the platform. Wood Group moved for summary judgment, arguing that, under Louisiana law, each party is liable only for its own negligence and there are no contribution/indemnity claims. Barry Graham argued that maritime law applied, and not state law under the Outer Continental Shelf Lands Act, because the suit was brought against the vessel owner and not against the platform contractor. Judge Doughty disagreed, concluding that the controversy arose on the artificial structure located on the OCS and that Louisiana law was not inconsistent with federal law (the allocation of fault in LHWCA Section 5(b) claims under Edmonds because Section 5(b) does not apply to claims against platform defendants). Further, Judge Doughty found that maritime law did not apply of its own force as Barry Graham’s claim asserted that Willis sustained injuries on the platform due to the alleged negligence on the platform. Although maritime law may be applicable to Willis’ action against Barry Graham, Judge Doughty reasoned that choice-of-law is determined with respect to each claim. The contribution/indemnity claim was for actions of the platform contractor on the platform. Accordingly, Judge Doughty held that the locality test for admiralty jurisdiction was not satisfied (he also held that the second prong for maritime jurisdiction was not satisfied as the injury to a platform worker who fell to the platform lacked a substantial relationship to traditional maritime activity and did not pose a potential disruption to maritime commerce). Consequently, Judge Doughty held that the claims for contribution and indemnity were barred by Louisiana law as Barry Graham could only be liable for its own fault. That did not mean that the negligence of Wood Group was not relevant. Finding a fact question of that negligence, Judge Doughty held that Barry Graham could present evidence of Wood Group’s comparative negligence (which would reduce its liability to Willis) but Wood Group would no longer be a third-party defendant.

Barry Graham also filed a third-party complaint against Expeditors & Production Services, which owned a dock facility in Cameron, Louisiana from which the TAMI was loaded. Barry Graham contended that, to the extent Expeditors may be found liable with respect to the tagline, Barry Graham was entitled to contribution/indemnity from Expeditors under the general maritime law. Expeditors argued in response that Louisiana law applied and that Louisiana law barred the contribution/indemnity claim. As he had previously held that Louisiana law, and not maritime law, applied to Barry Graham’s claims against Wood Group, Judge Doughty held that Louisiana law applied and the vessel owner could not recover contribution or indemnity against Expeditors with respect to the loading of the box on the vessel. See December 2022 Update.

Judge Doughty next considered Barry Graham’s claim for contribution or indemnity against Shamrock Management and its insurer Aspen. Willis was a production operator for Fieldwood, but his payroll employer was Shamrock. Barry Graham did not have a contract directly with Shamrock, but it claimed that provisions of three contracts provided for the indemnity: (1) a brokerage agreement by which Kilgore brokered the TAMI to Barry Graham, (2) a master time charter between Kilgore and Fieldwood, and (3) a master services contract (MSC) between Shamrock and Fieldwood by which Willis was employed by Shamrock to work for Fieldwood. Shamrock and Aspen argued that Barry Graham was not a beneficiary under any of the contracts; that the LHWCA barred indemnity from Shamrock and Aspen (employer) to Barry Graham (vessel owner); and that the Outer Continental Shelf Lands Act provided for application of Louisiana law, which invalidated any indemnity obligation. As Judge Doughty had previously held that Willis’ claim arose under the OCSLA and that Louisiana law applied as surrogate federal law, he held that the LHWCA did not apply to void any indemnity provisions in the contracts. He then reviewed the contracts to determine whether they provided indemnity rights to Barry Graham against Shamrock/Aspen (in the absence of a contract directly between Barry Graham and Shamrock/Aspen). The MSC required that Shamrock indemnify Fieldwood and the “company group” for the injury to Willis, but the company group did not extend beyond Fieldwood, its related companies, officers, and employees. However, the MSC did provide for indemnity for third-party contractors of Fieldwood who have executed cross-indemnity similar to that in the MSC. As the complicated relationship for the charter of the vessel did not involve a contract between Fieldwood and Barry Graham, Barry Graham could not claim to be a subcontractor of Fieldwood so as to fall within the third-party contracts provision of the MSC. Accordingly, Judge Doughty held that Barry Graham had no right to seek indemnity, defense, or insurance coverage from Shamrock or Aspen.

LHWCA Section 5(b), not state law, provided the exclusive remedy for the beneficiaries of a ship repairer against the operator of a naval vessel, but the proper defendant for the claim was the United States pursuant to the Public Vessels Act; Provence v. United States, No. 2:21-cv-965, 2023 U.S. Dist. LEXIS 2539 (D.S.C. Jan. 5, 2023) (Gergel).


Crowley Government Services entered into a government contract with the Military Sealift Command to operate the public vessel, 1st LIEUTENANT JACK LUMMUS. Crowley contracted with Detyens Shipyards for repairs to the vessel, and Juan Antonio Villalobos Hernandez was recruited by a staffing firm to work as a welder for Detyens. Hernandez was killed by a lifeboat davit while working on the vessel, and his personal representative brought this action in federal court in South Carolina seeking to recover against Crowley and the United States pursuant to Section 5(b) of the LHWCA and pursuant to South Carolina’s wrongful death and survival statutes. Crowley moved for summary judgment on the claims under state law, arguing that Section 5(b) of the LHWCA provided the exclusive remedy against it as the operator of the vessel. Although the plaintiff argued that Crowley was involved in activities that were outside of its contract with the United States; Judge Gergel concluded that the LHWCA provided the exclusive remedy against Crowley for the negligence allegations. Therefore, he dismissed the claims brought under state law. Crowley then argued that it was acting as an agent for the United States so that the exclusive remedy for the plaintiff was against the United States under the Public Vessels Act. As the case law established that a contract operator of a public vessel is an agent for purposes of the exclusivity provision of the PVA, Judge Gergel dismissed the action against Crowley.

Worker hired by vessel’s manager to perform repair and maintenance on a fishing boat to prepare it for tendering operations who had a handshake agreement with the captain to sail with the vessel after completion of repairs was only an expectant seaman and was not entitled to recover under the Jones Act for an injury during the repair; vessel owner did not violate the Scindia turnover duty under Section 5(b) of the LHWCA by locking out the vessel’s hydraulic crane so that the worker had to move equipment by hand; Larrison v. Ocean Beauty Seafoods, LLC, No. C20-906, 2023 U.S. Dist. LEXIS 8027 (W.D. Wash. Jan. 17, 2023) (Martinez).


Mattsen Management managed the fishing vessel RETRIEVER for its owner Retriever Tender Alaska and the managing member of RTA, Ocean Beauty Seafoods. In December 2016, the vessel was undergoing shipyard repairs and maintenance before departing for tendering operations for the 2017 cod fishing season. The operation was under the control of Mattsen, which hired workers directly to perform the repair work. One of the workers was Richard Larrison. During the sea trials, a Mattsen employee instructed Larrison to move cod tendering equipment by hand because the vessel’s hydraulic crane was locked out and tagged. Larrison experienced pain shooting down his right leg after moving the equipment, and Mattsen paid him benefits under the LHWCA in connection with the injury. Larrison brought this action in federal court in Washington against RTA, Ocean Beauty, and Mattsen under the Jones Act and general maritime law as a seaman, and he also brought a claim for negligence under Section 5(b) of the LHWCA. Larrison voluntarily dismissed his claims against Mattsen, and RTA and Ocean Beauty moved for summary judgment on the claims as a seaman and under the LHWCA. Larrison argued that he was not a “pure shipyard worker” because he had a “handshake deal” with the vessel’s captain to take the vessel tendering. The defendants accepted the factual contention, but cited the cases holding that while a worker was an “expectant seaman” he was not entitled to a seaman’s remedies. Judge Martinez agreed, so Larrison argued that he was injured during sea trials so he was functioning as a seaman at the time of his accident. Citing Chandris, Judge Martinez reasoned that “the mere fact that a land-based worker is aboard the vessel when it leaves shore does not convert that worker into a Jones Act seaman.” Consequently, Judge Martinez dismissed the claims for negligence under the Jones Act and unseaworthiness and maintenance and cure under the general maritime law. With respect to the negligence claim under Section 5(b) of the LHWCA, Larrison argued that the vessel owner violated Scindia’s turnover duty because the crane was inoperable and potentially dangerous, so that Larrison had to use unreasonable effort to move the heavy cod tendering equipment. The owner responded that it does not have to turn over a vessel free of defects but, instead, one where an experienced worker can reasonably work around the defects. In this case, the equipment could have been moved safely if more personnel were used or if an experienced repair company had been hired. As the fault was in the decision made by Mattsen to move the equipment with a single worker, Judge Martinez held that the turnover duty was not violated.

Dispute whether the lift boat captain performed a preload before jacking up the vessel was sufficient to defeat the vessel owner’s motion for summary judgment on the claim of a violation of Scindia’s active-control duty under LHWCA Section 5(b); privity of the captain was imputed to the owner as the lift boat was a seagoing vessel; judge rejected argument that punitive damages are only recoverable against the third-party tortfeasor by a longshore worker who is injured in territorial waters; In re Aries Marine Corp., Nos. 19-10850, 19-13138, 2023 U.S. Dist. LEXIS 9838 (E.D. La. Jan. 19, 2023) (Africk).


Aries Marine owned the liftboat RAM XVIII, which was sent to work in the West Delta region of the outer Continental Shelf off the coast of Louisiana. The vessel jacked up, and a construction crew worked until the next day when the vessel began to list and sank. Aries filed a limitation action in federal court in Louisiana, and seven workers on the rig filed claims against Aries under Section 5(b) of the LHWCA. Aries moved for summary judgment that it was entitled to exoneration of liability or, alternatively, limitation of liability. Judge Africk found a fact dispute whether the captain of the liftboat performed a preload before jacking up to ensure that the leg pads for the vessel were on stable ground and would not punch through the seabed. If the preload was not performed, Judge Africk concluded that the failure would constitute negligence under the vessel’s active control, in violation of the duty enunciated by the Supreme Court in the Scindia case. Turning to the limitation issue, Judge Africk noted that with respect to seagoing vessels, the privity or knowledge of the master at or before the beginning of the voyage is imputed to the owner. Aries did not dispute that it is a seagoing vessel (the accident did occur on the outer Continental Shelf more than 12 nautical miles from the coast). Thus, to the extent there was negligence of the captain before the voyage, it would be imputed to the owner. Judge Africk also cited evidence that the owner allegedly provided an unqualified captain whom it had failed to adequately train, and he declined to grant summary judgment as to limitation of liability. The vessel owner also moved to dismiss the punitive damage claims brought against it under Section 5(b) of the LHWCA on the ground that punitive damages are only recoverable against a third-party tortfeasor by a longshore worker who is injured in state territorial waters (and for lack of evidence of willful and wanton conduct). Judge Africk noted that the Fifth Circuit has not decided the question whether punitive damages may be recoverable under Section 5(b), and he declined to grant summary judgment on the punitive damage claim.

Claimant who did not request a default order from the Department of Labor until more than a year after the ALJ’s award was barred from enforcing the default orders issued by the DOL; Adams v. Old Republic Insurance Co., No. 22-119, 2023 U.S. Dist. LEXIS 15113 (E.D. Kent. Jan. 30, 2023) (Bunning).


This is a Black Lung Benefits Act case applying the provisions of the LHWCA with respect to default orders. Tony Lee Adams filed a claim for black lung benefits but died while the proceedings were ongoing. His widow, Linda Adams, filed a claim, and the administrative law judge issued orders in favor of both Tony and Linda Adams on December 18, 2020. On December 29, 2020, the OWCP calculated the benefits owed, and the carrier appealed to the Benefits Review Board and later to the Sixth Circuit without requesting a stay. On September 9, 2022, Linda sent a letter to the Department of Labor applying for supplementary default orders pursuant to Section 18 of the LHWCA, and the DOL issued the orders. Adams then brought suit in federal court in Kentucky to enforce the orders, and Judge Bunning held that the carrier was in default under the provisions of the LHWCA as found by the Department of Labor in its supplementary orders. However, Judge Bunning held that the supplementary orders were not in accordance with law because Adams did not seek to enforce the orders until more than a year after the default as set forth in Section 18(a). Therefore, Judge Bunning granted the carrier’s motion to dismiss the enforcement suit.

From the state appellate courts

Louisiana appellate court upheld verdict for longshoreman with mesothelioma against stevedoring company that employed him and his father for take-home exposure from his father’s work; Pete v. Boland Marine & Manufacturing Co., No. 2021-CA-0626, 2023 La. App. LEXIS 2 (La. App. 4 Cir. Jan. 5, 2023) (McKay).

Majority opinion

Dissenting opinion

Henry Pete, who has malignant mesothelioma, brought this suit in Louisiana state court seeking to recover from several defendants, including stevedoring companies for which he worked and for which his father worked (take-home asbestos claims) exposing them to asbestos at various wharves and work sites at the Port of New Orleans from 1964 to 1968. The case was tried to a jury which found three defendants, Cooper T. Smith, South African Marine, and Ports America, liable for Henry Pete’s development of mesothelioma attributable to take-home exposure from his father, Preston Pete. The jury assessed general and special damages totaling $10,351,020, which included $ 2 million for past and future pain and suffering, $2.3 million for past and future mental anguish, $3 million for past and future physical disability, $2.5 million for past and future loss of enjoyment of life, and $551,020.70 for past medical expenses (each defendant was held liable for a share of the award). Ports America appealed, and Judge McKay, writing for the court of appeals, found sufficient evidence that Preston Pete’s exposure to asbestos through his employment with Ports America was a substantial contributing factor to the development of Henry Pete’s mesothelioma. Ports America argued that the award was greatly disproportionate to past awards for similar injuries, but a majority of the court of appeals declined to disturb the award. Judge Dysart dissented, reasoning that recent awards suggested that a general damage award should somewhere in the neighborhood of half of what was awarded. Accordingly, he would reduce the damages by half.

Ship dismantling company owed a duty to the employee of a related company in the capacity as vessel owner but not because it guaranteed the employer’s lease with the Port; Buckholtz v. American Optical Corp., No. 56257-0-II, 2023 Wash. App. LEXIS 129 (Wash. App. Div. 2 Jan. 24, 2023) (Maxa).


