January 2025 Longshore/Maritime Update (No. 308)
Notes from your Updater:
The IRS has announced an increase in the rate for business mileage, beginning on January 1, 2025, up from 67 cents per mile to 70 cents per mile. The rate for medical mileage was unchanged at 21 cents per mile.
On November 21, 2024, the Texas Court of Appeals for the Ninth District (Beaumont) affirmed the summary judgment granted in favor of attorney Brent W. Coon in the legal malpractice suit brought against him by his client, Nicholas Marteny, a merchant mariner, who lost his job based on reduced demand after the moratorium on drilling following the Macondo/DEEPWATER HORIZON spill, and whose claim for economic loss was rejected. See Marteny v. Coon, No. 09-23-00078-CV, 2024 Tex App. LEXIS 8177 (Tex. App.—Beaumont Nov. 21, 2024) (Golemon).
On November 22, 2024, the Appellate Division of the Superior Court of New Jersey affirmed the decision of the Waterfront Commission of New York Harbor, revoking the longshoreman registration of Farid Amando based on its determination that his relationship with two known members of an organized crime group was inimical to the policies of the Waterfront Commission Act. See Waterfront Commission of New York Harbor v. Amado, No. A-2255-21, 2024 N.J. Super Unpub. LEXIS 2923 (N.J. Super. App. Div. Nov. 22, 2024) (Vernoia).
The September 2024 Update reported that the Fifth Circuit affirmed the decision of Judge Vitter of the United States District Court for the Eastern District of Louisiana not to grant additional time for discovery to clean-up worker Jerome Clyde Smith in his Back-End Litigation Option suit against BP arising from the Macondo/DEEPWATER HORIZON blowout because the evidence sought would not be sufficient to defeat BP’s motion for summary judgment on general causation. Without expert evidence on general causation, the Fifth Circuit affirmed summary judgment to BP. Smith v. BP Exploration & Production, Inc., No. 23-30619, 2024 U.S. App. LEXIS 20841 (5th Cir. Aug. 16, 2024) (per curiam). Smith sought rehearing en banc, arguing that the panel used the wrong standard, requiring that the discovery that he sought must be sufficient so that it would defeat the motion for summary judgment. On November 25, 2024, the panel treated the petition as a request for panel rehearing and denied it. As no active judge on the Fifth Circuit requested a poll for rehearing en banc, the court denied the request for rehearing en banc. See No. 23-30619, 2024 U.S. App. LEXIS 29948 (5th Cir. Nov. 25, 2024) (per curiam).
On November 25, 2024, Judge Copperthite of the United States District Court for the District of Maryland rejected the claim of Renwick A. Glenn, an African-American member of ILA Local 333 in Baltimore, Maryland, against Ports America Chesapeake and the Steamship Trade Association of Baltimore, asserting that he was suspended for a year in retaliation for filing a discrimination claim that he was not given an opportunity to become a Certified Crane Operator. See Glenn v. ILA Local Union 333, No. 23-cv-3204, 2024 U.S. Dist. LEXIS 213674 (D. Md. Nov. 25, 2024).
On November 26, 2024, Judge Reif of the United States Court of International Trade held that the Court had jurisdiction over the suit by Unichem Enterprises seeking an order that the Customs Service admit and release its cargo of 7-Keto DHEA that was detained at the request of the Drug Enforcement Administration because it suspected that the merchandise was a controlled substance (anabolic steroid). Judge Reif reasoned that the authority to determine the admissibility of the merchandise was not vested in any agency other than the Customs Service. See Unichem Enterprises, Inc. v. United States, No. 24-33, 2024 Ct. Intl. Trade LEXIS 132 (Ct. Int’l Trade Nov. 26, 2024).
On November 27, 2024, Judge Contreras of the United States District Court for the District of Columbia declined to restrain or enjoin the Department of Homeland Security and the Coast Guard from denying the renewal of the merchant mariner licenses of three individuals convicted of sexual assault (in accordance with the provision of 46 U.S.C. Section 7511). See Reid v. Mayorkas, No. 24-cv-2186, 2024 U.S. Dist. LEXIS 215625 (D.D.C. Nov. 27, 2024).
In our November 2023 Update we reported that Judge Talwani of the United States District Court for the District of Massachusetts rejected challenges brought by various commercial fishing interests to the Vineyard Wind Project on the outer Continental Shelf off the coast of Martha’s Vineyard and Nantucket, Massachusetts (claiming violations of the Clean Water Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Outer Continental Shelf Lands Act). See Seafreeze Shoreside, Inc. v. United States Department of the Interior, Nos. 1:22-cv-11091, 1:22-cv-11172, 2023 U.S. Dist. LEXIS 183483 (D. Mass. Oct. 12, 2023) (Talwani). The commercial fishing interests appealed, and, on December 5, 2024, the First Circuit rejected the appeals. Judge Aframe did refer to an incident occurring after the challenged agency decisions that was brought to the attention of the court in a Rule 28(j) letter (“a turbine blade fell at the Vineyard Wind offshore wind project . . . scattering fiberglass debris into and across the ocean and onto the shores of Nantucket Island,” resulting in an order from the Bureau of Safety and Environmental Enforcement halting construction and operations at the project), but he held that the incident was not relevant to the arguments made in the appeals, reasoning that the “focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court”). See Seafreeze Shoreside, Inc. v. United States Department of the Interior, Nos. 23-1853, 23-2051, 2024 U.S. App. LEXIS 30741 (1st Cir. Dec. 5, 2024) (Aframe).
Lucia’s reach continues to expand through the federal bureaucracy. On December 10, 2024, Judge McFadden of the United States District Court for the District of Columbia held that the removal protections for administrative law judges with the National Labor Relations Board (administrative law judges can only be removed for cause) are unconstitutional, reasoning that the “executive power begets the authority to remove executive officers.” See VHS Acquisition Subsidiary No. 7 v. National Labor Relations Board, No. 1:24-cv-2577, 2024 U.S. Dist. LEXIS 222629 (D.D.C. Dec. 10, 2024).
In our May 2024 Update, we noted that, on April 12, 2024, the Supreme Court unanimously held that a transportation worker need not work in the transportation industry in order to fall within the exemption in Section 1 of the Federal Arbitration Act. The case involved franchisees who distributed products for Flowers Foods (such as Wonder Bread) and were engaged in delivery, advertising, promotion, and maintenance of inventory. They brought suit against Flowers, alleging underpayment under their agreements, and Flowers moved to compel arbitration under the FAA. The distributors asserted that they fell within the exemption in the FAA for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Writing for the court, Chief Justice Roberts held that a transportation worker need not work in the transportation industry to fall within the exemption. The Court remanded the case to determine whether the distributors were transportation workers and whether they were engaged in foreign or interstate commerce because they delivered baked goods only in Connecticut. See Bissonnette v. LePage Bakeries Park St. LLC, No. 23-51, 2024 U.S. LEXIS 1576 (U.S. Apr. 12, 2024). On December 12, 2024, the Second Circuit remanded the case to the United States District Court for the District of Connecticut, instructing: “On remand, the court should look toward ‘the actual work that the members of the class as a whole, typically carry out.” The Second Circuit added: “As the Supreme Court made clear, whether Plaintiffs work in the transportation industry is not dispositive. Nor is it dispositive whether the class members have other duties; after all, the Supreme Court determined in Saxon that a ramp supervisor who frequently filled in as a ramp agent to load and unload cargo from airplanes that travel in interstate commerce was a transportation worker for purposes of the FAA exemption.” See Bissonnette v. LePage Bakeries Park St., LLC, No. 20-1681, 2024 U.S. App. LEXIS 31579 (2d Cir. Dec. 12, 2024) (per curiam).
On December 16, 2024, the United States Court of Appeals for the Federal Circuit vacated the decision of Judge Damich of the Court of Federal Claims holding that the United States is liable to the municipality of Anchorage, Alaska for $367,446,809 for MARAD’s breach of a Memorandum of Understanding in connection with the upgrade and expansion of the Port of Alaska (formerly the Port of Anchorage) for not delivering a defect-free port, but the appellate court affirmed the decision awarding Anchorage $11,279,059 for breach of a separate Memorandum by settling subcontractor claims without conferring with Anchorage. See Anchorage v. United States, No. 2022-1719, 2024 U.S. App. LEXIS 31773 (Fed. Cir. Dec. 16, 2024) (Hughes).
On the LHWCA Front . . .
From the federal district courts
Romare J. Greene was employed as a longshore worker by Ports America and was injured while descending the gangway on the M/V COSCO CAMELLIA while the ship was docked at the Garden City Terminal near Savannah, Georgia. Greene brought suit in state court in Chatham County, Georgia against the owner of the vessel (Cosco Camellia), the charterer (Cosco Shipping), and the vessel manager (Shanghai Ocean Shipping), under Section 5(b) of the LHWCA. The defendants removed the case to federal court based on diversity and moved for summary judgment, asserting that they had not violated any of the Scindia duties. The facts established that the vessel crew rigged the gangway before cargo operations began and that, shortly after the longshore workers began boarding the vessel, the handrail collapsed when a pin fell out. The handrail was raised, and the pin was re-inserted by the longshore workers. The crew left the area, and, when Greene was disembarking, the handrail again collapsed because the pin came out of place. The crew reported that the pin came out because shaking or unintentional bumping of the workers caused the front safety latch to open, resulting in the pin falling out. The vessel argued that the turnover duty was not violated because the alleged negligent installation of the pin occurred after the vessel had been turned over; however, Judge Baker responded that there was also evidence that the problem existed from the commencement of operations. Therefore, there was some evidence that the turnover duty was breached. Greene also argued that the gangway was under the active control of the crew when the injury occurred, and the vessel answered that video evidence established that only longshore workers were using the gangway and that the longshore workers were in control of the equipment that caused the handrail to collapse. Judge Baker reasoned that the presence of longshore workers and their exerting control over the gangway did not preclude the crew having concurrent control (active control does not require exclusive control). As the Cosco representative testified that there must be a gangway watchman from the crew to make sure the gangway stays safe, and as the crew was aware of the correction after the first collapse, Judge Baker found sufficient evidence to trigger the active control duty. Even though there were no crew members present at the time, there was evidence that the crew had knowledge of the hazardous condition so as to invoke both the active control duty and the duty to intervene. Thus, Judge Baker denied summary judgment to the vessel owner with respect to each of the three Scindia duties. The result was different, however, for the time charterer and ship manager. Reviewing the provisions of the time charter and the Ship Management Agreement, Judge Baker found no provisions that attributed responsibility to the charterer or ship manager. Therefore, he granted summary judgment to those defendants. Finally, the defendants moved for summary judgment on Greene’s claim for future lost earnings, citing the facts that he had returned to work, he was earning more than before the accident, and he had no medical limitations. Greene responded that he would have been able to work at least 15 more hours a week if he had not been injured, but he presented no evidence to corroborate that claim other than his testimony. Concluding that Green’s personal belief did not reach the level of specificity required to support the claim for loss of future earnings, Judge Baker dismissed the claim for future wage loss. See November 2023 Update.
Cosco moved for reconsideration of the denial of its motion for summary judgment on each of the three Scindia duties. Judge Baker did agree with Cosco that summary judgment should be granted as to the turnover duty and the duty to intervene, but he found a material fact dispute whether Cosco breached the active control duty and continued to deny summary judgment on that theory. With respect to the turnover duty, Judge Baker reasoned that the duty applies at the commencement of stevedoring operations. He noted that the railing had collapsed once before the incident that caused Greene’s injury and that the locking pin had been re-installed after the initial collapse. Thus, there was no evidence that the injury resulted from the way that the pin was installed at the time the vessel was turned over. Judge Baker also found that there was inadequate evidence to show that Cosco had actual knowledge that the locking pin had been negligently installed before the second collapse. Therefore, summary judgment was appropriate on the duty to intervene. Judge Baker noted that the ruling on the active control duty did not hinge on whether the locking pin was potentially defective. He originally found evidence that the gangway was under the control and monitoring of the vessel at the time the railing was re-raised after the initial collapse and through the time that Greene was injured. Citing evidence that the pin may not have been inserted correctly and the awareness of the crew member who oversaw the pin’s installation, Judge Baker agreed that there was a fact question whether Cosco was liable for breach of the duty of active control.
