June 2022 Longshore/Maritime Update

June 2

June 2022 Longshore/Maritime Update (No. 277)

Notes from your Updater:

Happy 70th birthday to your Updater.

On April 28, 2022, Judge Bashant held that insurance subrogation claims against the United States on behalf of a Navy contractor that suffered damage from the collapse of a sea gate could not be brought in federal district court under the Federal Tort Claims Act but must be brought in the Court of Federal Claims under the Tucker Act. Allianz Global Risks US Insurance Co. v. United States, No. 21-cv-1202, 2022 U.S. Dist. LEXIS 77780 (S.D. Cal. Apr. 28, 2022).

On May 2, 2022, the Supreme Court granted certiorari in Helix Energy Solutions Group, Inc. v. Hewitt, No. 21-984. As we noted in our October 2021 Update, a majority of the en banc Fifth Circuit held that a tool pusher on an offshore rig, who supervised 12 to 13 employees and earned $200,000 a year (twice the salary cap for overtime) while working about half the days of the year was entitled to overtime pursuant to the Fair Labor Standards Act. See Hewitt v. Helix Energy Solutions Group, No. 19-20023, 2021 U.S. App. LEXIS 27215 (5th Cir. Sept. 9, 2021) (en banc) (Ho). Six of the eighteen judges dissented.

We have previously reported on the constitutional issues arising from the arrest and prosecution of foreigners on foreign vessels based on a concept of statelessness or nationlessness of a vessel under the Maritime Drug Law Enforcement Act. See February 2022 Update. On May 2, 2022, the Supreme Court denied certiorari from the decision of the Eleventh Circuit in United States v. Nunez, 1 F.4th 976 (11th Cir. 2021), which upheld convictions of drug smugglers on a vessel that lacked any indicia of nationality while located on the high seas (between the Dominican Republic and Puerto Rico). Nunez v. United States, No. 21-728, 2022 U.S. LEXIS 2288.

Litasco SA, the marketing and trading subsidiary for Russian energy company Lukoil, was granted a writ of attachment by the federal court in New Jersey after N2 Tankers, owner of the M/T NORDBAY, allegedly declined to load a cargo of crude oil at the port of Novorossiysk, Russia in accordance with the charter between the parties. Litasco SA v. N2 Tankers B.V., No. 22-cv-2748 (D.N.J. May 13, 2022) (Vazquez).

As we noted in our April 2022 Update, Judge Bloom of the Southern District of Florida held that four cruise lines violated the Helms-Burton Act (unlawfully trafficking in property confiscated by the Cuban Government) when they used the Havana Cruise Port Terminal. Havana Docks Corp. v. Carnival Corp., Nos. 19-cv-21724, 19-cv-23588, 19-23590, 19-cv-23591 (S.D. Fla. Mar. 21, 2022). The cruise lines moved to certify her order for an interlocutory appeal, but, on May 13, 2022, Judge Bloom declined the request.

The courts continue to struggle with the application of the decision of the Supreme Court in Lucia v. SEC on the constitutionality of the appointment of administrative law judges.

On May 16, 2022, the United States Supreme Court granted a writ of certiorari to decide the question whether a federal district court has jurisdiction to hear a suit in which the respondent in an ongoing SEC administrative proceeding seeks to enjoin that proceeding, based on an alleged constitutional defect in the statutory provisions that govern the removal of the administrative law judge who will conduct the proceeding. See Securities and Exchange Commission v. Cochran, No. 21-1239. Two days later, the Fifth Circuit handed down its decision in Jarkesy v. Securities and Exchange Commission, No. 20-61007, 2022 U.S. App. LEXIS 13460 (5th Cir. May 18, 2022), holding that the statutory removal restrictions for SEC administrative law judges are unconstitutional because the ALJs are sufficiently insulated from removal that the President cannot take care that the laws are faithfully executed. Accordingly, the Fifth Circuit held that the SEC proceedings were unconstitutional in that case because the respondents in the enforcement action were deprived of their Seventh Amendment right to a civil jury and because Congress unconstitutionally delegated legislative power to the SEC by failing to give the SEC an intelligible principle by which to exercise the delegated power (although the court held that the statutory removal restrictions for SEC ALJs are unconstitutional, the court did not address whether vacating the decision below would be appropriate based on that defect alone. Judge Davis disagreed that the layers of removal protection for SEC ALJs were unconstitutional and with the holding that the removal restrictions interfered with the President’s ability to take care that the laws be faithfully executed.

On May 16, 2022, Judge Simon declared the harbor maintenance and safety fee of $300, imposed by the Port of Astoria on large ocean-going commercial vessels, was unconstitutional under the Tonnage Clause of the United States Constitution. Columbia River Steamship Operators’ Association v. Port of Astoria, No. 3:19-cv-1478, 2022 U.S. Dist. LEXIS 87579 (D. Ore. May 16, 2022).

The owner (Evridiki Navigation) and operator (Liquimar Tankers Management) of the M/T EVRIDIKI were fined $2 million and $1 million, respectively, for failure to maintain an accurate oil record book, falsification of records, obstruction of justice, false statements, and aiding and abetting in connection with a Coast Guard investigation of the vessel’s alleged discharge of oily water into the ocean. United States v. Evridiki Navigation, Inc., Liquimar Tankers Management Services, Inc., No. 19-cr-66 (D. Del May 18, 2022) (Andrews).

On May 23, 2022, the unanimous Supreme Court, in a non-maritime case, held that a party asserting a waiver of the right to arbitrate does not have to demonstrate prejudice. Morgan v. Sundance, Inc., No. 21-328, 2022 U.S. LEXIS 2514 (U.S. May 23, 2022) (Kagan).

On May 23, 2022, the First Circuit agreed with the reasoning of other circuit courts in affirming the remand of the climate-change suit by the state of Rhode Island against energy companies that was removed on multiple grounds, including jurisdiction under the Outer Continental Shelf Lands Act and admiralty. The court held that the energy companies failed to show that the tort claims arose out of or were in connection with operations on the OCS and rejected the “speculative” argument that a large monetary judgment would inevitably deter OCS operations. The court made “short work” of the energy companies’ argument that there was admiralty jurisdiction for the injury suffered on land because the complaint alleged dangerous products and misleading promotion—not a vessel on navigable waters—caused the state’s damages. Rhode Island v. Shell Oil Products Co., No. 19-1818, 2022 U.S. App. LEXIS 13838 (1st Cir. May 23, 2022) (Thompson).

On May 24, 2022, the Fifth Circuit affirmed the dismissal of the racketeering complaint of Robert H. Williams, filed in the federal court for the Middle District of Louisiana, against American Commercial Lines and more than a dozen other parties for lack of subject matter jurisdiction, but vacated the district court’s dismissal on the merits as the district court lacked subject matter jurisdiction. Williams v. American Commercial Lines, Inc., No. 21-30609, 2022 U.S. App. LEXIS 14167 (5th Cir. May 24, 2022) (per curiam).

On the LHWCA Front . . .

From the federal appellate courts:

Ninth Circuit distinguished survival and wrongful death actions: failure to file suit within three years of the date of awareness of a work-related asbestos disease of a shipyard worker did not bar a wrongful death suit by his widow against manufacturers of asbestos products; Deem v. William Powell Co., No. 20-35165, 2022 U.S. App. LEXIS 11677 (9th Cir. Apr. 29, 2022) (Gould).


The death of Thomas Deem from exposure to asbestos-containing products during his employment as an apprentice and journeyman outside machinist at the Puget Sound Naval Shipyard, returns to the Update. In the January 2020 Update, we reported that Judge Settle had held that the trigger for the three-year maritime statute of limitations for the widow’s wrongful death case was not the worker’s death but the date of his diagnosis of a work-related disease. Applying that same rule to defendants in opinions issued in January 2020, Judge Settle likewise dismissed actions that were not brought within three years of Deem’s diagnosis—the date his widow was aware of his work-related injury. See February 2020 Update. Deem’s widow appealed to the Ninth Circuit, which distinguished between a survival claim, brought to recover for the worker’s injury, which accrues when the worker knew or should have known of his injury and its cause, and a wrongful death action for the damages suffered by the decedent’s beneficiaries, which cannot accrue until the decedent’s death. Thus, with respect to the wrongful death claim, the Ninth Circuit held that, if the cause of death is known at the time of death, the wrongful death suit under the general maritime law can be brought for three years thereafter.

From the federal district courts:

Federal court lacked jurisdiction over suit involving death of civilian employee of the Navy at the Naval Station Guantanamo Bay, as the facility is not a federal enclave; Tur v. Nettleton, No. 3:21-cv-483, 2022 U.S. Dist. LEXIS 75982 (M.D. Fla. Apr. 26, 2022) (Howard).


Christopher Tur was a civilian employee of the Navy who worked at a general store within the Naval Station Guantanamo Bay (on the island of the Republic of Cuba). The facts are taken from the opinion, which took them from the complaint: After Tur’s wife, Lara Sabanosh, began an extramarital affair with John Nettleton, Commanding Officer at the Naval Station, Tur confronted Nettleton, and a physical altercation ensued in which Nettleton severely injured Tur. Nettleton took the injured Tur to the water and caused him to be drowned in Guantanamo Bay, “knowing that his body would wash out to sea and likely never be found.” During Nettleton’s criminal trial, Tur’s siblings and mother learned about the altercation and brought this suit in state court in Duval County, Florida against Nettleton and Sabanosh, asserting claims under state law. Nettleton removed the case to federal court based on federal question jurisdiction, and moved to dismiss the claims as preempted by federal law. Judge Howard disagreed that Congress had exclusive jurisdiction over the Naval Station Guantanamo Bay and that federal law was exclusive at the facility. Although Nettleton admitted that the facility was not a federal enclave (Congress exercises exclusive legislative jurisdiction over enclaves pursuant to the terms of the Enclave Clause), he argued that Congressional authority was exclusive pursuant to the Property Clause because Congress granted the President authority to enter into the Lease of Guantanamo with Cuba (granting the United States complete jurisdiction and control over the facility). Noting that the Enclave Clause converts state law into federal law, creating a federal question, but the Property Clause simply empowers Congress to enact legislation governing federal land, Judge Howard held that neither the Property Clause nor the Supremacy Clause converted state law into federal law and that the Lease did not provide for any federal cause of action. Consequently, Judge Howard ordered the case remanded to state court.

Fifth Circuit’s Sanchez decision ultimately changed the 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; Meaux v. Cooper Consolidated, LLC, No. 19-10628, 2022 U.S. Dist. LEXIS 79750 (E.D. La. May 3, 2022) (Ashe).


Jonathan R. Meaux was hired by a staffing company, 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.” See July 2021 Update.

Judge Ashe held a one-day bench trial on the limited issue of Meaux’s seaman status and concluded that Meaux was not a seaman. Meaux spent all but one of his 44 days performing cargo-handling work midstream in the Mississippi River. He began and ended every day on land and rode a third-party owned and operated crew boat to and from the midstream locations. Meaux spent 86.07% of his total time in orientation or positioned on the cargo vessels that were not owned or operated by Cooper and 13.93% of his time on vessels owned or operated by Cooper, including performing maintenance on those vessels. Considering the Sanchez factors, Judge Ashe found that Meaux was not permanently assigned to the crew of any one crane barge. Instead, he was assigned to assist in the cargo-handling mission of the crane barges in Cooper’s fleet. However, his assignment was dictated by the work that was required. Judge Ashe did not agree that Meaux’s work as part of a longshore crew (his work was performed midstream in conjunction with Cooper’s vessels) made him a shoreside employer, and he also disagreed that Meaux’s allegiance was to the cargo vessels. Thus, Judge Ashe considered the allegiance to Cooper’s vessels to be “ever so slightly” in favor of seaman status. For the second factor, whether Meaux was engaged in sea-based or seagoing activity, Judge Ashe reasoned that boarding a crew boat to get to work is not a seagoing activity, nor was performing longshore work near or around water (reasoning that Meaux would not be a seaman if the vessel was dockside). Consequently, he found that Meaux’s duties did not take him to sea in the manner in which Sanchez envisioned to be considered sea-based or seagoing activity. For the question whether the assignments were limited to discrete tasks after which the connection to the vessel ended or whether the assignment included sailing from location to location, Judge Ashe noted that Meaux did not sail with any of the crane barges from location to location and did not work on vessels in transit. Although Meaux’s assignment was to complete a cargo-handling mission and was not a discrete task (like a contract welder), Judge Ashe was convinced that this factor weighed against seaman status because, at the end of the day, Meaux would take a crew boat to shore and go home like any other longshore worker. Consequently, Judge Ashe concluded that Meaux was not a Jones Act seaman.

