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July 2021 Longshore/Maritime Update

July 1
2021

July 2021 Longshore/Maritime Update (No. 266)

Notes from your Updater:

The United States Court of Appeals for the D.C. Circuit affirmed the denial of a challenge to the Bureau of Ocean Energy Management’s decision to issue an offshore lease for a windfarm off the coast of New York. The court held that the challenge from organizations of fishermen and seaside municipalities under the National Environmental Policy Act was unripe, and the challenge based on the Outer Continental Shelf Lands Act failed to comply with the pre-suit notice provision in the OCSLA. See Fisheries Survival Fund v. Haaland, No. 20-5094, 2021 U.S. App. LEXIS (D.C. Cir. May 20, 2021) (per curiam).

Judge Xinis of the United States District Court for the District of Maryland declined to transfer to a federal court in Texas or Louisiana a suit brought by environmental groups challenging the National Marine Fisheries Services’ biological opinion on the impact of oil and gas activities in the Gulf of Mexico. See Sierra Club v. National Marine Fisheries Service, No. 20-cv-3060, 2021 U.S. Dist. LEXIS 97864 (D. Md. May 24, 2021).

Chief Judge Moore of the United States District Court for the Southern District of Florida dismissed the class action brought by several pension funds against Carnival Corp. alleging violation of securities laws with respect to statements about the safety of its ships during the COVID-19 pandemic, concluding that the statements were not materially false and finding a lack of scienter. See In re Carnival Corp. Securities Litigation, No. 1:20-cv-22202, 2021 U.S. Dist. LEXIS 101651 (S.D. Fla. May 28, 2021).

Judge Doughty of the United States District Court for the Western District of Louisiana granted a preliminary injunction to plaintiff states that brought suit against the United States in connection with President Biden’s executive order pausing new oil and natural gas leases on public lands and in offshore waters, asserting that the order violated the Administrative Procedure Act. Judge Doughty’s order provided that the United States. Department of the Interior, the United States Bureau of Land Management, the United States Bureau of Ocean Energy Management, and the United States Bureau of Safety and Environmental Enforcement were enjoined from implementing the pause of new oil and natural gas leases on public lands or in offshore waters. See Louisiana v. Biden, No. 2:21-cv-00778, 2021 U.S. Dist. LEXIS 112316 (W.D. La. June 15, 2021).

Judge Merryday of the United States District Court for the Southern District of Florida ruled that Florida had standing to challenge the Centers for Disease Control’s conditional sailing order, concluded that Florida was highly likely to prevail on its claim that the order exceeded the authority delegated to the CDC, and issued a preliminary injunction, enjoining the CDC from enforcing the order against cruise ships arriving in or departing from a port in Florida (giving the CDC until July 2, 2021, to propose a narrower injunction. See Florida v. Becerra, No. 8:21-cv-839 (M.D. Fla. June 18, 2021).

The fallout from the Supreme Court’s Lucia case continues. In United States v. Arthrex, Inc., No. 19-1434 (U.S. June 21, 2021), the fractured Supreme Court (Chief Justice Roberts writing) held that Administrative Patent Judges are principal officers whose appointments by the Secretary of Commerce were unconstitutional. The Federal Circuit sought to remedy that violation by invalidating the tenure protections of the judges, making them removable at will by the Secretary of Commerce. The Supreme Court, however, disagreed and held that, as the source of the violation was the restraint on review authority by the Director rather than the appointment of judges by the Secretary, the remedy was to allow the Director of Commerce to review the final decisions of the Patent Trial and Appeal Board and not to require a hearing before a new panel of judges.

On the LHWCA Front . . .

From the federal appellate courts:

Notice of appeal to BRB more than 30 days after the ALJ decision (due to health problems) was untimely; Neal v. CP&O, LLC, No. 20-2113, 2021 U.S. App. LEXIS 15403 (4th Cir. May 24, 2021) (per curiam).

Opinion

Quinton A. Neal’s claim under the LHWCA was denied by an Administrative Law Judge, and he was required to appeal to the Benefits Review Board within 30 days (July 27, 2020). His notice was postmarked on August 26, 2020, and was received by the Board on September 2, 2020. The Board ruled that Neal’s appeal was untimely and that the Board was without jurisdiction to review the ALJ’s decision. Neal appealed the Board’s decision to the Fourth Circuit and argued that the Board should have accepted his late appeal because his personal representative experienced health problems during the appeal period. Concluding that the Board was powerless to grant relief to Neal, the Fourth Circuit denied the petition for review.

Claimant was not entitled to a de minimis award under Rambo for a scheduled injury; aggravation rule did not apply to claimant’s pre-existing condition, but the case was remanded to reconsider whether the claimant was entitled to combine his right arm work injury and his pre-existing left arm birth defect in calculating his impairment; Boudreau v. Industrial Resources, Inc., No. 19-73011, 2021 U.S. App. LEXIS 15732 (9th Cir. May 26, 2021) (per curiam).

Opinion

David Boudreau was born with a birth defect in his left arm and is missing his left arm from about two inches below his elbow. He therefore relies heavily on his right arm. He injured his right arm while working as a welder for Industrial Resources and suffered permanent partial disability as a result. The parties disputed the impairment rating for Boudreau’s arm, and Boudreau argued that because of his increased reliance on his right arm, the disability to his right arm should combine with the pre-existing disability in his left arm to produce a greater percentage of disability that reflected the actual effect of the work injury on Boudreau. Boudreau also sought a de minimis award under the Supreme Court’s Rambo decision, arguing that there was a significant possibility of loss of wage-earning capacity in the future. Administrative Law Judge Clark rejected both arguments, holding that Boudreau was not entitled to a de minimis award for a scheduled injury and that he was not entitled to combine his right arm work injury and his left arm birth defect because the schedule does not provide for bilateral impairment to the upper extremities. Judge Clark awarded Boudreau compensation for a 10% impairment to his right upper extremity, and the Benefits Review Board affirmed the decision. The Ninth Circuit agreed that Boudreau was not entitled to a de minimis award because, with the award of impairment from the schedule, Boudreau was presumed to have a current loss of wage-earning capacity and was being compensated for it. Boudreau argued that the Board and ALJ erred by failing to consider the congenital condition of his left arm in calculating the extent of his impairment. The Ninth Circuit held that Judge Clark did not err by declining to apply the aggravation rule when calculating the impairment rating because his left arm impairment did not increase the impairment caused by the right arm injury. However, the Ninth Circuit questioned whether Judge Clark’s ruling, that Boudreau could not combine his right arm injury and his left arm defect because the schedule does not provide for bilateral impairment to the upper extremities, could be squared with Section 908(c)(22), which provides for consecutive scheduled awards where there is a loss of more than one member or parts of more than one member set forth in the schedule. As the Ninth Circuit held that Judge Clark was wrong to rely on the 6th edition of the AMA impairment guides because Boudreau’s diagnosis did not fit within its factual predicates, the case would have to be remanded for recalculation of the impairment rating. The Ninth Circuit held that Judge Clark would have an opportunity to reconsider the applicability of Section 908(c)(22).

ALJ properly denied a disability award when the doctor’s report supporting disability was short, poorly explained, and contradicted by that of two other doctors; Ayers v. Kinder Morgan, Inc., No. 20-70550, 2021 U.S. App. LEXIS 17303 (9th Cir. June 10, 2021) (per curiam).

Opinion

Michael S. Ayers, a longshore worker, claimed that he suffered an injury to his foot while walking on the dock. The case was tried to Administrative Law Judge Gee, and three doctors gave opinions on Ayers’ proportionate loss of use of his foot. Two doctors concluded that Ayers had sustained a 0% disability, and one concluded that he suffered from a permanent partial disability. Judge Gee analyzed the reports and their supportive analysis and concluded that no impairment rating had been established. The Benefits Review Board affirmed her decision, and the Ninth Circuit denied Ayers’ petition for review, stating that “her finding that Dr. Ballard failed to explain his impairment-rate finding was rational and supported by the record: Dr. Ballard’s impairment-rating opinion was short, poorly explained, and contradicted by that of two other doctors.”

From the federal district courts:

Court declined to grant summary judgment on turnover duty for longshore worker’s fall after grabbing an unsecured manhole cover despite the absence of any evidence of who removed the hinge bolt and cotter pin; Howard v. Seaspan Corp., No. 18-4612. 2021 U.S. Dist. LEXIS 97636 (E.D. La. May 24, 2021) (Zainey).

Opinion

Roderick Howard, a longshore worker employed by Ports America, was injured while boarding the M/V SEASPAN FELIXSTOWE in the Port of New Orleans. Howard grabbed a manhole cover at the top of the ladder with the cover in an upright and open position. The cover detached at its left hinge because the hinge bolt was not in place and the cotter pin that would have prevented the hinge bolt from sliding out of the lugs was also not in place. No witness was able to identify how or why the parts were not in place and were not properly fastened when Howard climbed the ladder and grabbed the cover. The vessel’s chief officer testified that he thoroughly inspected the vessel prior to the boarding of the longshore workers and discovered no anomalies. As Howard could not establish who removed the bolt/cotter pin and when the removal occurred, the vessel owner contended that there was no evidence that it breached the Scindia turnover duty. Judge Zainey disagreed with the premise of the vessel owner’s argument. The accident occurred 20 minutes after the longshore workers began boarding the vessel, so it was unlikely that the longshore workers removed the parts in that short period of time. This meant that one possible scenario was that the chief officer did a substandard job of inspecting the manhole cover and did not notice the missing parts. Thus, the missing parts may have been a latent hazard that chief officer should have detected in the exercise of ordinary care, and there was a factual basis for holding the vessel liable.

Shipowner was liable under the active control duty for closing a hatch cover without warning when rain began, injuring a longshore worker’s hand; stevedore was found 50% at fault for failing to train its employees; judgment was entered for $1,076,873 without reduction for the employer fault; Kiwia v. M/V OSLO BULK 9, No. 20-96, 2021 U.S. Dist. LEXIS 100077 (E.D. La. May 24, 2021) (Milazzo).

Opinion

Faustine Kiwia was hired by stevedore Coastal Cargo to work as a laborer, was given training for the rest of the day, and then received the remainder of his training on the job. A few days later he was assigned to assist in unloading cargo from the OSLO BULK 9 in the Mississippi River in the Port of New Orleans. Kiwia worked primarily on a barge onto which cargo was transferred. When it began raining, the longshore workers were instructed to return to the dock, which required them to climb a Jacobs ladder hanging off the side of the OSLO BULK and tied to the top hand railing of the ship. When Kiwia reached the top of the ladder, he placed his right hand on the top of the hatch coaming for balance as he jumped down to the walkway on the deck of the vessel. While his hand was on the coaming for balance, the crew of the vessel began closing the hatch cover which rolled over Kiwia’s hand, severing three fingers (Kiwia was not visible to the crewmember operating the panel used to close the hatch cover). Kiwia received compensation and medical benefits under the LHWCA and brought this action against the owner of the vessel for negligence under Section 905(b). The case was tried to Judge Milazzo, who found that the vessel owner had breached the Scindia active-control duty by failing to ensure that the coamings were clear before closing the hatch. She held that, although it is common for the crew to cover the hatch when it begins to rain, an experienced stevedore would have expected some warning, such as an alarm or verbal warning, but no notice of the closing was provided. Judge Milazzo also found that the stevedore was 50% at fault for failing to train its new hires as to the dangers of placing their hands on the hatch coaming railing for balance, and she found that Kiwia was not guilty of any comparative fault. Kiwia had just started with the stevedoring company at $11.50 per hour, and after his recovery, Judge Milazzo found that he was able to perform light exertional work at a rate of $10 to $14 per hours, so he had no loss of future wage-earning capacity. With respect to his past wage loss, Judge Milazzo reduced the amount awarded to Kiwia by 15% because of his failure to begin working when his capacity to work improved. Although Judge Milazzo concluded that Kiwia would likely require future medical treatment in the form of occupational and psychological therapy for post-traumatic stress disorder, she declined to award any future medical expenses for lack of evidence of the cost of future treatment. With no reduction for the stevedore’s fault, Judge Milazzo awarded a total of $1,076,873, based on past medical expenses of $80,965.50, past lost wages of $45,908.50, and general damages of $950,000.

And on the maritime front . . .

From the federal appellate courts:

Beneficiary of cruise ship passenger who suffered a heart attack while the ship was in Alaska state waters and then died was allowed to recover nonpecuniary damages under Florida law with the court declining to apply the law of the state where the decedent lived, Wisconsin; Goodloe v. Royal Caribbean Cruises, Ltd., No. 19-14324 (11th Cir. June 21, 2021) (Pryor).

Opinion

Richard Puchalski, a Wisconsin citizen, began experiencing shortness of breath while he was a passenger on the Royal Caribbean cruise ship EXPLORER OF THE SEAS in Juneau, Alaska. He was examined by the ship’s physician and given medication. After returning to his quarters, Puchalski collapsed, was taken to a hospital in Juneau, and was airlifted to an intensive care unit in Anchorage, where he died. His daughter brought this suit in the federal court for the Southern District of Florida in accordance with the forum-selection clause in Puchalski’s ticket. Before trial, the parties disputed the applicable law with respect to damages. They agreed that general maritime law does not allow recovery of non-pecuniary damages for wrongful death, but that state law could supplement the general maritime law for deaths of passengers within state territorial waters under the Supreme Court’s Yamaha decision. The cruise line asserted that Wisconsin law applied to the death of a Wisconsin citizen, and Wisconsin law did not provide a remedy for deaths occurring outside the state. Puchalski’s daughter argued that Florida law applied, which authorized an award of non-pecuniary damages. Judge Altonaga declined to decide the issue before trial, and the jury found that the cruise line was negligent and awarded $3,384,073.22 in damages, of which $3,360,000 was for non-pecuniary losses. After trial, Judge Altonaga held that Florida law was applicable and declined to disturb the award. Evaluating the international maritime choice-of-law factors from Lauritzen v. Larsen in the domestic context of this case, Judge Jill Pryor, writing for the Eleventh Circuit, first declined to apply the factors for the law of the flag and the inaccessibility of a foreign forum as they are only relevant in the international context. Out of the remaining six factors, two favored application of Florida law (domicile/base of operations of the shipowner and the law of the forum), and one favored Wisconsin (the decedent’s domicile). The others did not point significantly toward either state. Judge prior then valued and compared the two states’ interests, and concluded that Florida law should apply. Judge Pryor did not consider it irrelevant that a Florida company required that the suit be filed in a federal court in Florida. Additionally, she noted that Florida courts apply Florida law in wrongful death suits brought against Floridians, but Wisconsin law, in contrast, contains a strict territorial limitation, indicating that Wisconsin’s interests would not be served by application of Wisconsin law in this case. Although the appellate court affirmed the application of Florida law in this case, Judge Pryor cautioned that the holding was based on the interests of Wisconsin and Florida in this case and that the holding did “not mean that Florida law will always apply to wrongful death cases against cruise ship companies based in Florida.”