Blaine Parfait was employed by Coating Services as a painter/foreman to work on a job for Swiftships’ shipyard in Amelia, Louisiana, along the Avoca Island Cutoff. Parfait was below deck, inspecting the paint job performed on piping on the LCU 2026, a vessel that was docked at Swiftships’ shipyard. Parfait fell through an open hatch that had been opened by an employee of Swiftships without any warnings. He was paid benefits under the LHWCA by the compensation carrier for Coating Services. Parfait brought this suit in federal court in Louisiana against Swiftships, seeking to recover for negligence under Section 33(f) of the LHWCA and the general maritime law. Swiftships moved for summary judgment, arguing that it did not owe a duty to warn an experienced worker like Parfait of the open and obvious condition of the hatch, comparing the duty it owed to the duty owed by vessel owners to injured longshoremen under Section 5(b) of the LHWCA. Judge Vitter responded that Swiftships did not cite any legal authority that the exception applicable to a vessel owner’s duty to warn of hidden or latent dangers applies to non-vessel owners like Swiftships. She added that the Fifth Circuit had rejected application of the Scindia duties to a loading stevedore in a suit by an employee of a discharging stevedore. Therefore, she declined to hold that the open and obvious nature of a dangerous condition would be a defense to the suit against the shipyard. Instead, Judge Vitter held that Swiftships owed Parfait a duty of ordinary care under the circumstances. Thus, the question was whether the injury suffered by Parfait was reasonably foreseeable from the failure to warn of the open hatch. As there was evidence that Parfait was not aware that the hatch was open and that his view of the open hatch was partially obstructed by a Swiftships employee, Judge Vitter found a fact question whether Swiftships had a duty to warn Parfait that required denial of the motion for summary judgment. See October 2024 Update.
Swiftships asked Judge Vitter to certify her decision for an interlocutory appeal, arguing that the issue of whether a non-vessel owner has a duty to warn of an open and obvious condition on a vessel presents a controlling question of law that is a “novel issue of first impression in the Fifth Circuit.” Swiftships argued that a controlling question of law was presented because Swiftships was not liable for the open and obvious condition. Judge Vitter rejected the argument, however, as there was a question whether the condition was open and obvious. Thus, even if the Fifth Circuit agreed that Swiftships did not have a duty to warn an experienced worker of an open and obvious condition, the appellate court would still have to remand the case to determine if the condition was open and obvious (and whether Parfait was an experienced worker). And, if the appellate court decided that Swiftships did have a duty to warn of an open and obvious condition, the case would have to be remanded for trial. Judge Vitter also disagreed with Swiftships that there was a substantial ground for difference of opinion over the controlling question of law. She believed that there was precedent from the Fifth Circuit (Crouch) that the Scindia duties do not apply to non-vessel owners, and she distinguished the Peters case from the Ninth Circuit that was cited by Swiftships (although Judge Vitter noted that the Ninth Circuit did find the Scindia principles to be “instructive” on the liability of non-vessel owners). Therefore, she declined to certify her decision on the duty owed by Swiftships for an immediate appeal.
Andrew Bader worked at a marina for the Town of Sandwich, Massachusetts, and he was taught how to handle dock lines from incoming vessels. On August 6, 2021, James Watson and Phylis Nixon Bosomworth approached the marina in the CASTOFF, a 46-foot cruiser owned by Watson. Watson called the marina and was instructed to proceed to a particular dock where Bader would assist with the docking. Bosomworth threw a line to Bader, and as he secured the line, the CASTOFF lurched away from the dock, causing the line to become taut, which amputated a portion of the ring finger on Bader’s right hand. Bader brought this suit in Massachusetts state court against Watson and Bosomworth, and the defendants removed the case to federal court based on diversity. Watson and Bosomworth then sought to implead the Town of Sandwich under Rule 14(a) for not providing a proper dock worker (contractual indemnity and common-law contribution and indemnity under the general maritime law). Judge Guzman first determined whether there was maritime jurisdiction over the claims. As the pleadings demonstrated that the accident was caused by a vessel on navigable water, Judge Guzman concluded that the locality test was satisfied. As to the connection test, she reasoned that the improper securing of a boat could have a disruptive impact on maritime commerce and that the acts taking place during the securing of the vessel had a substantial relationship to traditional maritime activity. Therefore, Judge Guzman held that maritime law and not state law applied. Judge Guzman then addressed whether the defendants stated a claim for indemnity under the general maritime law (express, implied, and tort-based). As the defendants could point to no express contract and no specific indemnity provision, Judge Guzman held that the defendants could not assert a claim for express contractual indemnification. As the defendants failed to demonstrate any special relationship with the Town that would give rise to indemnity on an implied basis, Judge Guzman declined to find an implied right to indemnification. As tort indemnity is limited to cases where a non-negligent or vicariously liable tortfeasor is entitled to recover from a party who is guilty of actual fault, and as Bader did not allege that the defendants were merely vicariously liable, Judge Guzman found no basis for a tort indemnity claim. Therefore, she held that the defendants could not state a common-law indemnity claim. With respect to the claim for contribution, the Town argued that the LHWCA barred the claim for contribution against the worker’s employer. The defendants responded that Bader was excluded from coverage under the LHWCA (Section 2(3)(C)) because he was employed by a marina and was not engaged in construction, replacement, or expansion of the marina. However, as Bader received benefits under the Massachusetts Workers’ Compensation Act, his employer was released of liability arising from the injury. Therefore, the contribution claim was barred by the state statute [compare the Fifth Circuit’s holding in Thibodaux v. Atlantic Richfield that “an exclusive remedy provision in a state [workers’] compensation law cannot be applied when it will conflict with maritime policy and undermine substantive rights afforded by federal maritime law”]. As there was no basis for the contribution or indemnity claims, Judge Guzman declined to allow the third-party claim against the Town.
And on the maritime front . . .
From the United States Supreme Court
This case involves damage to an electrical cable owned by Baltimore Gas & Electric that is buried under the waters of Eli Cove, near Baltimore, Maryland. Candice Bateman and Raymond Bostic purchased property in Pasadena, Maryland and contracted with Coastline Commercial Contracting to extend an existing pier into the waters of Eli Cove. The project required that Coastline excavate portions of the bottom of Eli Cove and install new pilings for the extension of the pier. During the transport of pilings, Coastline’s barge struck the cable, causing damage for which Baltimore Gas & Electric brought this suit in federal court in Maryland under the court’s admiralty jurisdiction. Coastline moved to dismiss the suit for lack of admiralty jurisdiction, and Judge Griggsby began by addressing whether Eli Cove was a navigable waterway. The facts established that Eli Cove is a part of the tidal waters of Chesapeake Bay and that its waters flow into Stoney Creek, which flows into the Patapsco River and Chesapeake Bay. However, Judge Griggsby was persuaded by the fact that Eli Cove is “a separate body of water that is distinct from Stoney Creek” and that abuts residential properties. She reasoned that “the cove allows for water access from these residential properties to Stoney Creek, but it is not part of Stoney Creek.” Judge Griggsby then noted that there are marinas and a boat launch on Stoney Creek, but not on Eli Cove. Therefore, although Stoney Creek was used or susceptible of being used as a highway for commerce, she did not believe that Eli Cove, which had access to Stoney Creek, was similarly used or susceptible of being used as a highway for commerce. Consequently, she held that Eli Cove was not a navigable waterway and that the court lacked admiralty jurisdiction. Judge Griggsby added that Baltimore Gas & Electric also failed to establish that the incident had the potential to disrupt maritime commerce and that it had a substantial relationship to maritime activity. She rejected the argument that in an emergency the Coast Guard and other rescue vessels would have to go to Eli Cove via the Patapsco River and Stoney Creek to render aid, creating a potentially disruptive impact on maritime activity, and she rejected the argument that the presence of a barge on the water to extend a pier had a substantial relationship to traditional maritime activity. See August 2023 Update.
Baltimore Gas appealed to the Fourth Circuit, and, writing for the appellate court, Judge Wilkinson disagreed with Judge Griggsby’s analysis. He held that her finding that Eli Cove was not being used (or susceptible of use) as a highway of commerce because it was a residential inlet with water that was too shallow to support commercial navigation was belied by the facts of the case—the Cove is lined with commercially built piers, and Coastline was engaged in commercial activity when its barge allegedly struck the cable. He added that the Cove flows into Stoney Creek, which flows into the Patapsco River and Chesapeake Bay so that one could travel on an uninterrupted route to the Atlantic Ocean, stating: “This is quintessential navigability.” Judge Wilkinson likewise rejected the argument that the current use for the Cove was residential, answering that admiralty jurisdiction extends to waters used exclusively for recreational navigation if they are capable of commercial navigation. Additionally, he noted that the boundary of admiralty jurisdiction for tidal waters extends not just to shallow water but to the mean high-water mark. Judge Wilkinson then addressed the connection test and held that the action “plainly” had the potential to disrupt maritime commerce, reasoning that the inquiry turns not on the incident’s actual effect on maritime commerce but looks to whether the general features fall within a class of incidents that pose more than a fanciful risk to commercial shipping. Characterizing the incident as damage to an underwater cable by a barge, Judge Wilkinson answered: “To ask the question is to answer it.” He reasoned that the striking of the cable could lead to a fire, an explosion, or an electrocution of those on the vessel or in the surrounding water. Although Coastline stressed the lack of disruption to commerce from this incident, Judge Wilkinson held that Coastline’s argument would read the word “potential” out of the test. Finally, Judge Wilkinson addressed whether there was a substantial relationship to traditional maritime activity. The complaint alleged that Coastline struck the cable while transporting a barge full of tools for construction of a pier. Judge Wilkinson concluded that the activity not only had a substantial relationship to traditional maritime activity but was “the epitome of it.” Accordingly, the Fourth Circuit held that “admiralty jurisdiction plainly lies.” See August 2024 Update.
Coastline sought a writ certiorari from the United States Supreme Court with two questions: 1) Does the navigational capacity test used by the Fourth Circuit constitute an overbroad expansion of federal admiralty jurisdiction and encroach on Maryland’s right to enforce its chosen legal doctrine for negligence liability? and 2) Is the navigability in fact test used by the Seventh, Eighth, and Ninth Circuits, rather than the navigational capacity test or the ebb and flow test, the proper test to determine the admiralty jurisdiction of federal courts over a body of water? On December 15, 2024, the Supreme Court declined to grant the writ. Thanks to Michael F. Sturley, Fannie Coplin Regents Chair at the University of Texas School of Law, for bringing the denial to our attention.
From the federal district courts
Hapag-Lloyd brought this suit in state court in Harris County, Texas against American Container Line, seeking to recover demurrage charges for a container that was shipped from Atlanta, Georgia to Hong Kong, where it remained unclaimed for six months. American Container Line removed the case to federal court based on federal question jurisdiction (arguing that Hapag-Lloyd’s right to relief required resolution of an issue of federal law under the Ocean Shipping Reform Act of 2022) and based on the federal court’s original admiralty jurisdiction. Magistrate Judge Palermo rejected the argument relying on the Ocean Shipping Reform Act, citing the Supreme Court’s Romero decision for the rule that general maritime claims do not arise under the laws of the United States. As to the assertion of admiralty jurisdiction, Magistrate Judge Palermo joined the majority of judges holding that admiralty cases cannot be removed based on the original admiralty jurisdiction of the federal courts, and that there must be an independent basis for federal jurisdiction to permit their removal. Judge Hanen agreed with the recommendation, and ordered the case remanded to state court.
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 International, 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). 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 International 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. See February 2023 Update.