Shipyard worker failed to present sufficient evidence to support claims against suppliers of products allegedly containing asbestos and a shipyard where he worked; claims against shipyard from continuing at-home exposure to asbestos on his clothes were preempted by the LHWCA; old workers’ compensation insurance policy sufficiently reflected coverage under the LHWCA; worker could not establish intentional injury claim against shipyard; Cortez v. Lamorak Insurance Co., No. 20-2389, 2022 U.S. Dist. LEXIS 79756, 85759, 90032, 90033 (E.D. La. May 3, 12,19, 2022) (Vance).

Opinion Entergy

Opinion Avondale

Opinion Bossier

Opinion Continental

Callen Cortez claimed that he contracted mesothelioma from exposure to asbestos during his employment as a welder and tacker helper at Avondale’s Westwego Yard as well as from his brother’s employment with Avondale. Callen lived in his family home in Kraemer, Louisiana until he married and moved out in May 1972. His brother, Daniel, went to work for Avondale in August 1967 and lived in the family home with Callen until Daniel married and moved out in July 1968. Daniel testified that he worked with asbestos during this period and that he and his brother beat the asbestos fibers off his clothes after Daniel came home each day, and Avondale’s expert opined that asbestos taken home on Daniel’s clothes significantly contributed to the development of Callen’s mesothelioma. Callen also complained of exposure to asbestos during his employment with Avondale between March 1969 and May 1974. Callen brought this suit in Louisiana state court against Avondale, its executive officers and insurer (Lloyd’s), Halter Marine, and various parties supplying products containing asbestos, including claims for negligence and an intentional tort. The suit was removed to federal court, and Avondale and its insurer Lloyd’s moved for summary judgment on the ground that Callen’s claims are preempted by the exclusive remedy provision of the LHWCA. Callen and several of the defendants opposed the motion, arguing that the claims fell within the twilight zone of concurrent state and federal jurisdiction over workers’ compensation claims, that the LHWCA does not preempt Callen’s third-party claims arising out of Daniel’s take-home asbestos, and that the LHWCA has an intentional-tort exception. Judge Vance first addressed the version of the LHWCA that is applicable to the suit, as the exposure occurred before the 1972 Amendments that extended the LHWCA shoreside. Following the manifestation rule, so that Callen’s “injury” arose after the 1972 Amendments, Judge Vance held that Callen’s claim satisfied the situs and status of the LHWCA. Consequently, she held that the state tort claims against Avondale arising from his employment were preempted and should be dismissed. She reiterated rulings from prior decisions that rejected arguments that preemption did not apply because Callen was not seeking benefits under the LHWCA and that dismissal would violate due process by divesting Callen of an accrued right. Without deciding whether the LHWCA recognizes an intentional-tort exception to its preemption, Judge Vance held that Callen had failed to present evidence sufficient to establish that Avondale either consciously desired that Callen contract mesothelioma or knew that the result was substantially certain to follow from Avondale’s conduct. Consequently, Judge Vance granted summary judgment on all of the claims of Avondale in its capacity as Callen’s employer. However, Callen also sued Avondale related to the exposure to asbestos from the clothes of his brother, Daniel, while Daniel was employed by Avondale. Although Callen argued that the LHWCA preempted this claim as well, Judge Vance held that the exclusive remedy language within Section 5(a) of the LHWCA was not so broad as to encompass exposure that did not occur in the course of Callen’s employment with Avondale but, instead, was related to the employment of Daniel. If Callen had been exposed to dust on his brother’s clothes during Callen’s ride to or from employment, the situation would be different. Avondale also cited the non-apportionment rule from the Benefits Review Board that declines to apportion LHWCA benefits across jurisdictions when a claimant’s employment-related injury/disease occurred both within and without the coverage of the LHWCA. She held that the BRB rule has no application to the issue whether non-employment claims are preempted by the LHWCA and only applies to employment exposure falling within different compensation schemes. Finally, Avondale argued that Callen’s mesothelioma is a single disease, and the individual exposures are not indivisible injuries but a single injury/disease that is preempted. Thus, when the employment injury aggravates or combines with a previous condition or disease, the employer is liable for the resulting total disability. Judge Vance rejected that argument, reasoning that the scope of an LHWCA award does not affect the claimant’s ability to sue manufacturers of products, or, in this case, Avondale as employer of Callen’s brother. As the LHWCA is only concerned with Avondale’s capacity as employer, she denied Avondale’s motion for summary judgment for Callen’s exposure from Avondale’s capacity as employer of Daniel. Judge Vance then applied the holding on Avondale’s motion for summary judgment to the motion filed by Avondale’s insurer, Lloyd’s. She only added that Lloyd’s was also not liable in its capacity as insurer for executive officers of Avondale (even though they were not part of the previous order) because the executive officers have the same immunity to suit as the employer. Similarly, Judge Vance denied Lloyd’s motion to the extent of Avondale’s liability in a non-employer capacity with respect to Callen. See May 2022 Update.

Several defendants then moved for summary judgment on the ground that Callen had not produced sufficient evidence of exposure to their products. Defendant Entergy argued that there was no evidence of exposure to asbestos from its facility at Nine Mile Point because Callen supported his claim of exposure on his father’s statements that he worked at the facility. Judge Vance agreed that the testimony was hearsay and dismissed Entergy from the suit. With respect to the other defendants, Judge Vance held that some of the defendants had established that there was no exposure to their products and granted their motions. Callen and some of the defendants sought a clarification or reconsideration of Judge Vance’s decision that the LHWCA does not preempt the plaintiff’s claims against Avondale arising out of his brother’s employment with Avondale; however, Judge Vance did not see any reason for clarifying her holding and reaffirmed that the dismissal was for all of the claims except the take-home exposure claims brought against Avondale in the capacity as employer of Callen’s brother. Albert L. Bossier, Jr. was sued by Callen in his capacity as an officer of Avondale and filed cross claims against multiple co-defendants. The co-defendants moved to dismiss the claims as preempted by the LHWCA, but Bossier died and no substitution was made for him after the suggestion of death was filed for him. Without a substitution, Judge Vance dismissed Bossier’s third-party claims. Callen also alleged that he was exposed to asbestos while employed by Halter Marine, and he named Halter Marine’s insurer, Continental, as a defendant. Continental moved for summary judgment on the ground of preemption under the LHWCA, and Judge Vance reiterated her analysis with respect to the preemptive effect of the LHWCA based on the extension of coverage with the 1972 Amendments. Callen reiterated some arguments and made additional arguments, all of which were rejected by Judge Vance. He argued that Continental’s insurance policy did not provide LHWCA coverage and, consequently, LHWCA immunity was not applicable. Reviewing the policy language digitally, Judge Vance found it legible and clear that there was LHWCA coverage. Callen also argued that even if the LHWCA preempted his claims arising out of injuries incurred while at Halter Marine, it did not preempt his claims arising from exposure from his work clothes while at home. Judge Vance rejected that argument, however, and held that the off-site exposures arose out Callen’s employment and were covered by the LHWCA. Callen also argued that his injuries occurred in the twilight zone of concurrent state/federal jurisdiction where he was allowed to bring a state workers’ compensation claim. Judge Vance noted, however, that Callen was not bringing a state workers’ compensation claim, and she followed her preemption analysis with respect to the state tort action. Judge Vance similarly rejected the argument that the preemption analysis did not apply because Callen was not seeking benefits under the LHWCA, following the previous preemption analysis. Finally, Judge Vance dismissed Callen’s intentional tort claims, holding that the evidence presented fell far short of establishing that Halter Marine intended to harm him or that his mesothelioma was inevitable.

Asbestos tort claims on behalf of shipyard worker against shipyard were barred by the LHWCA as amended in 1972 (satisfying the situs and status requirements); Morales v. Anco Insulations Inc., No. 20-996, 2022 U.S. Dist. LEXIS 80633 (E.D. La. May 4, 2022) (Vance).


Oscar Morales, Sr. claimed that he contracted mesothelioma from exposure to asbestos while he was employed as a tacker for the Avondale shipyard between 1970 and 1973. He brought this action in federal court in Louisiana, asserting claims under state law against Avondale and several product suppliers, and his heirs were substituted for him as plaintiffs after he died. Avondale (and its insurer) moved for summary judgment on the ground that the claims against Avondale were preempted by the exclusive remedy provision of the LHWCA. As Morales was diagnosed with mesothelioma in 2020, Judge Vance applied the LHWCA as it existed in 2020, the date of his injury. Accordingly, she considered the status and situs requirements of the Act after the 1972 Amendments and held that Morales’s employment as a tacker satisfied the situs and status requirements. Applying the exclusive remedy of the LHWCA (in Section 5(a)), Judge Vance held that the state-law causes of action against Avondale (and its insurers and executive officers) were preempted and must be dismissed.

Barge cleaner who was injured while cleaning a tank on a barge in the Mississippi River was not a seaman; In re Ingram Barge Co., No. 3:20-cv-313, 2022 U.S. Dist. LEXIS 26999 (M.D. La. May 12, 2022) (Jackson).


Gregory Ratcliff was employed by TT Barge and was assigned to clean the tank on a barge owned by Ingram Barge Co. The barge was secured to a floating work platform in the Mississippi River. He slipped and fell on caustic soda that was frozen inside the barge, and Ingram Barge brought this limitation action in federal court in Louisiana. Ratcliff filed a claim against Ingram Barge in the limitation action, and TT Barge, which was subject of a suit brought by Ratcliff in state court, also filed a claim in the limitation action for contribution/indemnity. Ratcliff then moved the court to bifurcate the limitation and non-limitation issues so that he could try apportionment of liability and damages to a jury in his action filed in state court. Judge Jackson denied the motion, reasoning that Ratcliff could only proceed in state court prior to the court’s determination of the vessel owner’s rights to exoneration or limitation when all claimants have entered stipulations protecting the rights of the vessel owner under the Limitation Act. As TT Barge was a claimant and had not agreed to a stipulation, Judge Jackson held that bifurcating the issues of limitation and liability was inappropriate. See March 2022 Update.

Although Ratcliff did not make a claim against TT Barge in the limitation action, TT Barge raised the issue of seaman status of Ratcliff in the federal limitation action by arguing that a finding that Ratcliff was not a seaman would mean that his exclusive remedy against TT Barge was the LHWCA and, consequently, Ratcliff would have no claim for contribution or indemnity to assert in the limitation action. TT Barge argued that Ratcliff could not be a seaman because its work barges formed a permanently moored work platform and were not vessels in navigation. Judge Jackson agreed and then addressed Ratcliff’s argument that he had a substantial connection to the barges of Ingram, a customer of TT Barge. As Ratcliff worked on barges owned by many different customers and was assigned to work on the customers’ barges at random, Judge Jackson held that Ratcliff owed his allegiance to a shoreside employer and not to any specific vessel (using the Fifth Circuit’s Sanchez analysis). Ratcliff only worked on docked vessels and did not sail with them from port to port. Therefore, Ratcliff could not satisfy the connection test and was not a seaman as a matter of law.

Court dismissed LHWCA claimant’s suit against the Department of Labor (claiming that the OWCP violated the Act and his constitutional rights in handling his claim); Fitzpatrick v. United States Department of Labor Office of Workers’ Compensation Programs, No. 21-cv-1561, 2022 U.S. Dist. LEXIS 89040 (S.D. Cal. May 16, 2022) (Lopez).


John Fitzpatrick claimed that he was injured on the U.S.S. SAN DIEGO while working as an employee of General Dynamics. He filed a claim under the LHWCA that was defended by Broadspire. Dissatisfied with the handling of his claim by the Department of Labor, Fitzpatrick brought this suit against the OWCP in federal court in California, claiming violations of his rights under the Fourth and Fifth Amendments to the Constitution based on negligent mishandling and denial of medical treatment in violation of the LHWCA. The OWCP filed a motion to dismiss for lack of jurisdiction based on Fitzgerald’s failure to pursue an administrative claim as required by the Federal Tort Claims Act. In deciding whether to allow Fitzpatrick an amendment to his complaint, Judge Lopez answered that even if Fitzpatrick had alleged a constitutional violation, he could not bring a claim against the United States under the FTCA because the statute does not waive sovereign immunity in this case. Additionally, Judge Lopez ruled that the complaint failed to state a claim and likewise denied Fitzpatrick leave to amend. She ordered the case terminated and advised Fitzpatrick to take up the denial of benefits with the Ninth Circuit.