Limitation complaints are subject to the Iqbal/Twombly pleading standard of Rule 8(a), and the vessel owner should have been allowed to amend the complaint to plead the right to exoneration/limitation with sufficient specificity; In re Bensch, No. 20-2268-cv (2d Cir. June 23, 2021) (Lynch).

Opinion

This case arises from a boating accident on the Niagara River that resulted in the death of Ahmed Abdulla Umar when he was struck by a boat owned and operated by Christopher Bensch after Umar fell off a jet ski that he rented from Waikiki Watercraft. The executrix of Umar’s estate brought suit against Bensch and Waikiki, and Umar removed the action to federal court based on the federal court’s original admiralty jurisdiction. Both Bensch and Waikiki then filed limitation actions, staying the injury action. Citing the Supreme Court’s authority that admiralty cases do not fall within the scope of the federal question jurisdiction of the federal courts, Magistrate Judge McCarthy recommended that the removal based on original admiralty jurisdiction was improper and should be remanded to state court (even though the case was not removed based on federal question jurisdiction). He also recommended an award of attorney’s fees even though other courts, such as the Fifth Circuit, have held that there is “an objectively reasonable basis for removal” in this circumstance. E.g., Riverside Construction Co. v. Entergy Mississippi, Inc., 626 F. App’x 443, 447 (5th Cir. 2015). Magistrate Judge McCarthy then recommended that both of the limitation actions should be dismissed for failure to plead sufficient facts to support limitation of liability and further recommended that leave be denied to amend them. (See February 2020 Update). Vessel owner Bensch objected to Magistrate Judge McCarthy’s recommendations, and Judge Sinatra agreed that the injury case should be remanded and that the limitation action should be dismissed without giving leave to the owner to amend it (concluding that the amendments did not correct the deficiencies noted by the Magistrate Judge). However, Judge Sinatra disagreed that attorney’s fees should be awarded with respect to the removal (thus agreeing with the Fifth Circuit’s holding that there is an objectively reasonable basis for removal of admiralty cases). (See July 2020 Update). Bensch appealed the dismissal of his limitation action and the decision denying him leave to appeal, arguing that the Iqbal/Twombly plausibility standard for assessing the sufficiency of complaints under Rule 8(a), did not apply to limitation complaints, which are governed by the Supplemental Rules for Admiralty or Maritime Claims. Bensch relied on Judge Learned Hand’s Colonial Sand case, decided in 1945, that held that it was sufficient to plead that the claimant’s injuries were suffered without the petitioner’s knowledge and were not caused by its fault or negligence or that of any of its employees. However, Judge Hand’s decision was rendered before the amendment to Rule 8 that resulted in the Iqbal and Twombly decisions. Holding that Rule 8(a) applies to limitation pleadings, the Second Circuit agreed with the magistrate judge and district judge that the Iqbal/Twombly standard applied and that the original complaint was insufficient. Bench noted that it is difficult to prove a negative, that the owner was not negligent, but the Second Circuit held that the allegations in the proposed Second Amended Complaint were sufficient to “nudge” the petitioner’s “claims across the line from conceivable to plausible.” Concluding that Bensch had not acted in bad faith in its original pleading, the Second Circuit held that Bensch should have been given leave to amend to comply with the Iqbal/Twombly standard.

Notify party which accepted cargo under negotiable bills of lading was not bound by the forum-selection clause in the terms incorporated into the bill of lading when there was a dispute over expenses for fleeting, wharfage, and shifting of barges involved in the carriage of the cargo; Ingram Barge Co. v. Zen-Noh Grain Corp., No. 20-5514 (6th Cir. June 28, 2021) (Siler).

Opinion

Zen-Noh purchased shipments of grain for delivery to its terminal in Convent, Louisiana. The sellers entered into contracts with Ingram Barge to transport the cargo, and Ingram issued negotiable bills of lading to the order of the consignee, listing Zen-Noh as a “notify party.” The bills incorporated Ingram Barge’s Grain Transportation Terms, linked on the carrier’s website, which included a forum-selection clause for the federal court for the Middle District of Tennessee. When Zen-Noh received invoices for fleeting, wharfage, and shifting charges for grain that had been shipped and received, it declined to pay, and Ingram brought this suit in the Middle District of Tennessee, basing jurisdiction on the forum-selection clause. Zen-Noh moved to dismiss for lack of jurisdiction, and Judge Trauger dismissed the case. A majority of the Sixth Circuit agreed. Writing for the majority, Judge Siler held that the terms of the bills of lading could bind Zen-Noh as a notify party only with its consent. That consent could be established if the notify party filed suit, by course of conduct, or by accepting through its agent. The majority found that none of these situations was present as Ingram Barge brought the suit, Zen-Noh did not acquiesce to the terms and in fact informed Ingram that it did not consider itself bound by the terms, and Zen-Noh did not have any agency relationship with the grain sellers who arranged for the shipping. The fact that Zen-Noh was a beneficiary of the bills of lading did not create contractual obligations. Judge White dissented, citing the difference between negotiable and non-negotiable bills of lading and reasoned that “stepping into the shoes of the named consignee and accepting the grain pursuant to the negotiable bills of lading demonstrated consent to the terms” of the bills. Thanks to Professor Michael Sturley of the University of Texas School of Law for bringing this case to our attention.

From the federal district courts:

Suit brought under the Jones Act and general maritime law was removable under the Federal Officer Removal Statute; evidence submitted to the seaman’s employer that the case was removable allowed the employer to remove the Jones Act suit when the state action did not reveal the removability; Hutchins v, Anco Insulations, Inc., Nos. 19-11326, 21-369, 2021 U.S. Dist. LEXIS 93166 (E.D. La. May 17, 2021) (Barbier).

Opinion

 Raymond Hutchins, Jr. was allegedly exposed to asbestos while aboard vessels owned and operated by his employer, Lykes Bros. S.S. Co. His beneficiaries brought suit against more than 30 defendants, including Huntington Ingalls, successor to Avondale Shipyard, which removed the case to federal court under the Federal Officer Removal Statute. The plaintiffs filed a second action in state court against Lykes Bros’ insurer, Continental Insurance, which removed the case under the Federal Officer Removal Statute after receiving information that Hutchins worked aboard vessels built pursuant to the direction of federal officers (arguing that it was not apparent from the face of the plaintiffs’ petition that the case was removable). The petition in the suit against Continental did not reveal that the ships were built at the direction of federal officers. Continental argued, in response to the plaintiffs’ motion to remand, that the case became removable when its experts provided vessel status cards that reflected that the vessels were built at the direction of federal officers. Judge Barbier began by noting that although the defendant was aware of the facts that made the case removable, that subjective knowledge did not trigger the time for removal when the petition did not demonstrate that the vessels were built at the direction of federal officers. Instead, the court had to determine when the defendant received an “other paper” from which it could be ascertained that the case was removable. Judge Barbier recognized the Fifth Circuit rule that the voluntary act of the plaintiff may qualify as an “other paper” that triggers the right of removal. However, it was the paper received from the defendant’s own expert that provided the information that identified that the case was removable because the vessels were built pursuant to the direction of federal officers. Giving the Federal Officer Removal Statute a liberal interpretation, Judge Barbier held that a departure from the voluntary-involuntary rule was appropriate in this case, and he ruled that the removal was timely as it was filed within 30 days of the receipt of written notice from the defendant’s expert. Judge Barbier then addressed whether the saving-to-suitors clause prevented removal of the general maritime claim for unseaworthiness and whether the bar to removal of FELA claims prevented removal of the Jones Act claim. Noting that general maritime claims can be removed based on a number of statutory bases, such as the Outer Continental Shelf Lands Act and diversity, Judge Barbier “easily dispatched” the argument that the unseaworthiness claim could not be removed. Although the removability of the Jones Act claim was more complicated in view of the bar to removal in Section 1445(a) for FELA cases, Judge Barbier noted that the en banc Fifth Circuit in the Latiolais case (see March 2020 Update) held that “Federal officers may remove cases to federal court that ordinary federal question removal would not reach.” Holding that Section 1445(a) must give way to the policy considerations in favor of removal of cases under the Federal Officer Removal Statute, Judge Barbier held that the Jones Act claim was removable.

Written notice of claim is not a pre-requisite to the vessel owner’s filing a limitation action, but the letter in this case was sufficient notice; In re Bertsch, No. 21-80357, 2021 U.S. Dist. LEXIS 97716 (S.D. Fla. May 17, 2021) (Cannon).

Opinion

Kurt Bertsch and Riley Bertsch own and operate a 20-foot runabout vessel. On November 22, 2020, they transported James Berger from Boynton Beach, Florida to Lake Boca, Florida, and several hours later Berger returned to the vessel “visibly intoxicated.” During the return trip, Berger fell overboard and his left arm was struck by the vessel’s propeller. Two months later, On January 29, 2021, the owners received a letter from Berger’s attorney advising that he had been retained to represent Berger for his injuries, identifying the vessel, advising the owners to notify their insurance carrier, requesting the preservation of evidence, and warning that if they did not respond the attorney would do whatever was necessary to protect his client’s interest. The owners then filed this action on February 19, 2021, seeking to limit their liability to $15,000, and Berger filed a motion to dismiss, arguing that the action was filed premature because he had not provided written notice sufficient to trigger the time to file a limitation action. Judge Cannon rejected that argument as the absence of written notice would not present a legal bar to bringing a limitation action. The six-month deadline in Section 30511(a) of the statute does not mandate that there be a written notice before a limitation action can be filed. It only sets a deadline after which the limitation action is untimely. In any event, Judge Cannon held that the letter revealed a “reasonable possibility” of a claim in excess of $15,000 and that the owners had invoked their right to seek limitation within six months of that written notice.

Evidence was insufficient to establish causation in asbestos product liability claims under the general maritime law; Wineland v. Air & Liquid Systems Corp., No. C19-0793, 2021 U.S. Dist. LEXIS 92921, 92922, 92928 (W.D. Wash. May 17, 2021) (Lasnik).

Opinion Anchor/Darling

Opinion Robertshaw

Opinion Crane Co.

John Dale Wineland’s widow asserted that Wineland died from exposure to asbestos while working on Navy ships. This suit brought claims against a number of defendants, including manufacturers and suppliers of products containing asbestosis that were allegedly the cause of the exposure. Judge Lasnik previously dismissed the claims against the shipyard for lack of evidence. (See April 2021 Update).  For these opinions, several defendants moved to dismiss on the ground that, under applicable maritime or state law, the plaintiff could not establish that Wineland’s exposure to their products was a substantial contributing factor to his illness and death. Finding that both the locality and substantial connection tests for admiralty jurisdiction were satisfied, Judge Lasnik held that maritime law governed the case. Applying maritime law, Judge Lasnik concluded that the plaintiff had failed to produce evidence that Wineland suffered a substantial exposure to asbestos from the defendants’ products. Additionally, Judge Lasnik held that the plaintiff had failed to produce evidence that the defendants were liable for any asbestos-containing replacement part that was manufactured by a third party and integrated into the defendant’s products.

Court declined to exclude testimony of tankerman’s vocational rehabilitation counselor, economist, and marine safety expert based on the tankerman’s likely getting into a Steersman Program so that he could become a captain; Carr v. Enterprise Marine Services, LLC, No. 19-14777, 2021 U.S. Dist. LEXIS 94054 (E.D. La. May 18, 2021) (Brown).

Opinion

Robert Carr claimed that he was injured while serving as a tankerman on a vessel operated by Enterprise Marine, and he brought this suit seeking to recover under the Jones Act and general maritime law. Enterprise Marine brought this motion to limit the proposed testimony of Carr’s vocational rehabilitation counselor, Kasey Crawford, his economist, Dr. Randolph Rice, and his marine safety expert, Captain Michael Weeks, for the losses Carr would sustain based on Crawford’s testimony that Carr would “likely” get into a Steersman Program that would allow him to become a captain in one to three years. Enterprise Marine did not challenge the qualifications of the experts to testify, only their opinions based on the likelihood of Carr being admitted to the program. Chief Judge Brown noted that there was some evidentiary support for the testimony and declined to exclude the testimony. She held that Enterprise Marine was free to present contradictory testimony and that it was the role of the adversarial system, after vigorous cross-examination, to decide the dispute.

Vessel owner’s negligent acts precluded limitation of liability in a collision with a platform even if the platform owner was negligent; buyback clause in settlement agreement did not allow settling tortfeasor to seek contribution or indemnity from non-settling tortfeasor; In re Lasala, No. 18-11057 c/w Nos. 18-11138, 19-9706, 19-9798, 19-9819, 2021 U.S. Dist. LEXIS 94916, 108766 (E.D. La. May 19, June 10, 2021) (Vitter).

Opinion Exoneration

Opinion Contribution

Gabriel Lasala took several friends on his 29-foot boat into the Gulf of Mexico to go tuna fishing with Lasala operating the boat. During the trip the bilge light came on and Lasala noticed that the boat was taking on water. When the engines would not crank, it indicated that the batteries were low, and Lasala reconnected the batteries to allow him to crank the engines and charge the batteries. Lasala determined that the batteries were still going down because the bilge pump continued to remove water from the vessel, so Lasala abandoned the trip. He turned off the radar and used GPS to navigate. The vessel then struck a platform owned by Cantium, LLC, that Lasala contended was not properly lighted. Lasala filed this limitation action seeking to limit liability to $1300, and all of the passengers and Cantium filed claims. Cantium moved for summary judgment on the basis that Lasala was not able to limit his liability because Lasala was negligent in several respects and he necessarily had privity with those acts as he owned and piloted his own vessel. In response, Lasala argued that Cantium was solely at fault and he was consequently entitled to limit his liability. Judge Vitter reasoned that Lasala’s argument on the fault of Cantium missed the mark. What mattered for this limitation action is whether Lasala had privity or knowledge with the acts of negligence asserted against him and the unseaworthiness of the vessel. She stated that the only way that Lasala could be entitled to limitation was if Cantium’s negligence were the sole cause, and “there is no chance that the Court will not find Lasala at least some degree contributorily negligent.” She added that as the owner at the helm of his own pleasure craft, Lasala had privity or knowledge as a matter of law. Therefore, Lasala’s claims for exoneration and limitation of liability were dismissed with prejudice. After Cantium settled with the claimants, Lasala moved for summary judgment on the claims of Cantium for contribution and indemnity against Lasala. Cantium’s settlement with the Pressler plaintiffs provided that the Presslers reserved all their rights against Lasala and his insurers. However, depending on the percentage of fault ultimately attributable to Cantium, Cantium’s insurers would be reimbursed some or all of its settlement from the Pressler’s recovery. Cantium argued that, as the amount of the settlement was dependent on the allocation of fault to Cantium and Lasala, the principle from AmClyde, barring contribution to a settling defendant, was not applicable. Judge Vitter first held that none of the situations where indemnity is authorized by the maritime law were applicable in this case. She then held that the buyback clause in the settlement agreement did not alter the rule from AmClyde as the settlement did not release all of the Presslers’ claims against Lasala. As the agreement did not allow Cantium to “essentially step into the shoes” of the Presslers to pursue their claims against Lasala for his proportionate share, there was no basis for Cantium’s claim, and Cantium’s claims for contribution and indemnity were dismissed.