Zidell Explorations began dismantling decommissioned Navy ships in Portland in the 1950s. Zidell Dismantling was formed in 1960 and performed ship dismantling operations in Tacoma. Zidell Dismantling entered into a lease with the Port of Tacoma and agreed to comply with all regulations and ordinances applicable to the premises that it leased. Zidell Explorations guaranteed compliance with the provisions of the lease. Dennis Woodruff was employed by Zidell Dismantling and was engaged in dismantling ships from 1970 to 1973 that included removing asbestos insulation material. One of the ships on which he worked was the USS PHILIPPINE SEA, and there was evidence that Zidell Explorations owned the ship during the dismantling in Tacoma (dismantling was completed in Portland). Woodruff eventually developed mesothelioma that resulted in his death and substitution of Buckholtz as the plaintiff. Woodruff brought suit in Washington state court against Zidell Dismantling, Zidell Explorations, and the Port of Tacoma. Zidell Dismantling was dismissed from the suit based on the exclusive remedy provision of the state workers’ compensation act. Before the suit was filed, Zidell Explorations had made ship lists from its records but destroyed documents from which the lists were made without scanning or digitizing the records. The district judge ruled that the documents were highly relevant to litigation that the company reasonably should have anticipated would arise, and the judge determined that an adverse inference instruction should be given to ameliorate the prejudice to Woodruff from the destruction of records on the ownership of vessels scrapped at Zidell Dismantling’s facility. At trial Woodruff emphasized the adverse inference in arguing that Zidell Explorations owned all the ships that Zidell Dismantling salvaged in Tacoma. The jury found that Zidell Exploration was negligent and that its negligence was a substantial factor in causing Woodruff’s disease. It awarded $11,216,056 in damages, reduced by prior settlements. Zidell Explorations appealed, and the court of appeals agreed that Zidell Explorations owed Woodruff a duty as the owner of ships on which Woodruff was working because Zidell Explorations maintained the right to control Zidell Dismantling’s work on the ships that Zidell Explorations owned. The appellate court disagreed that the guarantee of compliance with the provisions of the lease caused Zidell Explorations to assume a duty to Woodruff, however. The court of appeals disagreed that Zidell Explorations had a duty to preserve the documents that were destroyed in 2017 and concluded that it had not engaged in spoliation of evidence as there was no evidence that it destroyed the documents in order to avoid future liability (it had not been sued before this for asbestos exposure). At worst, the destruction was negligent and not done in bad faith. As there was evidence that Zidell Explorations owned at least one of the ships on which Woodruff worked, the court of appeals reversed the judgment and remanded the case for a new trial.

And on the maritime front . . .

From the federal appellate courts

Although Captain Warranty in vessel’s hull policy was ambiguous, the warranty was breached by the owner of the insured vessel; however, fact questions precluded summary judgment on the issue whether breach of the warranty increased the hazard to the vessel; Serendipity at Sea, LLC v. Underwriters at Lloyd’s of London, No. 21-11733, 2023 U.S. App. LEXIS 138 (11th Cir. Jan. 4, 2023) (Marcus).


Serendipity at Sea’s 61-foot yacht M/Y SERENDIPITY was damaged by Hurricane Dorian while docked in the Bahamas. The vessel’s insurer, Underwriters at Lloyd’s, denied the claim, citing breach of the Captain Warranty, breach of a hurricane plan, and misrepresenting information in its insurance application. In our March 2021 Update, we discussed Magistrate Judge Strauss’s conclusion that Serendipity breached the captain warranty but that a trial was necessary to address the issue of increased risk. Lloyd’s engaged Thomas E. Danti as an expert for his experience as a seaman, officer in the merchant marine, commander in the Navy Reserve, yacht captain, professor of marine science, and instructor/dean at the Chapman School of Seamanship. He opined that the failure to employ a full-time licensed captain contributed to the loss of the vessel, there were favorable hurricane protection features in the agreed mooring location for the vessel in Part Canaveral, Florida, Automatic Identification System tracking showed numerous vessels departing the Bahamas before the Hurricane, and the SERENDIPITY was not prepared for hurricane season and that lack of preparation contributed to the loss. The owner moved to exclude Danti’s opinions for lack of qualification, reliability, and helpfulness. With respect to qualification, the owner argued that Danti is not an insurance expert; however, Magistrate Judge Strauss responded that Danti’s testimony is with respect to seamanship, for which is qualified. As to reliability, Magistrate Judge Strauss cited Danti’s extensive experience and knowledge on the subject matter that rendered his opinions reliable together with the significant information and explanation that supported his opinions with respect to the business of being a vessel captain and preparing vessels for hurricanes, not insurance coverage arguments. Finally, the matters on which he gave his opinions were beyond the purview of an average lay person and were therefore helpful. Consequently, Magistrate Judge Strauss denied the motion to strike. See April 2021 Update.

The court ordered further briefing on the issue whether breach of Captain Warranty increased the hazard within the control of the insured, and Serendipity responded to the testimony of Captain Danti’s opinion about the increased hazard by rehashing issues that had already been decided, asserting that the warranty was ambiguous and had not been breached. Reasoning that the hazard issue was not disputed, Judge Ruiz granted summary judgment in favor of the insurer. Serendipity appealed to the Eleventh Circuit, and neither the defendants, Underwriters at Lloyd’s of London and USI Insurance Services, LLC, nor the insured, Serendipity at Sea, LLC, objected to appellate jurisdiction (based on appeal from the judgment entered in a diversity case). The Eleventh Circuit noted that, with respect to syndicates of Lloyd’s underwriters, the plaintiff must plead the citizenship of each member. The pleading against Lloyd’s was sufficient in this case as it described each of the subscribers as a citizen of the United Kingdom. However, Serendipity and USI are limited liability companies, and the pleadings did not allege the citizenship of the members of both limited liability companies (laws under which it was created and its principal place of business). Accordingly, the Eleventh Circuit remanded the case to the district court to determine the citizenship of Serendipity and USI. See February 2022 Update.

On remand, Judge Ruiz found that there was complete diversity, and the Eleventh Circuit then addressed the merits of the appeal of the summary judgment in favor of Lloyd’s on Serendipity’s claim for breach of contract based on the owner not employing a full-time licensed captain in violation of the policy’s Captain Warranty and the breach increasing the hazard posed to the vessel as set forth in the opinion of Captain Danti. The owner continued to argue on appeal that the Captain Warranty was ambiguous and vague, and, applying Florida law, Judge Marcus examined the language that warranted “a full time licensed captain is employed for the maintenance and care of the vessel and is aboard while underway.” Judge Marcus was persuaded that the warranty was ambiguous because there was more than one reasonable way to interpret the language of the warranty that “a full time licensed captain is employed.” One interpretation was that the owner must hire a person to work on the vessel exclusively as a full-time captain. Alternatively, however, Judge Marcus stated that a reasonable interpretation was that the owner was required to hire a person whose full-time profession was that of a captain but who only worked for the owner part time. Nonetheless, the ambiguity did not save the owner because under either interpretation, the owner violated the warranty because it did not hire a licensed captain either full time or whose full-time job was as a licensed captain. Consequently, Judge Marcus held that there was a breach of the captain warranty. Judge Marcus then addressed the issue whether the breach increased the hazard and the insurers’ argument on appeal that the owner forfeited the argument by not properly raising it in the district court. Judge Marcus noted that the owner disputed the testimony in Captain Danti’s report because he relied on a meteorological fact of which he did not possess any particular expertise. Although the owner raised the argument in connection with the claim that it did not breach the warranty, Judge Marcos held that the argument (although placed in the wrong section) was adequately raised and did not require the district judge to “scour the record” to find the owner’s argument on whether the breach increased the hazard. Turning to the merits, Judge Marcus concluded that Captain Danti’s testimony contradicted weather reports that existed at the time and that Judge Ruiz could not conclude that the owner did not produce evidence to rebut Captain Danti’s testimony. Accordingly, the appellate court held that there was a fact issue to be determined on the issue whether breach of the warranty increased the hazard to the vessel posed by Hurricane Dorian and reversed the summary judgment to the insurers.

Fifth Circuit affirmed denial of removal of case involving damage to submerged lands by dredging as not supported by the Federal Officer Removal Statute or federal question jurisdiction and insufficiently briefed on admiralty jurisdiction; Port of Corpus Christi Authority v. Port of Corpus Christi L.P., No. 22-40124, 2022 U.S. App. LEXIS 348 (5th Cir. Jan. 6, 2023) (Southwick).


The Port of Corpus Christi Authority originally brought this suit against The Port of Corpus Christi LP in state court in Nueces County, Texas, for service mark dilution and service mark infringement. The defendant changed its name to The Port of Texas LP, and the plaintiff amended its petition to allege that the defendant’s dredging activity damaged the plaintiff’s submerged lands and interfered with the Corpus Christi Ship Channel and the La Quinta Ship Channel. Arguing that its operations were conducted in accordance with permits and agreements for dredging with the United States Army Corps of Engineers, the defendant removed the case to federal court based on the Federal Officer Removal Statute, federal question jurisdiction, and admiralty jurisdiction. Judge Ramos rejected each basis for jurisdiction and remanded the case to the state court. She reasoned that the permit issued by the USACE was issued to another company, did not name the defendant and that the defendant did not come within the scope of the Federal Officer Removal Statute merely by being in a business that was subject to federal authority. That reasoning was also fatal to the federal question jurisdiction as the nature of the claim was a state-law trespass, and the premise that the defendants’ actions were authorized by the USACE could not succeed when the defendant was not party to the federal permit. Nor was the claim preempted by federal law. Finally, Judge Ramos rejected the claim for removal based on admiralty jurisdiction as the defendant did not address the cases cited by the plaintiff (requiring a separate basis for jurisdiction for removal of an admiralty case) in its response or sur-reply, reasoning that the defendant appeared to have abandoned this basis for removal. See April 2022 Update.

The Port of Corpus Christi LP appealed to the Fifth Circuit, which affirmed the order for remand of the case. In connection with the Federal Officer Removal, Judge Southwick reasoned that actions taken in connection with a federal permit that authorized and set the conditions for making improvements to the berths for barges at a private oil terminal were not carrying out a federal officer’s tasks or duties, so there was no jurisdiction under that statute. Judge Southwick also rejected the argument that the case arose under federal law because the plaintiff brought the action under state law and it was the defendant that injected the federal question and resolution of the federal question was not necessary to the plaintiff’s right to relief. Finally, with respect to removal based on admiralty jurisdiction, Judge Southwick noted that Judge Ramos had determined that the defendant had abandoned this basis for removal by not addressing it in the response or sur-reply to the motion to remand. Although the defendant argued that it had not waived the arguments, Judge Southwick noted that the defendant failed to address the citation to the cases stating that maritime cases cannot be removed absent an independent basis for federal jurisdiction. Holding that there was “insufficient briefing on this issue in district court” and that the “arguments presented on appeal are also thin,” the court held the argument was “not nearly enough” and affirmed the remand.

Eleventh Circuit affirmed award of damages for breach of contract and fraud for failure to provide vessel and equipment to locate planes that crashed off the coast of Venezuela; Grupo HGM Tecnologias Submarinas, S.A. v. Energy Subsea, LLC, No. 22-10425, 2023 U.S. App. LEXIS 1115 (11th Cir. Jan. 18, 2023) (per curiam).


Two small jets crashed in the sea off the coast of Venezuela while carrying high-ranking Venezuelan government officials. Grupo entered into a contract with the Venezuelan Civil Authority to provide services and equipment to locate the aircraft, and Grupo entered into a contract with the defendants to supply some of the needed equipment, including a suitable vessel, using the BIMCO Supplytime 2005 form. Grupo paid more than a million dollars without any mobilization from the defendants, who continued to demand more than a million additional dollars (even though the quoted price was $650,000), leading to Grupo suing for breach of contract plus causes of action for fraud, and violations of the Alabama Deceptive Trade Practices Act. Grupo moved for a default judgment, asserting the application of Alabama law, but Magistrate Judge Nelson noted that maritime law should apply to the contract even though Grupo had brought the case pursuant to the diversity jurisdiction and not admiralty jurisdiction. See September 2019 Update.

Two years later, the case was tried in a bench trial to Chief Judge Beaverstock. Chief Judge Beaverstock found in favor of Grupo on its claim for breach of a maritime contract, found that Energy Subsea’s managing member, Oddgeir Ingvartsen, controlled Energy Subsea in such a manner as to make it a mere instrumentality of himself so that he was jointly and severally liable, found that the claim for unjust enrichment failed in light of the contract between the parties, and found that Energy Subsea and Ingvartsen were liable for fraud. The defendants claimed that the economic loss rule (a party may not recover economic loss in a tort claim that is not associated with a physical loss) barred recovery on the fraud claim, but Chief Judge Beaverstock held that the claim of fraud in the inducement was an exception to the economic loss rule. As compensatory damages, Chief Judge Beaverstock awarded $1,727,000. With respect to the punitive damages for fraud, Chief Judge Beaverstock concluded that Grupo paid $616,046.32 more than the original contact amount because of the fraud, and he trebled that amount under Alabama law ($1,848,138.90). Therefore, his award against Energy Subsea and Ingvartsen was in the amount of $3,575,138.90. See November 2021 Update.

The defendants moved for a new trial or to amend the judgment, and Chief Judge Beaverstock rejected arguments that there was insufficient evidence to pierce the corporate veil of Energy Subsea, that the damages were excessive, and that the trial was unfair because defense counsel was required to participate remotely after being in close proximity to a person who exhibited signs of COVID-19 infection. Chief Judge Beaverstock also rejected a reiteration of arguments that were presented at trial and that were addressed in the judgment. See February 2022 Update.

Energy Subsea and Ingvartsen appealed, and the Eleventh Circuit first addressed the question whether maritime law or state law applied to the contractual relationship between Grupo and Energy Subsea and Ingvartsen. Although maritime law applied to the charter with Energy Subsea, it did not automatically follow that maritime law applied if there was a novation with Ingvartsen. Finding that maritime law and state law applied similar standards to the determination whether there was a novation, the Eleventh Circuit agreed with the district court that there was insufficient credible evidence that a new contract extinguished the old one. Consequently, as there was no novation, Energy Subsea remained bound to its contract with Grupo and was liable for breach of contract. The Eleventh Circuit also found that under either maritime law or state law the district court properly found that Ingvartsen had dominated and controlled Energy Subsea for alter-ego purposes so that they were jointly and severally liable for breach of contract. The parties agreed that state law applied to the fraud claim, and the Eleventh Circuit found sufficient evidence of misrepresentations of material facts that were relied on by Grupo, resulting in an affirmance of the decision to hold both Energy Subsea and Ingvartsen liable for fraud. Concluding that both maritime law and state law permit an award of attorney fees in instances of bad faith, the Eleventh Circuit affirmed the award of attorney fees to Grupo. Finally, the Eleventh Circuit found that counsel for Ingvartsen agreed to conduct the trial by video so any error in the remote conduct of the trial was invited.

Second Circuit agreed that the vessel owner could not establish the terms of its P&I policy from 1946 to 1947 to afford coverage for settlements of seamen’s asbestos exposure cases and that the owner’s suit against its insurance broker was untimely; Cosmopolitan Shipping Co. v. Continental Insurance Co., No. 21-2060, 2023 U.S. App. LEXIS 2311 (2d Cir. Jan. 30, 2023) (per curiam).


Cosmopolitan Shipping entered into settlements with seamen who alleged injuries from exposure to asbestos while sailing on ships that it chartered in the 1940s. Cosmopolitan then sought insurance coverage under a Continental protection and indemnity policy issued for the period from 1946 to 1947 that covered the United Nations Relief and Rehabilitation Administration for which Cosmopolitan chartered the vessels on which the seamen were exposed to asbestos. Cosmopolitan sought to establish insurance coverage by relying on secondary evidence of the terms of the policies as the parties were not able to find any policy for the relevant time frame. Based on three endorsements that were located, Judge Schofield was able to conclude that Continental had issued an open-cover P&I policy covering injuries and deaths, and Cosmopolitan tried to provide evidence of the terms of the policy based on other policies that were issued at the time. However, there were not enough similarities in the other policies (particularly because the Continental policy was an open-cover policy) to allow Judge Schofield to ascertain policy terms such as how much insurance Continental had agreed to provide. Consequently, Judge Schofield held that Cosmopolitan had failed to establish that it was afforded coverage for the settlement of the asbestos claims. See February 2021 Update.