Shipyard worker’s asbestos suit against the shipyard was properly removed under the Federal Officer Removal Statute; Robichaux v. Huntington Ingalls Inc., No. 22-610, 2022 U.S. Dist. LEXIS  88309 (E.D. La. May 17, 2022) (Morgan).


Felton Adam Robichaux claimed that he was exposed to asbestos-containing products while working as a carpenter and insulator for Avondale Shipyards from 1961 to 1979 and that he was also exposed to asbestos from his brother, who also worked at Avondale and from exposure to asbestos from other workers on the bus to and from the shipyard. Robichaux brought suit in Louisiana state court; Avondale removed the case to the federal court in Louisiana based on the Federal Officer Removal Statute; and Robichaux moved to remand the case to state court. Citing the Fifth Circuit’s en banc decision in Latiolais (see March 2020 Update), Judge Morgan held that Avondale had satisfied the requirements for removal under the statute, including raising a colorable federal contractor immunity defense under Boyle, and the removal was timely (noting that the 30-day period ran from service on Avondale and not the filing of the petition in state court). Consequently, Judge Morgan denied Robichaux’s motion to remand.

And on the maritime front . . .

From the federal appellate courts:

Eleventh Circuit affirmed summary judgment in passenger’s suit arising from assault by another passenger; Fuentes v. Classica Cruise Operator Ltd., No. 20-14639, 2022 U.S. App. LEXIS 11960 (11th Cir. May 3, 2022) (Jordan).


When the GRAND CLASSICA cruise ship returned to West Palm Beach after a short cruise to the Bahamas, Reinier Fuentes was waiting in line to disembark, but the area was crowded because Customs and Border Patrol had stopped the disembarkation process and was not allowing passengers to leave. Fuentes noticed Clynt Hadley and three other passengers cutting in line next to Fuentes, and he told them to go to the back of the line. A security guard observed the verbal altercation and attempted to separate Fuentes and Hadley; however, Hadley punched Fuentes in the face while another member of Hadley’s group joined the fight. Fuentes brought this action against the cruise line to recover for injuries he sustained in the incident. As there had never been a physical altercation before this during the disembarkation process, Magistrate Judge Valle recommended that the cruise line’s motion for summary judgment be granted. She did not believe that having security guards on the scene established notice of a danger of physical altercation, and the crowding of the lobby because of the delay in disembarkation was not inherently dangerous. See October 2020 Update. Judge Williams adopted the recommendations and entered a judgment in favor of the cruise line. Fuentes then appealed to the Eleventh Circuit.

Writing for the Eleventh Circuit, Judge Jordan rejected Fuentes’ argument that state law applied because the parties were of diverse citizenship, holding that maritime law applied to the injury to a passenger waiting to disembark the vessel. He stated that the cruise line owed its passengers a duty of reasonable care under the circumstances that required that the cruse line have actual or constructive knowledge of the risk-creating condition. In the context of an attack on one passenger by another passenger, the cruise line has a duty to warn or protect when its employees reasonably apprehend the danger that an attack is foreseeable (distinguishing attacks by crew members where the vessel owner is vicariously liable). Judge Jordan then discussed the framing of the foreseeability inquiry. Fuentes argued that the cruise line had a duty to prevent the attack because it knew that verbal disputes between passengers can lead to physical altercations; however, this foreseeability analysis was at too high a level of generality and ignored too many variables, considering that cruise lines carry hundreds or thousands of passengers congregated on the ship. Judge Jordan rejected the argument that the cruise line had actual notice that Hadley was going to attack Fuentes (because it had multiple security officers present during the dispute and had hired a security company to help with crowd control) as a verbal dispute does not provide actual notice that a physical assault will follow. A security officer had intervened and separated Fuentes and Hadley, but Fuentes was blind-sided by the punch which was a spur-of-the-moment type of thing. Judge Jordan noted that constructive notice could be established with evidence of previous similar incidents or the cruise line’s prior warnings about the specific danger. However, there was no documented violent altercation between passengers during disembarkation on the GRAND CLASSICA or any other ships operated by the cruise line and only one incident of a domestic dispute between a husband and wife in a private state room that was not sufficiently similar to provide constructive notice. There were incidents involving aggressive, intoxicated passengers, but those incidents did not escalate to physical violence. Fuentes also argued that the cruise line’s corporate representative was not adequately prepared for his Rule 30(b)(6) deposition on prior incidents and the number of security officers present on Deck 5 at the time of the incident and he was entitled to sanctions against the cruise line. Judge Jordan disagreed, holding that the lapses in preparation, when viewed in the context of the extensive deposition, did not rise to the level of sanctionable conduct. Fuentes also complained that the cruise line filed a post-deposition declaration by the corporate representative in support of the cruise line’s motion for summary judgment that included an incident that the representative did not recall during his deposition. Judge Jordan held that it was not error for the court to rely on the declaration in granting summary judgment as there was nothing in the record to suggest that the declaration was inaccurate and the passenger could have sought permission to re-depose the representative or another designee as to that expense.

Although mental depression has no geographic boundaries, the Medical Benefits Class Action Settlement for the DEEPWATER HORIZON/Macondo litigation does; LMPC0402457 v. BP Exploration & Production, Inc., No. 20-30502, 2022 U.S. App. LEXIS 12076 (5th Cir. May 4, 2022) (per curiam).


Raoul Galan, Jr. was not a clean-up worker for the DEEPWATER HORIZON/Macondo oil spill, and he did not live in one of the coastal zones covered by the Medical Benefits Class Action Settlement Agreement. However, he is a managing member of a company that owns property in Zone A, whose natural persons may bring claims under the Agreement. Galan argued that he should be included in the settlement class because he suffers mental depression. The claims administrator for the settlement denied the claim, and Judge Barbier affirmed the denial. The Fifth Circuit agreed with Galan that mental depression has no geographic boundaries, but the court held that his claim did not fit the plain meaning of the class membership for the agreement. As Judge Barbier correctly upheld the decision of the administrator, the Fifth Circuit affirmed the denial of the claim.

Eleventh Circuit reversed summary judgment in passenger’s suit arising from slip and fall on cruise ship, finding sufficient notice to the cruise line; Brady v. Carnival Corp., No. 21-10772, 2022 U.S. App. LEXIS 12209 (11th Cir. May 5, 2022) (Newsome).


Mary Brady slipped and fell in a puddle of water on the Lido deck of the Carnival SUNSHINE in dry weather while the vessel was moored at Port Canaveral, Florida. She brought this suit against the cruise line in federal court in Florida, and the cruise line moved for summary judgment on the ground that the condition was open and obvious and that there was no evidence that the cruise line had notice of the risk-creating condition. Judge Cooke granted the motion on the notice ground. Brady cited the cruise line’s evidence that the area was apparently wet due to its proximity to the pool and passengers coming out of the pool with wet clothing. To establish actual notice, Brady cited the testimony of one of her companions that there were cones in place at the time and location of the accident and that she had witnessed a similar fall a few minutes before the accident, as well as the presence of a sign that the deck area is expected to become wet due to weather and passengers’ use of the swimming pool. Brady cited a case in which notice was found from the placement of a warning sign after it had rained. However, Judge Cooke distinguished the case of an entire deck being wet after rain from a specific spot of water on a hot, dry deck. The fact that the cruise line expected passengers and rain to cause the deck to become wet did not create an inference that the cruise line knew of the existence of the puddle of water in which Brady slipped. Judge Cooke also denied that the testimony of Brady’s traveling companion with respect to the prior incident was sufficient notice to the cruise line as there were no crew members in the area and no evidence that the cruise line became aware of the condition in the interval after the accident. See February 2021 Update.

Brady appealed to the Eleventh Circuit, and Judge Newsome clarified that the relevant risk-creating condition was not the particular puddle on which Brady slipped. Instead, the issue was whether the cruise line knew or should have known that the area of the deck where she fell had a reasonable tendency to become slippery (and therefore dangerous) because of wetness from the pool. Judge Newsome was persuaded by the reversal of summary judgment in the Carroll case involving the trip over a lounge chair that jutted into a walkway even though the cruise line was unaware of the position of the chair (see May 2020 Update). The issue was not whether there was evidence that a crew member was aware of the existence of the puddle but whether the cruise line had notice that the area had a reasonable tendency to become wet and whether it had constructive notice that the pool deck could be slippery when wet. In this case, the placement of caution cones in the area (20 feet away) and the warning sign near the area would allow a reasonable fact finder to conclude that the area would frequently become wet from use of the pool and that the cruise line had notice of that danger. Accordingly, the Eleventh Circuit reversed the summary judgment, noting that the cruise line was not foreclosed from showing that it did not breach its duty to warn if the warning sign provided passengers with a sufficient warning about the dangerous condition of the area. Note: The March 2022 Update reported that, in the Carroll case cited by the Eleventh Circuit, Carroll obtained a jury verdict of $580,000 in total damages, reduced by the assessment of fault at 50% for Carroll (after the remand from the reversal of the summary judgment by the Eleventh Circuit). Thereafter Carroll and the cruise line reached a settlement.

Ninth Circuit set forth required elements for written notice in limitation cases and held that letters from counsel were insufficient to trigger the six-month period for filing limitation actions; Martz v. Horazdovsky, Nos. 20-35985, 21-15187, 2022 U.S. App. LEXIS 12536 (9th Cir. May 10, 2022) (Miller).


This decision from the Ninth Circuit involves the timeliness of two limitation actions. Jennifer Horazdovsky was killed on Flat Lake, Alaska, when the raft in which she was riding in tow of a vessel operated by her husband, Andrew, was involved in a collision with a 21-foot recreational vessel being operated by Reagan Martz, son of the boat’s owners, William and Jane Martz. Andrew Horazdovsky’s attorney Timothy Lamb sent a letter to Reagan Martz on June 18, 2018, advising that he was searching for insurance coverage and inquiring about insurance for the accident. Four months later, attorney Carl Cook emailed counsel for the Martzes and requested insurance on the boat and information on the property where Reagan Martz was staying. There was an exchange between counsel about the absence of insurance, property ownership, and whether an insurer was paying for the attorney for the Martzes, including a criminal lawyer for Reagan Martz. On December 4, 2018, a third attorney, Robert Stone, wrote to counsel for the Martzes to seek clarification of the insurance coverage, noting that Reagan was a permissive user of the boat, and advising of the investigation of whether William or Jane Martz would bear any responsibility. He advised that he “would like to avoid unnecessarily naming parties to a lawsuit.” On June 4, 2020, Andrew Horazdovsky brought an action in Alaska state court against Jane and William Martz, and the Martzes filed their limitation action three weeks later on June 25, 2020. Horazdovsky moved for summary judgment on the timeliness of the action, and Judge Gleason considered the letters that were sent by the three lawyers for Horazdovsky. Although the first two letters were “fairly limited in scope,” Judge Gleason found the third letter was far more substantive, “outlining a theory of liability that implicated the Martzes (the notation that Reagan Martz was a permissive user of the boat). The letter mentioned a lawsuit by stating that the lawyer would like to avoid unnecessarily naming parties to the suit, and Judge Gleason used that language to conclude that the representation that the lawyer wanted to avoid unnecessarily naming parties to the suit was notice that the Horazdovsky intended to bring a lawsuit. Although the letter was “undoubtedly tentative,” Judge Gleason held that it was sufficient notice to trigger the running of the period to file the limitation action. See December 2020 Update. The Martzes moved for an injunction pending appeal, arguing that they had complied with the statutory requirements of the Limitation Act and the injunction should remain in place as long as the appeal was pending. Although Judge Gleason assumed that there was sufficient chance of success on the merits of the appeal, she did not find that the Martzes would suffer irreparable harm absent an injunction pending appeal or that the balance of hardships was in their favor. Consequently, she exercised her discretion to deny the request for an injunction pending appeal.