In the Eastern District of Louisiana, Seadrill and LLOG filed motions for summary judgment. Judge Lemmon began with a recitation of facts. Crochet, a shop technician for Frank’s International, went to the medic on the WEST NEPTUNE, complaining of abdominal cramping. Seadrill contracted with Safety Management Systems to provide professional medical services on the vessel, and LLOG had agreed to provide medical evacuations. Crochet informed the medic that he had a history of experiencing the same symptoms when he ate onions that were not fully cooked, and he denied chest pain, shortness of breath, nausea, or vomiting. He was not sweating, and his skin color was good. The medic did not perform a comprehensive exam or take Crochet’s vital signs, and agreed he would report to his room for rest (the medic was to check on him periodically). The medic checked on Crochet thereafter, and Crochet advised that he was feeling better. Frank’s supervisor checked on Crochet, who stated that he did not need a flight to return ashore. Forty-five minutes after the last check, the medic found Crochet on the floor, unresponsive and with no pulse. LLOG arranged an emergency helicopter evacuation, but Crochet died of a heart attack. The plaintiffs asserted that Seadrill was vicariously liable for the negligence of its contractor, Safety Management, and that it was directly negligent for failing to provide adequate care. Judge Lemmon reasoned that Seadrill was not liable for the acts of its independent contractor unless it exercised operational control over the contractor’s acts or expressly or impliedly authorized the acts. As the contract between Seadrill and Safety Management did not provide for Seadrill to have operational control over Safety Management, Judge Lemmon addressed whether Seadrill had direct supervision over the step-by-step process of accomplishing the work. The plaintiffs cited the report provided by a Seadrill consultant after the accident, that made recommendations for medical treatment protocols going forward (asserting that the recommendations illustrated that Seadrill had operational control). The plaintiffs also cited two charts on the vessel titled “Medical Care Assessment & Management Protocol” and “Responsibilities – Who Does What.” Judge Lemmon did not believe that the delineation of responsibilities reflected an attempt to direct the actual operations. However, she noted that the Medical Case Assessment & Management Protocol was explicit as to the medic’s specific job duties, including the task at issue in this case—whether to recommend disembarkation or not. Reasoning that the explicit instructions concerning steps the medic must take to determine whether to disembark a crew member created a fact issue on the extent of Seadrill’s actual operational control, Judge Lemmon denied Seadrill’s motion for summary judgment. Judge Lemmon then considered LLOG’s argument that it owed no duty to order a medevac prior to being informed by medical personnel that it was necessary, and that it ordered the emergency evacuation immediately after being notified. The plaintiffs responded with the language of the drilling contract that LLOG shall provide for an evacuation in the event LLOG or Seadrill determines that an evacuation is necessary due to an injury or illness, and regardless of whether the evacuation is initiated by LLOG or Seadrill. The plaintiffs argued that the contract authorized LLOG to make the determination as to evacuation, and they supported that with the language of LLOG’s Emergency Response and Evacuation Plan that the decision to evacuate personnel should be in consultation with medical personnel and the LLOG company representative. Judge Lemmon could not conclude that LLOG’s role was restricted to ordering an evacuation only when directed to do so by the medical staff. Therefore, Judge Lemmon denied summary judgment to LLOG.
Patricia D. Wurdinger, a passenger on the CARNIVAL HORIZON, slipped on ice cream on the deck near the ice cream machine on the Lido Deck of the vessel. Wurdinger brought this suit against the cruise line in federal court in Florida, and the cruise line moved to dismiss the complaint on the ground that Wurdinger’s allegations of notice of the dangerous condition were generic conclusory statements. Wurdinger responded that she had presented five theories to establish notice to the cruise line. She alleged that the cruise line always operated the ice cream vending machine and was aware of spills occurring on a repetitive basis during all sailings. However, Judge Martinez rejected the argument because the pleading did not provide any details on the spills, what was spilled, how often the spills occurred, and whether there were slips and falls. Second, Wurdinger pleaded that the cruise line absolutely knew that customers would dispense ice cream themselves and that spills would occur repetitively and usually without the presence of crew members. Judge Martinez dismissed this claim as a legal conclusion that the court would not take as true. Third, Wurdinger asserted that the cruise line had specific, time-oriented, repetitive policies to inspect the machine’s operation and to clean the catch tray and the area around the machine. Judge Martinez found the allegation to be devoid of any facts on how the inspections would have revealed the unsafe conditions and what the unsafe conditions were. Fourth, Wurdinger pleaded that the cruise line had notice of spills as such spills occurred randomly and on a regular basis at and near the machine for a very long time prior to the accident. Judge Martinez noted that the allegation failed to allege how long the substance was spilled, how long the cruise line had notice, whether the substance was on the deck long enough for notice, and whether any employees observed the hazard and failed to take corrective action. Fifth, Wurdinger alleged that the rules and regulations for ice cream vending machines evinced the cruise line’s actual knowledge of the spilling hazard, but the allegations did not explain how the existence of rules and policies made the cruise line aware of the actual spill. Therefore, Judge Martinez dismissed the complaint without prejudice.
CSC Sugar chartered the vessel M/V ST. PAUL, owned by Asterope Shipping, to transport a cargo of refined sugar from the shipper in Brazil (CRV Industrial) to Brownsville, Texas. Antelope chartered the vessel to Bainbridge Navigation, which chartered it to Norvic Shipping, which chartered it to CSC Sugar. The sugar was loaded onto the vessel, and the local agent (Williams Servigos Maritimos) issued a bill of lading, which incorporated the terms and arbitration clause of the charter party dated February 1, 2023. The bill of lading had been issued pursuant to an authorization letter from the vessel’s Master, on behalf of the owner, Asterope Shipping, subject to the condition that the terms of the Charter Party dated February 1, 2023 be incorporated. The charter party that was concluded on February 1, 2023 was between Norvic and CSC Sugar, and it contained an arbitration clause. The fixture recap for the Norvic/CSC Sugar charter contained another arbitration clause, and directly underneath the arbitration clause, it referred to a different charter party negotiated by CSC Sugar dated June 19, 2019. The vessel successfully sailed to Texas, but the vessel’s hoisting cables snapped during unloading, causing a spreader bar with 19.2 metric tons of sugar to collapse on a truck, resulting in extensive damage. CSC Sugar demanded arbitration with Asterope, and Asterope objected that it was not a party to the CSC/Norvic charter party. Asterope then filed this suit in federal court in New York, asking the court to enjoin CSC Sugar from proceeding with the arbitration and to declare that Asterope was not obligated to arbitrate with CSC Sugar. CSC Sugar counterclaimed with a cross-petition to compel arbitration. Judge Rakoff held an evidentiary hearing and considered three issues to determine whether to compel arbitration, whether Asterope was a party to the bill of lading, whether the bill of lading incorporated the Norvic/CSC Sugar charter, and whether the arbitration fell within the arbitration clause of that charter. Judge Rakoff rejected Asterope’s argument that it could not be compelled to arbitrate under the terms of a contract to which it was not a party and then focused on whether the Master had authority to bind Asterope when he signed the bill of lading in Asterope’s name. The charter between Asterope and Bainbridge contained a standard Clause 8, providing that the charterer is to load, stow, and trim the cargo and that the captain is to sign bills of lading in conformity with Mate’s or tally clerk’s receipts. It also contained an indemnity clause that the charterer will indemnify the owner for liabilities arising as a result of differences between the charter party and bills of lading. Judge Rakoff explained that the indemnity clause had no bearing on whether the Master’s authorization letter under Asterope’s name was authorized on Asterope’s behalf. He added that the load, stow, and trim clause likewise had no bearing on the authority to issue the bill of lading, reasoning that the clause allocated liability between conditions of unseaworthiness and the stowage process. Accordingly, Judge Rakoff held that Asterope was bound by the bill of lading. He also concluded that the terms of the bill of lading were sufficient to incorporate the Norvic-CSC Sugar charter party and its arbitration clause, even though Asterope was not a signatory to that charter. The final question was whether the arbitration sought by CSC Sugar fell within the terms of the arbitration clause. The Norvic-CSC Sugar arbitration clause required arbitration of any dispute between owners and charterers, and it defined owner and charterer as Norvic and CSC Sugar. Therefore, Judge Rakoff held that the arbitration with Asterope was not covered, rejecting the argument that the use of the plural of owners and charterers could be interpreted to extend the clause to owner Asterope. The fixture recap contained this provision: “SMA arbitration clause with shortened arbitration process currently in place to apply for all claims less than $50,000.” CSC Sugar argued that the provision incorporated the SMA model clause that encompasses non-parties. However, Judge Rakoff believed that the clause encompassed the SMA model clause and shortened procedure for claims less than $50,000. As this claim exceeded $50,000, he held that the clause did not extend to Asterope. Therefore, Judge Rakoff agreed to enjoin the arbitration.
Colyn Rich borrowed $94,850 from Machias Savings to purchase the F/V RICH ENDEAVOR and granted Machias a first preferred mortgage on the vessel. Rich defaulted after two modifications of the terms of the loan, and Machias brought this action against the vessel on January 30, 2024, resulting in the arrest of the vessel on February 9, 2024. Rich filed an answer on February 20, 2024, in which he denied some of the statements in the complaint, but he did not answer requests for admissions or seek to release the vessel from the arrest. On June 14, 2024, Machias moved for an interlocutory sale (and for permission to submit a credit bid), asserting that the vessel was subject to deterioration and the cost of keeping the property was excessive/disproportionate. Rich did not respond, and Magistrate Judge Nivison ordered the interlocutory sale. Although the court had not entered a judgment in favor of Rich, Magistrate Judge Nivison ruled that Machias had established that it had a maritime lien of not less than $86,838.47 (plus interest, costs, and custodia legis expenses) and that no one else had asserted a lien. Therefore, he authorized Machias to submit a credit bid up to $86,838.47. See August 2024 Update.
No objections were filed, and Chief Judge Walker agreed that the vessel was liable to deteriorate and that there was an unreasonable delay in securing release of the vessel. Therefore, he ordered the interlocutory sale. Chief Judge Walker also held that Machias had a priority lien by virtue of the ship mortgage of not less than $86,838.47 plus interests, costs, and custodia legis costs. Therefore, he agreed that Machias could make a credit bid up to $86,838.47. See September 2024 Update.
The vessel was sold to a third party for $20,000, leaving a net of $9,917.74 after deducting the costs for the sale. Machias then moved for an in rem judgment against the vessel and a deficiency judgment against the owner, and Chief Judge Walker entered a final judgment for the indebtedness, adjusted for the net proceeds, together with prejudgment interest, costs, and attorney fees.
Catherine Lawing, a passenger on the CARNIVAL BREEZE, slipped and fell on a wet and slippery substance on the deck of the vessel in the Lido Deck Marketplace. There were no warning signs near the wet area, but Lawing observed a crew member with a mop near the area. Lawing brought this suit against the cruise line in federal court in Florida, alleging counts for vicarious liability and direct liability, and the cruise line moved to dismiss the complaint for comingling the direct and vicarious liability counts and for failure to sufficiently plead notice. Judge Bloom explained that the direct liability count may allege a list of failures to establish breach of the same duty; however, it is improper to combine different breaches of duty within the same count. In this case, Lawing mixed separate claims of negligent training, failure to warn, failure to maintain the area, and failure to promulgate policies and procedures within the direct liability count. As that count failed to separate distinct causes of action, it was improper. Judge Bloom also agreed with the cruise line that Lawing’s pleading of direct negligence and vicarious liability conflated these theories, including alleging the duty of the cruise line in the vicarious liability count instead of the duty and conduct of the crew. Accordingly, Judge Bloom held that the complaint should be dismissed with leave to replead the theories. As the complaint was going to be repleaded, Judge Bloom addressed the sufficiency of the pleading of notice. In this case, Lawing observed a crew member with a mop near the area where she fell. Judge Bloom considered it plausible that posting a crew member in the area with a mop indicated that the cruise line knew that there was a danger of someone slipping on the liquid. Therefore, she ruled that Lawing had sufficiently alleged notice.