Unsuccessful against its insurer, Cosmopolitan sought to recover against its former broker, Marsh. In 1995, the owner of Cosmopolitan had a phone conversation with the claims advocate in the New York City office of Marsh’s Marine Division, Stanley Schiff, concerning possible insurance coverage for the asbestos claims. Schiff followed up with a voicemail message and an email with recommendations that did not include attempting to locate the responsive P&I policy. More than 20 years later, in June 2018, Cosmopolitan added Marsh as a defendant, asserting that Schiff was negligent in the advice given in 1995. Concluding that the claim accrued long before 2012 (six-year statute of limitation in New Jersey; three-year statute of limitation in New York), Judge Schofield held that the case against Marsh was time-barred under either New York or New Jersey law. See August 2021 Update.

Cosmopolitan appealed the decisions in favor of the insurer and broker to the Second Circuit. With respect to the claim against Continental, the Second Circuit questioned whether the standard for lost policy cases is a preponderance of the evidence or clear and convincing evidence, but it did not matter because the appellate court held that the evidence failed to satisfy even the less demanding preponderance of the evidence standard. The Second Circuit agreed that the secondary evidence did not have a direct connection with the missing policy and that the policy examples did not demonstrate a consistent adoption of material terms for policies around the relevant time period. As to the claim against the broker, the Second Circuit agreed that whether the discovery rule applied or not, a reasonable fact finder could only conclude that the owner’s decision to wait for two decades to verify the advice of an insurance broker was not reasonably diligent. Consequently, the case was time barred.

From the federal district courts

Contribution, indemnity, and Rule 14(c) claims against the United States that were brought after two years from the incident were held to be barred by the statute of limitations in the Suits in Admiralty Act; Bingham v. Shaver Transportation Co., No. 3:22-cv-5253, 2022 U.S. Dist. LEXIS 228874 (W.D. Wash. Dec. 20, 2022) (Estudillo).


Adam Bingham brought this suit in federal court in Washington seeking to recover from his employer for an injury sustained on the M/V VANCOUVER while it was assisting a United States Navy vessel. His employer filed a motion for partial summary judgment on Bingham’s claim for maintenance and cure, and Judge Estudillo concluded that Bingham had offered sufficient evidence that Bingham suffered post-traumatic stress disorder that stemmed from the accident. His employer argued that Bingham had reached maximum cure because his testing indicated that his symptoms fell below standards indicative of PTSD. Citing the testimony of the therapist that continued therapy “would be helpful,” Judge Estudillo found a fact question whether treatment would be curative or palliative and denied the motion for partial summary judgment. See January 2023 Update.

Bingham’s suit against his employer was brought two years and eight months after the incident that caused his injury. His employer brought a third-party complaint against the United States two months later, asserting claims for contribution and indemnity and including a tender to the United States of liability directly to Bingham pursuant to Rule 14(c). The United States moved to dismiss the claims based on the two-year statute of limitations in the Suits in Admiralty Act. The employer did not take a position on the Rule 14(c) tender, and Judge Estudillo dismissed it, reasoning that, as Bingham’s attorney had missed the time to sue the United States, there was no liability to tender directly from Bingham to the United States under Rule 14(c). Bingham’s employer opposed the motion to dismiss the contribution and indemnity claims. The United States argued that because Bingham could not hold the United States liable directly for his negligence and maintenance and cure claims, then his employer was precluded from seeking indemnity and contribution. Citing cases holding that the period of limitation under the Suits in Admiralty Act is computed from the date of the injury, Judge Estudillo held that, as Bingham could not sue the United States directly, his employer could not sue for indemnity and contribution. [When do claims for contribution and indemnity accrue?]. Employer Shaver Transportation filed a notice of appeal on January 12, 2023).

DOHSA applied to death claims from crash of Boeing 737 MAX into the Java Sea and preempted other remedies sought on behalf of the deceased passengers; no jury trial was available for DOHSA claims that were removed from state court even though the federal court had diversity jurisdiction; In re Lion Air Flight JT 610 Crash, Nos. 18 C 07686, 19 C 01552, 19 C 07091, 2022 U.S. Dist. LEXIS 229095 (N.D. Ill. Dec. 20, 2022) (Durkin).


This litigation arises from the crash of the Boeing 737 MAX (Lion Air Flight JT 610) in the Java Sea after taking off from Jakarta, Indonesia, resulting in the deaths of everyone on board. Numerous actions were filed against Boeing, and Boeing settled with the families of all but two of the decedents, Liu Chandra, an Indonesian businessman, and Andrea Manfredi, an Italian professional cyclist and entrepreneur. The Chandra plaintiffs filed suit in Illinois state court, alleging wrongful death under the Death on the High Seas Act and the Illinois Wrongful Death Act, and they included survival claims. Boeing removed the case to federal court based on the Multiparty, Multiforum, Trial Jurisdiction Act and based on the federal court’s admiralty jurisdiction. In an amended complaint after removal, the Chandra plaintiffs demanded a jury and based jurisdiction on diversity, DOHSA, and the MMTJA. The Manfredi plaintiffs filed suit in federal court in Illinois invoking diversity asserting claims for wrongful death, survival, and based on the Illinois Consumer Fraud and Deceptive Practices Act and the federal Computer Fraud and Abuse Act. They demanded a jury trial and sought punitive damages. Boeing filed motions in both cases seeking a determination that DOHSA applies, that it preempts the non-DOHSA claims, and that it requires a non-jury trial. Recognizing the cases holding that DOHSA applies to deaths on or over the high seas, the Manfredi plaintiffs argued that over half of the flight occurred over land. However, there were no factual disputes in this case whether the death occurred over the land or water as the complaint alleged that Manfredi’s death occurred when the plane crashed into the ocean. The survival claim was based on Manfredi being able to understand and react to the impact of the aircraft with the ocean. Accordingly, Judge Durkin held that DOHSA applied and then addressed whether its application preempted other remedies that were sought and whether the plaintiffs were entitled to a jury trial. Based on the decisions of the Supreme Court in Tallentire and Dooley, Judge Durkin began with the principle that, where DOHSA applies, it is generally the exclusive source of applicable law and preempts state wrongful death claims as well as survival claims. Although the plaintiffs argued that some of the injuries occurred while the plane was over land, citing cases involving asbestos exposure that occurred in employment on land and over the water, Judge Durkin distinguished those cases as indivisible injury cases where the fatal injury occurred over many years and partially over land. Judge Durkin also held that DOHSA preempted claims for property damage and claims under the state and federal statutes (the federal statute would be displaced rather than preempted). The final question was whether the saving-to-suitors clause and diversity preserved a right to a jury trial for the DOHSA claims. Although the plaintiffs could bring maritime claims in diversity and obtain a jury trial, Judge Durkin noted that DOHSA is limited to “a civil action in admiralty” and that does not carry the right to a jury trial. The Supreme Court explained in Tallentire that DOHSA’s saving clause allows state courts to hear suits under DOHSA, but it does not allow state causes of action to be brought in DOHSA cases or allow the plaintiffs to invoke common-law jurisdiction. The Chandra case was brought in state court where the plaintiffs would have a jury trial, but when it was removed, federal procedural law controlled the right to a jury trial, and Judge Durkin held that there was no right to a jury trial in federal court in an admiralty claim. Diversity provided an additional basis for federal jurisdiction, but it did not enlarge the substantive remedy on which the claim was based—DOHSA.

Judge ordered attachment of the charterer’s property after dismissing part of the owner’s demurrage claim as time barred under the charter party and after declining to certify the dismissal for an interlocutory appeal; Barnet Marine Inc. v. Laurel D Shipping LLC, No. 21-cv-5071, 2022 U.S. Dist. LEXIS 231251 (S.D.N.Y. Dec. 23, 2022) (Caproni).


Laurel D Shipping chartered the tanker CE-NIRIIS from Barnet Marine for a voyage to discharge cargo in Hong Kong. When the vessel arrived and tendered its notice of readiness, there were quarantine issues due to crew members having COVID-19, and the owner submitted a demurrage claim (in the amount of $97,500) 35 days after completion of discharge. 136 days after the completion of discharge, the owner submitted an “amended” demurrage claim for $573,437.55. The charterer objected, and the owner brought suit in federal court in New York and sought a Rule B attachment of the charterer’s property. The charterer moved to vacate the attachment on the ground that it was present in the convenient adjacent district of Connecticut and was entitled to equitable vacatur. Although the charterer claimed that its principal place of business was in Connecticut and that its officers worked from that office, Judge Caproni held that the evidence it presented was insufficient as it did not establish who the officers were or where the significant decisions were made. Consequently, Judge Caproni declined to vacate the attachment. The charterer also moved for a partial judgment on the pleadings, citing the clause in the charter party that the charterer would be released from liability for demurrage unless a claim in writing was presented to the charterer, together with all supporting documentation, within 90 days of the completion of discharge. The charterer did not contest the timeliness of the initial claim, but it argued that the amended claim was untimely. The owner asserted that the later claim was merely an amendment and not a second claim, and that all the supporting documents were in the possession of the charterer (although they were not submitted with the original claim). Based on the unambiguous language of the charter party, Judge Caproni granted partial dismissal of the claim, reasoning that the additional amounts and documentation were not presented within 90 days. See September 2022 Update.

The owner moved for an order certifying the court’s partial dismissal for an interlocutory appeal, arguing that there were separate claims and one had been finally determined (based on the fact that there were separate written demands for demurrage). Judge Caproni disagreed that the owner had presented multiple claims, reasoning that there was a single cause of action where the legal questions were closely related and the owner would only be entitled to recover on one demand. After declining to certify the case for appeal, Judge Caproni ordered the owner to submit a proposed amended attachment order up to the amount of $97,500, and Judge Caproni ordered the attachment for that amount on January 11, 2023.

Judges granted summary judgment on opt-out claims from the DEEPWATER HORIZON/Macondo spill for lack of evidence on causation; Walker v. BP Exploration & Production, Inc., No. 17-3012, 2022 U.S. Dist. LEXIS 232921 (E.D. La. Dec. 28, 2022 (Africk); Wells v. B.P. Exploration & Production, Inc., No. 17-4224, 2023 U.S. Dist. LEXIS 3105 (E.D. La. Jan. 9, 2023) (Vance); English v. B.P. Exploration & Production, Inc., No. 17-3182, 2023 U.S. Dist. LEXIS 3111 (E.D. La. Jan. 9, 2023) (Vance); Kaoui v. BP Exploration & Production, Inc., No. 17-3313, 2023 U.S. Dist. LEXIS 11193 (E.D. La. Jan. 12, 2023) (Vitter); Crawford v. BP Exploration & Production, Inc., No. 17-3136, 2023 U.S. Dist. LEXIS 6399 (E.D. La. Jan. 13, 2022) (Vitter); Binder v. BP Exploration & Production, Inc., No. 17-3636, 2023 U.S. Dist. LEXIS 6403 (E.D. La. Jan. 13, 20223) (Vitter); Moore v. BP Exploration & Production, Inc., No. 17-3576, 2023 U.S. Dist. LEXIS 6405 (E.D. La. Jan. 13, 2023) (Vitter); Beverly v. BP Exploration & Production, Inc., No. 17-3482, 2023 U.S. Dist. LEXIS 6408 (E.D. La. Jan. 13, 2023) (Vitter); Sherrod v. BP Exploration & Production, Inc., No. 17-3410, 2023 U.S. Dist. LEXIS 6409 (E.D. La. Jan. 13, 2023) (Vitter); Greene v. BP Exploration & Production, Inc., No. 17-3997, 2023 U.S. Dist. LEXIS 6410 (E.D. La. Jan. 13, 2023) (Vitter); Black v. BP Exploration & Production, Inc., No. 17-3483, 2023 U.S. Dist. LEXIS 6412 (E.D. La. Jan. 13, 2023) (Vitter); Bryant v. BP Exploration & Production, Inc, No. 17-3114, 2023 U.S. Dist. LEXIS 6413 (E.D. La. Jan. 13, 2023); Waxman v. BP Exploration & Production, Inc., No. 17-4222, 2023 U.S. Dist. LEXIS 6414 (E.D. La. Jan. 13, 2023) (Vitter); Castleberry v. BP Exploration & Production, Inc., No. 17-4154, 2023 U.S. Dist. LEXIS 7378 (E.D. La. Jan. 17, 2023) (Vitter); Henson v. BP Exploration & Production, Inc., No. 17-3276, 2023 U.S. Dist. LEXIS 9070 (E.D. La. Jan. 19, 2023) (Vitter); Francisco v. BP Exploration & Production, Inc., No. 17-3212, 2023 U.S. Dist. LEXIS 9072 (E.D. La. Jan. 19, 2023) (Vance); Beacham v. BP Exploration & Production, Inc., No. 17-3038, 2023 U.S. Dist. LEXIS 9073 (E.D. La. Jan. 19, 2023) (Vitter); McDougle v. BP Exploration & Production, Inc., No. 17-3386, 2023 U.S. Dist. LEXIS 9078 (E.D. La. Jan. 19, 2023) (Vitter); Lenard v. BP Exploration & Production, Inc., No. 17-3546, 2023 U.S. Dist. LEXIS 9086 (E.D. La. Jan. 19, 2023) (Vitter); Johnson v. BP Exploration & Production, Inc., No. 17-3546, 2023 U.S. Dist. LEXIS 9086 (E.D. La. Jan. 19, 2023) (Vitter); Edwards v. BP Exploration & Production, Inc., No. 17-4324, 2023 U.S. Dist. LEXIS 10741 (E.D. La. Jan. 23, 2023) (Vitter); Mann v. BP Exploration & Production, Inc., No. 17-4421, 2023 U.S. Dist. LEXIS 10742 (E.D. La. Jan. 23, 2023) (Vitter); Herbert v. BP Exploration & Production, Inc., No. 17-4355, 2023 U.S. Dist. LEXIS 10743 (E.D. La. Jan. 23, 2023); Gomes v. BP Exploration & Production, Inc., No. 17-4332, 2023 U.S. Dist. LEXIS 10744 (E.D. La. Jan. 23, 2023) (Vitter); St. Ann v. BP Exploration & Production, Inc., No. 17-4257, 2023 U.S. Dist. LEXIS 10745 (E.D. La. Jan. 23, 2023) (Vitter); Williams v. BP Exploration & Production, Inc., No. 17-4306, 2023 U.S. Dist. LEXIS 10750 (E.D. La. Jan. 23, 2023) (Vitter); McCray v. BP Exploration & Production, Inc., No. 17-3552, 2023 U.S. Dist. LEXIS 10752 (E.D. La. Jan. 23, 2023) (Vitter); Stallworth v. BP Exploration & Production, Inc., No. 17-3612, 2023 U.S. Dist. LEXIS 10753 (E.D. La. Jan. 23, 2023) (Vitter); Holifield v. BP Exploration & Production, Inc., No. 17-4359, 2023 U.S. Dist. LEXIS 10755 (E.D. La. Jan. 23, 2023) (Vitter); Stewart v. BP Exploration & Production, Inc., No. 17-4299, 2023 U.S. Dist. LEXIS 10759 (E.D. La. Jan. 23, 2023) (Vitter); Gray v. BP Exploration & Production, Inc., No. 17-4336, 2023 U.S. Dist. LEXIS 12425 (E.D. La. Jan. 25, 2023) (Vitter); Peters v. BP Exploration & Production, Inc., No. 17-4479, 2023 U.S. Dist. LEXIS 13259 (E.D. La. Jan. 26, 2023) (Vitter); Brewer v. BP Exploration & Production, Inc., No. 17-3508, 2023 U.S. Dist. LEXIS 14000 (E.D. La. Jan. 27, 2023) (Vitter); Tickell v. BP Exploration & Production, Inc., No. 17-3169, 2023 U.S. Dist. LEXIS 14001 (E.D. La. Jan. 27, 2023) (Vitter); Duncan Litigation Investments, LLC v. Baker, Donelson, Bearman, Caldwell & Berkowitz, No. 4:19-cv-3094, 2023 U.S. Dist. LEXIS 14936 (S.D. Tex. Jan. 30, 2023) (Hanks).