Thirteen-year old T.T. drowned during the Discover Scuba Diving Experience provided by the owners and owners pro hac vice of the DIVE BARGE, who filed this limitation action. The incident occurred on January 5, 2019, and counsel for the boy’s personal representative wrote a letter to the owners requesting preservation of evidence related to the incident. There were no further communications from the claimant’s counsel prior to the filing of suit in Hawaii state court more than six months later on September 19, 2019. Within two months of the filing of the suit, but more than six months from the letter requesting preservation of evidence, the owners/owners pro hac vice of the DIVE BARGE filed their limitation action. The personal representative filed a claim in the proceeding and then sought dismissal or summary judgment that the limitation action was untimely. Judge Kobayashi declined to dismiss the action but addressed the timeliness issue on a summary judgment standard. The owners/owners pro hac vice argued that the preservation letter was insufficient to constitute written notice of a claim because it did not assign blame, fault, or liability for the death. However, Judge Kobayahsi considered the tenor of the letter as notice that there was a potential claim. If there were doubt as to whether the letter was giving notice of a claim, Judge Kobayashi stated that the owner/owners pro hac vice could have sought clarification. See December 2020 Update.

The vessel owners in both cases appealed to the Ninth Circuit, which reversed the decisions of the district courts. Writing for the Ninth Circuit, Judge Miller considered two issues of first impression in the Ninth Circuit. The first was whether the six-month limitation in the Limitation Statute is a jurisdictional rule (as the Fifth Circuit recent addressed in the Bonvillian Marine case, see January 2022 Update). Noting the disagreement among the appellate courts, Judge Miller agreed with the Bonvillian line of cases that the six-month rule is an ordinary statute of limitations and is not jurisdictional. Thus, the timeliness of the limitation action is a “merits issue” that is raised by a motion for summary judgment. Judge Miller then turned to the meaning of the requirement of a “written notice.” He began by noting that the factual circumstances of an accident did not constitute written notice and that actual knowledge of damage/injury is not a substitute for written notice. He added that written notice does not require a particular form of words but that the notice must be of a “claim,” and the claim must be one for which the vessel owner could reasonably seek limitation of liability. Judge Miller differed in his analysis from the district courts, reasoning that a “reasonable possibility” of a claim or a “potential claim” is not enough. Instead, “the writing must convey to the vessel owner the claimant’s actual intent to initiate a claim.” The claimants argued that the limitation period should be strictly construed as the Limitation Act is “a relic of an earlier era.” However, Judge Miller was unpersuaded that policy arguments provided any reason to deviate from the statutory language and held that neither claimant provided written notice of a claim before filing suit. Counsel’s letters in the Martz case equivocated on whether a claim would be asserted against William and Jane Martz and did not demand anything from them or assert an entitlement to recovery from them. Similarly, the letter in the Hawaii case did not state any intention to bring a claim against the vessel owners. It did use legal terms, such as evidence, spoliation, and waiver, but “[r]eferences to legal concepts without a definite statement of an intent to file suit—or to assert a legal right in some other way—are insufficient to provide notice of a claim.” Judge Miller also noted that the Hawaii letter was unclear whether it would extend to liability of the vessel as it did not mention the involvement of any vessel in the death.

First Circuit upheld admiralty jurisdiction over suit by dredging contractor against the United States for breach of contract; J-Way Southern, Inc. v. United States Army Corps of Engineers, No. 21-1144, 2022 U.S. App. LEXIS 13391 (1st Cir. May 10, 2022) (Thompson).


After the United States Army Corps of Engineers terminated its contract with J-Way Southern for dredging in Menemsha Harbor, Martha’s Vineyard, J-Way brought this suit for breach of contract against the United States in federal court in Massachusetts based on the court’s admiralty jurisdiction. The United States moved to dismiss the suit for lack of subject matter jurisdiction, arguing that the Court of Federal Claims and its predecessor have exercised jurisdiction over government dredging contract disputes since 1857. However, Judge Saris noted that no court has squarely considered whether a dredging contract is maritime so that a district court would have admiralty jurisdiction over a suit by a dredging contractor against the United States. Therefore, she analyzed the contract, reasoning that its purpose was to dredge a navigable waterway and then deposit sand on a beach. Although dredging a navigable waterway has been considered a traditional maritime activity, facilitating maritime commerce, a contract to nourish beaches with dredge sand, to protect them from erosion, has been held to be non-maritime. Although the United States argued that large portions of the contract did not involve dredging, Judge Saris concluded that the primary purpose of the contract was to facilitate maritime commerce so that the court had admiralty jurisdiction over the suit. The United States did not appeal and instead moved to dismiss the case on the merits as time-barred. Judge Saris agreed, and J-Way then appealed to the First Circuit. The United States now argued that Judge Saris correctly held that there was admiralty jurisdiction over the contract, and the First Circuit agreed. Writing for the court, Judge Thompson held that the nature of the contract aimed at protecting and effectuating maritime commerce by improving the navigability of the waterway. As its principal objective was maritime commerce (pursuant to the opinion of the Supreme Court in Kirby), the First Circuit sustained the district court’s admiralty jurisdiction and upheld the decision that the claims were time-barred.

Fifth Circuit affirmed denial of leave to file late claim in limitation action; In re OHT Hawk AS, No. 21-60796, 2022 U.S. App. LEXIS 12710 (5th Cir. May 11, 2022) (per curiam).


The semi-submersible heavy-lift vessel, M/V HAWK, which was transporting a dry dock, allided with a barge and Navy destroyer in the Huntington Ingalls shipyard in Pascagoula, Mississippi. The owners of the HAWK filed this limitation action in federal court in Mississippi, and the shipyard, the United States, and various insurers filed claims. 17 months after the deadline for filing claims had passed, Luis Cruz, a pipe insulator who was aboard the HAWK at the time of the allision, sought leave to file a claim. Judge Guirola declined to grant leave to file the late claim; Cruz appealed; and the Fifth Circuit affirmed Judge Guirola’s exercise of discretion to deny leave. The appellate court agreed that the limitation action was partly determined because one claim had already settled and that allowing the late claim would be prejudicial to the parties in the suit as discovery was less than a month from closing when the motion was filed. In fact, it was only a few months later that all of the timely claims were settled. Finally, the Fifth Circuit did not find good cause for the late filing from the fact that Cruz lived in New Orleans and the publication of notice was in Mississippi (where the allision occurred) as the two locations were in adjacent metropolitan regions.

French archaeological recovery project of shipwreck sites off the coast of Cape Canaveral was a commercial activity under the FSIA so as to permit federal jurisdiction in suit by salvor of French vessel that sank in 1565; Global Marine Exploration, Inc. v. Republic of France, No. 20-14728, 2022 U.S. App. LEXIS 12853 (11th Cir. May 12, 2022) (Lagoa).


In 1565, a French fleet, led by Captain Jean Ribault on the LA TRINITÉ was dispatched to reinforce the French Huguenot settlement of Fort Caroline on the St. Johns River near what is now Jacksonville, Florida. King Phillip II of Spain ordered Pedro Menéndez de Avilés, who founded the nearby Spanish settlement of St. Augustine, to destroy the French settlement. While in pursuit of the Spanish flagship SAN PELAYO, Ribault encountered a hurricane that destroyed his fleet, allowing Menéndez de Avilés to capture and destroy Fort Caroline (ending French settlements in Florida). Global Marine entered into authorization agreements with Florida to conduct salvage activities in Florida coastal waters resulting in discovery of several shipwreck sites. However, Florida was in contact with the Republic of France based on the assumption that one of the sites was LA TRINITÉ. Global Marine brought an in rem action against the shipwreck in the federal court for the Middle District of Florida, and Magistrate Judge Spaulding held that the res was LA TRINITÉ and that it was France’s sovereign property. Global Marine then brought this suit in the Northern District of Florida against France, seeking an in personam lien award based on unjust enrichment, misappropriation of trade secret information, and interference with its rights and relations. France moved to dismiss the claim based on a lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act. Judge Winsor agreed with France that the commercial activity exception in the FSIA did not apply and dismissed the suit for lack of subject matter jurisdiction. Global Marine appealed to the Eleventh Circuit, which disagreed with the interpretation of the commercial activity exception in the FSIA. Writing for the Eleventh Circuit, Judge Lagoa characterized the actions of France as engaging in a marine archaeological recovery project that would identify, evaluate, mobilize, and oversee public and/or private resources and organizations. As those actions, fundraising, contracting with organizations and businesses to carry out excavations, and overseeing the logistics of the project are commercial and of a type negotiable among private parties, Judge Lagoa considered them to fall within the exception and that the claims asserted in this suit were sufficiently “based upon” the commercial activities that the suit could proceed.

Employer was not negligent and vessel was not unseaworthy for the back injury of a deckhand when the employer conferred discretion on the deckhand to gauge whether assistance was necessary in lifting an object and the employer did not require an additional crewmember to assist; Underwood v. Parker Towing Co., No. 21-30531, 2022 U.S. App. LEXIS 13321 (5th Cir. May 17, 2022) (per curiam).


Lekendrick Underwood, a deckhand on the towboat M/V MISS MORGAN, injured his back while lifting a 57-pound pump that was used to drain rainwater from the hold of a barge. He had been trained in safe lifting procedures, and his employer, Parker Towing, gave deckhands discretion to decide whether to ask for assistance in lifting or performing routine tasks. Parker Towing moved for summary judgment on Underwood’s claims of negligence under the Jones Act and unseaworthiness under the general maritime law, and Judge Feldman granted the motion. Judge Feldman reasoned that where the crewmember is trained in safe lifting techniques, is performing a one-man task without assistance that is available to him, and cannot identify a negligent act on the part of his employer, there is no liability under the Jones Act. Although Underwood had to set the pump on top of a bucket in order to allow the hose to reach the water in the hold because there was a hole in the hose he regularly used, Judge Feldman did not consider that condition (or the failure to provide an additional crewmember to assist in the operation) to cause the vessel to fail to be reasonably fit or to be a cause of his injury as there were alternative methods for pumping out the water, including asking for help and swapping out the three-inch pump for a two-inch pump. See September 2021 Update. Underwood appealed to the Fifth Circuit, which affirmed the summary judgment. The court could not conclude that Parker Towing created an unsafe work place by assigning Underwood the task of moving the 57-pound pump without establishing a numerical lifting limit for its crew. Instead, the court held that Parker Towing could rely on Underwood to exercise reasonable care. Essentially, it was not the weight of the pump by itself that caused the injury—the weight was made dangerous by Underwood’s unsafe lifting technique, which Underwood used despite Parker Towing’s policy requiring safe lifting techniques. And, the fact that a working extension hose or smaller pump would have presented an easier method of removing the water was insufficient to render the vessel unseaworthy.

Fifth Circuit affirmed findings on liability and limitation from trial in vessel allision case; In re American Petroleum Tankers X LLC, No. 21-30420 c/w No. 21-30487, 2022 U.S. App. LEXIS 13747 (5TH Cir. May 20, 2022) (per curiam).   


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. See July 2021 Update. On May 20, 2022, the Fifth Circuit affirmed Judge Fallon’s findings on both liability and limitation, concluding that there was no clear error in his “well-reasoned” opinion.

From the federal district courts:

DEEPWATER HORIZON/Macondo clean-up workers’ opt-out suits were dismissed for lack of expert evidence of causation, except Judge Barbier declined to dismiss claims for transient or temporary medical conditions within the common knowledge of lay people; Campbell v. B.P. Exploration & Production, Inc., No. 17-3524, 2022 U.S. Dist. LEXIS 74496 (E.D. La. Apr. 25, 2022) (Vance); Murphy v. BP Exploration & Production Inc., No. 13-1031, 2022 U.S. Dist. LEXIS 83081 (E.D. La. May 9, 2022) (Africk); Novelozo v. BP Exploration & Production Inc., No. 13-1033, 2022 U.S. Dist. LEXIS 83083 (E.D. La. May 9, 2022) (Africk); Dixey v. B.P. Exploration & Production, Inc., No. 17-4320, 2022 U.S. Dist. LEXIS 85019 (E.D. La. May 11, 2022) (Vance); Swaney v. BP Exploration & Production, Inc., No. 17-4186, 2022 U.S. Dist. LEXIS 85752 (E.D. La. May 12, 2022) (Ashe); McCann v. BP Exploration & Production, Inc., No. 17-4006, 2022 U.S. Dist. LEXIS 85754 (E.D. La. May 12, 2022) (Ashe); Ngo v. BP Exploration & Production, Inc., No. 17-4464, 2022 U.S. Dist. LEXIS 91718 (E.D. La. May 23, 2022) (Vitter); McGill v. BP Exploration & Production, Inc., No. 17-4071, 2022 U.S. Dist. LEXIS 91777 (E.D. La. May 23, 2022) (Brown); Stephens v. BP Exploration & Production Inc., No. 17-4294, 2022 U.S. Dist. LEXIS 92686 (E.D. La. May 24, 2022) (Barbier); Turner v. BP Exploration & Production Inc., No. 17-4210, 2022 U.S. Dist. LEXIS 92688 (E.D. La. May 24, 2022) (Barbier); Wallace v. BP Exploration & Production Inc., No. 13-1039, 2022 U.S. Dist. LEXIS 92693 (E.D. La. May 24, 2022) (Barbier).