Doe, a passenger on the CARNIVAL SUNSHINE, asserts that a crewmember sexually assaulted her in her cabin on the vessel. She brought this action against the cruise line in federal court in Florida with counts alleging strict vicarious liability for the sexual assault, negligent failure to warn, negligent security, and general negligence. The cruise line moved to dismiss the negligence counts, arguing that the strict liability claim precluded negligence claims alleging that the cruise line failed to prevent an intentional tort, and it moved to dismiss the prayer for punitive damages for failure to show intentional misconduct by the cruise line itself (or that the cruise liner authorized or ratified the conduct). Judge Ruiz reviewed the case law and stated that the authorities do not articulate a “doctrine” that a plaintiff cannot bring negligence claims relating to the failure to prevent an intentional tort along with a strict liability claim for the intentional tort. Instead, the cases supported the proposition that there is no such thing as negligent commission of an intentional tort. Accordingly, the plaintiff cannot allege negligent commission of the same intentional tort for which the defendant is strictly liable. However, the plaintiff may bring negligence claims where the negligence claims are “clearly grounded in independent conduct, even when they related to the same core set of facts as the intentional tort. In this case, the claims for negligent failure to warn and negligent security were premised on conduct that is distinct from the conduct of the employee in committing the sexual assault, but the general negligence claim failed to differentiate itself from the strict liability claim (it did have seven theories of negligence). Therefore, Judge Ruiz dismissed the claim for general negligence (without prejudice) and declined to dismiss the other counts. Finally, Judge Ruiz struck the prayer for punitive damages because the negligence claims could not support punitive damages and the strict liability claim did not allege facts indicating that the cruise line was guilty of willful, wanton, or outrageous conduct.
This litigation involves a collision between a motorboat and the ferry M/V PELICAN II that was sailing across the Government Cut Waterway from Fisher Island to the MacArthur Causeway in Miami, Florida. The crash killed an occupant of the motorboat, Cristian Gaston Fernandez, and injured another occupant, Angel Dominguez. Fisher Island Community Association, owner of the ferry, brought this action seeking to limit liability in federal court in Florida, and Decedent’s mother, Fidelina Garcia brought a claim in the limitation action. After Decedent’s brother, Alexis Fernandez, was appointed as personal representative of the Decedent’s estate, he filed an amended claim on behalf of the estate. A limitation action was also filed by the co-owners of the motorboat, and both Fernandez and Fisher Island filed claims in that limitation action. Fernandez moved to lift the stay in each case based on the single claim exception, and Fisher Island argued that it would be improper to lift the stay because there are two ongoing limitation actions arising from the same collision and there was a risk of inconsistent rulings if a state court proceeded in tandem with the federal proceedings. As the time had passed for any other claims to be filed, Magistrate Judge Reid recognized that there was only one claim in the Fisher Island limitation action, but there were two claims in the motorboat limitation. The owners of the motorboat argued that the stay would leave them unprotected from the Fisher Island cross claim that could exceed the value of the motorboat’s limitation fund. Magistrate Judge Reid answered that the stipulation from Fernandez resolved the issues raised by the limitation petitioners, as the stipulation shielded both petitioners from the enforcement of a state court judgment beyond the value of the limitation vessels: if the state court found any liability on the part of either petitioner, Fernandez agreed that he would return to the federal forum to determine limitation of liability. Accordingly, Magistrate Judge Reid recommended that the stay in each case be lifted. Judge Becerra adopted the recommendation on December 4, 2024, and lifted the stay in the absence of any objection to the recommendation.
Aries Marine owned the liftboat RAM XVIII, which was sent to house workers who were working on a platform in the West Delta region of the outer Continental Shelf off the coast of Louisiana (the workers were employed by Fluid Crane and United Fire). 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 the liftboat was 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 of whether punitive damages may be recoverable under Section 5(b), and he declined to grant summary judgment on the punitive damage claim. See February 2023 Update.
Fugro USA was hired to assist in positioning the liftboat by providing GPS positioning and performing a sonar scan for debris or obstructions on the sea floor. It provided plats that showed where prior vessels had been placed in the area, but the images Fugro provided only showed the impressions left by vessels that Fugro had helped to position. Therefore, it was possible that there were holes and impressions in the area that were not reflected in the data provided by Fugro to Aries. Fugro moved for summary judgment on the negligence claims asserted against it, noting that the claimants had placed the blame for the listing of the liftboat on Aries’ captain’s failure to conduct a preload (or on the conducting of an improper preload). In response to Fugro’s motion for summary judgment, the claimants argued that Fugro owed them a duty to advise the captain that there could be additional can holes in the area, that there were dark spots on the sonar images that might be additional can holes, and to exercise stop work authority when one leg of the liftboat penetrated deeper than had been expected. Judge Africk assumed for the motion that Fugro had a duty, but he could not find causation for any of the alleged failures, reasoning that, ultimately, the accident occurred because, as the claimants alleged, the captain failed to properly preload the vessel. The claimants’ expert confirmed that when the failure of the vessel occurs after the preloading, the preload was not adequate. As the preloading was not the responsibility of Fugro, Judge Africk dismissed the claims against Fugro.
Fieldwood, the owner of the platform, chartered the liftboat to provide worker housing in support of operations taking place on its platform. Fieldwood moved for summary judgment on the injury claims on the ground that, as the time charterer, it had no control over the vessel and assumed no liability for the negligence of the crew. Judge Africk noted that time charterers owe a “hybrid duty” arising from contract and tort to avoid negligent actions within the sphere of activity over which they exercise at least partial control. He added that a time charterer may be liable for directing the vessel to encounter natural hazards, such as dangerous weather or sea conditions. The claimants argued that Fieldwood was negligent by directing the liftboat to be positioned on the east side of the platform when it knew the conditions were hazardous and by limiting the scope of the marine surveyor (Fugro) to not include geo-technical data. As the claimants’ expert opined that it was likely that either soil samples existed for the location or that penetrations were known by Fieldwood, which, if credited, would permit a finding that Fieldwood had notice of the hazardous conditions and contributed to the failure, Judge Africk denied summary judgment to Fieldwood.
Judge Africk then considered the contracts between the parties for their indemnity obligations. Fieldwood entered into Master Service Contracts with both Fluid Crane and United Fire (employers of the claimants) by which Fluid Crane and United Fire agreed to indemnify Fieldwood for injuries to employees of Fluid Crane and United Fire. The indemnity extended to Fieldwood’s contractors (such as Fugro and Aries) if they entered into contracts with Fieldwood to extend indemnity (for injuries to their employees) to subcontractors of Fieldwood (such as Fluid Crane and United Fire). Fieldwood and Fugro entered into a Master Service Contract by which Fugro agreed to provide similar indemnity to Fieldwood and its contractors. Likewise, Fieldwood and Aries entered into a Master Service Contract by which Aries agreed to provide similar indemnity to Fieldwood and its contractors. Therefore, the contracts between Fieldwood, on the one hand, and Aries, Fugro, Fluid Crane, and United Fire, on the other hand, contained provisions by which each party agreed to indemnify the others for injuries to its own employees. Consequently, Fluid Crane and United Fire were obligated to indemnify Fieldwood, Aries, and Fugro for the claims brought by the employees of Fluid Crane and United Fire if the indemnity provisions were valid under applicable law. The validity required a determination of whether Louisiana law or maritime law applied. If maritime law applied, the agreements were valid. If Louisiana law applied, the indemnity was invalidated by the Louisiana Oilfield Indemnity Act. Judge Africk applied the requirement from the Fifth Circuit’s Doiron case (whether the contract provided or the parties expected that a vessel would play a substantial role in the performance of the contract) to determine whether the contracts were maritime or not. The contracts at issue were the contracts between Fieldwood and Fluid Crane and United Fire to perform work on Fieldwood’s platform. Although Aries and Fugro were involved with the role of the liftboat, that expectation was not relevant to the contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk distinguished cases in which the contract documents provided for the use of a vessel. In this case, “Aries and Fugro may have expected the vessel to play a substantial role in the completion of the work, but the same cannot be said of Fluid Crane and United Fire.” Therefore, Judge Africk concluded that Louisiana law applied, and he denied indemnity from Fluid Crane and United Fire to Aries and Fugro. He did not, however, hold that the LOIA invalidated the requirement for payment of defense costs when the indemnitee was found to be free from fault. Thus, if Aries were ultimately found free from fault, it would be entitled to reimbursement of its defense costs. Judge Africk had granted summary judgment on liability in favor of Fugro, so Fugro was entitled to recover its defense costs. Fluid Crane requested that Judge Africk order the defense costs be split evenly between Fluid Crane and United Fire, despite the fact that only one of the seven claimants was an employee of United Fire. Judge Africk agreed that, under Louisiana law, the defense obligation was incapable of division. Therefore, he ordered that the defense obligation be divided in equal portions between Fluid Crane and United Fire. See March 2023 Update).
One of the workers employed by Fluid Crane, Gilberto Gomez Rozas, was an undocumented immigrant who was not authorized to work in the United States. During his deposition and in discovery, Rozas repeatedly invoked the protection against self-incrimination in the Fifth Amendment, refusing to answer questions related to his citizenship and personal history. Aries argued that his claim should be dismissed with prejudice because Rozas had perpetrated a fraud on the court (and to deter future parties from similar conduct). In the alternative, Aries sought a sanction that Rozas be precluded from recovering past and future lost earnings at United States’ wage rates. Judge Africk noted that the party invoking the Fifth Amendment cannot hope to gain an unequal advantage against the party he has chosen to sue and that the defendant should not be required to defend against a party who refuses to reveal the very information that might absolve the defendant of liability. Thus, the Fifth Circuit has enunciated a balancing test that dismissal is appropriate only when less burdensome remedies would be an ineffective means of preventing unfairness to the defendant. In this case, Rozas did not commit perjury or provide false documents, but his invocation of the Fifth Amendment during depositions and discovery impeded Aries’ ability to investigate the claim for damages. Consequently, Judge Africk decided that the lesser sanction of precluding Rozas from seeking future wage loss awards at United States’ rates was the appropriate sanction. With respect to past wage loss, Rozas testified that he had not been working, and it had been four years since he prepared tax returns. The parties did not brief the issue of extending the sanction to past wage losses, so Judge Africk did not address the issue of past wage losses at this time. See April 2023 Update.
Aries moved for reconsideration of the decision on the contractual allocations involving Aries, Fugro Marine, United Fire, and Fluid Crane that was discussed in the March 2023 Update. Aries, Fugro, United Fire, and Fluid Crane were parties to contracts with Fieldwood that contained indemnity provisions that were enforceable under the general maritime law but that were unenforceable under Louisiana law. Applying the Fifth Circuit’s Doiron test, Judge Africk held that the contracts with United Fire and Fluid Crane were not maritime because there was no evidence that United Fire and Fluid Crane expected the vessel RAM XVIII would play a substantial role in the completion of the contract. Aries asked Judge Africk to reconsider that decision, arguing that Judge Africk erred by not considering Fieldwood’s expectations as to the use of the RAM XVIII. Judge Africk agreed that the expectations of Fieldwood were relevant (as it was a party to each of the contracts), but he answered that Aries did not cite any authority that the expectations of one party could establish that the parties expected that a vessel would play a substantial role. Thus, further discussion of Fieldwood’s expectations would not have changed the court’s analysis. Aries also argued that Judge Africk had added a third prong to the Doiron test—”did the vessel in fact play a substantial role in the completion of the contract?” Judge Africk disagreed, stating that the decision was based on the expectations of the parties and not on the use of the vessel (he noted that the actual use was only relevant, according to Doiron, when the parties’ expectations were unclear). Consequently, Judge Africk denied Aries’ motion for reconsideration. See June 2023 Update.
United Fire also sought reconsideration of Judge Africk’s decision to divide the defense costs equally between United Fire and Fluid Crane despite the fact that six of the seven claimants were employees of Fluid Crane and only one was an employee of United Fire. United Fire cited an opinion from Judge Vance of the United States District Court for the Eastern District of Louisiana that, absent a clear agreement to the contrary, insurers who owe a co-equal duty to defend must share the cost equally. However, United Fire did not identify any portion of the contracts that constituted a “clear agreement” to share defense costs in an unequal proportion, so Judge Africk held that relief was not available for arguments that had been previously considered and rejected (Judge Africk was not impressed with the analogy to seven individuals who had dinner together and split the bill for the appetizer so that each paid 6/7 of the cost, reasoning that defense costs “cannot be divided amount the claimants in the same manner that an appetizer would be shared among diners”).