Opinion Wells

Opinion English

Opinion Kaoui

Opinion Crawford

Opinion Binder

Opinion Moore

Opinion Beverly

Opinion Sherrod

Opinion Greene

Opinion Black

Opinion Bryant

Opinion Waxman

Opinion Castleberry

Opinion Henson

Opinion Francisco

Opinion Beacham

Opinion McDougle

Opinion Lenard

Opinion Johnson

Opinion Edwards

Opinion Mann

Opinion Herbert

Opinion Gomes

Opinion St. Ann

Opinion Williams

Opinion McCray

Opinion Stallworth

Opinion Holifield

Opinion Stewart

Opinion Gray

Opinion Peters

Opinion Brewer

Opinion Tickell

Opinion Walker

Duncan FOF/COL

Rabell Wells and Elizabeth English alleged exposure to toxic chemical from the Macondo oil spill by virtue of their presence in the environment in Ocean Springs and Biloxi, Mississippi. As these plaintiffs failed to support their claims with expert testimony as to causation, Judge Vance granted summary judgment for lack of evidence of causation and dismissed the suits.

Peter Kaoui claimed to have suffered injuries from exposure to oil and oil-covered debris while working in the cleanup from the beaches and coastal areas in Mobile, Gulf Shores, Orange Beach, Bon Secours, Fort Morgan, and Little Lagoon, Alabama. Patrick Crawford asserted that he sustained injuries from his work cleaning up oil and oil-covered debris from the beaches and coastal areas in Gulfport, Long Beach, Pass Christian, and Bay St. Louis, Mississippi. Sammie Binder claimed injuries from cleanup work from the beaches and coastal areas in Biloxi, Mississippi, Theodore and Dauphin Island, Alabama, and Panama City, Florida. Felicia Moore alleged injuries during the cleanup from the beaches and coastal areas in Gulf Shores, Fort Morgan, Theodore, and Earnest Beach, Alabama. Cleophus Beverly claimed injuries from cleanup work from the beaches and coastal areas in Pascagoula, Biloxi, Gulfport, and Bay St. Louis, Mississippi. Christopher Sherrod claimed injuries from cleanup work from the beaches and coastal areas in Biloxi, Pascagoula, Horn Island, Ship Island, Cat Island, and Petit Bois Island, Mississippi. Timothy Greene asserted injuries from cleanup work from the beaches and coastal areas in Hopedale, Louisiana, Gulfport and Biloxi, Mississippi, and Loxely, Alabama. Jamarcus Black claimed injuries from cleanup work from the beaches and coastal areas in Pascagoula, Mississippi and Mobile, Alabama. Eric Bryant alleged injuries from working on the cleanup of the Macondo spill from the beaches and coastal areas in Mobile and Dauphin Island, Alabama. David Waxman alleged injuries from cleanup work from the beaches and coastal areas near Theodore, Alabama. Jacqueline Castleberry claimed injuries from her cleanup work from the beaches and coastal areas at Dauphin Island and Bayou La Batre, Alabama. James Henson, Jr. asserted injuries from cleanup work from the beaches and coastal areas in Biloxi, Moss Point, Ocean Springs, Ship Island, Horn Island, and Petit Bois Island, Mississippi. Lathaddeus Beacham claimed injuries from cleanup work in Pensacola, Florida, Venice, Louisiana, and Gulf Shores, Alabama. Derrick McDougle alleged injuries from cleanup work from the beaches and coastal areas in Petit Bois Island, Pascagoula, and Biloxi, Mississippi. Dalan Lenard asserted injuries from cleanup work in Gulfport and Biloxi, Mississippi. Michael Gray claimed injuries from cleanup work near Gulfport, Pascagoula, Horne Island, Cat Island, and Ocean Springs, Mississippi. Rebecca Tickell claimed injuries during cleanup work throughout locations in Louisiana, Alabama, and Florida. These plaintiffs presented the opinions of Dr. Jerald Cook, an occupational and environmental physician to carry their burden on causation, but Judge Vitter held that Dr. Cook’s opinions were insufficient on general causation and were excluded. Consequently, without expert support, these cases were dismissed with prejudice.

Lisa Johnson claimed injuries from exposure during cleanup work from the beaches and coastal areas near Gulfport, Long Beach, and Biloxi, Mississippi. Al Edwards alleged injuries during cleanup work near Biloxi, Cat Island, Deer Island, and Ship Island, Mississippi. Maxie Mann claimed exposure during the cleanup near Slidell, Louisiana and surrounding Gulf waters. Sebastian Herbert claimed exposure from cleanup work near Gulfport, Biloxi, Pascagoula, Petit Bois Island, and Ship Island, Mississippi. Tevon Gomes asserted exposure during cleanup work near Mobile and Dauphin Island, Alabama. John St. Ann alleged exposure during cleanup work near Bay Jimmy and Myrtle Grove, Louisiana. Gregory Williams claimed exposure during cleanup work near Pilot Town, Venice, Elmer’s Isle, and Grand Isle, Louisiana. Anthony McCray claimed exposure from cleanup work near Biloxi, Mississippi. Ben Stallworth, III asserted exposure during work near Gulf Shores, Orange Beach, Laguna Beach, Little Lagoon, and Dauphin Island, Alabama. Gollie Holifield alleged exposure during cleanup work near Dauphin Island, Alabama. Elizabeth Stewart claimed exposure during cleanup work near Pascagoula, Mississippi. Thimus Brewer claimed exposure during cleanup work near D’Iberville, Ship Island, Point Cadet, Vancleave, and Biloxi, Mississippi. These workers presented the opinions of Dr. Cook, which Judge Vitter found to be insufficient. Judge Vitter excluded the opinions, but the workers moved for admission of their expert opinions because of BP’s spoliation of evidence of the workers’ exposure. In denying the spoliation motion, Judge Vitter noted that the workers chided BP not for destroying evidence but for refusing to create potential evidence in the form of biological monitoring data (failing to conduct dermal and biological monitoring of the Gulf oil spill cleanup workers). As there was no expert evidence on causation, Judge Vitter granted summary judgment to BP and dismissed these cases.

Allen Walker claimed exposure from his employment in BP’s Vessels of Opportunity program and as a long-time scuba diver who often spear-fishes and engages in underwater photography and videography in the Gulf of Mexico. He alleged that he continued to engage in recreational activity in the Gulf of Mexico based on BP’s representations that the Gulf waters were safe. Judge Africk previously ruled that Walker only established causation for his dermatitis claim, and Walker sought to submit the expert report of Dr. Cook to establish causation for the other conditions alleged by Walker. Walker also sought admission of Dr. Cook’s opinion based on the claim that BP spoliated evidence by not collecting quantitative biological or dermal monitoring data from oil spill responders. Judge Africk rejected the spoliation argument on the grounds that there was no allegation that BP destroyed or failed to preserve any existing evidence and that BP had not acted in bad faith. He then excluded Dr. Cook’s opinion on causation, and, without expert evidence on causation, Judge Africk granted summary judgment to BP. Walker filed a notice of appeal to the Fifth Circuit on January 20, 2023.

Mark A. Francisco claimed exposure during cleanup work at Theodore and Chickasaw, Alabama and Pascagoula, Mississippi. Rhett Peters alleged exposure during cleanup work near Gulfport and Biloxi, Mississippi. They sought to submit expert reports of Dr. Cook after the deadline for submission of expert reports, and Judges Vance and Vitter declined to consider the untimely reports and granted summary judgment to BP based on the lack of expert evidence of causation. Both judges added that they would not admit the report as a sanction for BP’s alleged spoliation for the reasons given by other district judges for denying similar spoliation motions.

The Duncan case arose from the efforts of attorney Mikal Watts to sign up as clients tens of thousands of people from Vietnam who worked to catch fish and seafood in the Gulf of Mexico and who were purportedly damaged by the Macondo spill. Watts sought investors to help fund the expenses for the efforts, including attorney Robert C. Hilliard, who entered into a joint venture with Watts. Hilliard approached Max Duncan, a wealthy friend, and offered half of Hilliard’s share in the joint venture in exchange for an advance of $6 million (presenting a potential ethics issue because Duncan is not an attorney). Eventually, Duncan made a loan of $3,875,000 to Hilliard through a Texas LLC with Duncan as the sole owner. There were not tens of thousands of Vietnamese claimants, and there was a federal grand jury investigation. Duncan hired criminal defense attorney Michael Dawkins with Baker, Donelson, Bearman, Caldwell & Berkowitz to represent him, and Duncan was not indicted (although Watts and members of his litigation team were indicted on criminal fraud charges for, among other things, “fabricating thousands of clients.” During the federal investigation, Duncan began looking into the possibility of suing Hilliard and Watts to recover his losses from the investment in the BP litigation. Duncan, Hilliard, and Watts signed an agreement that tolled the statute of limitations, but the LLC was not a party to the tolling agreement. Several months later, Baker Donelson sent a new engagement agreement to Duncan that included asserting civil claims against Watts (Duncan and Baker Donelson understood that both Duncan and his LLC were clients of Baker Donelson under the agreement). The LLC brought a lawsuit against Watts, but the case was dismissed based on the running of the statute of limitations as the tolling agreement did not encompass the LLC. The LLC then brought a malpractice case against Baker Donelson in federal court in Texas, and the case was tried to Judge Hanks. Judge Hanks found that, at the time of the tolling agreement, Baker Donelson only represented Duncan and not the LLC. Thus, Baker Donelson owed no duty to the LLC, which was a separate entity. The fact that the LLC paid every invoice for the services of the law firm did not create a duty between Baker Donelson and the LLC. Judge Hanks entered judgment in favor of Baker Donelson.

Extension of COGSA’s statute of limitations to 8/7/2022 extended the period to file suit until July 8, 2022 based on the day/month/year convention for expressing the date; Viva Logistics Inc. v. MSC Mediterranean Shipping Co., No. 22-cv-5857, 2022 U.S. Dist. LEXIS 233816 (S.D.N.Y. Dec. 30, 2022) (Rakoff).


Viva Logistics brought this action against MSC Mediterranean in federal court in New York under the Carriage of Goods by Sea Act to recover for damage to a shipment of oranges from Cape Town to New York. Viva received the allegedly spoiled oranges on June 21, 2021, and, on June 8, 2022, an attorney in South Africa, acting on behalf of MSC, agreed to an extension of the time to file suit “for one month up to and including 8/7/2022.” Viva filed this suit on July 11, 2022, which would be timely if 8/7/2022 was interpreted as August 7, 2022 but would be untimely if 8/7/2022 was interpreted as July 8, 2022. MSC filed a motion to dismiss the complaint as untimely, and Viva responded that the case was timely filed before August 7, 2022. Judge Rakoff rejected Viva’s argument as “frivolous.” He reasoned that in South Africa, where the email originated, and in Germany, where the email was received, the day-month-year convention is prevalent. Thus, it was “not plausible” to infer that the parties extended the limitations period beyond July 8, 2022, and the suit filed on July 21, 2022 was untimely.

Alleging a litany of conditions that may have existed at the time of the passenger’s injury without alleging which conditions actually caused the passenger’s fall is an insufficient pleading; Reason v. Carnival Corp., No. 1:22-cv-22868, 2023 U.S. Dist. LEXIS 367 (S.D. Fla. Jan. 3, 2023) (Moore).


Jabretta Reason, who was a passenger on the CARNIVAL SPIRIT, brought this suit against the cruise line in federal court in Florida seeking to recover for injuries that she allegedly sustained when she slipped and fell on the unreasonably slippery gangway of the vessel. In her amended complaint she listed at least ten potential conditions that may have contributed to her fall. She pleaded that each of the dangerous conditions was sufficient to cause the incident. She alleged nine claims, including negligent failure to inspect, maintain, remedy and warn; negligent design and installation; negligence for acts of the crew based on vicarious liability; and negligence with respect to the medical treatment. In granting the cruise line’s motion to dismiss, Judge Moore noted that the passenger did not attempt to isolate a single breach or causal connection leading to liability. Instead, she described “a litany of conditions” that “may have existed at the time of the incident, without ever alleging which condition or conditions caused her to fall.” This was particularly problematic with respect to the allegations of acts of the crew because the pleading did not say what duty a crew member breached. Judge Moore gave the passenger 14 days to refile another amended complaint.

Cruise line was entitled to an award of costs after the passenger voluntarily dismissed her claim on the eve of trial; Birren v. Royal Caribbean Cruises, Ltd., No., 20-cv-22783, 2023 U.S. Dist. LEXIS 1179 (S.D. Fla. Jan. 3, 2023) (Louis), adopted without objection (S.D. Fla. Jan. 19, 2023) (Bloom).


The suit brought by Kathryn Birren and her daughter Mandy Birren returns, again, to the Update. The Birrens brought suit against Royal Caribbean for injuries they allegedly sustained when elevator doors on the HARMONY OF THE SEAS closed abruptly, striking Kathryn’s arm and causing her to collide with Mandy. Mandy voluntarily dismissed her claim with prejudice before trial, and Judge Bloom awarded $600 to Kathryn based on the verdict in a jury trial. Magistrate Judge Louis then addressed the issue whether the cruise line was entitled to recover fees and costs from Mandy under Rule 41 as a result of the voluntary dismissal of her claim on the eve of trial. Magistrate Judge Louis agreed that an award of fees and costs “will ordinarily accompany an order voluntarily dismissing an action without prejudice, but noted that awards of fees have almost never been awarded with a dismissal with prejudice. Finding no basis for an award of fees and costs under Rule 41, Magistrate Judge Louis recommended that fees not be awarded. However, Magistrate Judge Louis agreed that the disposition of Mandy Birren’s claims rendered the cruise line the prevailing party under 28 U.S.C. Section 1920 and recommended that the cruise line renew the request in a properly filed motion to tax costs (limited to recoverable costs under Section 1920). See November 2022 Update.  The cruise line filed an objection to the recommendation, arguing that Magistrate Judge Louis did not address the cruise line’s request for medical expert costs. The cruise line argued that the cost of its medical experts should be awarded under the rule that costs can be awarded after a voluntary dismissal for exceptional circumstances—the failure to conduct a meaningful pre-suit investigation that would have resulted in the dismissal of Mandy’s suit before the eve of trial and before the cruise line had to expend money for its medical expert. As Mandy raised questions of law and fact that survived summary judgment and as the cruise line did not show that the litigation was brought in bad faith, Judge Bloom declined to award expert costs to the cruise line. See January 2023 Update. The cruise line did file an amended motion to tax costs, and Magistrate Judge Louis held that the request was timely (even though it was filed more than six months after entry of the final judgment) and awarded $1,697.10 (out of $1,911.70 sought by the cruise line) for service of a subpoena on a medical provider, costs associated with the deposition of Mandy Birren (even though the deposition was relevant to the case brought by Kathryn Birren in which she recovered costs), and printing and copying costs. Magistrate Judge Louis also awarded interest on the costs at the statutory rate. Judge Bloom adopted the recommendation on January 19 without objection.