Opinion Campbell

Opinion Murphy

Opinion Novelozo

Opinion Dixey

Opinion Swaney

Opinion McCann

Opinion Ngo

Opinion McGill

Opinion Stephens

Opinion Turner

Opinion Wallace

Trevor Campbell, Lorenzo Murphy, Ulric Novelozo, Heather Dixey, Julie Swaney, Missouri McCann, Phieu Ngo, Ray McGill, Randi Stephens, Michael Darnell Turner, and Patti Wallace brought opt-out suits against BP, Transocean, and Halliburton for conditions allegedly resulting from their exposure to toxic chemicals during the clean-up of the DEEPWATER HORIZON/Macondo blowout in Louisiana, Alabama, and Florida. Judges in the federal court in Louisiana dismissed the suits of Campbell, Dixey, Swaney, McCann, Ngo, and McGill because they had not designated an expert to establish medical causation. Murphy and Novelozo designed Dr. Jerald Cook as their expert on medical causation, but Judge Africk held that the opinions of Cook, who could not identify the dose of toxic chemicals necessary to cause any of the health effects, were not the product of reliable principles and methods and were excluded. Accordingly, in the absence of expert evidence on causation, Judge Africk dismissed the suits of Murphy and Novelozo. Although Stephens, Turner, and Wallace did not present expert evidence on causation, Judge Barbier applied a relaxed rule of evidence in these maritime cases for the situation where the nature of the alleged injury is within the common knowledge of lay persons. After reviewing the conditions of these three workers, he held that conditions of sinusitis/sinus infections and sinus pain, respiratory infections, abdominal cramps and pain, mood disorder, insomnia and obstructive sleep apnea, hypertension, nephrotic range proteinuria, chest pain, frontoparietal cerebrovascular accident and stroke, blindness/vision problems, decreased sense of smell, facial pain, urinary tract infections, kidney infections, bowel problems, stomach problems, and bladder cancer are not within the common knowledge of lay persons and are not transient or temporary. Accordingly, he dismissed those claims with prejudice. However, he held that claims of nasal congestion/discharge, sore throat/throat irritation, nausea and vomiting, eye burning, shortness of breath, cough, wheezing, headaches, dizziness, depression, anxiety, skin blistering, boils/sores, skin dryness/flaking, inflammation, redness or swelling, itching, peeling, and scaling, diarrhea, oil burns, and skin rashes are transient or temporary medical conditions that are likely within the common knowledge of lay people and do not require an expert on specific causation. Therefore, those claims were not dismissed.

Complaint sufficiently alleged entitlement of beneficiaries to recover under DOHSA to avoid motion to dismiss or motion for more definite statement; Almeida v. Panther Helicopters, Inc., No. 20-3280, 2022 U.S. Dist. LEXIS 74501 (E.D. La. Apr. 25, 2022). (Fallon).


This suit arises from the crash of a helicopter carrying a worker between production platforms in the Gulf of Mexico, offshore Louisiana. Pilot Tito Livio Almeida was killed, and Sarah Almeida Rodriguez, personal representative of his estate, brought suit in Louisiana state court against the operator of the helicopter and product-liability defendants, asserting that the accident occurred in Louisiana state waters. Almeida’s employer removed the case to federal court based on diversity and the Outer Continental Shelf Lands Act, and the employer was dismissed based on the exclusive remedy provision of the LHWCA. Engine manufacturer Rolls Royce moved to dismiss the amended complaint filed in federal court or for a more definite statement because the allegations did not establish that the suit was brought for the benefit of the dependents enumerated in the Death on the High Seas Act, did not identify the beneficiaries for whom the suit was brought, did not establish that the beneficiaries were dependents, and did not establish that the beneficiaries had either paid for or were liable for funeral expenses. Judge Fallon rejected the arguments, holding that Rolls Royce would have the opportunity to determine the identities of the parties and whether they paid funeral expenses in discovery. Additionally, Judge Fallon held that parents need not show dependency, and discovery would establish whether they anticipated any loss of future support.

Shipowner had to replead contract and tort claims against welder and shipyard arising from dispute over work on the vessel and interference with the shipowner’s relationship with its lender; Ocean Beauty Seafoods LLC v. CAPTAIN ALASKA, No. 3:19-cv-6173, 2022 U.S. Dist. LEXIS 74901 (W.D. Wash. Apr. 25, 2022) (Settle).


Ocean Beauty Seafoods brought this action in federal court in Washington against the salmon tender CAPTAIN ALASKA and its owner, Captain Alaska Fish Co. to foreclose on a preferred ship mortgage. The loan was part of a larger agreement under which Ocean Beauty had the opportunity to purchase seafood caught or sold by Captain Alaska. Captain Alaska hired Mike Hogan to perform welding work on the vessel while it was located at the Majestic shipyard. Captain Alaska paid Hogan more than a million dollars, but asserted that Hogan had not completed the work. According to Captain Alaska, Hogan then demanded, on his behalf and on behalf of Majestic, a storage fee and additional amounts to re-start the welding, and through him, Majestic threatened to publish false and misleading statements about Captain Alaska. Captain Alaska argued that the statements interfered with its contractual relationships, including with Ocean Beauty (Hogan and Majestic allegedly knew that Captain Alaska owed money to Ocean Beauty). Captain Alaska argued that when Hogan declined to finish the welding Hogan and Majestic declined to allow Captain Alaska to remove the vessel. Captain Alaska brought claims in the suit against Hogan and Majestic for breach of contract, tortious interference with contractual relations, conversion, fraud and misrepresentation, extortion, and pursuant to the Washington Unfair Business Practices and Consumer Protection Act. Majestic moved to dismiss the claims, and, applying maritime law (but relying on Washington state law for the tort claims because that is what the parties cited in their briefing), Judge Settle dismissed most of the claims for repleading. With respect to the claim for breach of contract, Captain Alaska focused on its agreement with Hogan for welding services but failed to plead that it had an agreement with Majestic and did not plausibly allege that Hogan was Majestic’s agent or that his actions could otherwise bind Majestic into a contract.  Judge Settle declined to dismiss the claim for tortious interference with contractual relations and business expectancies (although he gave Captain Alaska leave to amend its claim to clarify its theories of liability), noting that, unlike with the contract claim, it was plausible that Hogan could have demanded storage money from Captain Alaska as Majestic’s agent without a valid claim and denying Captain Alaska access to its vessel would be an act reasonably expected to prevent it from fulfilling fishing contracts. Similarly, the claim that Majestic refused to allow Captain Alaska to remove its vessel and property plausibly stated a claim for conversion. The fraud/misrepresentation claim had to be repleaded because, as with the contract claim, the pleading of misrepresentations allegedly made by Hogan did not plausibly allege that Hogan’s actions could bind Majestic. Judge Settle did not find a private right of action for extortion, but he dismissed the extortion claim without prejudice, stating that it was not impossible that a private right of action existed for extortion or a similar cause of action. Finally, Judge Settle concluded, that Majestic, a shipyard engaged in trade or commerce, could be subject to a claim under the Washington Unfair Business Practices and Consumer Protection Act with respect to the assertion that Majestic demanded a storage fee (and denied access to the vessel) when there was no agreement to support the demand.

Judge exercised supplemental jurisdiction in seaman’s suit over claims against other defendants that fell within the admiralty jurisdiction; Marolda v. Tisbury Towing & Transportation Co., No. 4:19-cv-10496, 2022 U.S. Dist. LEXIS 75460 (D. Mass. Apr. 26, 2022) (Hillman).


Victor J. Marolda, III, was injured while serving as a seaman on a tug owned and operated by Tisbury Towing when a barge in tow of the tug capsized during a voyage from New Bedford to Martha’s Vineyard. Marolda brought this suit in federal court in Massachusetts against Tisbury under the Jones Act and general maritime law and moved to add four additional defendants involved with the loading and manufacture/sale of the scale system used by the loading system to weigh the sand and gravel aggregate carried by the barges. Marolda argued that the court had supplemental jurisdiction over the proposed claims; however, Judge Hillman denied the amendment under the supplemental jurisdiction because the court had admiralty jurisdiction over the claims. Tisbury Towing eventually impleaded the other parties, seeking contribution and indemnity, and Marolda filed a third-party complaint against them, alleging common-law negligence and product-liability claims. The third-party defendants moved to dismiss Marolda’s third-party complaint for lack of subject matter jurisdiction, arguing that the prior decision was law of the case on the supplemental jurisdiction issue. Marolda responded that having admiralty jurisdiction was not dispositive on the issue whether the court had supplemental jurisdiction and cited case law in this response from the First Circuit and Eleventh Circuit that the district court could exercise either admiralty jurisdiction or supplemental jurisdiction. Judge Hillman noted that the exercise of supplemental jurisdiction is discretionary, but as all of the claims arose out of the same case and controversy, Judge Hillman agreed to exercise supplemental jurisdiction and denied the motion to dismiss.

Witness’s cell phone records were discoverable in disputed Jones Act suit; fact questions precluded summary judgment on McCorpen willful concealment defense to the seaman’s maintenance and cure claim; Savoie v. Inland Dredging Co., No. 20-2294, 2022 U.S. Dist. LEXIS 76281, 87435 (E.D. La. Apr. 27, 2022, May 13, 2022) (van Meerveld, Milazzo).

Opinion phone records

Opinion maintenance and cure

Joseph Savoie brought this action in federal court in Louisiana under the Jones Act, alleging that he was injured on or about February 1, 2018 while assisting in the repair of a broken shaft on the M/V INGENUITY near Port Arthur, Texas. He did not report the injury at the time and kept working for Inland Dredging for 11 months thereafter. When documents produced in discovery demonstrated that the injury could not have occurred in February 2018, Savoie changed his claim to allege that he was injured in May 2018 while installing an impeller. Savoie testified that this accident was only witnessed by the vessel’s engineer, Mike Smith. In March 2022, Kirk Hamlett, described by Inland Dredging as a long-time friend and hometown associate of Savoie, testified that Hamlett, not Smith, was helping Savoie with the work on the dredge impeller, and Inland Dredging’s documents and Smith’s testimony showed that Smith was not on the dredge at that time. Hamlett testified that Savoie had first called him a year earlier and that they had spoken three months before the deposition and a week before the deposition. Inland Dredging issued a subpoena for the cell phone records of Hamlett, and Savoie moved to quash the subpoena (or for a protective order). Magistrate Judge van Meerveld declined the motion, noting that the timing, frequency, and duration of the telephone conversations were relevant to the veracity of Savoie’s witness testimony. She did however, limit the time for the phone records to between February 2018 and March 2022 and required that Inland Dredging redact all references to phone numbers other than Savoie’s phone number and Hamlett’s phone number.

Inland Dredging asserted a McCorpen willful concealment defense to Savoie’s claim for maintenance and cure. Savoie was employed by Inland Dredging from 2002 to 2009 and was rehired in 2015, and Inland Dredging argued that Savoie failed to disclose a history of low-back pain when he was rehired. Judge Milazzo found fact questions with respect to two of the three elements of the McCorpen defense. Inland Dredging supported the requirement that it establish that the concealed or misrepresented facts were material to the decision to hire Savoie with the declaration of the Safety Director that answers to the pre-employment questionnaire or pre-employment medical evaluation that revealed pre-existing conditions “may be” referred for further in-depth medical review, but Judge Milazzo did not consider that Savoie “may” have been further evaluated to be dispositive, particularly when he had worked for several years after his first back problem and the subsequent visits were not primarily for back pain. Additionally, it was not clear that the back issues prior to his rehiring in 2015 affected the same area as his post-accident back problems, with Judge Milazzo stating that the relevant time period to compare with Savoie’s current condition was his condition prior to his hiring in September 2015. [This is a concealment case, not a nondisclosure case for which the nondisclosure of a relevant condition arising after employment that allows the retention of employment could be the basis for a McCorpen defense].