Flotilla doctrine was not applicable for claims of a drydock and an employee of the drydock resulting when the drydock was struck by a tug towing barges; In re Marquette Transportation Co. Gulf Inland, LLC, No. 6:18-cv-01222, 2021 U.S. Dist. LEXIS 95620 (W.D. La. May 19, 2021) (Summerhays).

Opinion

The M/V RANDY ECKSTEIN, a tug owned by Marquette Transportation, was towing six barges in the Lower Atchafalaya River near Morgan City, Louisiana, when it allided with a drydock owned by LAD Services. An employee of LAD, John Williams, was injured in the allision. Marquette Transportation then brought this limitation action and filed a bond for the amount of tug, $2,684,000. LAD filed a claim for property damage to the drydock and for indemnity for the maintenance and cure payments made to Williams, and Williams filed a claim for his personal injuries. Marquette sought partial summary judgment that the flotilla doctrine did not apply and that the amount of the limitation fund should be limited to the value of the tug and should not include the six barges it was towing. Its argument was based on the fact that there was no contractual relationship between Marquette Transportation and either Williams or LAD. Judge Summerhays noted the “pure tort” exception to the flotilla rule that the owner need not tender all vessels involved in the incident under a single command and owned by the same person when the shipowner owes no duty to the claimant based on consent. “Stated differently, when the alleged damage is inflicted tortiously and there is no contractual or consensual relationship between the offending vessel and the injured party, the pure tort exception applies and the vessel owner need only surrender the value of the actively responsible vessel.” As neither Williams nor LAD alleged any contractual or consensual relationship with Marquette Transportation, Judge Summerhays held that the flotilla doctrine did not apply and that the limitation fund was limited to the fair market value of the RANDY ECKSTEIN plus its pending freight.

Assertion of nine prior falls on the gangway of the cruise ship, including one earlier in the day, was sufficient pleading of notice to the cruise line in connection with a passenger’s fall to defeat the cruise line’s motion to dismiss; Cavitt v. Carnival Corp., No. 20-22259, 2021 U.S. Dist. LEXIS 94622 (S.D. Fla. May 19, 2921) (Moreno).

Opinion

Linda Cavitt, a passenger on the M/S FASCINATION, was injured when she fell while descending the ship’s gangway in Purerto Rico. The cruise line moved to dismiss the complaint because Cavitt failed to sufficiently allege notice. Cavitt pleaded that the gangway was dangerously uneven, unleveled, wet, and slippery, and that the cruise line should have known of the dangerous condition based on prior falls, industry standards, and the weather. However, Judge Moreno noted that there were no factual allegations to support the conclusory statements. Without facts demonstrating that it was plausible that the cruise line should have known of the risk-creating conditions, the complaint was insufficient to establish notice. Consequently, Judge Moreno dismissed the complaint with leave to amend it to sufficiently allege notice. (See April 2021 Update). In her amended complaint Cavitt listed the sources of the cruise line’s actual or constructive notice as nine prior slip and fall or trip and fall incidents on the gangway of the vessel between December 2016 and March 2019 and a slip and fall on the gangway earlier in the day before her fall. Judge Moreno held that this was sufficient to defeat the cruise line’s motion to dismiss and that it was appropriate to evaluate the evidence of the prior incidents with a full record on a motion for summary judgment (to determine whether a reasonable jury could find the cruise line had actual or constructive notice).

Product liability claims against the manufacturer of a pleasure craft that was involved in an allision were insufficient under state law; In re Crosby Marine Transportation, L.L.C., Nos. 17-14023, 18-4136, 2021 U.S. Dist. LEXIS 94913 (E.D. La. May 19, 2021) (Ashe).

Opinion

The allision between the recreational vessel piloted by Chad Williams and a barge being pushed by a tug owned by Crosby Tugs returns to the Update (see June 2021 Update). The United States Army Corps of Engineers entered into a contract with BIS Services for a hurricane restoration project in Jefferson Parish, Louisiana, known as the Yankee Pond Project. The project required moving sediment from Lake Cataouatche through the Bayou Segnette waterway and depositing the materials in Yankee Pond to build up the marsh. BIS Services subcontracted with Crosby Dredging for dredging services, and Crosby Dredging subcontracted with Crosby Tugs for tug operations. The tug DELTA DUCK was assigned to push a barge through Bayou Segnette, but the captain of the tug decided to push the tow against the west bank of Bayou Segnette due to weather conditions, blocking about 35% of the bayou. The tug did not display red and green navigational lights, and the barge displayed no white all-around light; however, the tug used its work lights to illuminate the tug and barge. At approximately 4:00 a.m., a 22-foot Fishmaster recreational vessel piloted by Chad Williams proceeded south in Bayou Segnette with passengers Angela Huggins, Anna Clark, and Samantha Randle. Crosby Tugs asserted that Williams had spent the night and early morning hours drinking alcohol and was impaired at the time the Fishmaster allided with the barge that was still pushed against the west bank of the Bayou. Huggins and Clark were injured, and Randle died from blunt force trauma to the head combined with drowning. Crosby filed this limitation action with respect to the DELTA DUCK and brought a third-party complaint against Tracker Marine, manufacturer of the Fishermaster recreational vessel, asserting claims under the Louisiana Products Liability Act and for redhibition under Louisiana law. Crosby argued in support of its product liability claim that the vessel was unreasonably dangerous in design due to the placement of the all-around navigation light on the center console instead of on the stern and that Tracker failed to provide an adequate warning that the light should not be replaced with a shorter pole or a non-anti-glare bulb. Crosby argued for its redhibition claim that the placement of the pole made the boat so inconvenient that a reasonable person would not have bought it and its owner, Claude Toups, was entitled to economic losses. Tracker moved for summary judgment on the claims, and Judge Ashe held that the product liability claim had to be dismissed because the replacement of the pole with a shorter one that did not have an anti-glare light and zip-tying a temporary light to the pole were an obvious danger and not a reasonably anticipated use of the product. As to the redhibition claim, the product must be either absolutely useless for its intended purpose or its use must be so inconvenient or imperfect that had the buyer known of the defect, he would not have purchased it. Judge Ashe denied the claim as Crosby produced no evidence that the pole or its placement rendered the vessel useless or so inconvenient that a reasonable buyer would not have purchased it and the pole was no longer on the vessel had could have had nothing to do with the accident.

Court declined to strike language in complaint that the defendant argued was immaterial, improper, and scandalous; even though the judge considered the language repulsive, it did not detract dignity from the court; court declined to strike mention in the complaint of an indemnity agreement between the defendants; Sprengle v. Smith Maritime Inc., No. 3:20-cv-1348, 2021 U.S. Dist. LEXIS 94974 (M.D. Fla. May 19, 2021) (Klindt).

Opinion

Kurt Sprengle brought this suit for injuries that he sustained while working as a seaman for Smith Maritime in connection with the towage of a barge owned by BOA Barges. He sought recovery against Smith Maritime for negligence under the Jones Act and against BOA for negligence and gross negligence. After stating the background to the claim, Sprengle’s Second Amended Complaint contained a section titled (with our redaction) “Vicious hit! F***ing s**t rope!!”  That language was taken from a text message sent to Sprengle by a principal of Smith Marine. The complaint also stated that Sprengle had worked tirelessly for Smith Maritime since 2005, but the defendants operated their vessels with reckless disregard for the men and women who toiled on the vessels to make them run and that the action that injured Sprengle was an act of callous disregard for the lives and safety of all of the seamen. The Second Amended Complaint also referred to an indemnity agreement between the defendants. Smith Maritime moved to strike portions of the Second Amended Complaint as immaterial, improper, and scandalous. Magistrate Judge Klindt, however, considered the statements to be sufficiently relevant to the claims to survive a motion to dismiss. He also did not consider the allegations to meet the definition of scandalous as they did not unnecessarily reflect on the moral character of Smith Marine or make comment about Smith Marine in a derogatory manner. Although Magistrate Judge Klindt considered the language redacted above to be repulsive, he did not consider it to detract dignity from the court or to be prejudicial to Smith Marine. The decision not to strike the language from the complaint was not meant as commentary on Sprengle’s ability to use the language or on the admissibility of the text. Finally, Magistrate Judge Klindt declined to strike the reference to the indemnity agreement as it was unclear how that could be prejudicial to the defendants.

Failure to file a timely motion to substitute after the claimant’s death resulted in dismissal of BELO suit and seaman’s suit; court declined to extend the time to designate experts and granted summary judgment on BELO suit; McGrew v. BP Exploration & Production, Inc. No. 1:19-cv-499, 2021 U.S. Dist. LEXIS 96304 (S.D. Ala. May 20, 2021) (Moorer); Salmons v. BP Exploration & Production, Inc., No. 1:20-cv-38, 2021 U.S. Dist. LEXIS 99558 (S.D. Miss. May 26, 2021) (Guirola); Paynter v. Yannis Karavia LLC, No. 1:20-cv-09458, 2021 U.S. Dist. LEXIS 116001 (D.N.J. June 22, 2021) (Hillman).

Opinion McGrew

Opinion Salmons

Opinion Paynter

Two of these cases involve Back-End Litigation Option (BELO) suits claiming various medical conditions were caused by exposure to oil, dispersants, and other harmful chemicals from the DEEPWATER HORIZON/Macondo blowout and cleanup. Dewayne McGrew, one of the cleanup workers, died on May 26, 2019, after filing his BELO suit, and BP filed a Suggestion of Death on November 27, 2019. On March 16, 2020, the court ordered the parties to inform the court no later than March 30 whether a motion for substitution would be made by the decedent’s successor or representative. The decedent’s former attorney mailed a draft of a Motion to Substitute Parties to BP for review, but BP responded that it needed to see an amended complaint before agreeing to the motion. One of the decedent’s lawyers left the firm representing the decedent, and no amended complaint or motion to substitute was filed. On December 1, 2020, BP filed a motion to dismiss, and on December 29, 2020, the decedent’s widow and personal representative, Darrius Walker, filed an Opposed Motion for Substitution of Parties. She filed a response to the Motion to Dismiss on January 4, 2021, arguing that the filing of the suggestion of death was ineffective to trigger the 90-day rule in Rule 25(a)(1) because it did not alert Walker to the consequences of the filing on the pending action. Walker also argued that the 90-day period to file the substitution should be tolled for excusable neglect. Judge Moorer rejected the argument that the suggestion of death must include an explanation that the failure to file the proper substitution will result in a dismissal, and he found that there was no excusable neglect for the late substitution. Consequently, he dismissed the case (without prejudice) (note that in the Paynter case the court dismissed an action brought by a seaman after he died and his widow did not file a motion to substitute). In another BELO case, Dana Salmons, a resident of Zone A, asserted that her Differentiated Adenocarcinoma was caused by exposure to oil and chemical dispersants from the spill and cleanup. Salmons was required to designate experts by February 5, 2021, and on December 10, 2020, she filed a motion to modify the deadline to designate Dr. Natalie Perlin to give opinions on the extent and toxicity of “invisible oil,” applying a new combination of technologies to detect large quantities of toxic and invisible oil. On January 8, 2021, after the deadline passed to designate experts, BP moved for summary judgment that there was no expert testimony for Salmons on causation. Salmons replied to the motion for summary judgment that she had moved to modify the deadline for designating experts, but Magistrate Judge Myers declined to extend the deadline and Judge Guirola upheld Magistrate Judge Myers’ decision. Without expert support for causation on Salmons’ claim, Judge Guirola granted summary judgment and dismissed the case with prejudice.

Captain who slipped on cigarette lighter while wearing crocs was found to be 100% at fault; employer failed to establish McCorpen defense to maintenance and cure because it did not insist that the worker complete the questions on the medical questionnaire; however, the seaman was found to have reached maximum cure; Taylor v. B&J Martin, Inc., No. 18-8941, 2021 U.S. Dist. LEXIS 97641 (E.D. La. May 24, 2021) (Zainey).

Opinion

The seaman’s suit by Allen Taylor returns to the Update. Taylor, who had twice injured his back (including a herniated L5-S1 disc) before his employment as a seaman for B&J Martin, claimed that he injured his back while descending a flight of stairs on the F/V DUSTY DAWN when he stepped on a cigarette lighter left on the deck by an employee of the company for which B&J Martin was working. The fall resulted in damage to the same disc and required three surgeries. When the third surgery failed to alleviate his symptoms, Taylor’s physician declared that he had no further treatment options to offer and placed Taylor at maximum cure on March 19, 2019. Taylor then sought a second opinion, but that doctor advised on May 20, 2019, that he had nothing to offer from a surgical point of view and Taylor would have to continue to pursue relief via pain management. B&J Martin then stopped paying maintenance and cure on May 23, 2019. Taylor brought this action seeking to recover under the Jones Act and under the general maritime law for unseaworthiness and maintenance and cure (including punitive damages for the failure to pay maintenance and cure). Concluding that the medical opinions were clear that nothing could be done to improve Taylor’s condition, Judge Zainey earlier found that Taylor reached maximum cure on May 20, 2019. Consequently, no further maintenance and cure payments were required. Judge Zainey then addressed B&J Martin’s McCorpen (willful concealment) defense and found that Taylor’s failure to disclose that he had injured his back on two prior occasions was sufficient to satisfy the concealment element of the defense. As the concealment was for the same area of his spine as the injury involved in this suit, Judge Zainey also found that the causal link element of the defense was satisfied. However, Judge Zainey found that there was a fact question whether the materiality element of the defense was satisfied. Although Taylor checked “No” to the question whether he had ever sustained any type of disability or injury, he left blank the boxes related to whether he had ever had an injury or medical problem with his back and whether he had ever experienced back pain. Judge Zainey questioned why B&J Martin would allow Taylor to work before Taylor answered these important questions if the answers to these questions was material to B&J Martin’s hiring of Taylor. Finally, as B&J Martin had dutifully paid maintenance and cure until Taylor reached maximum cure, Judge Zainey dismissed Taylor’s claim for punitive damages (see July and November 2019 Updates). The remaining claims were tried to Judge Zainey, and he concluded that Taylor, the captain of the F/V DUSTY DAWN, violated company policy by wearing Crocs that did not have slip resistant soles, and that he would not have slipped on the lighter had he been wearing proper footwear (crediting the testimony of the defendant’s expert in marine safety, Bob Borison). Judge Zainey found that the deck of the vessel had no defects or safety hazards; that the vessel was seaworthy; and that his employer had satisfied its duty to provide Taylor with a safe place to work (and was not negligent). Judge Zainey found that Taylor was 100% negligent in failing to wear the proper footwear. Addressing the final issue with respect to the McCorpen willful concealment defense to maintenance and cure, Judge Zainey reiterated that B&J Martin had satisfied two of the elements of a McCorpen defense, but he held that B&J Martin could not establish the materiality element of the defense because, by allowing Taylor to leave blanks on the medical questionnaire, B&J Martin did not rely on the information in the questionnaire in its decision to hire Taylor.