Vessel was covered on marine policy by the Automatic Attachment Clause, but the insurer established the insured’s breach of the policy by late notice and prejudice; Champagne v. M/V UNCLE JOHN, No. 21-476, 2023 U.S. Dist. LEXIS 797 (E.D. La. Jan. 4, 2023) (Zainey).


Robert M. Champagne, III and Elizabeth G. Champagne, owners of waterfront property in Houma, Louisiana, brought this suit seeking to recover for damage from an allision with their concrete bank cover by the M/V UNCLE JOHN, owned by Alexis Marine and operated by A&T Maritime. The action was brought in personam against the owner and operator of the vessel and in rem against the UNCLE JOHN. After the Marshal arrested the vessel, the Champagnes moved to appoint their contractor, Sea Sales, as substitute custodian for the vessel, and the court granted the motion and permitted the movement of the vessel within the district. Sea Sales engaged a towing contractor, and the vessel was damaged during the tow. Sea Sales paid for repair to the vessel, but the vessel owner brought a counterclaim against the Champagnes in the event there is additional damage or if the repairs were done improperly. The Champagnes moved to dismiss the counterclaim, and Judge Zainey agreed, noting that there were no allegations that the Champagnes acted negligently in hiring Sea Sales and that there was no authority in the maritime law that would make a seizing creditor liable for the acts of the substitute custodian simply by hiring it. Judge Zainey also found meritless the argument that the hold harmless agreement, signed by the Champagnes in favor of the United States and the Marshal, inured to the benefit of the owner of the arrested vessel. The owner of the vessel did not have insurance for the vessel and did not post security for the vessel in the five months after it was arrested. That resulted in a flurry of motions: the charterer seeking payment of defense costs from its P&I carrier, the owner seeking a release of the vessel without posting security, and requests to set the amount of security and for an interlocutory sale. The charterer’s P&I insurer argued that there was no coverage under the policy because the policy named the UNCLE BLUE, not the UNCLE JOHN. The charterer argued that the owner substituted the UNCLE JOHN after the UNCLE BLUE became inoperable and the Automatic Attachment Clause in the policy continued coverage for the UNCLE JOHN. However, the insurer did not learn of the substitution or the allision until almost a year after the casualty, despite the reporting requirement in the policy. Citing the eight-corners rule for interpreting the duty to defend, the charterer argued that the insurer should reimburse the charterer’s defense costs with respect to the suit. The carrier responded that the P&I policy did not contain a duty to defend and that a decision on whether it had a duty to reimburse defense costs was not subject to the eight-corners rule and necessitated a decision on coverage and the defenses that were asserted. Judge Zainey agreed that the eight-corners rule was inapplicable and that the obligation to cover the claim was not separate from the duty to reimburse the insured for defense costs. Therefore, the coverage issues would have to be fully presented to the court. Judge Zainey then considered the motion to release the vessel and for its interlocutory sale. Judge Zainey reasoned that the owner was laboring under a “fundamental misunderstanding of the nature of in rem proceedings against the vessel’s owner.” The charterer may have been operating the vessel at the time of the allision, but the plaintiffs arrested the vessel to assert a maritime lien against the vessel as a tortfeasor. The in rem claim is separate from the in personam claims against the owner and charterer. The plaintiffs were not “persecuting” the owner for its lack of financial ability to post security. They were enforcing their maritime lien for payment of damages caused by the vessel. The arrest and sale of the vessel might cause a financial hardship on the owner, but “the sole party responsible for that unfortunate circumstance” was the owner who did not properly insure the vessel. Therefore, Judge Zainey would not release the vessel without security. Judge Zainey declined to hold a hearing to determine the value of the vessel as it would appear to be an “exercise in futility” with the owner giving no indication that it was willing or able to post security regardless of the value that the judge might assign to the vessel. Judge Zainey gave the owner 30 days to either post security or reach agreement with the plaintiffs, after which he agreed that the plaintiffs could move to have the vessel sold at an interlocutory sale. See September 2021 Update.

Settlement was reached with the Champagnes, and the UNCLE JOHN was released to Alexis Marine. The focus of the litigation then turned to the claims of Alexis Marine and A&T Maritime against RLI Insurance Co. pursuant to a marine insurance (hull and P&I) policy. A&T Maritime purchased the policy, which covered vessels listed on a schedule. When the policy was purchased, A&T chartered the UNCLE BLUE, and that vessel was named on the schedule. Later, the UNCLE JOHN was substituted so that the UNCLE BLUE could obtain repairs, but the UNCLE JOHN was not listed on the schedule for the insurance. Thus, when the allision occurred, the UNCLE JOHN was not named on the schedule, and Judge Zainey held that the UNCLE JOHN was not covered unless it was through the Automatic Attachment Clause (extending coverage to additional vessels acquired by the assured by purchase or bareboat charter). RLI argued that the clause only applied to additional vessels and that the UNCLE JOHN was a substituted vessel, not an additional vessel. Judge Zainey disagreed and held that the UNCLE JOHN was automatically covered by the clause. RLI also argued that the clause required the assured to report the additional vessel as soon as practicable and that RLI did not learn about the UNCLE JOHN until the lawsuit was filed, which was long after the policy had been cancelled. At that point, RLI argued, it was too late to add a vessel because the policy was no longer in existence. Judge Zainey disagreed, reasoning that the coverage attached automatically, not when notice was provided. He then turned to the argument that several policy warranties on notice were violated (requiring notice to RLI as soon as practicable after a loss). Judge Zainey agreed that the notice provisions were breached and that RLI had established actual prejudice by the increase in the amount for which the case settled. The final issue was the remedy for the assured’s breach of the policy warranties. Judge Zainey did not believe that voiding of all coverage was appropriate in the absence of language to that effect in the policy. Therefore, he granted partial summary judgment to RLI but held that the parties could file a narrower motion for summary judgment as to the appropriate remedy for the breach of warranties and the prejudice sustained by RLI as a result. See November 2022 Update.

RLI took Judge Zainey’s suggestion and filed a motion for summary judgment, arguing that a complete denial of coverage, not a lesser remedy was appropriate, citing cases from the Fifth Circuit holding that an insurer cannot deny coverage merely because the insured failed to give notice of a loss as soon as practicable but holding that coverage may be denied if the insurer shows actual prejudice based on the failure to receive notice as set forth in the policy. Although A&T Marine submitted an affidavit to try to avoid the prior finding of prejudice, Judge Zainey held that it was insufficient to cast doubt on the finding that it cost far more to litigate and conclude the case than “what RLI could have resolved the case for in 2020 had it been given notice of the allision in accordance with the policy. Accordingly, A&T Marine’s claims against RLI were dismissed, and A&T Marine filed a notice of appeal on February 2, 2023.

Passenger’s pleading of negligent design of a tender and ramp that were not on the cruise ship required facts and not conclusory allegations of the cruise line’s actions; vicarious liability count required pleading of duty/breach involving crew members, not the cruise line; Liles v. Carnival Corp., No. 22-cv-22977, 2023 U.S. Dist. LEXIS 1290 (S.D. Fla. Jan. 4, 2023) (Bloom).


Angelina Liles, a passenger on the CARNIVAL VISTA, brought this suit against the cruise line in federal court in Florida seeking to recover for injuries she sustained when she was on a tender returning to the VISTA. As she descended a ramp that was supposed to be secured to the tender and the dock, the tender separated from the ramp, crushing her leg between the tender and the ramp. The cruise line moved to dismiss two counts of her amended complaint: negligent design, installation, and/or approval of the subject area and vicarious liability for negligent acts of the crew. Liles argued that the allegation of negligent design was sufficient because the complaint alleged that the cruise line generated design specifications for the tender and ramp involved in her accident. However, Judge Bloom noted that the complaint alleged no facts to support the conclusory allegation of participating in the design process and that the tender and ramp were not part of the VISTA. Distinguishing cases finding allegations about design of the cruise ship to be sufficient, Judge Bloom held that the bare assertion that the cruise line approved of designs of structures that were not part of its ship was legally insufficient. Although the second count was intended to be based on vicarious liability, it mixed theories of direct liability and vicarious liability and used language that was indicative of a claim for direct liability, which had to be brought in a separate count. Judge Bloom added that the duty involved with respect to vicarious liability is not that of the cruise line but is that of the crew member. Although the pleading specified individual employees as the tortfeasor, the count did not plead negligence of those individuals, including specification of the duty owed, how it was breached, and how the breach injured the passenger. Therefore, the two counts were dismissed without prejudice.

Family of fisherman who fell from fishing vessel while crossing the wake of a large container ship did not establish negligence on the part of the vessel to sustain their wrongful death suit; judge declined to sanction the vessel owner with adverse inference for failing to produce a video of the wake of the vessel by the ship’s harbor pilot, but he declined to award costs to the vessel owner as a sanction for misrepresenting the availability of a witness; Reed v. Maersk Line, Ltd., No. 3:19-cv-238, 2023 U.S. Dist. LEXIS 1599 (S.D. Tex. Jan. 5, 2023) (Brown).


The police chief of Kemah, Texas, Christopher Reed, was navigating in Galveston Bay in his 20-foot fishing boat with his wife, Jana Reed. Neither was wearing a life preserver. Reed decided to cross the Houston Ship Channel a half mile behind the incoming MAERSK IDAHO, a large container ship, and he encountered the wake of the vessel. Reed successfully navigated through the starboard wake field (Jana was scared) and then steered into the port wake field. Reed fell into the Bay and drowned. His widow and children brought this lawsuit in federal court in Galveston against Maersk Line, seeking to recover for negligence, wrongful death under Texas law, survival under Texas law, and a bystander claim for his widow Jana Reed. A bench trial was held before Judge Brown, and he held that the Reeds failed to prove that the MAERSK IDAHO maintained an unsafe speed, produced a dangerously sized wake, or failed to maintain a proper lookout in violation of the Inland Navigation Rules. The plaintiffs sought sanctions against the vessel owner for two reasons. First, the plaintiffs rested their case on the morning of the fourth day of trial, and the vessel owner informed the court that it had no witnesses available that afternoon. Later, it was “dramatically revealed” in a Perry Mason-type of cross-examination that the defendant’s first witness, the harbor pilot of the vessel, Captain Marcus Maher, was four blocks from the federal courthouse at a hotel being woodshedded by the defendant’s attorneys. Judge Brown was “upset” about the misrepresentation and agreed that it warranted sanctions. He declined to award costs to the defendant as the prevailing party and ordered the defendant to reimburse the plaintiff for the plaintiff’s portion of the trial transcript. The plaintiffs also sought sanctions for failing to produce in discovery a video that Captain Maher took of the MAERSK IDAHO’s wake in the Houston Ship Channel on a subsequent voyage. The plaintiffs discovered the video during trial, and Judge Brown ordered that it be excluded from evidence and that the defense could not use it in any way. The plaintiffs asked that their contention about the height of the wake be taken as true, that the court disregard the testimony of Captain Maher about the height of the wake, and that the court adversely infer that the video was harmful to the defense. Having excluded the video and any use of it, Judge Brown declined to grant any additional relief.

Stipulations in limitation action were insufficient to lift the stay in a single-claimant case as they did not address the situation in which the limitation court might grant exoneration; In re Daytona Beach Aqua Safari, Inc., No. 6:22-cv-740, 2023 U.S. Dist. LEXIS 2002 (M.D. Fla. Jan. 5, 2023) (Irick).


Daytona Beach Aqua Safari (d/b/a Ponce Inlet Watersports) filed this limitation action, as owner of the MERMAID, in connection with an incident near Ponce Inlet, Florida when the vessel was crossing over wakes from an overtaking vessel and a passenger on the MERMAID, Sandra Castle, was injured. Castle moved to lift the stay in the limitation action as the single claimant, and the vessel owner did not oppose lifting the stay. Nonetheless, Magistrate Judge Irick declined to lift the stay, concluding that the stipulations were not adequate. Magistrate Judge Irick agreed that the stipulations generally comported with the requirements from the Eleventh Circuit’s Beiswenger case; however, Castle did not stipulate to the manner in which her case would proceed in the event the admiralty court granted the owner’s request for exoneration. Magistrate Judge Irick allowed Castle to amend the stipulations to address the issue and cited language by which the claimant stipulates that “in the event this Court grants the Petitioner’s Complaint for Exoneration, there shall be no recovery from the Petitioner.”

Navy sailor’s testimony about the extent of his exposure to asbestos during tear down of engines was sufficient to create fact question whether exposure from the defendant’s engines was a substantial factor in causing his injuries; In re Asbestos Litigation (Roadarmel v. Curtiss-Wright Corp.), No. 20-1375, 2023 U.S. Dist. LEXIS 2853 (D. Del. Jan. 6, 2023) (Fallon), recommendation adopted, 2023 U.S. Dist. LEXIS 11646 (D. Del. Jan. 24, 2023) (Norieka).


Mark R. Roadarmel served in the Navy as an Engineering Officer on the U.S.S. EXULTANT, a minesweeping vessel. During his service on the vessel, there were two “tear downs” of the engines manufactured by defendant Curtiss-Wright for the removal and replacement of gaskets and insulation (the work was performed by servicemen under his supervision). Roadarmel brought this action against Curtiss-Wright in Delaware state court, and Curtiss-Wright removed the case to federal court based on the Federal Officer Removal Statute. Roadarmel died from mesothelioma after his deposition was taken, and his widow continued the suit. Curtiss-Wright filed a motion for summary judgment, arguing that the plaintiff could not quantify the amount of time Roadarmel spent as a bystander during the removal and installation of gaskets and exhaust insulation on the overhaul of the Curtiss-Wright engines so as to satisfy the substantial factor requirement for causation under the general maritime law. Magistrate Judge Fallon disagreed, citing Roadarmel’s testimony that he was in the engine room during repairs for at least eight hours a day to up to twenty hours a day when there were engineering issues and that he was present during the removal and installation of the gaskets and exhaust insulation, which created dust that he breathed. Consequently, Magistrate Judge Fallon recommended that the motion for summary judgment be denied (she also recommended finding that the defendant had not carried its burden to dismiss the punitive damage claim as Curtiss-Wright had done nothing more than argue in conclusory fashion that the standard for assessing punitive damages under Exxon v. Baker had not been met). Judge Norieka adopted the recommendation without objection on January 24, 2023.