Seaman may not recover non-pecuniary damages in injury suit; In re Adriatic Marine, LLC, No. 20-1488, 2022 U.S. Dist. LEXIS 76283 (E.D. La. Apr. 27, 2022) (Barbier).


Dontrelle Davis, a deckhand on the M/V CARIBOU, owned by Adriatic Marine, was injured while unloading cargo to the Horn Mountain Spar in the Gulf of Mexico. Adriatic Marine filed this limitation action in federal court in Louisiana, and Davis filed a claim in the limitation action, seeking to recover under the Jones Act and general maritime law. He also filed a third-party complaint alleging Jones Act claims against the vessel and against other entities. In both his claim and third-party action, Davis sought non-pecuniary damages for loss of enjoyment of life and mental anguish. Adriatic Marine moved for summary judgment on the damages sought, arguing that non-pecuniary damages such as loss of enjoyment of life and mental anguish are not recoverable by a seaman. Based on the Fifth Circuit decisions in Scarborough and McBride, Judge Barbier considered it to be “clear that under both the Jones Act and general maritime law, a seaman’s damages, whether personal injury or wrongful death, are limited to pecuniary losses,” and this rule applies both to the employer and non-employer. Consequently, Judge Barbier held that Davis was not permitted to recover non-pecuniary damages, and those claims were dismissed with prejudice.

Claims in sailor’s prior suit demonstrated awareness to trigger running of the maritime statute of limitations; Israel v. John Crane, Inc., No. 8:20-cv-2133-02, 2022 U.S. Dist. LEXIS 76949 (M.D. Fla. Apr. 27, 2022) (Jung).


Norman Israel brought this suit against suppliers of products containing asbestos, asserting that he developed lung cancer from exposure to those products while he worked as a machinist’s mate in the Navy from 1958 to 1978 on ships that were docked, tied up at shipyards, or at sea. However, in 1998, Israel filed a lawsuit in federal court in Ohio in which he claimed he was exposed to asbestos while working as a merchant seaman after he left the Navy. He alleged that his asbestos exposure caused him to suffer cancerphobia and that he suffered harm in the form of the necessity to be monitored for asbestos-caused diseases such as lung cancer. Israel was diagnosed with lung cancer in 2016, and, in 2017, his expert diagnosed the cause of his lung cancer as related to his exposure to asbestos. In 2020, Israel filed this suit against asbestos suppliers based on his exposure while serving in the Navy. Defendant John Crane sought summary judgment that the suit was time-barred by the three-year maritime statute of limitations, but Israel argued that the trigger date was in 2017 when Israel first received an opinion that his lung cancer was caused by asbestos exposure. Considering the doctrine of judicial estoppel, Judge Jung reasoned that Israel’s position in the current case was inconsistent with the positions he took in the 1998 action based on his understanding that his prior asbestos exposure put him at risk for a future cancer diagnosis. Rejecting Israel’s attempts to harmonize his positions, Judge Jung concluded that Israel’s inconsistent positions were calculated to make a mockery of the judicial system and that the 1998 complaint was evidence that Israel knew or should have known by 2016 that his lung cancer diagnosis may have been caused by his exposure to asbestos. Judge Jung also found evidence from Israel’s medical records informing him that a future diagnosis of lung cancer may result from his exposure to asbestos (and from an interrogatory answer in which he admitted learning about the causal connection in 2016). Accordingly, Judge Jung held that Israel’s cause of action began to accrue in 2016 and was time barred at the time this suit was filed in 2020.

Ship mortgagee was entitled to proceeds of sale of vessel, ahead of charterer with alleged liens for breach of the charter and for bunkers; Bank of America v. M/V MARINE PRINCESS, No. 21-559, 2022 U.S. Dist. LEXIS 77082 (E.D. La. Apr. 28, 2022) (Zainey).


Sunset Shipping and Dawn Shipping entered into a loan agreement in 2014, later assigned to Bank of America, for the refinancing of their vessels MARINE PRINCESS and MARINE PRINCE. The debt was secured by a First Preferred Marshall Islands Mortgage on the vessels. The debtors defaulted on the loan, and Bank of America arrested the MARINE PRINCESS in this action filed in federal court in Louisiana. Vessel charterer AMS filed an intervening complaint in the suit, asserting liens for breach of its charter with the owner and as the provider of bunkers to the vessel. Bank of America argued that English law applied to the charter and that AMS was not entitled to a lien under English law and that, regardless of whether AMS had a lien, the mortgage lien outranked the charterer’s lien so that the entire funds for the sale of the ship should be paid to Bank of America (as the funds were insufficient to pay both liens). Judge Zainey granted summary judgment on the validity of the Bank’s lien and then addressed whether AMS had valid liens and whether they were outranked by the Bank’s lien if they were valid. The court did not have the benefit of reviewing the relevant language of the charter as it was not in the record, but, nonetheless, Judge Zainey held that any liens in favor of the charterer would be outranked by the mortgage. Consequently, he held that the Bank’s lien was superior, but he did not release the funds from the sale of the vessel immediately because the litigation was still ongoing. A week later, on an unopposed motion for reconsideration, Judge Zainey released the funds to counsel for the Bank.

Florida court applied New York choice-of-law clause in dispute and voided policy for breach of named operator warranty, which also precluded recovery for an additional insured on the policy; Great Lakes Insurance SE v. Lassiter, No. 21-21452, 2022 U.S. Dist. LEXIS 78515 (S.D. Fla. Apr. 29, 2022) (Altonaga).


Reynolds Lassiter leased the SHMILY from its owner AMIKids and then obtained insurance for the vessel with Great Lakes. AMIKids was named as a loss payee on the policy. The policy contained a named operator warranty that required that only covered persons may operate the vessel. Captain Norman Russick was a named operator, but First Mate Michael Kutner was not. Russick, Kutner, and two others took the vessel out near the Marco Island Channel in Florida to test the vessel’s durability. Russick helmed the vessel until he felt tired, and Kutner then took over the helm (with Russick standing nearby). The vessel ran aground, and Lassiter sought payment for the full value of the vessel plus salvage and labor costs. Great Lakes denied the claim and brought this declaratory judgment action in federal court in Florida, citing breach of the named operator warranty and violation of uberrimae fidei for failing to disclose Lassiter’s 15-year-old misdemeanor domestic violence guilty plea. Great Lakes, Lassiter, and AMIKids moved for summary judgment, and Chief Judge Altonaga had to decide what was the applicable law in light of the clause applying entrenched admiralty law and, in its absence, New York law. As there is no entrenched maritime rule on the application of the express warranty (after all, Wilburn Boat was a warranty case), the question was whether there was a substantial relationship between New York and the policy to support the application of New York law. Lassiter argued that Great Lakes is not a New York company; the policy was issued under Florida’s Surplus Lines Law and was delivered to the insured in Florida; the vessel owner and home port of the vessel are in Florida; and the navigational limits of the policy are on the East Coast, Florida, and the Bahamas. However, Chief Judge Altonaga found a sufficient relationship to New York from the admission of Great Lakes as a surplus lines insurer in New York, maintenance of its trust account and agent for service in New York, and ownership by its parent company located in New York. Chief Judge Altonaga also rejected arguments that it would be unjust to apply New York Law and that New York law conflicted with a fundamental policy of the state of Florida. As New York law requires strict construction of warranties, regardless of causal connection to the loss or materiality to the risk, Chief Judge Altonaga held that the policy became void once Kutner helmed the vessel. She therefore granted Great Lakes’ motion for summary judgment. Although the decision on the warranty was sufficient to deny recovery, Chief Judge Altonaga also addressed the application of the uberrimae fidei doctrine in connection with the failure to disclose the criminal conviction. Although the Underwriting Manual indicated that underwriters must evaluate an applicant’s criminal history, it did not state that a criminal conviction was absolutely material to the risk but that it might influence the insurer’s perception of the risk. Consequently, Chief Judge Altonaga found a fact question whether Lassiter’s prior conviction was material. Finally, AMIKids argued that it was entitled to coverage despite Lassiter’s breach of the named operator warranty as an additional insured on the policy. However, the additional insured coverage provided that all duties of an assured under the insuring agreement also applied to an additional insured. Thus, under the policy (and New York law), AMIKids was not entitled to any better fate than Lassiter. Consequently, Chief Judge Altonaga granted summary judgment to Great Lakes against AMIKids. [Note: Chief Judge Altonaga also discussed choice of New York law in insurance policies in ­­­­­­­­­­­­­­­­­­­­Clear Spring Property & Casualty Co. v. Viking Power LLC, No. 21-62306, 2022 U.S. Dist. LEXIS 91192 (S.D. Fla. May 20, 2022), which is summarized below].

No jury was available for cross-claim in limitation action; In re Hanson Marine Properties, Inc. No. 2:20-cv-958, 2022 U.S. Dist. LEXIS 79350 (M.D. Fla. May 2, 2022) (Chappell).


Kaylee A. Prinzi was a passenger on a pontoon boat rented from Hanson Marine and operated by Kevin Hyma. She was thrown overboard, and the propeller severed Prinzi’s right leg. Hanson Marine filed this limitation action in federal court in Florida, and Prinzi and the vessel’s manufacturer filed claims in the limitation action. Hyma was brought into the action, and Prinzi filed a cross-claim against Hyma under the court’s admiralty jurisdiction as both Hyma and Prinzi are Florida citizens. The parties eventually settled all of the claims except for Prinzi’s claim against Hyma, and Prinzi demanded a jury trial on that claim. As there was no diversity or other basis for federal jurisdiction except admiralty, Judge Chappell struck Prinzi’s demand for a jury trial.

Fire on vessel was not covered on the vessel’s insurance policy because the owner used the vessel as his primary residence; Progressive Select Insurance Co. v. LaFace, No. 4:21-cv-10001, 2022 U.S. Dist. LEXIS 80455 (S.D. Fla. May 3, 2022) (King).


After separating from his wife, Steven LaFace moved out of their marital home in Michigan and traveled to Florida, staying at 9 hotels before purchasing a 2008 Rinker 320 Express Cruiser. LaFace brought many of his personal belongings with him to Florida, storing most in a storage unit and the remainder on the vessel. LaFace sold his interest in the marital home to his wife and did not own or rent a home or other real property in Florida. Relying on his representation that the boat would be used for pleasure, Progressive issued a policy for the boat that contained an exclusion for damage from an accident while using the watercraft as a primary or permanent residence. Thereafter, LaFace set out on a voyage on the vessel during which the vessel experienced engine problems. He stayed at hotels and a cousin’s house while work was performed on the vessel, but otherwise LaFace slept on the vessel. On July 23, 2020, the vessel caught fire and sank while LaFace stayed in a nearby hotel. When a Progressive adjuster spoke to LaFace about the claim, LaFace stated that he had been living on the boat. Progressive denied the claim and brought this declaratory judgment action in federal court in Florida. Progressive moved for summary judgment, and LaFace responded that he had taken a recreational trip that was extended by engine trouble and COVID lockdowns. He argued that he never intended to use the vessel as a primary or permanent residence but was stuck on the vessel because he was unable to have the vessel repaired. Judge King found no ambiguity in the policy provision and that LaFace spent the majority of his time living on the vessel (using it as a primary residence). Accordingly, he granted summary judgment in favor of Progressive.

Cruise line lacked notice for fall of passenger who fell while being rushed to her seat for a muster drill; Willis v. Royal Caribbean Cruises, Ltd., No. 1:20-cv-21192, 2022 U.S. Dist. LEXIS 81015 (S.D. Fla. May 4, 2022) (Moore).