Cargo policy excluded loss of cargo whose natural life expired through the passage of time, even if the delay was caused by a covered peril; Northwestern Selecta, Inc. v. Guardian Insurance Co., No. 20-1745, 2021 U.S. Dist. LEXIS 97991 (D.P.R. May 24, 2021) (Besosa).

Opinion

Northwestern Selecta is a Puerto Rican importer of frozen and refrigerated foods, including frozen cooked and sliced tentacles of giant squid/octopus. It insured its seafood imports with a Marine Cargo Stock Throughput Policy issued by Guardian. The all-risk policy insured seafood and meat of every description from the time the subject matter became the insured’s risk until the insured’s risk and/or interest finally ceased. The policy contained a Civil Authority clause, which provided that the cargo was covered against damage or destruction by civil or military authority for the purpose of preventing further damage or to prevent or mitigate a conflagration, pollution hazard or threat thereof provided that the damage or destruction was not caused by war, invasion, revolution, rebellion, insurrection or other hostilities or war like operations or by any risk specifically excluded in this insurance. Prior to March 15, 2020, Northwestern Selecta imported more than a million dollars of squid/octopus and stored it in warehouses until it could sell it to customers. On March 15, 2020, the Governor of Puerto Rico issued an executive order with stay-at-home requirements and prohibiting commercial operations (the order did not apply to certain food retail and wholesale businesses). Northwestern had stored product valued at $552,851.50 at the time the order was issued, and its customers suspended purchases causing the shelf life of the product to expire, resulting in the product losing its commercial value. The adjuster for Guardian denied the claim on the ground that the loss was not caused by civil authority and was not covered by the Civil Authority clause. Thus, the lead reinsurer concluded that the claim was excluded by the exclusion for loss, damage, or expenses caused by delay. Northwestern Selecta brought this action alleging breach of a marine insurance policy, and Judge Besosa noted that Wilburn Boat normally provided for the application of state law to marine insurance policies. However, application of Wilburn Boat ran aground in Puerto Rico because the Puerto Rico legislature expressed its intent to exclude marine insurance policies from its statutes governing the interpretation and construction of insurance contracts. The parties did not cite cases interpreting similar language, and the court applied the general principle that plain or unambiguous language would be given its ordinary meaning. Northwestern Selecta argued that the Civil Authority clause unambiguously applied because it had to throw away boxes of expired seafood when the government shut down the island’s economy. Guardian argued that the clause only encompassed acts like embargo, confiscation, quarantine, seizure, or other acts by civil authority directed at the cargo or proximately causing similar loss. Judge Besosa first addressed whether there was damage or destruction to the cargo. As the cargo was unusable after its shelf-life expired, he held that Northwestern Selecta had plausibly alleged destruction. However, he did not agree that the destruction was “by civil or military authority” as there was no action directed at the insured goods. Although the order had the effect of leading to the destruction of the cargo (expiration of its shelf life), that was an indirect result and was not a sufficient nexus for the clause to apply. Northwestern Select then argued that the policy was an all risk policy covering the cargo throughout the ownership by Northwestern Selecta. Guardian cited the exclusions for loss, damage, or expense caused by inherent vice or nature of the subject-matter insured and loss, damage, or expense caused by delay, even though the delay was caused by a risk insured against. Although the parties argued about whether there was a fortuitous event and whether the insurance continued to attach, Judge Besosa did not have to address those issues as he held that the exclusions unambiguously excluded loss of cargo that expires its natural life through the passage of time, even if the delay was caused by a covered peril. As the delay clause applied regardless of whether the delay was caused by an insured peril, Judge Besosa granted Guardian’s motion to dismiss the complaint.

Court allowed discovery after the discovery deadline when the seaman scheduled back surgery; the court allowed a pre-surgery independent examination, a post-surgery independent medical examination, a post-surgery functional capacity evaluation, and a post-surgery deposition of the seaman’s doctor; Kennedy v. Terral RiverService, Inc., No. 19-11363, 2021 U.S. Dist. LEXIS 98213 (E.D. La. May 25, 2021) (Vitter).

Opinion

Jacob Kennedy claimed that he injured his back while serving as a seaman on the M/V DANNY TERRAL, owned by Terral Riverservice. The suit he brought against his employer under the Jones Act was continued several times, and the discovery cutoff was April 13, 2020. When Kennedy scheduled a back surgery for June 22, 2021, the defendant moved to reopen discovery. Although the defendant’s motion did not clearly specify what discovery was requested, Kennedy’s opposition advised that the defendant sought a pre-surgical independent medical examination, a post-surgical independent medical examination, a post-surgical functional capacity evaluation, and the deposition of Howard’s physician. Judge Vitter weighed the factors to determine if there was good cause to modify the discovery deadline in the scheduling order, and she ordered the requested relief.

Court construed a counterclaim in a limitation action as if it were a claim rather than striking it and requiring repleading; court struck the jury demand in the claimant’s third-party claim but did not strike the jury demand on the claim pending determination whether it was a single claim; courts in other limitation actions followed the procedure for preserving the vessel owner’s limitation rights, for defaults, and for lifting the stay for single-claimant actions; In re Duquette, No. 2:20-cv-02037, 2021 U.S. Dist. LEXIS 99947, 110237 (E.D. Cal. May 26, June 11, 2021) (Mueller/Newman); In re Wallace, No. 8:20-cv-03075, 2021 U.S. Dist. LEXIS 95571 (M.D. Fla. May 20, 2021) (Mizelle); In re D”Ancona,  No. 19-cv-5492, 2021 U.S. Dist. LEXIS 99099 (E.D.N.Y. May 24, 2021) (Scanlon); In re Amble, No. 20-03713, 2021 U.S. Dist. LEXIS 98906 (N.D. Cal. May 25, 2021) (Alsup); In re Zimmer, No. 1:21-cv-00001, 2021 U.S. Dist. LEXIS 101733 (S.D. Ala. May 28, 2021) (Beaverstock); Iondrida v. Babick, No. 20-15585 (D.N.J. May 29, 2021) (McNulty); In re Stephens Maritime Services, Inc., No. 1:20-cv-566, 2021 U.S. Dist. LEXIS 103785 (S.D. Ala. June 2, 2021) (Moorer); In re Hanson Marine Properties, Inc., No. 2:20-cv-958, 2021 U.S. Dist. LEXIS 114392 (M.D. Fla. June 2, 2021) (McCoy); In re Koka Charters, LLC, No. 1:21-cv-169, 2021 U.S. Dist. LEXIS 112150 (S.D. Ala. June 15, 2021) (Beaverstock); In re Fish Trap Charters, LLC, No. 21-00156, 2021 U.S. Dist. LEXIS 111732 (S.D. Ala. June 15, 2021) (DuBose).

Opinion Duquette on counterclaim

Opinion Wallace

Opinion D’Ancona

Opinion Amble

Opinion Zimmer

Opinion Iondrida

Opinion Stephens

Opinion Hanson Marine

Opinion Koka Charters

Opinion Fish Trap Charters

Opinion Duquette on supplemental briefing

The Duquette case arises from the collision of a “Barefoot Warrior Style” ski boat operated by Kameron Duquette, son of the vessel’s owner, Michael Duquette, with a Bayliner Marine boat that was owned and operated by Dante Lopez. Passengers on both boats were injured, and a passenger on the ski boat died. Gregory David Erickson, an injured passenger on the Bayliner, and Rodney W. Blake, a relation of the deceased passenger on the ski boat, brought suits in California state court, and both suits named Michael Duquette as a defendant. Michael Duquette then filed this complaint for limitation of liability, and Dru Jackson, a passenger in the ski boat, filed an answer, a counterclaim, and a third-party claim against Kameron Duquette and Dante Lopez. Michael Duquette moved to strike the counterclaim, the jury demand of the counterclaim, and the jury demand of the third-party complaint. Finding no prejudice in simply considering the counterclaim as a claim, Chief Judge Mueller declined to strike the counterclaim (requiring a complete repleading). Although recognizing that the pleading was “unfortunately poorly named,” Chief Judge Mueller held that the case could proceed with the counterclaim deemed to be Jackson’s claim. Jackson did not oppose the striking of the jury demand on his third-party complaint, and Chief Judge Mueller struck that jury demand. However, Jackson argued that he was the only claimant and his right to a jury trial should be preserved under the saving-to-suitors clause. Chief Judge Mueller declined to strike the demand at this time, suggesting that Jackson follow the process for stipulations in a single-claimant situation. The Iondrida case involved an injury to Maria Ciranni Ionfrida on Peter Babick’s private passenger boat. Iondrida brought suit in New Jersey state court against Babick and unknown and fictitious individuals and entities, and Babick removed the suit to federal court based on the court’s admiralty jurisdiction. He also filed a limitation action in federal court. Magistrate Judge Kiel recommended that the injury suit be remanded to state court and that the limitation action be stayed pending disposition of the injury suit in state court (disregarding the unknown/fictitious defendants as no one besides Iondrida had made a claim). Judge McNulty, however, noted that Iondrida’s complaint did identify a shipboard guest who was involved in her injury, and there was a possibility that that guest might seek indemnity or contribution. Until that possibility was foreclosed, Judge McNulty considered the single-claimant exception to be inapplicable and would not lift the limitation stay. Judge McNulty also declined to remand the injury suit, considering it premature before there was assurance that the limitation action would not be hampered by a res judicata or preclusion defense. Wallace, D’Ancona, Zimmer, Fish Trap Charters, Koka Charters, and Hanson Marine illustrate that once the time passes for claims to be filed in a limitation action, the court should enter a default against those who have not filed a claim. At that point, if there is a single claimant, as in Amble and Stephens, the court may lift the stay in the limitation action to allow the single claimant to proceed in state court. However, the court may not grant an unopposed motion to default claimants who have not filed a claim when the petitioner who has brought the limitation action denies that he owned the vessel at the time of the incident giving rise to the request for exoneration/limitation. In Duquette, Magistrate Judge Newman ordered the petitioner to present supplement briefing on how the petitioner could obtain a default judgment in a shipowner’s limitation of liability action while denying an ownership interest in the vessel and whether, if a default were entered, he could later deny any ownership interest in the vessel as against the answering claimants.

Treating doctors’ opinions on causation that were not supported by established medical science were stricken; Dozer v. CoKa Ventures, LLC, No. 4:19-cv-10172 (S.D. Fla. May 27, 2021) (Moore).

Opinion

This case involves medical conditions allegedly experienced by Duane Dozer while serving as a charter boat fisherman and captain of the S/F BAD HABIT. Dozer asserted that the defendants failed to provide him with maintenance and cure for gallbladder surgery in 2018 and a back injury in 2019; that he was not provided proper medical care in violation of the Jones Act; and that the defendants wrongfully terminated his employment in retaliation for his seeking maintenance and cure. Dozer identified several expert witnesses, including Dr. Juan Uribe Villa and Dr. Fabio Roberti, and the defendants moved to strike the expert opinions of Dr. Uribe and Dr. Roberti on the grounds that their opinions on causation were unsupported by empirical scientific data and that the opinions were based on intuition, common sense, and general experience and would not assist the trier of fact. Dozer responded that the experts were treating physicians whose testimony was admissible as lay opinion based on their actual treatment of Dozer. Chief Judge Moore identified the distinction between lay opinion testimony from treating the patient and testimony based on hypothesis that is not based on the experience of treating the patient, which must comply with the strictures of Daubert. As Dozer’s disclosures stated that the doctors were going to provide opinions on the causation of Dozer’s conditions from delay in his treatment, Chief Judge Moore considered the opinions under Daubert and held that they were not supported by established medical science and were anecdotal in nature. Consequently, he limited their testimony to their direct treatment of Dozer.

DEEPWATER HORIZON/Macondo pollution cleanup worker who worked on land and on a vessel presented a fact question whether her work on the vessel was a permanent reassignment in connection with the duration element of the seaman status test; traveling with the vessel through the day and not merely providing discrete work when the vessel was stationary was held to be sufficient for the worker to satisfy the nature element of the seaman status test; Sanchez v. American Pollution Control Corp., No. 12-cv-00164, 2021 U.S. Dist. LEXIS 103224 (E.D. La. June 2, 2021) (Barbier).

Opinion

Victoria Sanchez was employed by AMPOL for 23 days in the summer of 2010 as a Hazardous Material Technician as part of the effort to clean up the oil spill from the DEEPWATER HORIZON/Macondo blowout. She spent her first 17 days working on land picking up trash, digging holes, moving cinderblocks, and loading and unloading boats at AMPOL’s dock in Venice, Louisiana. She spent each of the last 6 days of her employment working on the NO GAS II, a shrimp or oyster boat that deployed and retrieved boom that was used to contain or absorb oil on the water. Sanchez met the vessel around dawn and traveled with the vessel from location to location where she would help load, stow, and deploy boom. At the end of the day the vessel returned to the dock, and Sanchez helped remove the trash from the vessel before leaving the vessel. She slept onshore at AMPOL’s operations base in Venice. While tying one piece of boom to another, the vessel was hit by two large waves, injuring Sanchez. Sanchez brought this suit as a Jones Act seaman against AMPOL, and AMPOL moved for summary judgment that Sanchez was not a seaman, arguing that Sanchez failed to satisfy the requirements that the worker’s connection be substantial in duration and connection. As Sanchez only spent 26% of her time with AMPOL on the vessel, she invoked the “change-of-assignment” exception, arguing that the duration element should be considered only from the time she began working on the NO GAS II. AMPOL presented evidence that her work on the vessel was temporary, that her job never changed, and that she was subject to assignment on a daily basis depending on the needs of the response effort. Sanchez, however, testified that a supervisor told her that she was being reassigned to offshore duty and that other supervisors told her the assignment was permanent and that she could not return to work on the dock. Judge Barbier declined to weigh the evidence and held that there was a fact question whether Sanchez had been permanently reassigned to work on the vessel. AMPOL’s argument that Sanchez did not satisfy the nature element gave Judge Barbier the opportunity to apply the en banc decision of the Fifth Circuit in Sanchez v. Smart Fabricators. (See May 11, 2021 Update). Victoria Sanchez’s situation on the NO GAS II differed substantially from that of Gilbert Sanchez, who worked on a vessel that was jacked up at a dock. Applying the factors set forth by Judge Davis in the Fifth Circuit’s en banc opinion, Judge Barbier noted that Victoria Sanchez accompanied the vessel as it travelled on water between locations and worked on the vessel on the water; her job was not performed in discrete locations in port but was co-extensive with the vessel’s travels; she took orders from the vessel’s captain; and she was injured by a peril of the sea. Consequently, Judge Barbier concluded that Victoria Sanchez satisfied the nature element but that a fact question remained whether she satisfied the duration element.

Biomechanical expert’s opinion on causation for a seaman’s injuries in a fall on a vessel were sufficiently reliable despite the lack of calculation of the forces involved; Ratliff v. Marquette Transportation Co. Gulf-Inland, LLC, No. 19-11299, 2021 U.S. Dist. LEXIS 104193 (E.D. La. June 3, 2021) (Ashe).