Closely related company was bound by forum-selection clause in contract and was subject to personal jurisdiction in Texas; court required repleading of state consumer protection claim under Rule 9(b) before addressing whether the claim was preempted by maritime law and the Commerce Clause; Quintillion Subsea Operations, LLC v. Maritech Project Services, Ltd., No. 4:20-cv-2310, 2023 U.S. Dist. LEXIS 3546, 3152 (S.D. Tex. Jan. 6, 9, 2023) (Bryan), recommendation adopted, 2023 U.S. Dist. LEXIS 11582, 12211 (S.D. Tex. Jan. 24, 2023) (Lake).

Opinion jurisdiction

Opinion Alaska statute

This litigation is related to the subsea fiber optic cable system between Nome and Prudhoe Bay, Alaska operated and maintained by Quintillion Subsea Operations, a telecommunications operator that provides high-speed broadband connectivity in the Arctic (and across the globe). Quintillion sought a contractor to provide repair and maintenance of its subsea cable system, and Maritech International submitted a proposal that would use the OCEAN INVESTIGATOR for deep-water services and the MARPRO 1 for shallow-water work. Maritech International and Maritech Project Services entered into a contract by which Maritech International provided professional and engineering services, and Maritech Project Services would provide the OCEAN INVESTIGATOR and manage its mobilization. That contract contained a fourm-selection clause for England and Wales. The contract with Quintillion was signed by Maritech Project Services, and the same person who signed the proposal for Maritech International signed the contract for Maritech Project Services. The contract between Maritech Project Services and Quintillion contained a forum-selection and venue clause for federal courts located in Harris County, Texas. The contract defined the parties as Quintillion and Maritiech Project Services, and it provided that the contract was governed by the general maritime law of the United States. It contained a clause specifying that the contract did not provide third parties with any remedy or right, but it did extend its indemnity and limitation clauses to the benefit of affiliates. (parties under common control). A dispute arose over the performance; Quintillion terminated the contract and entered into agreements with other companies to replace the services that were to be performed by Maritech; and Quintillion brought suit in federal court in Texas against Maritech Project Services and Maritech International (alleging breach of contract and violation of the Alaska Unfair Trade Practices and Consumer Protection Act). Maritech International moved to dismiss the complaint for lack of personal jurisdiction, and both defendants moved to dismiss claims asserted by Quintillion under the Alaska statute. Maritech Project Services did not dispute that it had consented to personal jurisdiction in the Texas court as a result of the forum-selection clause. Quintillion contended that Maritech International was also subject to jurisdiction in Texas based on the clause because it is closely related to the transaction, making it foreseeable that it would be bound by the forum-selection clause. Magistrate Judge Bryan noted that the Fifth Circuit had recently agreed with other circuits that a non-signatory to a contract may be bound by a contractual forum-selection clause when the party is “‘closely related to the dispute such that it becomes ‘foreseeable’ that it will be bound.” Magistrate Judge Bryan reviewed the factors identified by the Fifth Circuit and found that Maritech International was closely related to the negotiation, execution, and performance of the contract containing the Texas forum-selection clause and that Maritech International and Maritech Project Services have a close relationship. Concluding that Quintillion’s claims fell within the scope of the forum-selection clause, Magistrate Judge Bryan recommended that the motion to dismiss for lack of personal jurisdiction be denied. Judge Lake adopted the recommendation without objection on January 24, 2023.

The defendants moved to dismiss the Alaska statutory claim as barred by the Interstate Commerce Clause, preempted by the general maritime law, and inadequately pleaded pursuant to Rule 9(b). Although the statutory count did not mention fraud, Magistrate Judge Bryan noted that the Fifth Circuit has held that the heightened pleading standard of Rule 9(b) may extend to claims related to fraudulent conduct that are brought under consumer protection statutes. Quintillion’s complaint referred to various communications that were alleged to be false statements or misrepresentations, but it did not contain the supporting allegations explaining when and where the statements were made and why the statements were fraudulent. Consequently, Judge Bryan recommended that the state statutory count be dismissed without prejudice, noting that the defendants could raise their arguments with respect to the Commerce Clause and general maritime law in response to the amended pleading. Judge Lake adopted her recommendation without objection on January 24, 2023.

Shipyard had to arrest a vessel in its possession before the court would quiet title to the vessel in favor of the shipyard even though the vessel owners had not appeared and had defaulted both in a state proceeding and in this federal action; Marine Watchmen Inc. v. P.M. Royal, LLC, No. 1:20-cv-851, 2023 U.S. Dist. LEXIS 3521 (E.D.N.Y. Jan. 9, 2023) (Block).


The long and convoluted history of this case mirrors other cases we have discussed where actions are initiated in state court with respect to liens and related claims against vessels and their owners. Marine Watchmen, which operates a marina in Brooklyn, New York, entered into an agreement with Venture Cruise, owner of the 1988 PALAT a/k/a RACONTEUR a/k/a ARIEL to dock the vessel in the marina. Marine Watchman performed services for the vessel for several years, but Venture abandoned the vessel at the marina and failed to pay storage and maintenance fees of $266,471.56. In August 2017, Marine Watchmen obtained a default judgment in New York state court for that amount plus costs, fees, and interest, resulting in the amount of the judgment exceeding $400,000. The judgment was foreclosed as a garagemen’s lien, and Marine Watchmen purchased the vessel at the foreclosure sale and obtained a New York state title. However, Marine Watchman could not file the title with the Coast Guard because there were two preferred mortgages that had been filed against the vessel by P.M. Royal in 2000. Arguing that the mortgages were fictitious and fraudulently placed on the vessel because the owners of P.M. Royal and Venture Cruise were the same, Marine Watchmen filed this suit in federal court in New York against Venture, P.M. Royal, the beneficial owners of the companies, and the vessel, seeking to quiet title to the vessel and for a maritime lien for the damages it had obtained in the state court action. The defendants did not appear, and Marine Watchmen sought a default judgment. The court denied the default, however, because Marine Watchmen had not arrested the vessel (it erroneously believed it was unnecessary to arrest the vessel because it was in Marine Watchmen’s possession). Interestingly, Marine Watchmen then filed an amended pleading that removed all of the defendants except P.M. Royal, and it removed its claim for a maritime lien for necessaries and damages because it previously obtained a judgment covering those damages in state court. Once the claim against the vessel was removed, the court issued a warrant for arrest of the vessel and the vessel was arrested and placed in the custody of Marine Watchmen by the U.S. Marshal. Judge Block then held that the liens were extinguished by laches and granted summary judgment to Marine Watchmen that the mortgage liens were extinguished.

Former captain and deckhand who had navigated through numerous locks was capable of giving expert testimony on the operation of a lock in connection with a suit involving damage to a vessel; Savage Services Corp. v. United States, No. 20-137, 2023 U.S. Dist. LEXIS 4549 (S.D. Ala. Jan. 10, 2023) (Moorer).


This case initially presented the legal question of first impression: Does the Oil Pollution Act of 1990 displace the federal government’s waiver of sovereign immunity in the Suits in Admiralty Act when the negligence of the United States is alleged to have caused an oil spill from a vessel? The spill occurred when the M/V SAVAGE VOYAGER, which was pushing two tank barges containing oil on the Tennessee-Tombigbee Waterway in Mississippi, entered the Jamie Whitten Lock, a boat lift operated by the U.S. Army Corps of Engineers. The owner of the tug alleged that the lock master began de-watering the lock chamber without notice before the tug and tow were in correct position, resulting in damage to one of the barges and a release of oil into the water. The owners performed the required cleanup/removal under OPA and brought this suit against the United States under the Suits in Admiralty Act, seeking to recover the cleanup/removal costs plus damage to the barge, loss of use, and lost cargo, based on negligence of the United States under the general maritime law. Although the United States admittedly waived sovereign immunity in the SAA to the extent a private citizen would be liable, the United States argued that the waiver in the SAA was displaced by the comprehensive scheme enacted for cleanup/removal costs in OPA, which does not provide for liability for the United States. District Judge Steele dismissed the claim for reimbursement of cleanup/removal costs (but not the claim for damage to the vessel/loss of use/loss of cargo), and the owner appealed to the Eleventh Circuit. Writing for the appellate court, Judge Altman (district judge from the Southern District of Florida sitting by designation), affirmed the decision of Judge Steele. Judge Altman noted the difference between the provision of the Clean Water Act (which affords a complete defense to the vessel in the event the spill is caused solely by the negligence of the United States), and OPA, which affords a complete defense to the vessel in the event the spill is caused solely by an act or omission of a third party. OPA also creates a contribution action against “any other person who is liable or potentially liable under this Act or another law.” A “person” is defined in OPA as “an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body.” After reviewing OPA in detail, Judge Altman concluded that OPA did not create a cause of action against the United States, noting that the definition of “person” did not include the United States and noting the omission of the fault of the United States in the defenses available to the Responsible Party. Judge Altman then considered the effect of the comprehensive provisions of OPA on the waiver of immunity in the Suits in Admiralty Act and the liability of the United States for negligence under the general maritime law. Finding the language of OPA to be unambiguous that the owner had no right of recovery against the United States, he concluded that OPA displaced the waiver of sovereign immunity and maritime remedy in the SAA. Thus, the owner had no right of recovery for the cleanup/removal costs but could proceed on its claims for damage to the barge and cargo. See March 2022 Update.

Back in the district court, the owner moved for summary judgment on its property damage claim, seeking a ruling that the negligence of the United States was the sole cause of the accident. The owner submitted the testimony of the lock operator and argued that his commencement of the de-watering while the tug and tow were not in correct position was the sole cause of the accident. Judge Steele assumed, without deciding, that this failure was negligent. However, the motion sought to establish that it was the sole negligence. Reasoning that the “universe of ways in which a party may be negligent is vast,” and that the owner had failed to “identify all the myriad ways in which they might have performed negligently,” Judge Steele declined the owner’s motion. After noting that it seemed reasonable that the owner had a duty of reasonable care to properly position the tow to avoid its becoming caught on the miter in the event of a normal 1- to 2-foot surge and noting the experience of the tug’s pilot who had transited the lock at least 250 times, Judge Steele concluded that there was a fact question whether the vessel owner was negligent. See October 2022 Update.

The United States designated Michael Berry as an expert to opine on the operating of the locks and the responsibilities of the United States as a lock operator. Savage Services objected that Berry was an inland water towboat mariner and did not have the qualifications to testify about operating a lock. The case was transferred to Judge Moorer, who disagreed and found Berry’s experience to be sufficient from work on towboats as a deckhand and Captain and from transiting locks hundreds of times, including transiting the lock in this case both as a pilot and a deckhand. Savage also argued that Berry’s methodology, arriving at his opinion by making inferences from a process of elimination, was unreliable. Judge Moorer disagreed, answering that an expert may use his knowledge, experience, and training to make inferences. Finally, Judge Moorer noted that there was no risk of confusing the jury because trial would be to the bench.

Applying THE PENNSYLVANIA Rule and THE OREGON Rule, the judge found the decedent and not the United States at fault when he piloted a vessel into a contraction dike; Barnett v. United States, No. 2:20-cv-2517, 2023 U.S. Dist. LEXIS 6200 (D.S.C. Jan. 10, 2023) (Norton).


Edward Barnett was piloting the MISS JUNE, a 24-foot work boat owned by Moran Environmental Recovery, in the Cooper River in North Charleston, South Carolina on the night of July 6, 2018, when it allided with a contraction dike owned and operated by the United States. Barnett was killed, and his personal representative brought this action in federal court in South Carolina against the United States, alleging that the navigation lights on the dike were not functioning properly at the time of the collision so that the dike was not visible to approaching boaters. A bench trial was held before Judge Norton, and the United States argued that the discretionary function exception to the Suits in Admiralty Act deprived the court of jurisdiction, arguing that the claim was based on discretionary actions of the United States in connection with the number, type, and characteristics of lighted aids to navigation on or near the dike. The plaintiff argued that once the United States chose to install a system of aids to navigation near the dike it was obligated to use due care in maintaining the lights. Judge Norton agreed that the discretionary function exception applied to the claims relating to background lighting, flashing rhythms, or candela, but that it did not apply to the government’s maintenance of the lights. Judge Norton noted that three of the four lights on the dike were operating, so that the dike’s extension into the river was well lit. Consequently, Judge Norton did not believe that the United States breached its duty to Barnett. He concluded that the failure to maintain the aid to navigation closest to the shore on the dike did not proximately cause the allision with the middle to far side of the dike where the lights were operating. Turning to the fault of the decedent, neither party directly addressed THE PENNSYLVANIA Rule, but Judge Norton concluded that the decedent posted crew member David Rafferty at the stern of the boat, rather than the bow, and that the decedent had not posted a proper lookout in violation of Inland Rule 5. Additionally, Judge Norton found that the decedent was proceeding at an unsafe speed, in violation of Inland Rule 6. These violations triggered application of THE PENNSYLVANIA Rule with respect to causation. Finally, Judge Norton applied THE OREGON Rule and its presumption that a moving vessel that allides with a stationary and visible object is at fault. Judge Norton found that the dike was visible and that the decedent had knowledge of its existence and location as he had piloted that stretch of the river hundreds of times. Consequently, Judge Norton found the decedent was solely negligent for failing to comply with the statutory navigation rules and for failing to overcome the presumption from THE OREGON Rule, and he denied recovery to the plaintiff against the United States.

Court did not transfer a suit removed on diversity to a district where the defendant could arrest the vessel for a third-party claim because the third-party claim could not serve as the basis for admiralty jurisdiction to arrest the vessel; BNA Marine Services LLC v. Safe Marine Assurance LLC, No. 6:22-cv-5686, 2023 U.S. Dist. LEXIS 13137 (W.D. La. Jan. 10, 2023) (Whitehurst), recommendation adopted, 2023 U.S. Dist. LEXIS 12370 (W.D. La. Jan. 25, 2023) (Joseph).


BNA Marine performed repair work on the vessel ORANDA 1, at the request of Safe Marine Assurance and brought this suit to recover for the work in state court in St. Mary Parish, Louisiana. Safe Marine removed the case to the federal court for the Western District of Louisiana based on diversity, and Safe Marine filed a third-party complaint and tender under Rule 14(c) against Pearl HPW, the owner of the vessel, alleging that Pearl engaged Safe Marine for consulting, engineering, and repair services and that Safe Marine acted as an agent for Pearl in procuring the materials and services from BNA Marine. The tender was based on admiralty jurisdiction. Safe Marine moved to transfer the suit to the Eastern District of Louisiana, arguing that Pearl, a Nigerian entity, was unlikely to be served, and that the vessel was located in the Eastern District of Louisiana where in rem jurisdiction could be completed. BNA Marine opposed the motion, arguing that the case was removed based on diversity and there was no admiralty jurisdiction in this case for the third-party complaint to support the transfer. Magistrate Judge Whitehurst agreed that BNA Marine did not designate its claim as an admiralty claim and that the third-party claim could not serve as the basis for admiralty jurisdiction for the in rem claim. She then noted that BNA Marine was located in the Western District, the work was performed in the Western District, and Safe Marine is a Texas entity. Thus, there was no basis for transfer of the case to the Eastern District, and Magistrate Judge Whitehurst recommended that the motion to transfer be denied. Judge Joseph adopted the recommendation on January 25, 2023.