As Fluid Crane and United Fire were the employers of the workers who were injured when the RAM XVIII capsized in the Gulf of Mexico, their LHWCA carriers (American Longshore Mutual Association and the Louisiana Workers’ Compensation Corp.) paid benefits under the LHWCA for their injuries. ALMA and LWCC then brought subrogation claims to recover the benefits paid from the defendants. Fieldwood, Aries, and the plaintiffs moved for summary judgment, arguing that ALMA and LWCC had agreed to waive their rights of subrogation pursuant to the terms of the Master Services Contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk noted that the policies provided for waiver of subrogation when required by written contract, so he considered the requirements of the underlying contracts. The waiver in the MSCs extended to the “Company Group,” which was defined to include Fieldwood and its “invitees.” ALMA and LWCC argued, however, that Aries and the plaintiffs also fell under the definition of “third Party Contractor Group,” which would render the language of the indemnity and insurance sections of the contracts superfluous because all parties and contractors/subcontractors would be members of the Company Group. Fieldwood answered that there was no prohibition against an invitee satisfying another definition in the contract and that this interpretation would not lead to circular indemnity or absurd results. Therefore, Judge Africk addressed whether Aries and the claimants were, in fact, invitees, citing Louisiana law that defines an invitee as a person who goes onto premises with the expressed or implied invitation of the occupant on business of the occupant or for their mutual advantage. Fieldwood argued that it was the occupant of the platform (one who has possessory rights in, or control over, certain property or premises) and the RAM XVII (a time charterer is an occupant of the vessel because the vessel is under the ultimate direction, control, and command of the time charterer). It also argued that Fluid Crane and United Fire were invited by Fieldwood to the platform to work by their contracts and that they, and their employees, who performed the work that benefited Fieldwood, were, therefore, invitees. Judge Africk agreed that the employees of Fluid Crane and United Fire were invitees of Fieldwood and that LWCC and ALMA were required to waive subrogation in favor of the claimants. With respect to Aries, Fieldwood argued that the RAM XVIII, owned by Aries, was invited to erect itself within the boundaries of Fieldwood’s mineral lease to assist in the platform work, so Aries qualified as an invitee. Although Aries argued that no employee of Aries ever stepped foot on the platform, it did not dispute that the vessel was attached to the platform via a walkway and that its presence benefitted Fieldwood. Having concluded that Aries and the workers were invitees so that subrogation was waived, Judge Africk considered the validity of the waiver under Louisiana state law, which he had previously held was applicable to the contracts so as to invalidate the indemnity provisions. Citing the Fontenot decision from the Louisiana Supreme Court, Judge Africk noted that a waiver of subrogation provision does not violate the Louisiana Oilfield Indemnity Act if the contract does not also require indemnity. As there was unenforceable indemnity in this case, Judge Africk held that the statute did not void the waiver of subrogation (there was no evidence of payment for a “Marcel” Endorsement that would create an exception to the LOIA). Consequently, the subrogation claims of ALMA and LWCC were dismissed. See July 2023 Update.
ALMA and LWCC filed motions for reconsideration of the granting of Fieldwood’s motion for summary judgment on their subrogation claims as LHWCA carriers. LWCC argued that, notwithstanding the waiver of subrogation, it had a claim for an offset, pursuant to Section 33(f) for the net tort recovery of plaintiff Glenn Gibson. Fieldwood did not disagree with the legal proposition asserted by LWCC, but it argued that LWCC had insufficiently raised the argument in a single paragraph in its opposition with no citation to facts or legal authority, resulting in waiver of the contention. Judge Africk agreed that “LWCC’s briefing on this issue was less than clear;” however, he acknowledged that dismissal of the claim for an offset would be “legal error.” Therefore, he amended the granting of summary judgment to reflect that the order did not affect LWCC’s claim for an offset pursuant to Section 33(f). ALMA moved for reconsideration that it was not conclusively established that the vessel was attached to the platform via a walkway and that Aries did not meet the definition of an “invitee” under applicable precedent. Judge Africk, however, did not believe that the arguments were sufficient to grant reconsideration, and he denied them. Like LWCC, ALMA argued that it retained the right to claim an offset pursuant to Section 33(f). Fieldwood reiterated the argument that ALMA’s claim was waived, but, as Fieldwood did not contest the legal basis for the argument, Judge Africk granted the same relief to ALMA, that it retained the right to assert an offset against the LHWCA claim pursuant to section 33(f). See September 2023 Update.
ALMA appealed the dismissal of its intervention to the Fifth Circuit, presenting these issues:
- Whether Aries Marine is an “invitee” of Fieldwood within the definition of the “Company Group” in the applicable Master Services Contract when there is a genuine issue of material fact as to whether Aries Marine physically entered a premises controlled by Fieldwood?
- Whether the Fluid Crane Claimants qualify as “invitees” of Fieldwood within the definition of “Company Group” in the applicable Master Services Contract despite also qualifying as members of the “Contractor Group”?
- Whether the applicable Master Services Contract and ALMA insurance policy included an obligation on the part of Fluid Crane (Employer) and ALMA (Insurer) to waive subrogation in favor of Fieldwood, Aries Marine, and the Fluid Crane Claimants?
- Whether the Louisiana Oilfield Indemnity Act invalidates any purported waiver of subrogation in favor of the Fieldwood Group?
After hearing oral argument, the Fifth Circuit affirmed (without a written opinion) Judge Africk’s decision that the waiver of subrogation was not invalidated. See May 2024 Update.
Back in the district court, Aries filed a second motion for reconsideration of Judge Africk’s order granting in part and denying in part the motions for summary judgment filed by Aries, Fugro, United Fire, and Fluid Crane (holding that United Fire and Fluid Crane do not owe Aries contractual indemnity for the claims brought by Fluid Crane and United Fire employees because the indemnity provisions are unenforceable under Louisiana law). Aries asked the court to reconsider the conclusion on the ground that the decision of the Fifth Circuit in Earnest v. Palfinger was an intervening change in controlling law that confirmed that the contracts were maritime and that the indemnity provisions are valid under maritime law [an argument that was unsuccessfully made in the Offshore Oil Services case that is discussed in the November 2024 Update]. Aries argued that courts should employ a conceptual rather than a spatial analysis, (2) that courts should focus on what is considered “classically maritime” in evaluating the role of a vessel under a Doiron analysis, and (3) that the location of the work being performed under a contract is inconsequential under Doiron. Judge Long first noted that Judge Africk’s order was interlocutory and that, under Rule 54(b), Judge Long had the authority to revise the decision even in the absence of new evidence or an intervening change in or clarification of the substantive law. He did caution, however, that a successor judge should “carefully and respectfully consider the conclusions of prior judges before deciding to overturn them.” Nonetheless, Judge Long was not persuaded that he should alter Judge Africk’s ruling. He did not believe that the panel’s ruling in Earnest had changed the en banc ruling in Doiron that was applied by Judge Africk, and he added that any clarification of Doiron would not compel a conclusion that the contracts in this case are maritime. Judge Long explained that Judge Africk’s ruling correctly concentrated “on the contracting parties’ expectations.” The rulings did not rest on where the work was conducted, and there was no indication that Judge Africk would have reached a different result if he had considered what was “classically maritime” in evaluating the role of the vessel. As Judge Long was not convinced that the analysis in Earnest would have caused Judge Africk to conclude that the contracts were maritime, Judge Long declined to reconsider the ruling that the indemnity was invalid under Louisiana law. See December 2024 Update.
Aries moved for summary judgment on two of the claimants’ theories of liability, arguing that Aries’ positioning of the RAM XVIII did not cause the liftboat to capsize (based on Judge Africk’s decision granting Fugro’s motion for summary judgment) and arguing that the claimants could not invoke res ipsa loquitur to support their negligence claim because Aries did not have exclusive control over the seabed, which Aries argued was the instrumentality that caused the injuries. Judge Long disagreed with both of Aries’ assertions. He explained that a Fugro surveyor provided Aries with the information that Aries’ captain used to choose the place where to place the liftboat’s legs on the seabed; however, it was the captain who made the “last call” on where to place the liftboat, and he did not perform a preload before jacking up to ensure that the legs would not punch through the seabed. Thus, there could not be issue preclusion or law-of the case because Judge Africk did not decide the same liability issue when he granted summary judgment to Fugro. Turning to the claimants’ pleading of res ipsa loquitur, Aries argued that it did not have exclusive control over the instrumentality that caused the accident—the seabed. The claimants responded that the thing which caused the injury was the liftboat, which was under the control of Aries. As Judge Africk had found a fact question with the failure to conduct a preload, Judge Long reasoned that there was a fact question whether the liftboat was the relevant instrumentality. Therefore, he declined to grant summary judgment to Aries on the theory of res ipsa loquitur.
Judge Long then addressed the motions filed by Fieldwood, charterer of the liftboat, and Aries (owner of the liftboat) and its insurer, U.S. Specialty, with respect to allocation of responsibility between these parties for the claims brought by the employees of Fieldwood subcontractors Fluid Crane and United Fire—whether Fieldwood must defend and indemnify Aries (and U.S. Specialty) from the personal injury claims. The answer required consideration of the time charter of the liftboat by Fieldwood from Aries, the master services contracts between Fieldwood and Fluid Crane and United Fire, and the policy issued by U.S. Specialty to Aries. The time charter required Aries to procure P&I and excess insurance that named as insureds the Charterer Group (Fieldwood and certain contractors) and to waive subrogation against the Charterer Group. The requirements applied to self-insurance and deductibles. The time charter included subcontractors within the indemnity of Aries and required Fieldwood to execute an agreement with its contractors with cross-indemnity and waiver of subrogation provisions. U.S. Specialty’s insurance policy contained P&I coverage that named Fieldwood as an insured with a waiver of subrogation when required by contract. The master services contracts between Fieldwood and Fluid Crane and United Fire contained cross-indemnity provisions requiring Fluid Crane and United Fire to indemnify Fieldwood’s contractor group (including Aries). The reciprocal cross-indemnification provisions would require Fluid Crane and United Fire to defend and indemnify both Fieldwood and Aries for injuries to the claimants (employees of Fluid Crane and United Fire), except that Judge Africk held that the indemnity was invalid under the LOIA. Aries and U.S. Specialty then sought indemnity from Fieldwood, arguing that the time charter required indemnity from Fieldwood with respect to the injury claims of employees of contractors of Fieldwood. Judge Long applied maritime law to the obligations under the charter party and Louisiana law to the policy issued by U.S. Specialty (citing Fifth Circuit cases that were based on Wilburn Boat). As the time charter required a waiver of subrogation from Aries’ insurers, and as the U.S. Specialty policy contained a waiver when required by contract, Judge Long held that Aries and U.S. Specialty had no rights to pursue Fieldwood. Judge Long then addressed the argument of Aries and U.S. Specialty that Fieldwood could not enforce the waiver of subrogation because Fieldwood breached the time charter by not obtaining valid indemnity from Fluid Crane and United Fire that extended to Aries and U.S. Specialty (as the indemnity was voided by the LOIA). Judge Long disagreed. He agreed that the time charter required the cross-indemnity provisions, but he answered that the time charter did not require that the indemnity provisions be valid. As in the Fifth Circuit’s LeBlanc case, Judge Long concluded: “Had Fieldwood and Aries wished to condition the waiver-of-subrogation and additional-insured provisions of the Time Charter on ‘the legal enforceability of’ the indemnity provisions in the Master Services Contracts, ‘they very easily could have done so.’” Judge Long then addressed the claims of Aries and U.S. Specialty that Fieldwood was required to defend and indemnify them pursuant to the indemnity provisions in the time charter. His analysis with respect to the waiver of subrogation applied similarly to the argument of Aries and U.S. Specialty that Fieldwood was required to indemnify them in the event it failed to obtain cross-indemnity provisions with subcontractors Fluid Crane and United Fire. Fieldwood cited a “thoughtful but nonprecedential” 2006 decision from Judge Fallon of the United States District Court for the Eastern District of Louisiana, which reasoned: one indemnification agreement was not substantially similar to another because the latter agreement was ‘void and unenforceable,’ and ‘a void and unenforceable indemnity agreement is the functional equivalent of no indemnity agreement.’” Judge Long distinguished the language in the contract construed by Judge Fallon, answering that the language in the time charter in this case did not condition the insurance obligations on the enforceability of the indemnity provisions. Finally, Judge Long noted that the indemnity excluded claims that are caused, in whole or in part, by the gross negligence of the Owner Group (Aries and U.S. Specialty). As Judge Africk declined to grant Aries’ motion for summary judgment on the punitive-damage claims against it, Judge Long declined the indemnity sought by Aries and U.S. Specialty for the claims that sought punitive damages.