Judith Willis was a passenger on the ANTHEM OF THE SEAS. She was directed to participate in a mandatory muster drill in the theater on deck four of the vessel. As she was late, crew member Valeriya Artyushenko told her to hurry up and get a seat, directing her to a seat. Willis responded that she was too old and fat to get to the seat, but the crew member told her to follow her down a step to the seat. While holding the railing, Willis stepped down and fell. Willis brought this suit against the cruise line in federal court in Florida based on negligence of the cruise line and crew member. The cruise line moved for summary judgment as there one no one directly in front of Willis on the steps, nothing was blocking her view, the lighting was adequate, and she did not slip on any foreign substance or tripping hazard. Willis argued that the defendants owed her a heightened duty of care because a muster drill is a unique maritime peril and because the defendants created the hazardous condition from the rushed process in the drill. She argued that it was a combination of the rushing with her physical condition that supported the negligence of the defendants. Although recognizing that muster drills are uniquely maritime, Judge Moore found no basis to diverge from the duty of reasonable care owed to passengers. After rejecting Willis’ citation to other incidents as evidence of constructive notice (they did not involve rushing an old and fat passenger by a crew member), Judge Moore held that the negligence claims against the cruise line should be dismissed for lack of constructive notice. With respect to the claim of vicarious liability based on the conduct of the crew member, Judge Moore did not have to reach the issue of the negligence of the crew member because Willis did not designate her doctors as expert witnesses and the letter she submitted from her doctor did not contain an opinion correlating her problems with her fall. Therefore, Judge Moore granted summary judgment on the vicarious liability claim.

Judge declined to strike experts in vessel explosion case; Gonzalez v. Sea Fox Boat Co., No. 2:19-cv-130, 2022 U.S. Dist. LEXIS 82590, 82591, 84348, 84350, 84351, 84633, 84715, 84716 (W.D. La. May 6, 10, 13 2022) (Cain).

Opinion Expert Fowler

Opinion Expert Rice

Opinion Henderson Treating

Opinion Expert Vigilante/Sea Fox

Opinion Expert Vigilante/Yamaha

Opinion Expert Rimmer

Opinion Experts Beckwith/Theriot

Opinion Limit Henderson

Opinion Evidence

Opinion Kleinpeter

This case arises from injuries suffered during an explosion when the plaintiffs were changing out the batteries on a 2014 Sea Fox Commander fishing boat in Louisiana waters [one of the plaintiffs subsequently died from mixed drug intoxication]. The plaintiffs brought this suit in federal court in Louisiana against Sea Fox, which designed and manufactured the vessel, and Yamaha, which sold the engines and water/fuel separating filters (Yamaha asserted that the filters were designed, manufactured, and tested by Dometic Corp./Sierra International). The complaint sought punitive damages. In our December 2021 Update, we discussed Judge Cain’s decision applying Louisiana law for the remedies for the survival action and Arkansas law to the remedies for the wrongful death action. In a subsequent opinion, Judge Cain addressed Yamaha’s argument that its actions/omissions did not rise to the level of egregious misconduct required to sustain a claim for punitive damages. The plaintiffs argued that the filters were defective because the cannister that contains the filtering device used materials that rust or corrode when submerged in water, that the filters were located in an area that allowed them to be submerged in water, and that users were not warned that there is a risk that fuel and fuel vapors can be released in the event the filters rust to the point that their integrity is compromised. The plaintiffs argued that Yamaha knew that if the filters were to rust they would corrode and leak fuel and that Yamaha was reckless because it failed to perform design failure analysis on the filters to prevent the corrosion. Yamaha responded that it had sold 1.8 million filters between 2005 and 2020 and only received 4 claims related to corrosion with no claims for injury or death. Yamaha also argued that it could not be held liable for punitive damages for the design, testing, and manufacture of the filters by Dometic/Sierra. However, the plaintiffs demonstrated that Yamaha had played a significant role in the specification and creation of the filters, including removal of the corrosion testing requirement from the final set of specifications. There were also disputes whether testing for corrosion and/or rust was performed and whether the box in which the filters were contained warned of the danger of rust or corrosion. Accordingly, Judge Cain found sufficient evidence to allow the claim for punitive damages to be determined by the fact finder. See March 2022 Update.

Sea Fox also moved for summary judgment on the punitive damage claim, and it fared no better than Yamaha. Sea Fox argued that it complied with all standards and regulations and that its conduct fell short of conduct that constituted gross negligence or callous/reckless disregard for the rights of others. The plaintiffs cited several actions or inactions in manufacturing the vessel that they argued could constitute a pattern of negligence that, taken together, established a reckless or callous disregard for the rights of others (failure to have a build-plan for the boat, failure to have drawings which purportedly matched the manufacture of the boat and placement of the filters, failure to install the filters in the location shown on an inspection report of a similar vessel, installing the filters in a highly corrosive environment, and failure to have warnings of fire and explosion due to fuel leakage). Judge Cain considered the cumulative effect of these negligent acts sufficient to collectively constitute gross negligence. See May 2022 Update.

The parties then moved to strike expert opinions, but Judge Cain declined the motions. The plaintiffs challenged metallurgical engineer failure analysist Gary Fowler with respect to the results of Fourier Transform Infrared Spectroscopy testing and sea spray testing on the grounds that the tests were unreliable and the opinions flowing from them would not assist the jury. The plaintiffs argued that Fowler had not personally conducted the Fourier test; however, their own metallurgical expert relied on a chemist to conduct similar testing for the plaintiffs. The plaintiffs made the same objection to the sea spray testing, but their expert did not criticize the testing when given the opportunity to do so. Judge Cain found that the test was highly relevant and helpful to the fact finder for its demonstration that the Yamaha filter experienced only superficial deterioration (that was unlikely to impact the structure of the canister), and held that questions on the supervision of the experiment were “fodder for cross-examination.” The defendants moved to strike the opinions of forensic economist Randy Rice on the loss of earnings resulting from the death of Jeremy Eades because the opinions did not account for Eades’ personal consumption, the historical support his mother and children received from him, the ages of the children to majority, and the life expectancy of his mother. However, Rice was only offered to testify as to the total lost earnings of Eades, so his failure to account for the objections of the defendants did not affect the admissibility of his testimony and could be addressed by the defendants’ economist. Yamaha and Sea Fox moved to strike the testimony of Dr. William Vigilante, an expert on ergonomics/human factors, on the adequacy of warnings, but Judge Cain held that his reports and methods were sufficiently reliable to allow him to testify about the adequacy of the warnings and the foreseeability of misuse. The defendants objected to the characterization of Dr. Darrell Henderson, a plastic surgeon who treated the burn wounds of Gonzalez, Outlaw-Knight, and Eades, as a treating physician because he was hired after the accident, but Judge Cain denied the motion, and he also allowed Dr. Henderson to testify about the plaintiffs’ need for psychological treatment, the need for pulmonary consults, counseling needs, and complications of wounds and obstacles to return to the plaintiffs’ occupations, such as heat exposure and physical strain. Judge Cain rejected the argument that the life-care plan of Ruth Rimmer or the opinions of vocational rehabilitation expert Joyce Beckwith and economist John Theriot were insufficiently based on supporting medical evidence. As the defendants’ motion to exclude evidence of domestic violence or disciplinary actions related to Dennis Kleinpeter was unopposed by the plaintiffs, Judge Cain precluded mention at trial of claims of domestic violence or disciplinary actions relating to Kleinpeter, although Judge Cain declined to grant the defendants’ motion to exclude internet reviews of Dr. Richard R. Roniger as being too premature for the court to determine if the objection was warranted. Finally, as it was unopposed, Judge Cain ruled that the defendants could not argue that Gonzalez was at fault for dumping out gasoline from the water/fuel separator, but he declined to rule in a motion for limine that the defendants’ experts could not testify that Gonzalez was at fault for continuing to work on the boat after he smelled gasoline and that the defendants could not argue to the jury on the application of joint and several liability.

Attorney retention agreement was construed against attorney, limiting contingent fee to 20%; Beattie v. Wilhoite, No. 20-cv-3523, 2022 U.S. Dist. LEXIS 83728 (E.D.N.Y. May 9, 2022) (Locke).


Kristen Beattie suffered an injury on a vessel owned by Deborah Farmanian while the vessel was being operated in navigable waters at the Mill Creek Basin in Southampton, New York. Beattie, a skilled businesswoman, first tried to settle with the vessel’s insurer but eventually hired attorney Lawrence Wertheimer with whom she had worked on contract matters for her interior design company. Beattie and Wertheimer executed a retainer agreement that included a one-third contingent fee, but the agreement contained a handwritten addendum: “If the matter settles prior to depositions the fee will be 20% of the gross recovery. Wertheimer brought this suit on behalf of Beattie in federal court in New York, and discovery followed. Beattie’s deposition was taken, and depositions of the defendant witnesses were scheduled. Before the defendant depositions were taken, however, the parties participated in the court’s mediation process and the case settled. Wertheimer sent a check to Beattie for her portion of the settlement after deducting expenses and a one-third contingency fee. Beattie then retained new counsel and argued that Wertheimer was only entitled to a 20% fee. Magistrate Judge Locke held that the language of the addendum was ambiguous as “prior to depositions” could mean prior to the deposition stage of the litigation (before any depositions), or it could mean prior to more than one deposition being taken as depositions is plural. Construing the ambiguity against Wertheimer, Magistrate Judge Locke recommended that Wertheimer receive a 20% fee and that he pay to Beattie the difference between 20% and a third.

Seaman’s claim for asbestos-caused lung cancer was not time-barred despite his prior suit for asbestos exposure, and there was sufficient evidence of causation to avoid summary judgment; Badamo v. Chevron U.S.A. Inc., No. 20-cv-5847, 2022 U.S. Dist. LEXIS 83774 (S.D.N.Y. May 9, 2022) (Liman).


Carlo G. Badamo served as seaman on vessels owned/operated by Chevron (successor to Gulf Oil), Chiquita (successor to United Fruit), Farrell Lines (successor to American Export Lines), and National Bulk Carriers. In 2008 he filed a lawsuit against multiple shipowner employers, shipbuilders, and manufacturers/suppliers of machinery, alleging that he suffered from injuries and diseases due to asbestos exposure on vessels, including fear of lung cancer, mesothelioma, and other diseases. On July 17, 2017, Badamo underwent a chest X-Ray that showed large mass-like opacities in his lung, and on July 21, 2017, a CT scan showed a mass in his lung that was highly suspicious for primary lung neoplasm. The assessment of his primary care physician on July 26, 2017 noted the results were highly suggestive of advance lung cancer and asbestos exposure. A biopsy on August 2, 2017 resulted in a diagnosis of adenocarcinoma, and the follow-up with his primary care doctor on August 9, 2017 reflected the diagnosis of malignant neoplasm of the lung. Badamo filed this suit in federal court in New York on July 28, 2020 against the vessel owners/operators. Badamo passed away on November 15, 2020, and his executor substituted as the plaintiff for Badamo’s survival claim. The defendants moved for summary judgment that the three-year statute of limitations began to run on July 17, 2017 (when the X-Ray showed the mass) and that the suit was untimely. Judge Liman recognized that a definitive diagnosis is not required for the claim to accrue and that the statute of limitations begins to run when the injury manifests itself or when the plaintiff, with reasonable diligence, should have known of its existence and the cause. The defendants argued that Badamo knew he had a pulmonary disease when he filed the suit in 2008 and that the disease could turn into lung cancer. Thus, when he was diagnosed with the mass, the disease was manifest and he was on notice of the cause. Judge Liman noted that there is a separate disease rule for asbestos-related injuries in Jones Act/FELA cases, so that the statute of limitations runs separately for each asbestos-related disease. The initial suit for cancerphobia was not a trigger for the suit for lung cancer, and Judge Liman did not consider the X-Ray report, which did not suggest malignancy, did not establish that Badamo knew that he had lung cancer. As the treating physician determined that additional tests were necessary before diagnosing lung cancer in August 2017, Judge Liman held that the suit filed on July 28, 2020 was not time-barred. Citing the relatively few days that Badamo served on Gulf Oil vessels during his career as a seaman and the lengthier service on vessels owned/operated by the other defendants, Chevron moved for summary judgment on causation. Noting that the burden of proof in seamen’s cases requires only that the employer’s negligence play any part, even the slightest, in producing the injury, Judge Liman held that the exposure on the Gulf Oil vessels was enough for the plaintiff to get to the jury.