Fleeting service was liable for damages from breakaway of barges (with the help of THE PENNSYLVANIA Rule) and was not entitled to contribution for settlements as it only released its own liability; Turn Services, LLC v. Gulf South Marine Transportation, Inc., No. 20-3012, 2023 U.S. Dist. LEXIS 6400 (E.D. La. Jan. 13, 2023) (Vitter).


This case involves damages from an allision between several barges in Turn Services’ fleet and the moored M/V ASTORIA HARMONY. Turn Services operates a fleeting facility on both the East Bank and West Bank of the Lower Mississippi River. Its main fleet vessel is the M/V KELSO.  Turn Services time chartered the towing vessels M/V CAPT. ZIGGY and M/V CORKY from Gulf South to tow barges to various destinations, and it chartered the M/V CAPT. GORDON V to assist the KELSO in fleet operations.  The CAPTAIN ZIGGY and the CORKY had barges at the facility, awaiting their turns through locks. The barges were secured by wires that parted during a high-water stage of the Mississippi River, resulting in a breakaway of barges and the CAPT. ZIGGY AND CORKY (as a block). Some of the barges allided with the ASTORIA HARMONY, and the owners of the damaged barges and the ASTORIA HARMONY made damage claims against Turn Services. Turn Services brought this action in federal court in Louisiana against Gulf South (owner of the CAPTAIN ZIGGY AND CORKY), and claimed indemnity pursuant to the time charter. As the indemnity provision was limited to property owned, operated, leased, controlled, or provided by Gulf South, and as Gulf South did not own, operate, lease, control, or provide the damaged vessels, Judge Vitter held that no indemnity was owed pursuant to the charter party. Judge Vitter held a bench trial and found that Gulf South did not have control over the fleet when the breakaway occurred because the CAPT. ZIGGY and the CORKY were not working as fleet boats. Instead, it was the KELSO and the CAPT. GORDON V that were in charge of the fleet. Judge Vitter found that Turn Services, as the fleet owner/operator, had a duty under Coast Guard Regulations in high-water situations to assign a person in charge of monitoring the fleet, to have at least two towboats within 500 yards of the barges, and to ensure that all mooring devices, wires, chains, lines, and connecting gear were of sufficient strength to withstand forces that may be exerted on them by the moored barges. She found that Turn Services violated these regulations and that THE PENNSYLVANIA Rule was applicable. She concluded that Turn Services failed to establish that its violations did not contribute to the accident and that Turn Services was solely at fault for the breakaway and resulting damage. Finally, Judge Vitter addressed the settlements entered into by Turn Services with the owners of the barges. Those releases only released Turn Services and did not release Gulf South or any other tortfeasors. Accordingly, Judge Vitter held that Turn Services was not entitled to seek contribution because Turn Services had not released the liability of Gulf South.

After declining to dismiss the limitation action as untimely, the judge in a single claimant case lifted the stay to allow the claimant to proceed to judgment in state court with proper stipulations to protect the owner’s rights under the Limitation Act; In re Chem Carriers Towing, LLC, No. 21-1025, 2023 U.S. Dist. LEXIS 7376 (E.D. La. Jan. 13, 2023) (Brown).


Kai Hollingsworth was injured when the bunk where he slept broke free from the wall of the M/V SAM L. HAYS on June 10, 2020. Hollingsworth’s lawyer notified the owner of the vessel, Chem Carriers, of his representation on September 21, 2020, and requested medical records and demanded maintenance and cure. Chem Carriers provided medical records reflecting Hollingsworth had small bulging discs in his lumbar and cervical spine. Hollingsworth filed suit in Louisiana state court on December 2, 2020, and Chem Carriers filed this limitation action in federal court in Louisiana on May 27, 2021, within six months of the state suit but not within six months of the correspondence with Hollingsworth’s counsel. Hollingsworth moved to dismiss the suit for lack of jurisdiction or, alternatively, for summary judgment that it was not filed within six months of notice. Chem Carriers responded that there was no indication that the value of any potential claim could reasonably exceed the $1.57 million value of the vessel. Chief Judge Brown initially noted that, pursuant to the Fifth Circuit’s recent Bonvillian Marine case, the court had subject matter jurisdiction because the timeliness of the filing did not divest the court of subject matter jurisdiction. Thus, she considered the motion for summary judgment. Chem Carriers had paid less than $9,000 in medical expenses and less than $6,000 in maintenance at the time the state suit was served (.009% of the value of the vessel). Chief Judge Brown considered that the small amount paid raised a genuine fact dispute whether Chem Carriers could reasonably have believed that the claim could exceed the value of the vessel. Accordingly, she declined to grant summary judgment on the timeliness of the limitation action. See May 2022 Update.

Based on the testimony of Hollingsworth that he had slept in the bunk 86 times and was unaware of any deficiencies in the bunk and the testimony of Chem Carriers’ HS&E Director that he performed a safety audit of the vessel less than two months before the accident and noted no deficiencies in the bunk, Chem Carriers moved for summary judgment. It argued that there was no evidence that it knew or should have known of an alleged defect in the bunk for a negligence claim or that the bunk was not reasonably suited for its intended purpose for an unseaworthiness claim (the mere fact that there was an accident does not establish unseaworthiness). Hollingsworth responded that the HS&E Director merely looked at the bunk and did not inspect it and that Hollingsworth’s expert would testify that an inspection would have revealed a defect that caused the accident (although Chem Carriers noted that the expert had never been on the vessel and had only seen pictures of the bunk room). Reasoning that “[c]learly something caused the bunk to come loose from the wall and citing the opinion of Hollingsworth’s expert that the failure arose from a defect, Chief Judge Brown held that there were fact issues that precluded summary judgment on the negligence and unseaworthiness claims. See July 2022 Update.

As Hollingsworth was the only claimant in the limitation action, he moved to lift the stay in the limitation action so that he could pursue his claims in state court. As he filed the required stipulations to protect Chem Carriers’ rights under the Limitation Act in the federal action, Chief Judge Brown dissolved the stay so that Hollingsworth could proceed to judgment in state court.

Judge ordered interlocutory sale of arrested vessels despite absence of unreasonable delay by the owner because the owner agreed to the sale to minimize custodial expenses; Regions Bank v. M/V MAXX B, No. 1:22-cv-365, 2023 U.S. Dist. LEXIS 8030 (S.D. Ala. Jan. 17, 2023) (DuBose).


Regions Bank entered into a Credit Agreement with Whitaker Marine for a revolving line of credit that was collateralized with a first preferred fleet mortgage on six vessels. After Whitaker defaulted, Regions Bank arrested the M/V MAXX B, the M/V MISS ALLISON, and the M/V MISS LILLIE on September 28, 2022. Less than a month later, Regions Bank moved for an interlocutory sale, but Judge DuBose denied it for multiple reasons, including the fact that there had not been an unreasonable delay by Whitaker in seeking a release. On January 3, 2023, Regions Bank again sought an interlocutory sale, noting that it had incurred approximately $25,000 in custodia legis expenses and $7,500 in Marshal’s expenses and advising that it was incurring approximately $10,500 per month in custodial expenses. Although less than four months had passed from the date of the arrest to the filing of the second motion, which Judge DuBose did not find to be an unreasonable delay, the judge agreed to the interlocutory sale because Whitaker consented to the sale and the judge concluded that it was in the best interest of Whitaker to sell the vessels to minimize the custodial expenses (as the vessels were afloat, Judge DuBose ordered them shifted to dry docks to allow potential bidders the opportunity to fully inspect the condition of the vessels).

New York forum-selection clause that did not provide for “exclusive jurisdiction” in the New York courts did not preclude a Rule B attachment proceeding in South Carolina; Platina Bulk Carriers Pte Ltd. v. Praxis Energy Agents DMCC, No. 2:22-cv-1851, 2023 U.S. Dist. LEXIS 8534 (D.S.C. Jan. 17, 2023) (Gergel).


Platina Bulk Carriers, time charterer of the M/V OCEANMASTER, ordered bunkers from Praxis Dubai, and Praxis Dubai arranged for the fuel to be delivered to the vessel by Al Arabia Bunkering. Praxis Dubai invoiced Platina for the fuel, and Platina paid the invoice. However, Praxis Dubai did not pay Al Arabia, and Al Arabia arrested the OCEANMASTER in Fujairah, U.A.E. Platina settled the claim with Al Arabia and received an assignment of Al Arabia’s rights against Praxis Dubai. Platina then brought an action in federal court in New York against Praxis Dubai (and several alleged alter egos) seeking to recover both for the amount of the fuel and for the time lost at Fujairah as a result of the arrest of the vessel (plus attorney fees in that action). The New York court held that Platina stated a prima facie case for piercing the corporate veil against the entities. Platina then filed this suit in federal court in South Carolina against Praxis Dubai seeking a Rule B attachment of funds disbursed by the court in an unrelated action in which Praxis Dubai intervened. Praxis Dubai moved to dismiss the case for lack of personal jurisdiction and improper venue, and Judge Gergel rejected the argument on personal jurisdiction as contrary to the text and purpose of Rule B, explaining that the court acquires jurisdiction by the attachment up to the amount of the attached property. Praxis Dubai also argued that the New York forum-selection clause in the contract required that attachment be brought in New York. Judge Gergel acknowledged the clarity of the treatment of forum-selection clauses by the Supreme Court, but he cited the cases in which the courts found the language of forum-selection clauses not to be broad enough to extend to actions to obtain security by maritime attachment in a different venue for a favorable judgment in the selected forum. As the clause in this case did not provide for the “exclusive jurisdiction” of the New York courts, Judge Gergel denied the motion to dismiss and granted Platina’s motion directing the defendant to deposit the funds into the court registry.

Magistrate Judge held that the possibility of recovery of punitive damages in a maritime products liability suit entitled the injured plaintiff to discovery of financial documents from the defendant; Thibodeaux v. T.H. Marine Supplies, LLC, No. 21-443, 2023 U.S. Dist. LEXIS 8566 (M.D. La. Jan. 17, 2023) (Johnson).


Our longsuffering readers know that we do not generally discuss discovery disputes; however, this case presents the exception. Keith Thibodeaux was injured while fishing when the cable of his G-Force Trolling Motor Handle and Cable broke. Thibodeaux brought suit against the manufacturer/seller of the G-Force in Louisiana state court, and the defendant removed the case to federal court based on diversity. Thibodeaux pleaded for punitive damages under the general maritime law and sought financial records from the defendant in support of his claim for punitive damages (annual reports, profit and loss statements, financial statements, and federal income tax records for 2018 through 2021, plus deposition testimony from the defendant’s CEO about the documents). The defendant objected, and Magistrate Judge Johnson noted that the issue of whether Thibodeaux was entitled to punitive damages was not before the court. He framed the issue as whether “recovery of punitive damages is a possibility, however slight, such that information pertaining to same would be considered relevant to Plaintiff’s claim.” Magistrate Judge Johnson noted the decisions of the Supreme Court that reached different results with respect to recovery of punitive damages and concluded “only that punitive damages may be available to Plaintiff under maritime law, thereby making Defendant’s financial information relevant to this litigation.”

Shipyard’s defamation claims against the owners of a vessel who posted negative reviews about the shipyard after the shipyard filed a lien for nonpayment did not state a claim and were dismissed; Sea Green Partners LLC v. BARBARA GAIL, No. C20-5142, 2023 U.S. Dist. LEXIS 8769 (W.D. Wash. Jan. 18, 2023) (Settle).


The owners of the BARBARA GAIL engaged Sea Green Partners, a boatyard and marina in Port Townsend, Washington to perform repair and upgrade work on the vessels. The parties disagreed about the amount that was owed, and Sea Marine filed a maritime lien on the vessel for the amount it claimed was owed. The owners of the vessel wrote negative reviews about Sea Marine on various online platforms, and Sea Green brought this suit in federal court in Washington against the vessel and its owners for the amount owed on the vessel (claiming a lien on the vessel) and against the owners for libel, defamation, and false light invasion of privacy, alleging that the reviews were false, defamatory, and damaging. The owners sought summary judgment on the claims for libel, defamation, and false light invasion of privacy, arguing that the online reviews were matters of opinion and that Sea Marine had not made out a prima facie case of defamation. Sea Marine agreed to the dismissal of the false light claim, and Judge Settle held that Sea Green’s defamation claim (Washington does not recognize a separate claim for libel) was insufficient (he also concluded that Sea Marine had not established any damage from the reviews). Consequently, Judge Settle dismissed the claims for libel/defamation and false light invasion of privacy without leave to amend.

Getting jellyfish in a crew member’s boots did not make the fishing vessel unseaworthy or his employer negligent under the Jones Act; Corcoran v. Gervais, No. C21-00001, 2023 U.S. Dist. LEXIS 9636 (W.D. Wash. Jan. 19, 2023) (Robart).


Kenny Corcoran joined the crew of the purse seine fishing vessel WOLVERINE in Chignik, Alaska and worked on the vessel for just over a month. He brought with him a pair of XtraTuf boots and 14 or 15 pairs of socks. The vessel had a diesel stove where the crew would dry their boots and socks, and Corcoran was never prevented from changing his socks and never ran out of dry socks. After a couple of weeks, Corcoran complained that his feet were hurting while he worked because his boots filled with jellyfish tentacles. After a couple more weeks, Corcoran told the owner of the vessel, Tim Gervais, that he could not fish another day and he returned to Chignik. He sought medical treatment and was found to have a fungus skin infection and a severe infection under the skin. He was prescribed an antibiotic and anti-fungal cream and no further treatment was recommended. Corcoran brought this suit in federal court in Washington against Gervais and the vessel for negligence, unseaworthiness, maintenance and cure, and unpaid wages. Gervais moved for summary judgment on all of the claims, and Corcoran conceded that Gervais paid him all of the wages and maintenance and cure to which he was entitled, leaving the issues of negligence and unseaworthiness. Although the complaint alleged that Corcoran was forced to wear boots that were continually wet inside and that Gervais did not provide reasonable accommodation with which to dry the inside of his footwear, Corcoran testified that his boots were never too wet and he had the opportunity to change his socks and to dry them. Corcoran now argued that his negligence claim was based on jellyfish getting into his boots, but Judge Robart found no explanation for what Gervais did wrong to cause the jellyfish getting into Corcoran’s boots. Therefore, Judge Robart granted summary judgment on the claim that the injuries were caused by the presence of jellyfish on the vessel. In support of his unseaworthiness claim, Corcoran argued that the vessel set up was “really high” so that the vessel could hold more salmon, which caused the jellyfish to go above his knees and get into his boots. Judge Robart did not consider this allegation to be sufficient to support a finding that the vessel was not reasonably fit for its intended use, and he granted summary judgment on the unseaworthiness claim. As the deadline had passed for amended pleadings and for discovery, and as Corcoran made no effort to comply with the good cause standard under Rule 16, Judge Robart declined to give Corcoran leave to amend his complaint.

Judge did not find an alter ego relationship with the charterer to allow the vessel owner to attach the vessel of a company related to the charterer to satisfy an arbitration award; Sikousis Legacy Inc. v. B-Gas Ltd., No. 22-cv-3273, 2023 U.S. Dist. LEXIS 11442 (N.D. Cal. Jan. 19, 2023) (Breyer).