Opinion

Jewell Ratliff was employed by Marquette as a deckhand on the M/V ST. ELMO. While he was descending the stairs between decks, the vessel collided with a barge, allegedly resulting in the injuries for which Ratliff sought to recover in this suit. Marquette engaged a biomechanical expert, Dr. Marzieh Ardestani, who opined that the forces involved in the accident would not have caused the conditions for which Ratliff sought to recover in the version of the accident told to the medical providers (he fell down the stairs) or the version in his deposition that his back struck the handrail on the stairs). Ratliff moved to strike the opinions of Dr. Ardestani on the ground that they are not based on scientific methodology and could not be tested. Ratliff particularly noted that Dr. Ardestani failed to make any calculation of the forces involved in the collision or the deceleration of the vessel. Judge Ashe held that Dr. Ardestani’s methodology of reviewing the facts, scene, and scholarly literature and then employing principles of Newtonian physics, dynamics, mechanics, tissue mechanics, anatomy, and physiology were generally accepted in the scientific community and by other sections of the court. Therefore, he declined to strike Dr. Ardestani’s opinions and noted that Ratliff’s concerns went to the weight of the testimony that could be addressed on cross-examination.

Court awarded salvage of $66,500 to owner of vessels that towed disabled catamaran passenger ferry three miles; Cape Waterman, Inc. v. M/V AVA PEARL, No. 19-10523, 2021 U.S. Dist. LEXIS 10467 (D. Mass. June 3, 2021) (Sorokin).

Opinion

The AVA PEARL is a 105-foot high-speed catamaran passenger ferry valued at $5 million. It was carrying 67 passengers on its regular route between Oak Bluffs, Massachusetts (Martha’s Vineyard) and Quonset Point, Rhode Island when it was struck by three waves and its main engines lost power (a portable heater in the wheelhouse struck the emergency stop button for the engines). Captain Bessinger tried to restart the engines, but he did not realize that he needed to disengage the emergency-stop button. The vessel began drifting toward shore, and the anchor was deployed (incorrectly). Captain Bessinger issued a mayday distress call, and the SEATOW DEFENDER and a Coast Guard vessel arrived. The anchor on the catamaran was holding, but the vessel was in distress because of the improper deployment of the anchor. The SEATOW DEFENDER attached a line to the catamaran and began towing it to the docks at Vineyard Haven Harbor, about three miles away. After towing the catamaran two miles, the tug SIRIUS completed the tow the final mile with the assistance of the SEATOW DEFENDER and other vessels owned by its owner. The owner of the SEATOW DEFENDER brought this action seeking a salvage award. The salvor argued that it should receive an award of $750,000, and the catamaran owner argued that the award should be in a range of $4,200 to $10,500 for the approximate cost of the labor and material provided. Judge Sorokin first had to decide whether this was a salvage situation, particularly because the catamaran was not truly disabled. However, it appeared to be dead in the water, riding anchor until help could arrive, and the mayday distress call reflected that the captain believed the situation was dire. Thus, Judge Sorokin held that the salvor established a claim for salvage. Considering the factors for the award enunciated in The Blackwall, Judge Sorokin awarded $66,500, and apportioned 5% of that to the captain of the SEATOW DEFENDER.

Houseboat management agreement that provided for a one-hour mechanical check did not include checking the fuel overspill system, and the maintenance company was not liable for failing to discover that a drain hose had become detached, which caused an explosion; Mickelsen v. Aramark Sports & Entertainment Services, Nos. 4:18-cv-00072, 2:18-cv-00158, 2021 U.S. Dist. LEXIS 106882 (D. Utah June 4, 2021) (Nuffer).

Opinion

This case involves the death of one occupant and serious injuries to other occupants in the explosion of the SUMMER PARADISE houseboat on Lake Powell. The explosion was caused by gasoline vapors that accumulated in the engine department that ignited when the occupants attempted to re-start the vessel’s generator. The source of the spill was a drain hose that had become detached and was resting in the engine compartment. Aramark entered into a Houseboat Management Agreement with the owners of the SUMMER PARADISE that included a 1-hour systems inspection between vessel trips. The question presented was whether the service required an inspection of the fuel overspill system so as to give rise to a duty to discover the drain hose that had become detached. The plaintiffs testified that they expected the agreement to provide for the inspection, and plaintiffs’ expert testified that the inspection was within the scope of the agreement. The plaintiffs also argued that, as the agreement was silent on what was required, a jury should be allowed to decide the issue. Judge Nuffer disagreed and held that the evidence was insufficient to establish that the limited inspection included every component on the vessel, including the drain hose. Judge Nuffer also held that there was insufficient evidence to establish that any prior work by Aramark on the vessel contributed to the explosion. Therefore, he dismissed the claims against Aramark.

Wrongful death claim asserting that the decedent was a seaman did not permit recovery of nonpecuniary damages under the general maritime law or state law; In re Belden Investments LLC, No, 2:20-cv-01486, 2021 U.S. Dist. LEXIS 107597 (W.D. La. June 7, 2021) (Cain).

Opinion

James Charles Duddleston leased a houseboat from Belden Investments to use as his living quarters while performing surveying work on the Louisiana coast for Lonnie G. Harper & Associates. After working all day on a vessel not owned by Belden, Duddleston returned to the houseboat and showed signs of heat stroke, from which he died. Duddleston’s beneficiaries brought suit in state court, alleging that the negligence of Belden and the unseaworthiness of the houseboat contributed to Duddleston’s death. The suit alleged that Duddleston was a seaman under the Jones Act and also sought recovery for negligence under Louisiana law. The petition sought recovery of punitive damages, loss of society and companionship, loss of love and affection, and for the mental anguish and grief of the beneficiaries. Beldon then brought this limitation action in federal court, and the beneficiaries presented a claim in the limitation action with the same contentions that they made in the state suit. Belden moved in the limitation action to dismiss the claims for non-pecuniary loss, and the beneficiaries responded that they were entitled to recover non-pecuniary damages under the general maritime law and under Louisiana law because Duddleston’s death was from a tort in state waters. Reasoning that the claims were brought for the death of a seaman, Judge Cain cited Miles and held that the beneficiaries could not recover for the non-pecuniary loss claims, stating: “maritime law applies exclusively to alleged torts that occur on navigable waters, irrespective of whether those waters are territorial waters or not.”

Platform welder who was injured during swing rope transfer to vessel was not entitled to summary judgment that the vessel was negligently positioned; Ausama v. C&G Boats, Inc., No. 20-2007, 2021 U.S. Dist. LEXIS 107862 (E.D. La. June 9, 2021) (Fallon).

Opinion

Terry Ausama was injured while transferring by a swing rope from a fixed platform in the Gulf of Mexico to the deck of the MS. EMELIE ROSE, owned, operated, and chartered by the defendants in this suit. Ausama moved for partial summary judgment on one specific issue of negligence, that the defendants were negligent in the positioning of the vessel with respect to the platform during the transfer. Citing the testimony of the vessel’s captain, Ausama argued that the positioning the vessel stern-to the platform is safer than the oblique angle actually used by the captain. Ausama contended that the stern-to positioning gave the person swinging to the vessel the widest possible target for landing and easy access to the handrail. In denying the motion, Judge Fallon noted that at least 12 other workers had successfully transferred by rope to the vessel before the accident and that the testimony of the captain was equivocal on the issue (the captain had actually never backed up the vessel stern-to the platform on that particular rope). Other witnesses and an expert testified that that the position of the vessel was typical and reasonable. Consequently, there were fact issues to be resolved on the positioning of the vessel.

Owner of pleasure craft presented sufficient evidence to create a fact question of insurance coverage for UV damage to the vessel’s paint and sufficient evidence to support its claim for recovery of lost income (from charters to friends of the owner), but could not recover expenses when it was seeking lost income; MY. P.I.I., LLC v. Markel America Insurance Co., No. 20-cv-60038, 2021 U.S. Dist. LEXIS 110061 (S.D. Fla. June 10, 2021) (Valle); MY. P.I.I., LLC v. H&R Marine Engineering Inc., No. 19-61946, 2021 U.S. Dist. LEXIS 110587 (S.D. Fla. June 14, 2021) (Altman).

Opinion Markel

Opinion H&R

The owner of the yacht PURE INSANITY hired H&R to perform maintenance and repair on the vessel. While removing the port coupler for the inspection, the seal on the coupler breached, and H&R hired K&G to cut the port coupler. K&G negligently penetrated the sleeve and cut into the propeller shaft, and while the vessel awaited repairs, it was exposed to damaging UV light from the sun, damaging its paint. The vessel’s insurer paid for some of the losses sought by the owner, but declined to pay for the UV damage, arguing that the damage from exposure to the sun was not caused by an occurrence and was normal wear and tear (the original coating had exceeded its service life). As there were disputed facts whether the cause of the UV damage to the vessel was the expiration of the coating’s service life or “accelerated” exposure to the sun while the vessel remained uncovered awaiting repairs, Magistrate Judge Valle recommended that the insurer’s motion for summary judgment be denied. The owner also brought suit against H&R, which argued that the owner of a pleasure craft is not entitled to recover lost profits. Noting that other courts have allowed owners who use the vessel both for pleasure and business to recover where the owner can show with reasonable certainty that damages arose from lost business use rather than lost pleasure use, Judge Altman held that, although the vessel operated at an annual net loss, the owner presented “just enough” evidence to establish loss of charters and income from charters to support a claim for lost income. However, Judge Altman held that the owner could not recover the wages it paid its crew during the time the damage was being repaired as they were fixed expenses that would have been paid anyway (and were not deducted from the charter hire that was recoverable).

San Antonio River along the San Antonio River Walk is not navigable for a limitation action; In re GO RIO San Antonio, LLC, No. SA-20-CV-1304, 2021 U.S. Dist. LEXIS 109617 (W.D. Tex. June 11, 2021) (Pulliam).

Opinion

GO RIO San Antonio, LLC is bareboat charterer of the M/V EXCURSION, which provided a dinner cruise on the San Antonio River along the San Antonio River Walk in downtown San Antonio. The vessel allegedly struck the wall of the river at a turn near the Hyatt Regency hotel, causing injuries to the passengers. After receiving notice from one of the passengers, GO RIO brought this limitation action.  However, the limitation complaint provided “few details as to the incident leading to this litigation,” and the owner “essentially presumed that the San Antonio River qualified as navigable waters as required by admiralty jurisdiction.” The claimant moved to dismiss the action for lack of jurisdiction, and the vessel owner was unable to establish that the San Antonio River was navigable at the location of the accident. Consequently, Judge Pulliam held that the limitation action would be dismissed for failure to demonstrate that the incident occurred on navigable waters. Thanks to Matthew Ammerman of Houston, Texas for bringing this case to our attention.

Water leaking onto the deck of the passenger’s cabin for more than an hour was open and obvious, but there was a fact question whether the slippery condition of the flooring was open and obvious; Andersen v. Royal Caribbean Cruises Ltd., No. 19-cv-24639, 2021 U.S. Dist. LEXIS 110579 (S.D. Fla. June 14, 2021) (Bloom).

Opinion

Troy Andersen and his wife and daughter, passengers on the HARMONY OF THE SEAS, were in their cabin when water began leaking from the ceiling. Andersen reported the leak several times, emptied buckets of water, and put down towels. At one point, a crewmember wearing a suit looked into the cabin, called for assistance, and left. After more than an hour, Andersen began gathering his family’s possessions to protect them from the water and he slipped on the wet floor. The cruise line moved for summary judgment on the ground that the water was open and obvious and that it did not have notice of the dangerous condition. Judge Bloom agreed that the wetness of the floor was open and obvious, but the slipperiness of the vinyl tile flooring was not necessarily open and obvious to a reasonable person. With respect to lack of notice because there were no prior similar incidents, Judge Bloom answered that the suit-wearing crewmember, who observed the water pouring from the ceiling and the towels on the floor, should have warned Andersen to step away from the water. She concluded that a reasonable fact finder could conclude that, after Andersen’s multiple calls for help, someone should have warned Andersen to leave the wet area.

Gateway issue of arbitrability of seaman’s sexual assault claim was for the arbitrator to decide; Garms v. Celebrity Cruises Inc., No. 21-20914, 2021 U.S. Dist. LEXIS 112618 (S.D. Fla. June 15, 2021) (Scola).

Opinion

Brianna Garms, a crewmember on the CELEBRITY EQUINOX, asserted that she was sexually assaulted by another crewmember on the vessel. She brought suit in Florida state court under the Jones Act and general maritime law, and her employer, the cruise line, removed the case to federal court based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) and moved to compel arbitration. Garms responded that sexual assault claims were not within the scope of the arbitration clause and that seamen are exempt from arbitration. With respect to the scope of the clause, Judge Scola reasoned that Garms miscast the issue by focusing on whether the claim fell within the arbitration clause. The agreement contained a delegation clause that gave the arbitrator the gateway issue of determining questions of arbitrability. Although Garms argued that she did not intend to arbitrate issues not related to her employment or to have an arbitrator decide what issues were to be arbitrated, the unambiguous language of the agreement negated the argument. Finally, Judge Scola rejected Garms’ argument that seamen’s claims are exempt from arbitration, citing the many decisions holding that the Federal Arbitration Act’s exemption for seamen does not apply to international agreements that are governed by the New York Convention.

Acts of substitute custodian’s towing contractor were not imputed to the lienor that arrested the vessel and hired the substitute custodian; Champagne v. M/V UNCLE JOHN, No. 21-476, 2021 U.S. Dist. LEXIS 111649 (E.D. La. June 15, 2021) (Zainey).

Opinion

Robert and Elizabeth Champagne brought this action against the M/V UNCLE JOHN, in rem, and its owner and operator, in personam, seeking to recover for damages when the vessel lost control and ran aground, causing damage to their property. After the Marshal arrested the vessel, the Champagnes moved to appoint their contractor, Sea Sales, as substitute custodian, and the court granted the motion and permitted the movement of the vessel within the district. Sea Sales engaged a towing contractor, and the vessel was damaged during the tow. Sea Sales paid for repair to the vessel, but the vessel owner brought a counterclaim against the Champagnes in the event there is additional damage or if the repairs were done improperly. The Champagnes moved to dismiss the counterclaim, and Judge Zainey agreed, noting that there were no allegations that the Champagnes acted negligently in hiring Sea Sales and that there was no authority in the maritime law that would make a seizing creditor liable for the acts of the substitute custodian simply by hiring it. Judge Zainey also found meritless the argument that the hold harmless agreement, signed by the Champagnes in favor of the United States and the Marshal, inured to the benefit of the owner of the arrested vessel.

MGL policy excluded employee claims, and the exception to the contractual liability exclusion did not circumvent the employee exclusion; Stevanna Towing, Inc. v. Atlantic Specialty Insurance Co., No. 2:15-cv-01419, 2021 U.S. Dist. LEXIS 111572 (W.D. Pa. June 15, 2021) (Eddy).