This case involves the shutdown of the Sea Robin natural gas processing plant located in Erath, Louisiana. Sea Robin Pipeline, operator of a gas pipeline system that brought gas to the plant from the outer Continental Shelf off the coast of Louisiana, and some of the owners of the plant, brought suit in state court in Vermillion Parish, Louisiana, against several Enterprise entities as owner/operator of the plant, seeking equitable and other relief related to the shutdown. The Enterprise defendants removed the case to federal court, asserting federal question jurisdiction because the court would have to apply federal law in connection with the federally imposed duty under the National Gas Act that Sea Robin provide open and nondiscriminatory access to its pipelines. The Enterprise defendants later amended their notice of removal to argue that the suit fell within the jurisdiction of the Outer Continental Shelf Lands Act, because it related to development and production of minerals from the outer Continental Shelf. The plaintiffs moved to remand the case and for an award of attorney fees, and Magistrate Judge Whitehurst rejected both grounds claimed for federal removal jurisdiction. With respect to the National Gas Act, Magistrate Judge Whitehurst held that a determination whether the Enterprise defendants breached a duty to the plaintiffs did not require resort to the federal statute—the plaintiffs did not ask the court to declare any party’s rights or obligations under the statute or to remedy any violation of the law. Magistrate Judge Whitehurst then considered whether the suit involved a controversy arising out of or in connection with operations on the outer Continental Shelf that involved exploration, development, or production of minerals. The Enterprise defendants argued that the cessation of operations at the plant would force producers and well operators to shut-in their wells on the OCS, which would cause loss of Sea Robin’s pipeline customers. Magistrate Judge Whitehurst agreed with the plaintiffs, however, that the dispute had “nothing to do with the continental shelf” and instead involved “the operation of a Plant located in Erath, Louisiana.” She added that the activity that caused the injury was not an operation on the outer Continental Shelf. Accordingly, she recommended that the court remand the case for lack of federal jurisdiction. However, she declined to award attorney fees against the defendants for an improper removal, reasoning that the cases cited by the parties illustrated “that the existence of federal question jurisdiction in such cases is not always indisputable.” Judge Joseph adopted the recommendations, remanded the case, and declined to award attorney fees.
Opinion Reinsurer Direct Action
This litigation arises from an allision between a tug and barge (the tug M/V BIG HORN and barge CHELSEA A, owned by Gulf Inland Contractors) and the Bayou Terrebonne Miter Gate Lock System while the tug and barge were transiting Bayou Terrebonne in Louisiana. The Lock System is owned (and was built by) the Terrebonne Parish Consolidated Government, and Terrebonne Levee and Conservation District is responsible for operating and maintaining the lock system. Gulf Inland filed this petition for exoneration/limitation in federal court in Louisiana, and Terrebonne Parish/Terrebonne Levee and their insurer Great American filed claims seeking to recover for negligence and unseaworthiness. Gulf Inland moved for summary judgment on the unseaworthiness claim, arguing that the claimants are not owed the warranty of seaworthiness because owners of a marine structure with which a vessel allided do not fall within the narrow class of persons owed the warranty of seaworthiness. The claimants did not disagree, and Judge Barbier granted summary judgment on the unseaworthiness claim, holding that the liability of Gulf Inland would be measured under the standard of reasonable care.
In response to the claims filed in the limitation action, Gulf Inland asserted that there was comparative fault on the part of the claimants as well as GIS Engineering and Sealevel Construction (for a defect in the design and function of the lock structure that was designed and built by GIS and Sealevel). However, Gulf Inland did not file a third-party complaint against GIS and Sealevel, and Great American argued that fault could not be attributed to the non-parties, reasoning that liability under the maritime law is joint and several and that the claimants could obtain a judgment for the full amount from all joint tortfeasors. Judge Barbier agreed that joint tortfeasors are held jointly and severally liable; however, he added that a joint tortfeasor’s liability is determined through comparative fault under Reliable Transfer. He rejected the argument that the doctrine of comparative fault enunciated in Reliable Transfer only applied to collision cases, and he held that Gulf Inland was not required to make GIS or Sealevel third-party defendants in order for their fault to exonerate or reduce the liability of Gulf Inland.
After the allision, the claimants had discussions with Gulf Inland’s insurer, Clear Spring Property & Casualty Co., until Gulf Inland filed the limitation action. The claimants brought Clear Spring into the litigation as a third-party defendant, seeking attorney fees, penalties, and special damages for failure to timely pay for the property damage under the Louisiana Insurance Code. Clear Spring and Gulf Inland moved for summary judgment, arguing that attorney fees are not recoverable under the general maritime law and that penalties are non-pecuniary and are not recoverable under the general maritime law. Judge Barbier agreed that this case is governed exclusively by the general maritime law and that attorney fees and penalties for bad faith claim handling are not available in the claimants’ action against the vessel’s insurer. Therefore, he granted summary judgment dismissing those claims.
Terrebonne Levee and Conservation District (TLCD) sought damages for engineering costs, cost of repairs, costs associated with retrieving and backing up security footage, payment of wages of TLCD employees, and administration costs. Gulf Inland moved for summary judgment on TLCD’s claims, citing the economic loss rule from Robins Dry Dock, arguing that TLCD had no proprietary interest in the lock system that would allow it to recover economic losses. TLCD argued that it had a sufficient proprietary interest in the lock system because it operated the system with actual physical possession and was responsible for repairing the damage. Judge Barbier agreed that something less than outright ownership was sufficient to bring a claim for economic loss, but the party would have to be “tantamount to an owner.” Finding that there was a genuine fact issue whether TLCD had a sufficient interest to be considered an owner, Judge Barbier denied Gulf Inland’s motion for summary judgment. See October 2024 Update.
The issue of reinsurance was then addressed by the parties and Judge Barbier. Great American, the property insurer for Terrebonne Parish, filed a subrogation claim in Gulf Island’s limitation action and a third-party action (under the Louisiana Direct Action Statute) against the liability insurer for Gulf Island (Clear Spring) and its unnamed reinsurers. Great American was taking steps to avoid the result in a previous case in which the reinsurers were dilatory in paying settlements. Great American argued in the present action that Clear Spring was a “fronting” insurer that allowed reinsurers to write policies on Clear Spring’s paper, such that the reinsurance agreement would be a contract of liability and not indemnity, allowing Great American to bring suit directly against the reinsurer under the Louisiana statute. Clear Spring submitted four redacted reinsurance agreements that contained a provision stating that the reinsurance did not confer any rights on third parties and moved to stay discovery with respect to reinsurance and to dismiss the direct action. However, Great American sought the unredacted agreements to evaluate the risk allocation provisions and moved to compel production. Judge Barbier believed that Great American had sufficiently stated how the discovery would uncover its claim that the reinsurers may be liable under the Direct Action Statute. Therefore, he declined to stay discovery and referred the discovery request to Magistrate Judge Dossier to address the scope of discovery. Similarly, Judge Barbier denied the motion to dismiss, without prejudice, pending the additional discovery, reasoning that “if there is language in a reinsurance agreement indicating that the reinsurer agreed ‘to assume and carry out directly with the policyholder any of the policy obligations of the ceding insurer’ then the reinsurance agreement is one of liability.”
Ngozi Ogbo, Iruka Ndubuizu, Glads Azinge, and Jane Ogbonna hired ABC Trucking & Logistics to arrange for transportation of two vehicles from Atlanta, Georgia to Onne, Nigeria. CSX was engaged to provide the rail transport of the vehicles from Atlanta to the Port of Savannah, Georgia, and Maersk Line was engaged for the ocean transportation. Maersk issued a multimodal waybill, listing Atlanta as the place of receipt, Savannah as the port of loading, and Onne as the port of discharge. The vehicles did not arrive because of a rail accident, and Ogbo brought suit in state court in Georgia, but the judge dismissed the case based on a forum-selection clause in the waybill. Ogbo, Ndubuizu, Azinge, and Ogbonna then brought this suit in federal court in Georgia against CSX, Maersk Line, and others for breach of contract and negligence, claiming losses exceeding $210,000 [for a 2006 Toyota Sienna and a 2010 Ford Escape]. Most of the case was transferred to the United States District Court for the Southern District of New York in accordance with the forum-selection clause in the waybill. CSX moved to dismiss the claims against it based on the provisions of the Maersk Line waybill, citing the Himalaya Clause extending the contractual protections to contractors and the covenant not to sue that released contractors like CSX from liability. The plaintiffs argued that they did not agree to the waybill, but Judge Ramos held that the plaintiffs had brought a claim for breach of contract that relied on the waybill and that they were bound by its terms. Judge Ramos considered the terms of the waybill and concluded that they applied to CSX and that the limitation on liability applied. He reasoned: “Plaintiffs knew that to transport their cargo from Atlanta, Georgia to Nigeria, the cargo would have to travel by land and sea using multiple different carriers. Therefore, they consented to subcontractors handling their cargo, subjecting them to the Waybill.” Accordingly, Judge Ramos granted CSX’s motion to dismiss.
Arlene Mitchell, a passenger on the CARNIVAL CONQUEST, was injured when she slipped and fell near the soft serve station on the vessel where the deck transitioned from carpet to tile and had become wet and slippery. Mitchell brought suit against the cruise line in federal court in Florida, alleging counts for negligent failure to remedy, negligent failure to warn, negligent design/installation/approval of the floor and vicinity, vicarious liability for the acts of the crew, and vicarious liability for the negligent design/installation/approval of the floor and vicinity. The cruise line moved to dismiss the last claim (vicarious liability for negligent design/installation/approval of the floor and vicinity), arguing that Mitchell could not escape the notice requirement because she pointed to no “identifiable employee-actor’s interaction with a third party.” Judge Altman disagreed, noting that Mitchell had identified specific employees (employees who worked in the cruise lines’ New Build and Refurbishment departments who planned, organized operated, and/or controlled the design, construction, and selection of materials). He then added that Mitchell set forth her allegations of the ways in which these specific employees behaved negligently in the design of the CONQUEST. As the pleading was sufficient to state a claim for vicarious liability for negligent design, Judge Altman declined to dismiss the count.
Mildred Ortiz Cruz, a passenger on the CARNIVAL MARDI GRAS, slipped and fell on water on the floor of Deck 18 of the vessel. She brought this suit against the cruise line in federal court in Florida, claiming that the cruise line negligently maintained the premises, failed to inspect the floors, and failed to warn passengers of the dangerous condition. She asserted that the condition of the slippery floor was created by the cruise line or existed for a sufficient time that the cruise line should have discovered and corrected it. The cruise line moved to dismiss the complaint for failure to sufficiently allege notice, and Judge Martinez agreed that notice had not been sufficiently pleaded. He reasoned that, even if the conclusory statement that the cruise line created the condition were accepted as true, it did not allege how the cruise line was aware of a dangerous condition. Judge Martinez added that the allegation that the condition existed long enough to have been discovered and corrected failed to provide the specific facts about how long the condition existed or that it had existed for a sufficient time for corrective action. Finally, Judge Martinez rejected Cruz’s argument that notice could be inferred from the ship’s routine inspection protocols for the same lack of details about the amount of time the condition existed. Therefore, Judge Martinez dismissed the complaint with leave to file an amended complaint.
This litigation arises from a collision in the Sheepscot River in Boothbay Harbor, Maine between Linda Harper’s Boston Whaler and a Sea Ray motor boat owned and operated by Thomas Tavenner, Jr. Linda and her husband brought this suit in federal court in Maine against Tavenner, including a standalone count for punitive damages. Tavenner moved to dismiss the count seeking punitive damages, arguing that the complaint failed to allege facts sufficient to establish a cognizable claim under maritime law or Maine law. Magistrate Judge Wolf declined to address whether the allegations were sufficient, stating that it is not “appropriate to adjudicate by Rule 12(b)(6) motion whether punitive damages are recoverable.” Therefore, she recommended that the court decline to resolve the issue on the motion to dismiss. Tavenner did not object to the recommendation, and Judge Torresen adopted the recommendation and denied the motion to dismiss.