Sikousis chartered a vessel to B-Gas Ltd. (now Bepalo LPG), which breached the agreement and resulted in an arbitration award in favor of Sikousis for $7.5 million. Bepalo declared insolvency, and Sikousis brought this action in federal court in California seeking to attach a vessel owned by Aframax, a company related to Bepalo/B-Gas. Judge Breyer permitted discovery so that Sikousis could try to establish an alter ego claim against Aframax, but he ultimately held that Sikousis had not elicited sufficient evidence to pierce Aframax’s corporate veil and that Sikousis could not recover against Aframax for Bepalo’s debt. He therefore vacated the attachment, but stayed the order so that Sikousis could seek a stay in the Ninth Circuit.

Passenger sufficiently pleaded vicarious liability claim against cruise line that the crew misaligned the gangway; McLean v. Carnival Corp., No. 22-23187, 2023 U.S. Dist. LEXIS 11538 (S.D. Fla. Jan. 23, 2023) (Scola).


Sabrina McLean was a passenger on the CARNIVAL LEGEND. She tripped on the gangway while returning to the ship from a shore excursion in The Bahamas and brought suit in federal court in Florida against the cruise line. She pleaded that crewmembers who were operating the gangway improperly aligned the gangway with the ship so that a small lip emerged at the top end of the gangway that was a tripping hazard. The cruise line moved to dismiss the complaint as a shotgun pleading and for mislabeling her vicarious liability claim as a direct negligence claim. Judge Scola disagreed and held that the pleading sufficiently pleaded a claim for vicarious liability (even though it was mislabeled as a claim for direct liability). Judge Scola noted that McLean had identified a specific action by crewmembers—misaligning the gangway—that caused her injury. She did not name the crewmembers, but Judge Scola did not believe there was a requirement that she do so. She also alleged that the crewmembers who misaligned the gangway were acting within the scope of their employment. As those pleadings were sufficient to establish that the employees were negligent and the cruise line may be vicariously liable for their actions, Judge Scola denied the motion to dismiss.

Judge in federal limitation action did not lift the stay so that the injured seaman could coordinate his state suits without proper stipulations; In re Diamond B. Industries, LLC, No. 22-127, 2023 U.S. Dist. LEXIS 11565 (E.D. La. Jan. 24, 2023) (Vance).


Ridge Guidry, a deckhand on the barge TIDEMAR, owned by Rigid Constructors, was injured while the barge was in tow of the tug M/V RIVER DIAMOND, owned by Diamond B., on the Mississippi River. Guidry brought suit in state court against Rigid and Diamond B. in state court in West Baton Rouge Parish, Louisiana, and he brought a separate suit against CBF Welding (a company that performed repair work on the spud that injured Guidry) in state court in Iberville Parish, Louisiana. Rigid and Diamond B. filed limitation actions in federal court in Louisiana; the cases were consolidated; and stays of litigation were entered. Representing that venue was improper for the state action in West Baton Rouge Parish, Guidry moved the limitation court to lift the stay so that he could “properly coordinate the underlying state court actions into the proper venue.” Reasoning that it was the court’s primary concern to protect the shipowners’ absolute right to claim the limitation cap and to adjudicate that right in federal court and noting that Guidry had not filed stipulations to proceed outside of the limitation action, Judge Vance declined to lift the stay to permit Guidry to coordinate the state court actions.

Allegation of failure to warn did not satisfy requisite contacts for vessel owner’s claim against manufacturer of vessel’s autopilot; maintenance on the autopilot by the manufacturer’s network provider was insufficient to establish minimum contacts for personal jurisdiction; Crescent Towing & Salvage Co. v. M/V JALMA TOPIC, Nos. 21-1331, 21-1390, 21-1953, 2023 U.S. Dist. LEXIS 12421 (E.D. La. Jan. 25, 2023) (Morgan).


The M/V JALMA TOPIC was traveling up the Mississippi River when its rudder stuck to port and the vessel allided with a barge and dock structure owned by Crescent Towing along with vessels owned by Cooper/T. Smith. The owner of the JALMA TOPIC filed a limitation action in federal court in New Orleans, and the owner notified everyone known to have a claim and provided notice to others in the New Orleans Times Picayune. Several claims were filed, and Judge Morgan entered a default against those who had not filed claims after the deadline passed for the filing of claims. Within two weeks of the default order, Gawain Schouest, port captain for Cooper/T. Smith, sought leave to file a claim for injuries he sustained while helping to secure the barge facility. Considering whether Schouest had shown cause under Rule F(4), Judge Morgan noted that discovery was ongoing and the parties would not be prejudiced by the late claim; that Schouest did not have actual notice of the proceeding until after the default; that Schouest was not a party who received written notice of the limitation action, did not subscribe to or read the Times Picayune on its website; and that his home had been damaged by Hurricane Ida, which disrupted his electricity, internet service, and cellphone service. Judge Morgan found that the equities weighed in favor of allowing Schouest to file a late claim. See January 2022 Update.

The owner and manager of the JALMA TOPIC filed a third-party complaint and Rule 14(c) tender against YDK Technologies, the manufacturer of the vessel’s autopilot system that was allegedly defective (claims for a defective condition, defective design, and failure to warn). YDK filed a motion to dismiss for lack of personal jurisdiction, and Judge Morgan granted the motion. YDK designed and manufactured the autopilot in Japan, and its stream of commerce ended outside the United States more than 15 years ago. There was no general jurisdiction against YDK, and there was no specific jurisdiction for the products liability claims under a stream of commerce theory. This left only a theory of specific jurisdiction with respect to the failure to warn claim. Judge Morgan noted the narrow body of law that the assertion of failure to warn does not, in and of itself, establish that the court has specific jurisdiction over a nonresident defendant, and she agreed that the allegation was insufficient to establish minimum contacts. Therefore, she considered the defendant’s contacts with the Louisiana forum. The vessel owner cited the fact that the JALMA TOPIC called at the Port of New Orleans in 2016 and had annual service on the autopilot by RadioHolland USA, which is part of the manufacturer’s network of service providers. And, service calls were made on the autopilot systems on other vessels by members of the network of service providers. However, the vessel owner did not allege that YDK was involved in the service or that the owner called YDK to arrange the service. Thus, the question was whether RadioHolland, in servicing a vessel in New Orleans based on a direct request to it, was acting as YDK’s implied agent such that its contacts could be imputed to YDK to establish specific jurisdiction over YDK. Judge Morgan answered: “To hold RadioHolland to be YDK’s implied agent, even in the absence of an allegation that YDK arranged the service call . . . would be to stretch the boundaries of personal jurisdiction too far.”

A seaman was allowed to bring Jones Act negligence, maritime negligence, and unseaworthiness claims against the vessel and its purported owner and operator at the pleading stage, and the court will later sort out which party is liable on which theory; Hanzevack v. Diversified Yacht Services, Inc., No. 2:22-cv-364, 2023 U.S. Dist. LEXIS 13640 (M.D. Fla. Jan. 26, 2023) (Badalamenti).


Dustin Lee Hanzevack claims that he was injured while performing his duties as a seaman on the M/V TERA BYTE when he slipped on a chemically coated toe rail on the tender M/V GOTTA BYTE. He brought this suit in federal court in Florida against Diversified Yacht Services, the Richard H. Levi Revocable Trust, and the TERRA BYTE, alleging claims for Jones Act negligence, maritime negligence, and unseaworthiness. Diversified moved for summary judgment on the unseaworthiness claim, arguing that the Trust was the owner of the vessel. Noting that the seaman may allege that the defendant was the owner or operator of the vessel to support a claim of unseaworthiness and that the complaint alleged that Diversified was the owner, operator, or manager, Judge Badalamenti declined to dismiss the unseaworthiness claim against Diversified. The complaint alleged negligence claims against both Diversified and the Trust under the Jones Act and general maritime law (in the alternative). Hanzevack argued that the evidence would establish which of the defendants was the employer (responsible under the Jones Act), leaving the other liable for negligence under the general maritime law. Judge Badalamenti accepted the pleading, but stated that Hanzevack would have to elect the theory under which he would proceed before trial against each defendant. Finally, the defendants sought dismissal of the Jones Act claim against the vessel as Hanzevack was not employed by the vessel. However, Judge Badalamenti noted that the allegation against the vessel sounded in general maritime negligence, not Jones Act negligence, and he declined to dismiss that claim.

Stipulations in single-claimant accident were sufficient for the judge to lift the stay in the limitation action; In re Ridgeway, No. 22-cv-475, 2023 U.S. Dist. LEXIS 14639 (D. Md. Jan. 27, 2023) (Griggsby).


John Mueller and Holly Ridgeway were carrying several passengers on their 23-foot Sportsman vessel for clamming in the Isle of Wight Bay in Maryland. Passenger Kathleen Denell was injured while disembarking the vessel to help set the anchor. Mueller and Ridgeway brought this limitation action in federal court in Maryland, and Denell filed a claim in the limitation action and moved to lift the stay as the single claimant. She stipulated to the federal court’s exclusive jurisdiction over the claim for limitation of liability, waived her right to any claims of res judicata with respect to the issue of limitation, and agreed not to seek to enforce a judgment in excess of the value of the vessel until resolution of the limitation action. The vessel owners objected to the adequacy of the stipulations. Judge Griggsby rejected the challenge to the stipulation that the federal court had exclusive jurisdiction to determine the limitation issue as the same language had been approved previously and because it adequately protected the owners’ right to have limitation decided by the federal court. The owners also objected to the language that, in the event of a judgment in excess of the value of the vessel, whether against the vessel owners or against any other liable party who may make a cross-claim against the owners, then the claimant would not seek to enforce the judgment in excess of the value until the limitation court had adjudicated the limitation issue. The owners argued that this reflected a multiple claimant situation, but Judge Griggsby answered that Denell was the only claimant and the stipulation did not create a multiple-claimant situation. Accordingly, Judge Griggsby lifted the stay in the limitation action.

Jury found that contractor was not liable for impairment to the use of its dry dock allegedly caused by vibrations from pile-driving work at the neighboring Philadelphia Navy Yard; Rhoads Industries, Inc. v. Shoreline Foundation, Inc., Nos. 15-921, 17-266 (E.D. Pa. Jan. 30, 2023) (Strawbridge).


This litigation arises from the Navy’s repair of the Quay Wall at the Philadelphia Naval Yard. After sinkholes formed at the edges of Rhoads Industries’ property following pile driving during the repair work, Rhoads brought suit against the contractors for impairment to the condition of its dry dock. Rhodes settled with the Navy, and the contractors sought a pre-trial determination of the Navy’s liability in order to preemptively preclude any apportionment of a final damage award for the fault of the Navy under Pennsylvania law. However, Magistrate Judge Strawbridge held that the contractors presented sufficient evidence of potential liability of the Navy, and, consequently, the Navy should appear as a settled co-defendant on the verdict form at trial. As the contractors were working pursuant to contracts with the Navy, they asserted government contractor (Boyle) and derivative immunity (Yearsley) defenses by motions for summary judgment. Magistrate Judge Strawbridge found sufficient evidence that the jury could find that the contractors were not operating under the direction of the Navy and that they exercised sufficient discretion so as create fact questions on the derivative immunity defense. He also found disputed evidence as to the Navy’s approval of the design and performance of the contractors’ work and conformity to the project’s specifications so as to deny the government contractor defense. Magistrate Judge Strawbridge did conclude that pile driving is not an abnormally dangerous activity under Pennsylvania law and rejected Rhoads’s claims for strict liability. Finally, Magistrate Judge Strawbridge declined to address the question whether Rhoads was entitled to recover the full cost of repairs or whether the recovery was limited to the decrease in the fair market value of the property, finding questions of fact whether the dry dock qualified as special purpose property under Pennsylvania law.

Magistrate Judge Strawbridge addressed motions to strike experts with respect to the pile driving work in the Philadelphia Navy Yard, which allegedly caused damage to the neighboring properties and structures. Magistrate Judge Strawbridge denied the motions with two limited exceptions: declining the motions for Mark Kilgore on the standard of care for engineers on maritime projects, Edward Garbin, David Wilshaw (except with respect to an opinion that Wilshaw did not actually offer), Bryan Strohman, Bengt Fellenius, and Benjamin Irwin (except as to his analysis that was incomplete at the time of his deposition) as to the pile driving or other factors causing the damage; James Schofield on the age, maintenance, and repair of the plaintiff’s dry dock; and Wesley Grover, Greg Cowhey, and Charles Boland on the damage claims. Magistrate Judge Strawbridge did exclude the expert testimony of John Vitzthum as the expert disclosures with respect to Vitzthum failed to comply with Rule 26(a). See August 2021 and April 2022 Updates.

The case was tried to a jury before Magistrate Judge Strawbridge, and the jury found that contractor Triton Marine Construction was not liable for damage to the wharf at the Philadelphia Navy Yard caused by pile-driving vibrations during the work. Magistrate Judge Strawbridge entered judgment in favor of the contractor on January 30, 2023.

From the state appellate courts

Captain of vessel failed to establish Jones Act negligence or unseaworthiness for his low-back injury while lifting a hose; Soudelier v. PBC Management Inc., No. 21-CA-744, 2022 La. App. LEXIS 2191, 2022 AMC 451 (La. App. 5 Cir. Dec. 21, 2022) (Johnson).


Jeffrey Soudelier, Jr., captain of the M/V STEVEN M BRYAN, was ordered to move a 25-foot crossover hose from a petroleum barge to the STEVEN M BRYAN to return the hose to the Bayou Fleet dock near Hahnville, Louisiana. The hose weighed between 300 and 400 pounds because it had residual product. Captain Soudelier and three crew members discussed how to move the hose, and, during the move, Captain Soudelier was positioned under a pipeline on the barge and could not stand up straight. He did not use the lifting method for which he was trained, and he injured his back. Soudelier brought this suit in Louisiana state court under the Jones Act and general maritime law, and the judge’s summary judgment on negligence and unseaworthiness was reversed. A bench trial was held by Judge Aucoin, who declined to find negligence or unseaworthiness. Applying Louisiana’s manifest error standard of review to the negligence and unseaworthiness claims, the Louisiana Court of Appeals for the Fifth Circuit affirmed the judgment against Soudelier. Writing for the court, Judge Johnson reviewed the facts and expert testimony and held that the finding that the accident occurred because Captain Soudelier failed to abide by his own training and educated judgment (placing himself in an awkward posture to lift the load) was not manifestly erroneous. Likewise, Judge Johnson affirmed the finding that the vessel was not unseaworthy for having an unfit crew because the vessel owner had properly trained the crew in lifting techniques and there was no improperly designed or malfunctioning equipment.

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


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“Without a deadline, baby, I wouldn’t do nothing.”

– Duke Ellington (musician and leader of his jazz orchestra, 1899 – 1974) “The ultimate inspiration is the deadline.”

– Nolan Bushnell (established Atari, Inc. and Chuck E. Cheese) “Respect your deadline like it’s a field marshal.”

– Neeraj Agnihotri (author of Procrasdemon: The Artist’s Guide to Liberation From Procrastination (2019)).

Certain Underwriters at Lloyd’s of London v. Black Gold Marine, Inc., No. 19-23586, 2022 U.S. Dist. LEXIS 148317 (S.D. Fla. Aug. 18, 2022) (Goodman).

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