Opinion

Raymond Robinson was injured while working as a deckhand on the M/V TIMOTHY JAMES and made a claim against the vessel and its owner, Stevanna, under the Jones Act and general maritime law. Stevanna reported the accident to insurer, Atlantic Specialty, which issued P&I and marine general liability policies to Stevanna. Atlantic denied coverage because the TIMOTHY JAMES was not included in the schedule of vessels covered under the P&I policy, and Stevanna brought this action against Atlantic seeking coverage under the policies. After the court ruled in favor of Atlantic on the P&I policy, Atlantic file a motion for summary judgment with respect to the MGL policy, arguing that Robinson was an employee and employee claims are excluded from the policy. Chief Magistrate Judge Eddy first addressed Stevanna’s argument that Atlantic had waived the right to assert the exclusion because it had never issued a declination for the policy. However, Chief Magistrate Judge Eddy answered that, under Pennsylvania law, waiver does not bring within coverage risks that are expressly excluded. As the MGL policy excluded liability for an employee, Stevanna argued that the exception to the contractual liability exclusion for liability assumed by the insured in an insured contract applied to the oral contract between Stevanna and its employee Robinson. Chief Magistrate Judge Eddy responded, however, that an insured contract is an agreement under which the insured assumes the tort liability of another party for bodily injury to a third person. The contract with Robinson did not assume the tort liability to a third party and, therefore, provided no basis for avoiding the employee exclusion.

Asbestos claims of Navy sailors against product suppliers failed for insufficient evidence of exposure to the defendants’ products; Mann v. A.O. Smith Corp. (In re Asbestos Products Liability Litigation (No. VI)), No. 17-4429 2021 U.S. Dist. LEXIS 111559 (E.D. Pa. June 15, 2021) (Goldberg); Gay v. A.O. Smith Corp., No. 2:19-cv-1311, 2021 U.S. Dist. LEXIS 119013, 119065 (W.D. Pa. June 25, 2021) (Stickman).

Opinion Mann (Nybeck)

Opinion Gay (Viking Pump)

Opinion Gay (General Electric)

These suits seek recovery for the deaths of former Navy sailors, asserting that the sailors’ asbestos disease resulted from exposure on the vessels to products containing asbestos supplied by the defendants. Judge Goldberg applied maritime law to the Nybeck claim, reasoning that “it is well-established that a lawsuit arising from alleged asbestos exposure while working aboard a Naval ship, whether at sea or at drydock, is governed by maritime law.” Judge Stickman, however, held that Pennsylvania substantive law applied in the Gay case, although some of his exposures occurred on a Navy submarine, because “a court may apply state law if it does not conflict with federal admiralty law.” Both judges applied the “substantial factor” test (from both admiralty and Pennsylvania law) and concluded that the evidence was insufficient to establish that the decedents were exposed to asbestos from the defendants’ products. Consequently, the defendants’ motions for summary judgment were granted and they were dismissed from the cases.

Court declined to transfer Colorado residents’ suit brought in Arizona to Utah where the accident occurred; Gill v. Aramark Sports & Entertainment Services LLC, No. cv-20-08321, 2021 U.S. Dist. LEXIS 112986 (D. Ariz. June 16, 2021) (Brnovich).

Opinion

Michael and Candie Gill brought this action against Aramark for injuries they suffered when a wake caused by an Aramark tour boat struck their personal motorboat on Lake Powell in Utah. The Gills reside in Colorado, and their vessel was repaired in Colorado, but they engaged counsel in Arizona and brought this suit against Aramark in Arizona. Aramark moved to transfer the suit to the federal court in Utah, but Judge Brnovich denied the motion. Although the plaintiffs’ choice of forum is given less weight when it is not the plaintiffs’ home forum, Judge Brnovich still gave it significant weight, particularly when she factored that the litigation costs would increase if the plaintiffs had to retain counsel in Utah in addition to keeping their current counsel. Judge Brnovich did not find that the cost of witnesses traveling from Utah to Arizona outweighed the factors in favor of the plaintiffs.

What owners of watercraft and waterfront property did to prepare for a hurricane was held not to be relevant to what a bridge construction company did to prepare for the storm with respect to its barges that broke free and caused the damage; In re Skanska USA Civil Southeast Inc., No. 3:20-cv-05980, 2021 U.S. Dist. LEXIS 114576 (N.D. Fla. June 19, 2021) (Cannon).

Opinion

Skanska was engaged by the Florida Department of Transportation to rebuild the Pensacola Bay Bridge. During Hurricane Sally in September 2020, several barges used in the construction broke free and caused damage to the bridge and to other property. Numerous businesses and property owners brought claims in the limitation proceedings brought by Skanska with respect to its barges, and Skanska sought discovery from the claimants (including the United States) as to what they did to prepare for the storm. The claimants objected that what they did was irrelevant to the liability of Skanska, as owner of the barges, and Magistrate Judge Cannon agreed. The fact that some of the claimants owned vessels or lived on waterfront property did not mean that their situation was analogous to that of Skanska in its bridge work using barges. Similarly, the Navy did not have any barges located near the bridge, so its conduct was not relevant in determining whether Skanska took reasonable precautions under the circumstances.

Court ordered independent medical examination for a DEXA bone scan in injured seaman’s suit; Beam v. Watco Cos., No. 3:18-cv-02018, 2021 U.S. Dist. LEXIS 114842 (S.D. Ill. June 21, 2021) (Sison).

Opinion

Kevin Beam was injured while working as a seaman on Watco’s tug when a steel cable snapped and struck him in the back. Beam underwent extensive medical procedures and surgeries, and his employer’s expert, Dr. John Mattingly, stated that one of the procedures that was performed was necessary because of underlying degenerative conditions such as osteoporosis or osteopenia. Beam’s radiologist, Dr. Sandeep agreed that Beam suffered from osteoporosis and osteopenia and recommended that he undergo a DEXA bone scan. Watco sought an independent medical examination to conduct a DEXA bone scan to establish that Beam’s later conditions were not related to his accident. Beam argued that, under the Eggshell Skull Rule, Watco was responsible for the conditions caused by the injury even if a preexisting condition contributed to them. Magistrate Judge Sison noted the exception to the rule that the tortfeasor is only liable to the extent of the aggravation to the preexisting condition. If Beam suffers from osteoporosis or osteopenia, those conditions could be the actual cause of his ongoing treatment. Concluding that Watco established good cause to conduct a DEXA bone scan, Magistrate Judge Sison compelled an independent medical examination.

Payment of LHWCA compensation tolled the time to file suit for a worker injured on a platform on the OCS offshore Louisiana; Parkman v. W&T Offshore, Inc., No. 20-883, 2021 U.S. Dist. LEXIS 115262 (M.D. La. June 21, 2021) (deGravelles).

Opinion

Jason Parkman was injured on August 25, 2018, while working for Helmerich & Payne on a fixed platform on the outer Continental Shelf off the Louisiana coast. He received LHWCA compensation within a month of his accident and continued to receive LHWCA benefits. More than a year after the accident, on November 20, 2020, Parkman filed suit against Helmerich & Payne, W&T Offshore, Baker Hughes, and Halliburton, asserting claims under Louisiana law (through the Outer Continental Shelf Lands Act) and, alternatively, under the Jones Act and general maritime law as a seaman. Parkman claimed to be assigned to a vessel, but he did not name the vessel, give its location, state his position on the vessel, or state how the vessel contributed to the accident. The case was removed to the federal court for the Middle District of Louisiana, where Parkman filed a motion to declare that his claims were timely. Judge deGravelles did not find any factual support for the claims under the Jones Act and general maritime law and then determined whether the state claims were barred by the one-year prescription period for torts under Louisiana law. Citing the Cormier decision from the Fifth Circuit, holding that the voluntary payment of benefits under the LHWCA interrupts prescription against all solidary obligors, Judge deGravelles rejected the defendants’ efforts to distinguish the case or to overturn it as wrongly decided and held that Parkman’s claims were timely filed.

New York choice-of-law clause required dismissal of insured’s bad faith counterclaim in insurer’s declaratory judgment action; Great Lakes Insurance SE v. Andersson, No. 4:20-40020, 2021 U.S. Dist. LEXIS 115267 (D. Mass. June 21, 2021) (Hillman).

Opinion

Martin Andersson, who lived in Massachusetts, purchased a marine insurance policy from Great Lakes for his catamaran, THE MELODY. The vessel sustained catastrophic damage when it struck a breakwater near the Port of Boca Chica in the Dominican Republic, and Great Lakes declined to pay for the cost of salvage or repair because Andersson had failed to keep the vessel in seaworthy condition and had sailed outside the bounds of the policy’s navigational limits. Great Lakes brought this action seeking a declaratory judgment that it owed no coverage under the policy, and Andersson counterclaimed for breach of contract and for bad faith under Massachusetts law. Great Lakes moved to dismiss the bad faith count of the counterclaim, arguing that New York law, which does not afford a bad faith action, was applicable by a choice-of-law clause in the policy. The clause provided that “any dispute arising hereunder” would be adjudicated under entrenched principles of federal admiralty law, “but where no such well established, entrenched precedent exists, this insuring agreement is subject to the substantive laws of the State of New York.” Andersson argued that New York law applied to the contract claim, but Massachusetts law applied to extra-contractual claims (the bad faith claim). Judge Hillman rejected that argument, however, citing the cases holding that New York law applies to all claims arising from the performance under the contract and subsequent coverage disputes, which includes bad faith claims. He then addressed Andersson’s argument that Massachusetts public policy rendered the choice-of-law clause unenforceable and held that application of New York law, rather than Massachusetts law, would not conflict with any entrenched principle of maritime law and that New York did not lack a substantial relationship to the parties or transaction. Consequently, he applied New York law and dismissed the bad faith count of the counterclaim.

Declaratory judgment action seeking preemptive relief from the United States from responsibility under the National Marine Sanctuaries Act lacked standing and ripeness; drydock owner established that tower was negligent for allowing the towed drydock to sink in a protected sanctuary; knock-for-knock indemnity clause barred the drydock owner from seeking recovery for damage to its drydock but not from recouping costs for injuries to third parties; Western Towboat Co. v. Vigor Marine, LLC, No. C20-0416, 2021 U.S., Dist. LEXIS 115392, 117466 (W.D. Wash. June 21, 23, 2021) (Martinez).

Opinion summary judgment

Opinion reconsideration

Vigor Marine sold its three-section drydock, constructed in 1956, to a shipyard in Mexico to be scrapped. Vigor then contracted with Western Towboat to tow the drydock from Seattle, Washington to Ensenada, Mexico, using the tug OCEAN RANGER. A surveyor noted significant corrosion but opined that the drydock was appropriately prepared and rigged for the tow in an extended configuration with the bow and stern sections attached. The surveyor did require that the tow avoid heavy head or beam seas to avoid pitching or rolling. The Navy operating manual for the drydock provided that the bow and stern sections should be detached and docked on the center section, and Vigor’s sales contract required that the three sections be detached and carried on a heavy-lift ship. During the tow the drydock began taking on water and listing, and the tug headed toward San Francisco Bay to seek assistance. After communicating with the Coast Guard, the tug concluded it was unsafe to enter San Francisco Bay in the event the drydock sank. The Coast Guard approved the tow entering Monterey Bay where the drydock sank .92 miles inside the Monterey Bay Marine Sanctuary. The National Oceanic and Atmospheric Administration informed Vigor, Western Towing, and the Mexican shipyard of their liability under the NMSA for damages from the sinking in the sanctuary, and Western filed this action against Vigor, seeking recovery for its services under its towing agreement, and a declaratory judgment against the United States exculpating it of liability in any forthcoming enforcement action under the NMSA. Chief Judge Martinez first held that the court lacked subject matter jurisdiction, based on lack of ripeness and standing, of the action against the United States as NOAA has not taken any final action against the parties. Chief Judge Martinez then turned to the claims between Western and Vigor. He denied Vigor summary judgment that Western had breached the towing agreement by failing to adequately perform its duties when it proceeded into Monterey Bay and stood by while the drydock sank in a marine sanctuary as the contract did not contain a requirement that the tug keep the tow in a safe place to sink. Chief Judge Martinez then addressed the knock-for-knock indemnity provisions in the towing agreement and held that claims arising out of or relating to damage to a party’s own property could not be recouped (such as Vigor’s loss of the drydock); however, that did not bar Vigor from recouping costs incurred as a result of Western’s negligent injury to third parties. With respect to Vigor’s claim that Western was negligent, Chief Judge Martinez declined to find that the last clear chance doctrine or the Pennsylvania Rule applied; however, he concluded that Western breached its duty of prudent seamanship as a matter of law when it allowed the drydock to sink in the marine sanctuary. Although Western objected that its crew was unaware that the drydock was inside the sanctuary and was unaware of the legal, environmental, or economic consequences of the sinking in the sanctuary, Chief Judge Martinez held Western was negligent as a matter of law with respect to its lack of cognizance of the vessel’s position with respect to the sanctuary. Western moved for reconsideration with respect to the awareness of the tug’s crew of the sanctuary. Chief Judge Martinez recognized that there were factual disputes whether the crew knew that the tug had entered a sanctuary, but it was their failure to be aware of the hazards presented by the sanctuary to a tug together with their lack of positional awareness that led to the finding of negligence. Additionally, Western argued that it was not negligent for the tug to release the line on the drydock while it was in the sanctuary as it was necessary to save the life of its crew in the emergency presented by the sinking drydock. Judge Martinez responded that it was not the response to that emergency that was the source of the fault but the failure to exercise prudent seamanship in entering the sanctuary with a sinking drydock.

Direct action claim by injured seaman against the vessel’s P&I club was subject to the arbitration clause in the club’s rules applicable to the vessel’s entry in the club; Erdogan v. Nouvelle Shipmanagement Co., No. 19-11391, 2021 U.S. Dist. LEXIS 116983 (E.D. La. June 23, 2021) (Vance).

Opinion

Akin Erdogan, a Turkish national, was injured while working as a seaman on the YASA NESLIHAN in the Mississippi River. He brought this suit against the owner and manager of the vessel together with a direct action against the vessel’s P&I club. The club moved to compel arbitration in Oslo, Norway in accordance with the club’s rules applicable to the vessel’s entry in the club. Judge Vance first had to address whether the arbitration provision applied to Erdogan’s claim, and she noted that the provision covers disputes between the club and a member or any other person arising out of the contract of insurance. As such, the agreement required non-signatories, such as Erdogan, to arbitrate. Erdogan argued, however, that the rules provided an exception for direct action claims when it stated that Norway’s Insurance Contracts Act did not apply. However, Judge Vance held that whether that exception applied in this case had to be addressed by the arbitrator in light of the broad arbitration clause. Holding that the arbitration was enforceable under the Convention on the Enforcement and Recognition of Foreign Arbitral Awards, Judge Vance compelled Erdogan to arbitrate his claims against the club.

Most of the claims of a cruise passenger injured during an Alaskan shore excursion survived the cruise line’s motion to dismiss; Giuliani v. NCL (Bahamas) Ltd., No. 1:20-cv-22006, 2021 U.S. Dist. LEXIS 116956 (S.D. Fla. June 23, 2021) (Gayles).