Marilyn Rolfs, a passenger on the MSC SEASCAPE, slipped and fell on a wet floor while walking from the vessel’s open dining area after lunch. While she was still on the floor, she observed a wet floor sign that she claims was misplaced so that it failed to warn her of the extent of the wet floor. When the crew came to her aid, she overheard a crewmember acknowledge that the deck was still wet (the crewmember directed another crewmember to re-dry the area where Rolfs fell). Rolfs brought this action against the cruise line in federal court in Florida, and the cruise line moved to dismiss the case for lack of personal jurisdiction and for failure to properly plead a negligence claim. The cruise line argued that it is a foreign entity, that it does not have a principal place of business in the United States, and that the injury did not occur in the United States. Judge Leibowitz easily dismissed the argument, noting that the ticket contained a forum-selection clause for the Southern District of Florida, which demonstrated the cruise line’s purposeful availment of the forum. Judge Leibowitz added that Rolfs’ pleading that the cruise line carried out business ventures in Miami-Dade County and operated vessels in Florida waters was sufficient to satisfy the Florida long-arm statute. The cruise line then argued that Rolfs did not allege notice for her negligence counts for a slipping hazard and failure to warn. The cruise line asserted that Rolfs failed to allege substantially similar prior incidents or that the condition existed long enough to provide the cruise line with notice. Judge Leibowitz disagreed, answering that the combination of the pleaded facts was sufficient—the existence of the wet floor sign and the employee’s acknowledgement of the wet floor and direction that it be re-dried. Judge Leibowitz agreed that not all warning signs are evidence that the defendant was on notice of the specific condition that was involved in the accident. However, the statement that the floor was “still” wet indicated that the crew had actual notice of the wet deck where Rolfs fell. Accordingly, Judge Leibowitz declined to dismiss the negligence claims.
CH Offshore, a Singapore company that supplies offshore vessels for the marine oil and gas industry, chartered a supply ship to Mexiship Ocean CCC S.A. de C.V., an energy company based in Mexico for a term of 18 months. There was a dispute whether Mexiship Ocean violated the charter and retained the vessel after the expiration of the charter, and an arbitration in Singapore awarded damages to CH Offshore against Mexiship Ocean. CH Offshore then filed this suit in federal court in Texas, seeking to garnish a bank account that an affiliate of Mexiship Ocean (Mexiship Texas) maintains in Vantage Bank Texas. Non-party Mexiship Texas moved to vacate the writ of garnishment on the ground that the bank account belonged to Mexiship Texas and not Mexiship Ocean. CH Offshore then asked for leave to amend its complaint to plead Texas garnishment law as an alternative for the garnishment of funds, but Judge Hittner did not believe that CH Offshore demonstrated good cause for an amendment. Turning to the motion to vacate the garnishment, Judge Hittner found no evidence that Mexiship Texas maintained any of Mexiship Ocean’s property in Texas (including in the Vantage Bank account). Consequently, he vacated the garnishment.
Ronnie Daniels applied for a professional fishing guide program insurance policy covering his 2020 Blue Wave boat. Atlantic Specialty Insurance Co. issued the policy, and Daniels received a copy of the policy on April 10, 2023. The boat was damaged and capsized on July 17, 2023, and Daniels presented a claim. The amount owed for the damage was disputed, and Daniels filed this suit in state court in Harrison County Mississippi against Atlantic Specialty for breach of contract, bad faith, negligence, and gross negligence, and Atlantic Specialty removed the suit based on diversity. Atlantic Specialty then moved to stay the suit and to compel arbitration based on the arbitration clause in the policy. Daniels argued that he was not notified that the policy contained an arbitration provision, and he did not sign the policy. Therefore, there was no meeting of the minds. Judge Guirola responded that Daniels did receive the policy and made premium payments. Thus, Daniels “accepted the terms of the policy through his payment of premiums and is bound regardless of whether he knew about the arbitration provision.” Judge Guirola also rejected Daniels’ unconscionability argument that the provision was buried in the final pages of the policy, noting that the table of contents listed “Arbitration” as a heading, and he rejected Daniels’ assertion that the policy was offered on a take-it-or-leave-it basis, as there was no evidence that he requested removal or negotiated any terms of the policy. Accordingly, Judge Guirola granted the motion to compel arbitration.
Cabras Marine, a Guam corporation, and Saipan Crewboats, a Northern Mariana Islands corporation, jointly provide ferry services for passengers and cargo between the ships of the Maritime Prepositioning force in the Mariana Islands. Kyle Podziewski, a United States citizen residing in Saipan in the Northern Mariana Islands, was injured while riding as a passenger on a ferry owned by Cabras Marine, and he brought this suit in the Superior Court for the Commonwealth of the Northern Mariana Islands against Cabras Marine and Saipan Crewboats, asserting a claim for negligence. The defendants removed the action to federal court based on the court’s original admiralty jurisdiction and the jurisdiction of the Suits in Admiralty Act and the Public Vessels Act, and Podziewski moved to remand the case to the superior court. Citing the majority rule, Chief Judge Manglona held that the case was not removable under the court’s original admiralty jurisdiction, and she also held that the defendants had failed to establish that Podziewski’s exclusive remedy was against the United States under the Suits in Admiralty Act or the Public Vessels Act (he was injured while on a ladder attached to a United States vessel, but his allegations were based on the actions of the private defendants). As the defendants were not acting as agents of the United States, Chief Judge Manglona remanded the case.
Lesroy St. Bernard Christian, a passenger on the CARNIVAL CONQUEST, slipped and fell in liquid on the deck in front of the ice cream and beverage station on the 9th floor of the vessel. He brought this suit in federal court in Florida against the cruise line for negligence and failure to warn, and the cruise line moved to dismiss the complaint for failure to properly allege notice. Christian alleged that his wife had seen liquid on the ground in the exact area of the fall on each of the two days before the incident, that the cruise line has been sued previously for the dangerous condition posed by the drink machine, that there are company policies calling for warning signs or cones at the drink stations in buffet areas, that the cruise line had a policy to “own the spill,” recognizing that spills are common near drink stations, and that the crew inspected, cleaned, and serviced the beverage station multiple times a day. The cruise line responded that Christian did not allege a specific length of time that the condition existed or that there was a crewmember in the vicinity. Magistrate Judge Goodman concluded that the complaint sufficiently, “but barely,” alleged notice, citing Ms. Christian’s testimony about the propensity for liquid to be on the deck the previous days and that the cruise line should have discovered the liquid from its inspection, cleaning, and servicing of the machine. Magistrate Judge Goodman also concluded that the allegations about the prior incident (which involved the same defense attorney) were sufficient. Therefore, Magistrate Judge Goodman recommended that the motion to dismiss be denied.
Maurene Carolina Gonzalez, a citizen of Ecuador, was employed as a bar server at the piano bar on the CARNIVAL SUNRISE. She asserts that she received unwelcomed advances and sexual harassment from bartender Patrick, and she complained of the hostile work environment to Georgiv Staniv, the assistant bar manager. She claims she was told to be quiet, submissive, and obedient, and she was transferred to the night club bar where she was victim to sexual harassment and assault by bar server Leon Patterson. Gonzalez complained to Staniv, who told her he did not want to hear any more complaints and transferred her to the pool bar. Gonzalez also complained to staff captain Carlos Tenaca, who reported the complaints to human resources. No action was taken for lack of evidence, and Gonzalez was transferred to the lobby bar. Gonzalez brought this suit against the cruise line in federal court in Florida, claiming intentional infliction of emotional distress, and the cruise line moved to compel arbitration based on the arbitration clause in her employment agreement, pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Gonzalez argued that the clause was unenforceable based on the Ending Forced Arbitration of Sexual Assault and Harassment Act of 2021, which invalidates pre-dispute arbitration clauses related to sexual assault or harassment with respect to “a case which is filed under Federal, Tribal, or State law” (9 U.S.C. Section 402(a)). Judge Moore answered that the only cause of action brought by Gonzalez was for intentional infliction of emotional distress and not for conduct that violated a law prohibiting sexual harassment. Therefore, the statute did not apply to invalidate the arbitration clause. Gonzalez also argued that her claim was not subject to arbitration because it did not arise out of her employment relationship; however, the delegation clause of the arbitration provision provided that all disputes about arbitrability were to be resolved by the arbitrator. Consequently, Judge Moore granted the motion to compel arbitration.
Lynne Caloggero, a passenger on the CARNIVAL CELEBRATION, attended a show at the Punchliner Comedy Club on Deck 6 of the vessel. As she left, she heard Christmas music at the Center Stage, but it was crowded with no place to sit. One exit contained a stair with railings. Caloggero did not see the stair and fell. She brought this suit against the cruise line in federal court in Florida, and the cruise line moved for summary judgment on the ground that it was not on notice of a dangerous condition and because the stair was an open and obvious condition. The cruise line argued that it lacked knowledge of a dangerous condition of the stair because Caloggero’s husband, who was walking immediately ahead of her walked down the stair with no problem, Caloggero admitted that she would probably seen the stair if she had looked down, and no one blocked her path to exit or bumped into her. Nonetheless, Judge Bloom did find notice from the evidence that the area surrounding the step and railings was dangerously crowded so that it would conceal the stair (and there were crewmembers present who were aware of the crowded condition). As the dangerous condition was overcrowding, however, Judge Bloom held that the overcrowding was open and obvious, which precluded liability on the claim of negligence for failure to warn.
Ital Brokers, insurance broker for insured Grimaldi Group, brought this garnishment action against Redbridge Insurance Co., claiming that Redbridge owed amounts due under an insurance policy issued to Grimaldi. Alleging that FirstBank Florida may be holding property belonging to Redbridge, Ital Brokers brought this suit against Redbridge in federal court in Florida pursuant to Supplemental Rule B, stating that the dispute would be resolved in Norway (in accordance with the forum-selection clause in the policy) as soon as security is obtained. The Bank answered that it did not have any accounts subject to the writ at the time of its answer, and Redbridge moved to dismiss the proceeding because it did not have any property within the district. Ital Brokers responded by moving for jurisdictional discovery to determine if Redbridge has any property in the district. Reasoning that jurisdictional discovery is “highly favored” when there is a dispute as to jurisdiction, Judge Bloom held that Ital Brokers would be given an opportunity to conduct discovery bearing on the existence of jurisdiction.
This case arises from a collision between a vessel owned and operated by Peter J. Mackey and a vessel owned by Freedom Marine Sales and Freedom Boat Club. Mackey filed this suit in federal court in Florida, seeking exoneration/limitation of liability, and Freedom filed an answer and claims (seeking damages, contribution, and indemnity). Mackey filed an answer to the claims. Mackey later amended his complaint, seeking only exoneration of liability, and Freedom again filed an answer with the same claims as previously asserted. Mackey responded with a motion to dismiss under Rule 12(b)(6), arguing that Freedom’s allegations were insufficient to state a claim, that the indemnity claim was barred by Mackey’s allegation that Freedom was at fault, and that the contribution claim was premature. Freedom responded that Mackey waived his right to bring the motion by previously answering and not moving to dismiss the same claims, that the claims were sufficiently pleaded, and that the indemnity and contribution claims are permitted under admiralty law. Magistrate Judge Adams reasoned that an amended complaint does supersede the initial complaint; however, its filing does not automatically revive all defenses or objections that the defendant may have waived in response to the initial complaint. Magistrate Judge Adams concluded that because Mackey answered (instead of moving to dismiss) the identical claims, he could not now move to dismiss them under Rule 12(b)(6). Therefore, she recommended denial of the motion to dismiss.
James Smith, a passenger on the CARNIVAL GLORY, was injured when the motorized scooter that he rented tipped and fell when he was reversing and turning the scooter to exit in an unusually small and narrow doorway from a restaurant on the vessel. Claiming that the old scooter and doorway and flooring were dangerous, Smith brought this action against the cruise line in federal court in Florida, adding a count for vicarious liability for negligent design/installation/approval of the surface where Smith was injured in an amended complaint. The cruise line moved to dismiss the added vicarious liability claim for negligent design, arguing that it was redundant and duplicative of the complaint’s existing count seeking to recover for direct liability for negligent design and because the new count was improperly alleged. Magistrate Judge Goodman rejected the argument that the vicarious liability count was duplicative, answering that the passenger could plead alternative theories of liability and that the count alleged the employee’s notice even though it asserted that notice was not required for employee negligent acts. Turning to the sufficiency of the allegations for vicarious liability, Magistrate Judge Goodman noted that the complaint alleged that cruise line employees were assigned to design, construct, and/or select materials for the cruise ships; that they worked for departments including the New Build and Refurbishment Departments; that the employees in those departments created, reviewed, or approved the designs, construct, and selection of materials for the ships; and that the employees custom designed and custom built the CARNIVAL GLORY to their specifications, including the small, narrow, uneven, and lumpy area where Smith was injured. Smith alleged that the employees failed to design/construct the area in compliance with industry standards and, instead, selected and designed materials that were unreasonably dangerous. This was sufficient to plead a claim for vicarious liability, and the fact that Smith also made the superfluous allegation that the employees had notice did not require dismissal. Therefore, Magistrate Judge Goodman recommended that the motion to dismiss be denied.