Opinion

Esterina Giuliani, a passenger on the NCL vessel BLISS, was injured when she was thrown from her horse during an Alaskan excursion titled Chilkoot Horseback Adventure that Guiliani booked on the vessel. She brought this suit against the cruise line on multiple grounds, and the cruise line moved to dismiss the counts for misleading advertising, negligent misrepresentation, negligent selection and retention, negligent failure to warn, negligence based on apparent agency or agency by estoppel, and negligence based on joint venture. Judge Gayles held that Guiliani had sufficiently pleaded all of the counts except for negligent selection, as the pleading failed to allege the temporal element of her claim (for example, the cruise line hired the excursion knowing that it was unfit).

Suit by clean-up worker for injuries on a vessel did not plausibly assert a claim against BP as time charterer of the vessel; In re Oil Spill by the Oil Rig “DEEPWATER HORIZON,No. 12-2004, 2021 U.S. Dist. LEXIS 117912 (E.D. La. June 24, 2021) (Barbier).

Opinion

Sergio Valdivieso brought suit against BP and others for injuries he sustained as a clean-up worker after the DEEPWATER HORIZON/Macondo blowout. He claimed injuries to his shoulder, arm, back, and neck from lifting boom and exposure to chemicals in the oil and dispersants. He dropped his exposure claim, and BP moved to dismiss the complaint on the ground that it did not own or bareboat charter the vessel on which he was injured and, as time charterer, it assumed no liability for the negligence of the crew or the unseaworthiness of the crew. Valdivieso responded with documents that he claimed demonstrated that BP had exercised enough direction over his salary, payment, direction, supervision, and employment to be consider his Jones Act employer. Judge Barbier considered the documents but found that they did not help Valdivieso’s case against BP. Thus, he did not covert BP’s motion to a motion for summary judgment and dismissed Valdivieso’s claims against BP as they did not assert a plausible claim for BP’s liability.

Alleged absence of an attendant to assist passengers at the exit to the ship’s water slide was open and obvious and barred a claim of duty to warn but presented a fact question on a claim of duty to maintain; Offenberg v. Carnival Corp., No. 1:19-cv-23334, 2021 U.S. Dist. LEXIS 118433 (S.D. Fla. June 24, 2021) (Moore).

Opinion

Keith Offenberg, a passenger on the Carnival PRIDE, slipped and fell when he grabbed a slippery handrail while existing the ship’s Green Thunder water slide. He brought this suit against the cruise line, asserting that the cruise line was at fault for failing to have an attendant present at the bottom/exit to assist passengers leaving the water and failing to warn that there was no crew member present at the bottom to assist the passengers. Carnival argued that it did have an attendant present, citing the statement of its crewmember who stated that he escorted Offenberg to the medical center in a wheelchair after the accident. Chief Judge Moore held that the statement was inadmissible hearsay and there was consequently a fact question of inadequate staffing. Offenberg pointed to the cruise line’s safety policy that requires an attendant be present at the bottom of the slide. The corporate representative of the cruise line testified that the primary purpose of the attendant was to signal the attendant at the top of the slide when it was safe to send the next passenger down. However, the policy also stated that the attendant must be prepared to enter the splash pool to assist customers out of the pool. The absence of evidence that the attendant was present was sufficient to allow the claim for negligent maintenance to proceed. However, Chief Judge Moore cited Offenberg’s testimony that he observed that there was no attendant at the bottom before descending the slide. Therefore, Chief Judge Moore granted summary judgment to the cruise line that there was no duty to warn of a condition that was open and obvious.

Vessel’s P&I club was entitled to recover expenses for the repatriation of the crew as custodia legis expenses, but custodia legis expenses did not include legal fees associated with organizing and effectuating the repatriation; Carl Schroter GmbH & Co. KG v. Smooth Navigation S.A., No. 2:20-0334, 2021 U.S. Dist. LEXIS 118063 (D.S.C. June 24, 2021) (Gergel).

Opinion

The P&I club for a vessel that was arrested intervened to assert a claim for custodia legis expenses. Judge Gergel denied the claim for P&I premiums that were earned but unpaid during the detention but awarded the club expenses for repatriating the crew after the arrest of the vessel. The reimbursement included surveyor’s fees, parole applications, launch services, hotel and airfare costs, and security services.  The club also sought reimbursement of $73,959 for legal fees associated with organizing and effectuating the repatriation of the crew. Judge Gergel found the supporting documentation to be inadequate and ordered the club to clarify the expenses it sought for reimbursement. The club resubmitted its request, reducing the request to $39,360, arguing that specialized services were necessary to organize the repatriation in light of COVID-19. Judge Gergel rejected the request, holding that the legal expenses were not custodia legis costs and could not be recovered absent bad faith. Additionally, Judge Gergel noted that many of the tasks served to benefit the club in defense of its own case as opposed to benefiting the crew and there was no way to parse the work that was undertaken for the benefit of the club compared to the benefit of the crew.

Duty of fleeting service to ensure adequate mooring of barges extends to the placement of barges within the fleet so as to protect the cargo in the barges from contamination; Supreme Rice, L.L.C. v. Turn Services, L.L.C., No. 20-1212, 2021 U.S. Dist. LEXIS 117914 (E.D. La. June 24, 2021) (Ashe).

Opinion

Supreme Rice contracted with the United States to provide 12,666 metric tons of long grain milled rice (LGMR) to an ocean-going vessel in Myrtle Grove, Plaquemines Parish, Louisiana, for shipment to Conakry, Guinea. Supreme Rice contracted with SCF Marine to provide seven hopper barges to transport the rice to Myrtle Grove. The barges all had covers and grain doors designed to protect the cargo from the weather but that allowed air flow and ventilation to prevent mold growth and overheating. SCF’s subcontractor delivered the barges with the rice to Turn Services, which operates a barge fleeting service near Myrtle Grove. The facility is upriver from one coal/petcoke terminal and across the river from another. Before delivering the barges, SCF sent an email to Turn’s dispatcher advising that the barges contained “LGMR” although Turn disputed whether it received the email. Turn inspected the barges and accepted them into its fleet, placing three of the barges in the upriver section of the fleet next to seven uncovered barges loaded with coal/petcoke. As a result of prior contamination, Turn has a standing order not to place milled rice barges close to coal barges. When the barges with the rice were inspected prior to the loading of the ocean-going vessel, it was discovered that rice in the three barges that were near the coal barges was contaminated with black dust. The surveyor opined that the dust came from the nearby barges and entered the SCF barges through gaps in the hopper covers and coaming. Supreme Rice brought this suit against Turn, and the parties filed cross-motions for summary judgment. The motions presented the question of the duty owed by Turn as fleeter. Turn argued that the duty of a fleeting service is only to ensure that the barges are adequately moored so that they do not break away, sink, or sustain hull damage. Judge Ashe began with the principle that a bailment existed when the barges were delivered to the fleeting service. The bailor establishes a prima facie case of negligence by establishing that the barges were delivered in good condition and were damaged on redelivery. Judge Ashe found that the barges were in a seaworthy condition when delivered because they had passed inspection by the United States and Turn. It was then up to Turn to establish that it did not breach any duty. The question was whether the fleeting service’s duty to ensure adequate mooring extended to the placement of the barges within the fleet so as to protect their cargo from contamination. Judge Ashe considered Turn’s policy of not placing milled rice barges near coal barges because it knew from experience that coal dust could damage the rice to be an acknowledgement that it had a duty to properly position the barges to avoid a known risk to cargo. Although recognizing the duty, Judge Ashe could not decide from the evidence presented whether there was a breach, so he denied the motions of both parties.

Court declined to change its ruling that a harbor worker on crane barges engaged in loading and unloading vessels in the Mississippi River was a seaman as to his borrowing employer after the Fifth Circuit’s decision in Sanchez but certified the order for an interlocutory appeal; Meaux v. Cooper Consolidated, LLC, No. 19-10628, 2020 U.S. Dist. LEXIS 118729 (E.D. La. June 25, 2021 (Ashe).

Opinion

Jonathan R. Meaux was hired by Savard Marine Services to work for Cooper Consolidated as a flagger/utilityman with respect to Cooper’s crane barges, loading and unloading ships and barges in the Mississippi River. Meaux was helping the crane operator of the BAYOU SPECIAL to put covers on another barge when he was struck in the head by a cover. He injured his back and neck, and Savard authorized medical treatment. Meaux brought this action against both Savard and Cooper under the Jones Act and general maritime law, including claims of maintenance and cure and punitive damages for the failure to pay maintenance and cure. Alternatively, Meaux sought to recover under the LHWCA. Meaux contended that he was a borrowed servant of Cooper and that Cooper owed him maintenance and cure. Weighing the Ruiz factors, Judge Ashe noted that Meaux worked exclusively for Cooper, performing Cooper’s work, for the entire time he was employed by Savard. As most of the factors, including the most important factor—control—favored Meaux’s status as a borrowed servant, Judge Ashe held that Meaux was Cooper’s borrowed employee. Cooper spent considerable effort analyzing the amount of time that Meaux physically spent on Cooper’s vessels and argued that Meaux did not spend 30% of his time on Cooper’s vessels so as to satisfy the threshold for the duration element for seaman status. Distinguishing the cases of itinerant maritime workers, such as wireline operators, who have assignments to unrelated vessels, Judge Ashe noted that all of Meaux’s work, whether on Cooper vessels or on vessels whose cargo was being loaded or unloaded, was related to his attachment to the Cooper vessels. Therefore, Judge Ashe ruled that Meaux satisfied the duration element of the connection test for seaman status. Citing the Fifth Circuit’s Endeavor Marine case that conflates work on the Mississippi River with duties that take a worker to sea, as set forth in Papai, Judge Ashe held that Meaux also satisfied the nature element of the connection test and was therefore a seaman. (See September 2020 Update). After the unanimous decision of the en banc Fifth Circuit in Sanchez v. Smart Fabricators (see May 11, 2021 Update), rejecting the analysis enunciated in Endeavor Marine, Cooper sought reconsideration of its motion on the issue of seaman status. Judge Ashe considered the nature inquiry to be a close question, but he was persuaded that Meaux satisfied the nature element because his work was performed midstream in a dangerous river, distinguishing the work in Endeavor Marine and Naquin where the work was performed on or near the dock. Judge Ashe stated: “Yet unlike Sanchez, Meaux could not take two steps on a gangplank, separating vessel from dock, and be ashore. These two steps make all the difference.” Judge Ashe did, however, certify the case for an interlocutory appeal to the Fifth Circuit.

Tanker that allided with vessels and wharfs was liable both under the Oregon Rule and Pennsylvania Rule and for poor Bridge Resource Management and other negligent acts; privity or knowledge of shoreside management prevented the owner and operator from limiting liability; the assisting tugs were exonerated from fault; the stipulation of the injured workers on a crane barge, trying to avoid the liability trial against the crane barge that was struck by the tanker, was too late and failed to include all claimants; the crane barge was exonerated of fault; the pilot on the tanker was negligent but not grossly negligent, and his negligence was attributable to the tanker in rem and the shipowner in personam because his actions were informed by the crew’s failures; the time charterer of the tanker did not breach any duties as a time charterer and was entitled to indemnity and additional insurance from the tanker owner pursuant to the terms of the charter party;  Archer Daniels Midland Co. v. M/T AMERICAN LIBERTY, Nos. 19-10525, 19-10925, 10-11813, 19-12748, 2021 U.S. Dist. LEXIS 118730 (E.D. La. June 25, 2021) (Fallon).

Opinion

This case arises from a casualty on the Mississippi River in which the tanker AMERICAN LIBERTY lost power and allided with the cargo ship AFRICAN GRIFFON and two barges (injuring workers on one of the barges). The barges then broke loose and ultimately allided with Archer Daniels Midland’s elevator grain facility and vessels that were located at and near the ADM facility. The tanker was assisted by two tugs and by a pilot. The owners of three of the vessels filed limitation actions, and injury and property damage claims were filed in the limitation actions. Judge Fallon issued four decisions on the merits on May 14, 2021. Marathon Petroleum, time charterer of the AMERICAN LIBERTY, moved for summary judgment that, as the time charterer, it had no responsibility for the navigation of the vessel. Judge Fallon denied the motion as Marathon was time charterer, owner of the dock from which the vessel had just departed, and owner of the destination dock in Tampa, Florida. There were questions of fact on the role Marathon may have played in the departure of the vessel from the dock at nighttime in high river stages and on Marathon’s authority over the crew and to collect penalties for increased fuel consumption and late departures/arrivals. The owner and operator of the AMERICAN LIBERTY sought to dismiss the unseaworthiness claims of injured workers who were not crew members on the AMERICAN LIBERTY. As the non-crew do not have unseaworthiness claims, Judge Fallon dismissed those claims and held that the workers must prove negligence. The owners of the two Bisso tugs that were assisting the AMERICAN LIBERTY as it departed the dock sought summary judgment based on the testimony of the federally licensed pilot on the AMERICAN LIBERTY, who testified that the tugs complied with all of his orders. However, Judge Fallon ruled that the pilot’s testimony was insufficient to establish as a matter of law that the tugs had satisfied their duty of care, although he cautioned that the claimants faced a “significant hurdle” in proving independent negligence on the tugs. Finally, Judge Fallon addressed claims involving the crane barge DON D, which was tied off to another vessel and broke free when the vessels were struck by the AMERICAN LIBERTY. Associated Terminals, which claimed to be the operator of the crane barge, sought summary judgment on the claims of its crew, who argued that the operator of the crane barge failed to train the crew on how to safely evacuate the vessel,  failed to provide the crew with a reasonably safe means to evacuate the vessel, and failed to position the crane in such a way that the crew could see inbound traffic, in violation of the Inland Navigational Rules. Judge Fallon held that there were fact questions on these theories that required a trial to resolve. However, Judge Fallon did grant summary judgment to the operator of the crane barge for property damage to the ADM facility as there was no evidence that the negligence of the operator caused the allision or the vessel to break free. Judge Fallon also denied the claimants’ motion for summary judgment (seeking to dismiss the limitation action brought by the operator of the crane barge for lack of status as owner pro hac vice) as Judge Fallon ruled that Associated presented sufficient evidence of its exclusive control over the vessel. (See June 2021 Update). Judge Fallon bifurcated the case into two phases. The first phase included liability, limitation, and allocation of fault. That trial was held in May, and Judge Fallon issued his findings of fact and conclusions of law on June 25, 2021. A second trial will address damages. As the AMERICAN LIBERTY was a moving vessel, Judge Fallon applied the presumption of fault set forth in the Oregon Rule. He also applied the presumption of causation from the Pennsylvania Rule for violation of Coast Guard regulations. However, Judge Fallon found, independent of the presumptions, that the captain and crew of the tanker were negligent, causing the allisions. As the failures attributable to the tanker began with the shoreside management of the owner and operator, Judge Fallon held that the tanker was not entitled to limitation of liability. In contrast, Judge Fallon held that there was no evidence that the assisting tugs failed to obey all orders or were otherwise negligent, and he exonerated them from liability. After the trial, the injured workers on the crane barge that was struck by the tanker filed stipulations seeking to try the liability of the crane barge in a state suit under the saving-to-suitors clause. However, the workers were not the only party to file a claim against the crane barge, and Judge Fallon denied their motion to lift the stay in the limitation action filed by the crane barge as being too late and not involving all claimants. As the workers failed to introduce evidence of the fault of the crane barge, Judge Fallon exonerated the crane barge. The tanker brought a third-party complaint against its pilot for gross negligence and argued that his gross negligence was not attributable to the vessel or its owner and operator. Judge Fallon held, however, that the pilot’s actions did not rise to the level of gross negligence and, because the pilot’s actions were informed by the failures of the captain and the crew, the pilot’s actions and inactions would be attributed to the tanker in rem and to its owner and operator in personam. Although Judge Fallon had held that there was enough evidence to permit a trial against Marathon, as time charterer of the tanker, for its role in the departure of the vessel, Judge Fallon held that the evidence at trial did not establish that Marathon exceeded the bounds of a traditional time charterer and he therefore held that Marathon was not a fault. Finally, Judge Fallon held that, as Marathon was not found at fault, it was entitled to indemnity from the owner of the tanker pursuant to the terms of the charter party.

Cargo insurance policy did not require an external cause and covered a self-starting fire and explosion in the cargo; IFG Port Holdings, LLC v. Underwriters at Lloyds, No. 2:19-cv-00835, 2021 U.S. Dist. LEXIS 119263 (W.D. La. June 25, 2021) (Doughty).

Opinion

IFG operates an export grain terminal at the Port of Lake Charles, Louisiana. On June 28, 2018, self-heating of soybeans stored in Silo C-5 ignited the soybeans, resulting in a combustion explosion that blew the top off the silo. When Underwriters at Lloyds, which issued a cargo policy to IFG, declined to pay for the damage to the soybeans, IFG brought this action. Clause 3 of the policy afforded coverage for all risks of physical loss or damage to the cargo from any “external cause.” Clause 6 provided that the insurance covered fire while the goods were on shore and included the risk of explosion howsoever or wheresoever occurring. IFG moved for partial summary judgment, and the underwriters responded that there were material disputed facts whether the loss was from an external cause. However, Judge Doughty noted that IFG moved for partial summary judgment based on Clause 6 and that Clause 6 did not include any language requiring the fire or explosion to be from an external cause. The underwriters argued that the policy required an occurrence, which is defined as an accident and that an accident requires a fortuitous event. Assuming that the policy required a fortuitous event, Judge Doughty did not equate that requirement with the necessity of an external cause. In upholding coverage, Judge Doughty stated that “certainly soybeans self-starting, catching fire and causing an explosion to silo 5 . . . would be a fortuitous event and/or an accident.”

Passenger on cruise ship who claimed sexual assault by a crewmember was entitled to summary judgment on her false imprisonment claim after the hearsay statements in the FBI report were excluded; passenger’s negligent infliction of emotional distress claim was denied as her emotional distress resulted from her physical injury; Doe v. Carnival Corp., No. 19-24766, 2021 U.S. Dist. LEXIS 119070 (S.D. Fla. June 25, 2021) (Torres).

Opinion

Doe and her cabinmate, who were passengers on the Carnival MIRACLE, were returning to their cabin after having a drink in the cabin of other passengers, James and John. James attempted to walk them back to their cabin, but Doe kept hiding from them. At some point Doe slipped and hit her head, and James gave up on escorting her back to her cabin. Doe ended up in a storage closet where she and a crewmember engaged in sexual relations. Doe does not recall going in or out of the closet, but she believed that the crewmember kept the door to the closet locked and would not let her leave. Carnival asserted that Doe consented to the interaction and was free to leave the closet based on a report prepared by the FBI. Doe brought this suit against Carnival, asserting a number of causes of action. Carnival moved for summary judgment on the claim of false imprisonment, citing the FBI’s conclusion that Doe was free to leave the closet at any time (based on statements of the crewmember during the FBI investigation). Magistrate Judge Torres ruled that the statements of the crewmember were hearsay. As the crewmember was not available to corroborate his statements, there was no evidence to counter Doe’s allegation that she was locked in the closet, and Magistrate Judge Torres consequently granted summary judgment in favor of Doe on the false imprisonment claim. The cruise line moved for summary judgment on Doe’s claim for negligent infliction of emotional distress, and Magistrate Judge Torres agreed that the cause of action applies to mental or emotional harm that is not directly brought about by a physical injury but that manifests itself in physical symptoms. As Doe claimed emotional distress from a physical injury, Magistrate Judge Torres recommended that her claim for negligent infliction of emotional distress be dismissed.

Injured firefighters were allowed to bring negligence actions against the parties who allegedly started a fire on a vessel and against the vessel’s bareboat charterer for failing to provide information needed by the firefighters; spousal loss of consortium claims were dismissed; Jolly v. Hoegh Autoliners Shipping AS, No. 3:20-cv-1150, 2021 U.S. Dist. LEXIS 120655 (M.D. Fla. June 28, 2021) (Howard).

Opinion

On June 4, 2020, the M/V HOEGH XIAMEN, was being loaded with used/junked/wrecked vessels for international transport at a terminal in Jacksonville, Florida. The vessel caught fire shortly after the loading operations were completed, and firefighters were dispatched to extinguish the fire. The firefighters sought information from the crew about the fire, but the crew members spoke little English and were not able to provide meaningful information about the location of the fire or potentially hazardous conditions. This delayed the firefighters’ response for an hour and forty minutes, allowing the fire to grow. Eventually, the firefighters began their efforts, but an explosion occurred, causing several firefighters to be injured. The injured firefighters and their spouses brought this action in Florida state court against the bareboat charterer of the vessel and against entities that maintained and loaded the vessel that allegedly started the fire, and the case was removed to the federal court for the Middle District of Florida. The defendants moved to dismiss the claims of the firefighters on the ground that the defendants did not owe them any duty and to dismiss the claims of the spouses on the ground that loss of consortium is not recoverable under the general maritime law. Judge Howard began by agreeing that maritime law applied to the suits and noting that maritime cases involving professional rescuers are scarce. He concluded that when the firefighters arrived on the vessel, the crew had an obligation to inform the firefighters of known conditions that could be a danger to the firefighters. The claim that the crew failed to provide the firefighters with that information for nearly two hours while the risks associated with fighting the fire increased was sufficient to state a claim that the crew breached its duty of reasonable care. With respect to the defendants who were accused of negligently starting the fire, Judge Howard noted that many states have laws prohibiting firefighter recovery, and some of those states, like Florida, have abolished those laws. However, there is no comparable federal enactment. Considering Florida’s policy of allowing firefighters to sue those who negligently start a fire to be consistent with the maritime law’s policy enunciated in Kermarec that all who are on board a vessel for purposes not inimical to the vessel’s interest are owed a duty of reasonable care, and giving effect to the maritime policy encouraging rescue and salvage, Judge Howard held that if a party negligently starts a fire that requires rescue personnel to respond, the negligent party will be responsible for the injuries to all who are affected by it, including seamen or firefighters. Judge Howard also addressed the claims of the firefighters’ spouses for loss of consortium. Bound by the decisions of the Eleventh Circuit, he dismissed the claims for loss of consortium.

From the state courts:

Oregon Rule did not apply to ferry’s contact with dock during mooring; appellate court affirmed finding that ferry captain was not negligent; Hebert v. State of Louisiana, No. 2019 CA 1248, 2021 La. App. LEXIS 864 (La. App. 1 Cir. June 2, 2021) (McDonald).

Opinion

Carl Hebert was a passenger in his wife’s Chevy Silverado truck on the Plaquemine Ferry, M/V NEW ROADS, which was crossing the Mississippi River to the Plaquemine Ferry Terminal in Iberville Parish, Louisiana. Hebert claimed that the ferry struck the dock with such force as to injure his neck, back, and leg. He brought this suit against the State of Louisiana and the captain of the ferry based on negligence, and the case was tried to a jury. Hebert requested that the jury be instructed that the Oregon Rule applied with a presumption of fault arising from the moving vessel alliding with a fixed object. The judge declined to instruct the jury on the Oregon Rule’s presumption of fault, and the court of appeals affirmed the decision, citing the exception when a vessel makes contact with a pier, dolphin, or other stationary object during normal mooring procedures. Writing for the appellate court, Judge McDonald reasoned that the captain had to bring the ferry into contact with the dock as part of the normal docking procedure. After the docking was complete, there was no damage to the dock or ferry. Thus, the landing was a normal procedure to which the presumption did not apply. Hebert also argued that the ferry captain was negligent even without the application of the Oregon Rule, citing the testimony of witnesses who described the landing as a “bad jerk” and “hard.” Even the captain admitted that the landing was harder than usual. However, the captain testified that hard landings occur quite often, and the river was high that day with substantial currents and wind. There was no damage to any of the vehicles on the ferry, and a state employee standing at the front of the vessel unassisted during the landing did not lose her balance. Hebert also suffered from significant pre-existing medical problems. Although he had sustained $896,062.01 in medical bills after the incident, the reviewing court held that there were two permissible views of the evidence and affirmed the finding that the captain and State were not liable.

Texas court lacked in personam jurisdiction over seaman’s Jones Act claim for injury sustained on a vessel in Maryland; Alpine Ocean Seismic Survey, Inc. v. Moore, No. 14-19-00499-CV, 2021 Tex. App. LEXIS 4515 (Tex. App.—Houston [14th Dist.] June 8, 2021) (Spain).

Opinion

Joseph Moore, a resident of Louisiana, injured his back while working as a deckhand on the R/V SHEARWATER, a research vessel owned and operated by Alpine. Moore received medical treatment in Maryland and Louisiana and brought this suit under the Jones Act in state court in Galveston, Texas against Alpine and Gardline Surveys, which has a principal office in Texas. Gardline Marine, a Delaware company, owns a 75% interest in Alpine and an ownership interest in Gardline Surveys, but neither Gardline Marine nor Alpine has an office in Texas. Alpine has its principal office in New Jersey, and the SHEARWATER has never operated out of Texas and is not contracted for work in Texas. Moore contended that Alpine had minimum contacts with Texas because it hired Texas employees through a recruiting agency and had entered into contracts with and paid invoices to Texas entities. The district judge denied Alpine’s special appearance, and Alpine brought this appeal. Writing for the court of appeals, Justice Spain noted that none of the contracts cited by Moore relate to the allegations in this lawsuit or to Moore’s injuries. This included the hiring of a Texas company to conduct an inspection in Maryland, which Moore argued was relevant to his claim that Alpine failed to maintain a safe work place. As Alpine did not purposefully establish minimal contacts with Texas, the appellate court ordered Moore’s claims against Alpine dismissed for want of personal jurisdiction.

Loss of sales of footwear by wholesalers when retailers were closed because of COVID-19 were not covered under an ocean marine business insurance policy; Hartford Fire Insurance Co. v. Moda, LLC, No. X06-UWY-CV-20-6056095-S, 2021 Conn. Super. LEXIS 994 (Conn. Super. Waterbury Dist. June 15, 2021) (Bellis).

Opinion

The defendants in this case are wholesalers of footwear to department stores and other retailers across the United States. When the COVID-19 pandemic struck and state and local governments issued orders temporarily closing non-essential businesses, the defendants’ customers cancelled their orders from the defendants’ spring lines, leaving the defendants’ warehouses overflowing with spring inventory which, because of the seasonal nature of the business, was effectively unsellable. The defendants made claims against two insurance policies, including their ocean marine business insurance policy. The insurer brought this suit seeking a declaratory judgment that the losses were not covered, and moved for summary judgment. The first issue to be resolved was the applicable law, with the defendants asserting that maritime law applied and the insurer claiming that New York law applied. The policy contained a provision for the application of federal maritime law or, in the absence of federal maritime law, the law of New York. Concluding that there is no specific federal rule governing construction of marine insurance policies, Judge Bellis applied New York law to interpret the scope of the policy. The policy was an “all risk” policy that insured against all risks of direct physical loss or direct physical damage to insured property from any external cause. Under New York law, the words “direct” and “physical” do not apply to loss of access to the property or the loss when the inventory becomes outdated or diminished in value. Consequently, Judge Bellis held that the ocean marine business insurance policy did not afford coverage for the claims.

Suit in Texas by Texas resident against New Jersey dredging company for accident in New York based on negligence of a Texas resident working on the New York dredging operation was dismissed for lack of personal jurisdiction; Weeks Marine Co. v. Landa, No. 04-20-00499-CV (Tex. App.—San Antonio June 30, 2021) (Valenzuela).

Opinion

Weeks Marine, whose headquarters is in New Jersey, was engaged to perform a dredging operation in New York, one mile out in the Atlantic Ocean off the coast of West Hampton Dunes. Its employee, David Landa, a resident of Starr County, Texas, was injured and brought this suit in Starr County under the Jones Act and general maritime law. Weeks filed a special appearance, which was denied by the district court. The court of appeals, however, reversed the district court and rendered judgment that the case be dismissed for lack of personal jurisdiction. Weeks asserted that it has a regional office in Houston, but Landa and his co-employee, Luis Mijares, whom Landa blamed for the accident, also a resident of Texas, worked for the Dredging Division of Weeks located in Covington, Louisiana. Although both workers were recruited from Texas, and Landa took a physical and drug test in Texas, was paid by direct deposit to his bank account in Texas, once worked on a project in Texas, and received medical care in Texas after his accident, Justice Valezuela held that the contacts did not establish specific jurisdiction over Landa’s negligence claims. Landa also asserted a claim that Weeks failed to pay maintenance and cure to him in Texas and tried to base jurisdiction on breach of a contractual obligation to pay him in Texas. Judge Valenzuela held that Landa’s residence in Texas could not be the basis for Texas jurisdiction and that Weeks’s contacts were Texas were not substantially connected to the operative facts of the maintenance and cure claim. Finally, Justice Valenzuela rejected Landa’s argument that there was general jurisdiction over Weeks in Texas, noting that merely doing business in Texas is not sufficient for Weeks to be “at home” in Texas.

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

Houston
1177 West Loop South
Tenth Floor
Houston, TX 77027
O 713.629.1580

New Orleans
1100 Poydras Street
39th Floor
New Orleans, LA 70163
O 504.569.1007

Gulfport
2304 19th Street
Suite 101
Gulfport, MS 39501
O 228.867.8711

Miami
4000 Ponce De Leon Blvd
Suite 630
Coral Gables, FL 33146
O 305.274.5507

Quote:

Defendants’ counsel maintains that in his long and illustrious career as a professional mariner and top-flight admiralty lawyer, he had never encountered—until now—a ship’s navigation system that provided information about the altitude of a ship to fix position. That may be true, but Defendants had months to review the raw Navionics data provided to them. That data unquestionably included elevation change information. This is not a situation in which Plaintiffs concealed data from Defendants, and then lured them with an enchanting Siren’s song into a rocky stipulation concerning that data. Defendants had months to review and analyze the Navionics data, and they went ahead and stipulated to the accuracy of the Navionics data with respect to “the positions/speeds of the vessels.” It’s hard to sympathize with Defendants’ assertion that they were not aware of any altitude data when they agreed to the stipulation.

Reed v. Maersk Line, Ltd., No. 3:19-cv-238, 2021 Dist. LEXIS 87728 (S.D. Tex. May 7, 2021) (Edison) (citation omitted).

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