The battery on Brandon P. Wolcott’s vessel, BOLERO, died while the vessel was traveling from New York City to North Carolina. Wolcott was a member of Sea Tow, and he contacted Sea Tow to request a tow to the nearest marine facility in Barnegat Bay, New Jersey. Sea Tow had no available boats within range and contacted TowBoatUS, which contacted its local affiliate, TowBoatUS Barnegat Light. TB Barnegat agreed to tow the vessel to the Silver Cloud Marina, but during the tow the vessel began to take on water and it was grounded on a sandbar in Barnegat Bay. Eventually, the vessel was salvaged at a cost of $65,000, paid by the BOLERO’s insurer, Progressive, but there was damage to the vessel and personal belongings. Wolcott filed this suit against TowBoatUS Barnegat Light and others with an application to proceed in forma pauperis (bringing claims for negligence, breach of contract, and pursuant to the Ports and Waterways Safety Act). Wolcott asserted that he had been employed as a sound engineer in a theater, but the COVID pandemic caused the industry to shut down. He purchased the BOLERO to start a chartering business, but this incident caused him significant financial hardship. Judge Kirsch agreed that Wolcott had sufficiently pleaded his hardship and allowed him to proceed in forma pauperis. Judge Kirsch then reviewed the sufficiency of the complaint and agreed that the court had admiralty jurisdiction over the claims because the alleged tort had the potential to disrupt maritime commerce and had a significant relationship to traditional maritime activity. Judge Kirsch noted that the statute had been repealed in 2018, but that certain sections had been transferred. However, Judge Kirsch could not glean any private cause of action from those sections, and he dismissed the claim for violation of the Ports and Waterways Safety Act. Judge Kirsch also dismissed the claim for breach of contract because Wolcott did not identify the contract or provisions that were breached. However, Judge Kirsch did allow the negligence claim to proceed, noting that the towing vessel has a duty to exercise reasonable care during the tow, and Wolcott alleged a breach of duty for towing the BOLERO at an unexpectedly high speed, resulting in the damage.
Elmer Marin was employed as a stateroom host aboard the DISNEY WONDER pursuant to an employment agreement that incorporated a collective bargaining agreement with an arbitration provision. Marin alleges that he became sick from eating Jamaican coconut bread that was brought aboard the ship from the Port of Falmouth, Jamaica by another crewmember and that marijuana was secretly within the bread. Marin tested positive for marijuana, and his employment was terminated. On February 17, 2023, Marin brought suit against the cruise line in state court in Brevard County, Florida, including counts for Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, wages, breach of contract/wrongful termination, and intentional infliction of emotional distress. More than a year later, on June 7, 2024, the cruise line removed the case to federal court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) and moved to compel arbitration. Marin opposed the motion and moved to remand the case to state court. Marin argued that he never received a copy of the collective bargaining agreement and there was no meeting of the minds with respect to arbitration. Judge Dalton answered that there is no requirement in the New York Convention for a meeting of the minds and that the arbitration agreement can be incorporated by reference into the contract (Marin did sign a schedule to the contract stating that the collective bargaining agreement was incorporated and available for review). The arbitration clause applied to “discipline and termination of employment,” and that specific provision governed over the general forum-selection clause for The Bahamas. Judge Dalton noted that the complaint asserted claims for Jones Act negligence, unseaworthiness, and maintenance and cure that might not on their face appear to arise from the termination of employment, but the allegations in the complaint and the testimony in Marin’s deposition indicated that all of his damages arose from the termination. Marin argued that the cruise line waived its right to arbitrate by engaging in litigation in state court, but Judge Dalton held that the cruise line’s efforts in state court were directed to determining whether the allegations being asserted by Marin were subject to the arbitration provision. Therefore, he denied the motion to remand and granted the motion to compel arbitration.
The S.S. JOHN BARRY, a Liberty Ship built during World War II, sank on August 28, 1944 after it was torpedoed by the German submarine U-859 in the Arabian Sea approximately 160 nautical miles southeast of the Port of Salalah in Oman. It carried refinery construction materials, railway lines, some war materials for allied forces in the Persian Gulf, and 3 million American-minted Saudi silver Riyal Coins for the workers of the Arabian American Oil Co. who were building oil refineries and other facilities. It was rumored, however, to also have carried tons of silver bullion, which was steadfastly denied by the US Government. In 1989, a group led by a retired Navy officer and American businessmen formed a partnership (The John Barry Group) and purchased the right to salvage the vessel from the United States (paying $50,010 and 20% of the value of anything salvaged). The John Barry Group entered into agreements with investors and recovery groups, and some silver coins were recovered. Eventually these groups stopped working on the salvage, and Deep Water Resources began efforts to locate the bullion that it believes is part of the wreckage. Deep Water asserts that it does not seek any salvage of the vessel, the coins, or other artifacts from the wreck. It is only pursuing salvage for the abandoned silver bullion that it believes is at or near the wreck. Deep Sea brought this suit in federal court in New Jersey, seeking either ownership of the silver bullion in accordance with the Law of Finds or a salvage claim. It also seeks injunctive relief to protect it from interference from third parties with respect to the bullion. The United States moved to intervene to assert its interest in the wreck of the vessel and any cargo purported to be on the vessel. Deep Sea argued in response that the United States has never owned the bullion and previously stated that it only owned silver coins and machinery parts. However, the United States noted that in its initial invitation for bids it indicated that there was silver bullion of unknown quantity on the vessel. As the United States never abandoned that claim, Magistrate Judge Pascal believed that the United States had set forth a sufficient claim for potential ownership to the silver bullion. Therefore, she permitted the intervention.
Platypus Marine performed maintenance and repair on the yacht ALASKAN GRANDEUR, owned by Alaska Legacy and operated by Glacier Guides, for more than 15 years before the dispute that resulted in this litigation. After Glacier Guides declined to pay what Platypus Marine charged for repairs conducted on the vessel during the winter of 2022, Platypus Marine brought this suit against the yacht, in rem, and its owner and operator, in personam. Alaska Legacy posted security of $178,091.85 for the release of the vessel and filed a counterclaim, alleging that Platypus Marine performed work that was unauthorized and that was defective. Alaska Legacy then sought countersecurity pursuant to Supplemental Rule E(7), and Platypus Marine objected, arguing that the counterclaim did not plead an amount in damages and was frivolous. Judge Holland rejected the arguments, stating that the court was “unpersuaded that it should read Rule E(7) out of existence if a counterclaim does not state a damages amount.” Alaska Legacy submitted a value for its counterclaim through its expert witness ($224,810), and Judge Holland ordered countersecurity in that amount. See August 2023 Update.
Platypus Marine and Glacier Guides each moved for summary judgment. Platypus Marine argued that the parties had entered into a contract on a time-and-materials basis, and that it was owed a balance of $272,253.74. Glacier Guides issued checks for that amount in order to obtain the release of the vessel and then immediately stopped payment on the checks. It defended the claim with evidence that the work performed was defective and incomplete and that a substantial amount had been performed without approved work orders or change orders. Platypus Marine argued that Glacier Guides was now prevented from disputing the amount owed under the doctrine of satisfaction and accord because Glacier Guides had issued checks in the full amount allegedly owed without protesting the amount. Glacier Guides responded that there was a bona fide dispute over the amount owed and that Glacier Guides had to make the payments so that it would not default on its contracts for the vessel. Reasoning that there was a factual dispute whether there was an agreement to settle the amount owed and that there were disputes as to whether Platypus Marine overcharged for its work, Judge Holland declined to grant summary judgment to Platypus Marine. Glacier Guides moved for summary judgment on its counterclaim, contending that the limited warranty in Platypus Marine’s terms and conditions (limiting contract and tort liability to $100,000, regardless of negligence) was invalid and unconscionable under the general maritime law. Platypus Marine argued that if it was successful on its claim of accord and satisfaction, the counterclaim would fail. As Judge Holland declined to grant summary judgment to Platypus Marine, he addressed Glacier Guides’ motion. Citing the decisions of the Ninth Circuit, Judge Holland noted that the parties to a repair contract could validly stipulate that the shipowner assumed all liability for damage to the vessel, even when occasioned by the negligence of the shipyard, as long as there was no evidence of overreaching. Although Glacier Guides argued that there was overreaching because the contract terms were presented on a “take it or leave it” basis, Judge Holland answered that the Ninth Circuit had refused to invalidate an exculpatory provision in a ship repair contract where the ship owner assented to the agreement without complaint. As Glacier Guides did not object, there was no fact question on overreaching. Glacier Guides also argued that the limitation on the warranty failed on its essential purpose under UCC principles (indicative of general maritime law). Judge Holland did not consider that there was a failure of the essential purpose of the limited warranty because Glacier Guides could still recover $100,000 in damages if there was defective work and Platypus Marine did not repair the defective work. Consequently, Judge Holland declined to grant summary judgment to Glacier Guides. See January 2024 Update.
The parties engaged in settlement discussions, and Glacier Guides did not seek to compel Platypus Marine to deposit the required countersecurity. When Glacier Guides did eventually move for the deposit of countersecurity, Platypus Marine responded that it would proceed solely in personam against Glacier Guides, and it proposed a stipulation to release the security posted by Glacier Guides so that Platypus Marine would not have to post countersecurity. However, Platypus Marine had not voluntarily dismissed its in rem claim or otherwise relinquished it. As its in rem claim remained, Judge Kindred ordered the deposit of the countersecurity in the amount of $224,810. See August 2024 Update.
After the case was reassigned from Judge Kindred to Judge Gleason, Platypus filed a motion for reconsideration, noting that it had dismissed its in rem claim without prejudice. Judge Gleason did not believe that was sufficient, stating that Platypus Marine must dismiss its in rem claim with prejudice. She reasoned that if it prevailed on its in personam claim, it could again bring its in rem claim, and she explained: “Platypus Marine’s attempt to avoid posting countersecurity while seeking to retain the ability to later arrest the vessel post-judgment does not comport with the spirit of the rule.” She held that Platypus Marine must dismiss its in rem claims with prejudice or deposit countersecurity within 14 days. She added that she would order that the security posted by Glacier Guides would be released upon dismissal with prejudice of Platypus Marine’s in rem claims.
Kenneth G. Engerrand
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Quote
This month’s quote is from Judge Reinhart in Clear Spring Property & Casualty Co. v. Wello & Mom, LLC, No. 21-cv-24234, 2024 U.S. Dist. LEXIS 179000, at *12 (S.D. Fla. Sept. 30, 2024):
Wello does not dispute the losses or its answer, instead it argues that the vessel in 2019 was not the same vessel that experienced the 2016 and 2018 losses because the engines were since replaced. Wello raises the millennium-old Ship of Theseus paradox.5 But, I need not participate in the thought experiment because the object here remained the same. New engines or not, there is no dispute that the Hull Identification number remained the same, so the response to the loss question was inaccurate. Even viewed in the light most favorable to Wello, no reasonable jury could conclude that Wello’s omission did not materially affect the calculation of insurance risk. Whichever way Wello chooses to classify its omission, it still voids the policy ab initio under uberrimae fidei.
- The Ship of Theseus, also known as Theseus’ paradox, is a thought experiment that raises the question of whether an object that has had all of its components replaced remains fundamentally the same object. Noah Levin, Ship of Theseus, https://open.library.okstate.edu/intro-philosophy/chapter/shipof-theseus (last visited Sept. 25, 2024).
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© Kenneth G. Engerrand, December 30, 2024; redistribution permitted with proper attribution.