Apparent authority of Chief Engineer to sign repair order for work on vessel will have to be decided at trial; Constance Joy II, LLC v. MTU America Inc., No. H-20-2967, 2022 U.S. Dist. LEXIS 84536 (S.D. Tex. May 9, 2022) (Hughes).


Constance Joy brought this action in Florida state court seeking to recover for faulty repair work on its yacht, CONSTANCE JOY II. The defendant removed the case to federal court in Florida, and Judge Ungaro transferred the case to Texas pursuant to a forum-selection clause. The ship repairer argued that a service repair order signed by Chief Engineer Anthony Waugh limited the owner’s recovery, and the owner argued that the engineer lacked actual or apparent authority to bind the owner to the terms of the repair order. Citing the employment contract with Waugh, Judge Hughes found no actual authority for Waugh to sign the order. The owner argued that neither the captain nor the chief engineer had apparent authority because the owner did not act to hold them out as agents. The ship repairer argued that it had the chief engineer sign the order to verify the authority that was never contradicted by the owner during the work. Noting that the only parties who could corroborate either party’s position were the captain and chief engineer and that these crew members had been unavailable for the duration of the lawsuit, Judge Hughes declined to decide the issue of apparent authority on cross-motions of the parties, holding that it would be decided at trial.

Scuba instructors owed duty to diver who drowned on snorkeling boat tour; judge struck defense based on liability waiver; Ehart v. Lahaina Divers Inc., No. 21-475, 2022 U.S. Dist. LEXIS 84040 (D. Hawaii May 10, 2022) (Mollway).


Maureen Anne Ehart and her husband, William McMein Ehart, Jr., went on a chartered scuba/snorkeling tour to Molokini Crater off the south coast of Maui, Hawaii. Maureen disappeared while snorkeling and is presumed to have died. William brought this wrongful death action in federal court in Hawaii against the owner of the vessel, the captain of the vessel (Cory Dam), and scuba instructors Kaitlin Miller and Julianne Cricchio. The scuba instructors moved to dismiss the complaint on the ground that they did not owe a duty to Maureen, and William moved to strike the affirmative defenses of waiver and release that were asserted based on the document signed by the Eharts before the tour (releasing the defendants from negligence in connection with the diving/snorkeling). Applying admiralty law, Judge Mollway held that the complaint plausibly alleged that the instructors breached a duty of care with respect to planning, organizing, and conducting the tour, failing to use appropriate care in adopting, implementing and enforcing procedures for supervising the snorkeling activities and rescue procedures, and failing to timely and effectively conduct a rescue effort. The waiver/release argument was based on the provision of the Shipowner’s Limitation of Liability Act that prohibits waivers of negligence in the transportation of passengers between ports in the United States or between a port in the United States and a foreign port. The defendants cited numerous cases, including from the Eleventh Circuit, enforcing similar waivers for accidents involving recreational ocean sporting activities (reasoning that Congress was not thinking of dive boats when it enacted the provision). Judge Mollway disagreed, reasoning that there was no reason to differentiate waivers for passengers who drown while being transported to a dive spot from passengers who drown during diving after reaching the dive spot. As Maureen was transported between locations in the United States, Judge Mollway struck the waiver/release defense as violative of the Limitation Act and, therefore, did not have to decide whether a Hawaii statute also voided the release.

Suit on behalf of seaman who died from mesothelioma survived as to some product liability defendants and not others, but the claims for punitive damages and loss of consortium were dismissed; Rogers v. A.O. Smith Corp., No. 19-573, 2022 U.S. Dist. LEXIS 85472 (E.D. Pa. May 10, 2022) (Schmehl).


William Rogers alleged that he contracted mesothelioma as a result of exposure to asbestos-containing products while serving as a boilerman/boiler technician on the aircraft carrier U.S.S. FORRESTAL. He brought this action in Pennsylvania state court against shipyard Huntington Ingalls and various product suppliers, and Huntington Ingalls removed the case to the federal court in Pennsylvania. After Rogers died, his widow continued the suit as the administratrix of his estate. Several of the defendants moved for summary judgment, and, applying maritime law, Judge Schmehl dismissed Carrier as a defendant because there was no evidence that Rogers worked on any Carrier equipment or that Carrier equipment contained asbestos. With respect to Copes Vulcan, there was insufficient evidence that any steam traps manufactured by Copes Vulcan contained asbestos, but there was sufficient evidence that Rogers worked with Copes Vulcan valves and that many of the gaskets and packing contained asbestos. Therefore, Judge Schmehl declined to grant summary judgment with respect to Copes Vulcan valves, rejecting the sophisticated purchaser defense raised by Copes Vulcan based on the ruling of the MDL court that the sophisticated purchaser defense is not available under the maritime law for cases involving asbestos. As there was testimony that Rogers worked on Aurora pumps and that Aurora pumps were fitted with asbestos-containing gaskets and packing, Judge Schmehl addressed Aurora’s argument that it was entitled to a bare-metal defense. Finding a fact question whether Aurora directed the incorporation of asbestos-containing parts in its pumps and whether Aurora had reason to believe its pumps were dangerous, Judge Schmehl held that summary judgment for Aurora was inappropriate. Although there was evidence that Crane Co. valves were present on the FORRESTAL, there was no credible evidence that its valves were present in the area in which Rogers worked. Therefore, Crane Co. was granted summary judgment. With respect to CBS/Westinghouse, Judge Schmehl found enough evidence that Rogers was exposed to asbestos-containing insulation on Westinghouse main propulsion and drive turbines while the FORRESTAL was being overhauled at the Norfolk Naval Shipyard, but Judge Schmehl found that Rogers could not meet the prong of the bare-metal defense that CBS/Westinghouse directed the incorporation of asbestos-containing parts in its turbines. Accordingly, he granted summary judgment to CBS/Westinghouse. Similarly, Judge Schmehl held that the evidence did not establish that General Electric directed the asbestos-containing insulation be incorporated into its turbines. As Rogers could not meet the first prong of the bare-metal defense, Judge Schmehl dismissed the claims against General Electric. Finally, Judge Schmehl dismissed the plaintiff’s claims for punitive damages and loss of consortium, holding that there was no basis for their recovery in a maritime wrongful death or survival action.

Accident on land-locked Lake Murray in South Carolina failed both the situs and maritime nexus requirements for admiralty jurisdiction; Mullins v. Dominion Energy South Carolina Inc., No. 3:21-cv-3165, 2022 U.S. Dist. LEXIS 86044 (D.S.C. May 12, 2022) (Lydon).


Kathryn Grace Mullins was a passenger in a pontoon boat returning from the open waters of Lake Murray in South Carolina. While the boat was being docked, it bumped into a tree near the edge of the shoreline, and a dead portion of the tree dislodged and struck Mullins, resulting in her death. Mullins’ parents brought this action in state court in South Carolina against Dominion Energy, operator of the Saluda Hydroelectric Project that includes Lake Murray. Dominion Energy removed the case to federal court on several grounds, including admiralty jurisdiction, and the plaintiffs moved to remand the case to state court. Judge Lydon rejected federal jurisdiction based on federal question, diversity, and the Federal Power Act and considered whether the court had admiralty jurisdiction. Reasoning that Lake Murray is a dammed lake that is wholly located in South Carolina and is incapable of supporting commercial shipping, Judge Lydon held that Lake Murray was not navigable water for the locality requirement of the test for admiralty jurisdiction. Despite that ruling, Judge Lydon addressed the maritime nexus test for admiralty jurisdiction and held that the general features of this claim involve a pleasure boat striking vegetation near a residential shoreline. She reasoned that the risk of dead or decaying trees causing injury to vessels appeared to be limited to private pleasure boats, not commercial vessels and did not appear to have the potential to disrupt the navigational use of Lake Murray (stating that the defendant had not shown that shoreline trees are present in most major thoroughfares and pose a risk to vessels navigating those waterways). And, even if shoreline management were tangentially related to ensuring the navigability of the Lake, Judge Lydon noted that the complaint did not allege any navigational error. Consequently, she held that the allegation of negligent maintenance of shoreline trees did not bear a substantial relationship to the navigability of Lake Murray, and she remanded the case to state court.

Race participant on sailboat was not a seaman but could assert a negligence action against the vessel owner/operator under the general maritime law; In re White; No. 19-cv-900, 2022 U.S. Dist. LEXIS 87056 (W.D.N.Y. May 13, 2022) (Skretny).


Frederick White owned a 34-foot J-boat sailing vessel, SOUND WAVE. His stepdaughter, Jocelyn Sikorski, sailed the vessel with White’s permission in recreational club races sponsored by the Olcott Yacht Club. Tracy DeLeo also participated in these races on the SOUND WAVE. During a women-only club race on Lake Ontario, Sikorski was the skipper of the sailboat, and DeLeo served in the “floor deck” position, requiring her to call the line at the start of the race and to guide the jib sail around the mast when necessary. Patricia Schneider served as the trimmer of the jib sail. Participation in the race was voluntary and recreational, and there was no prize money or other remuneration. During the race, the SOUND WAVE was dismasted, and DeLeo claimed that she was injured when the mast landed on her (although Sikorski and Schneider denied that the mast hit DeLeo. DeLeo brought suit against White in New York state court, and White (owner) and Sikorski (operator) brought this limitation action in federal court in New York. DeLeo brought three claims in the limitation action, maintenance and cure, unseaworthiness, and negligence. White and Sikorski moved for summary judgment on the ground that DeLeo was not a seaman and could not bring the maintenance and cure and unseaworthiness claims and that the negligence claims were only supported by conclusory allegations. Judge Skretny agreed that DeLeo failed the seaman status test. Although she contributed to the function of vessel, she did not do so in an employment-related connection as she was never paid or compensated for her participation. Judge Skretny reasoned that DeLeo was a land-based pension specialist with an accounting firm who engaged in sailing on a recreational basis. Judge Skretny also held that DeLeo failed the substantial connection test because she only participated in the Thursday-night women-only races, and her involvement with the vessel was far short of the 30% rule-of-thumb. As DeLeo was a land-based worker, Judge Skretny also concluded that she failed the nature element of the connection test regardless of her duties when actually sailing. However, Judge Skretny held that DeLeo had sufficiently alleged a maritime negligence claim based on insufficient repair of the vessel after a previous dismasting.

Passenger did not properly plead vicarious liability against cruise line for a routine premises liability claim; Upchurch v. Carnival Corp., No. 21-23469, 2022 U.S. Dist. LEXIS 87711 (S.D. Fla. May 13, 2022) (McAliley).


Cynthia Upchurch was injured when she tripped over a threshold while disembarking the M/S VALOR onto a tender boat. She brought this suit alleging that the cruise line was vicariously liable for a crew member’s negligence in directing too many passengers to board the tender too rapidly, which obscured her view of the threshold. After holding that the complaint was a shotgun pleading that would have to be repleaded, Magistrate Judge McAliley also reasoned that the complaint would have to be dismissed because it did not properly allege a claim for vicarious liability. Although Upchurch focused her allegations on the crew member, Magistrate Judge McAliley answered that the crew member did not create the hazardous condition, and this was a routine premises liability claim that could not be converted to a vicarious liability claim. Therefore, as there were no allegations of notice to the cruise line of the dangerous condition, Judge McAliley recommended that the complaint be dismissed for failure to state a claim.

Judge rejected a time limit for a motion to lift stay in a limitation action with a single claimant; In re Belle Pass Marine Transportation, LLC, No. 21-275, 2022 U.S. Dist. LEXIS 88304 (E.D. La. May 17, 2022) (Brown).


After Belle Pass’s vessel, the M/V SOUTHERN BELLE struck and damaged the Crown Point/Lafitte Waterline, which provides water to Crown Pointe and Lafitte in Jefferson Parish, Louisiana, the Parish filed a law suit in Louisiana state court against Belle Pass. Bell Pass then filed this limitation action in federal court in Louisiana on February 9, 2021, and Jefferson Parish was the only claimant. More than a year later, on May 11, 2022, Jefferson Parish moved to lift the stay in the limitation action and asked for expedited consideration as trial was scheduled to take place in two months. Belle Pass argued that the motion was untimely because it was filed after Belle Pass had moved for summary judgment and shortly before trial, but Chief Judge Brown could not find any authority that specified a time limit to lift the stay. As Jefferson Parish filed the proper stipulations to lift the stay, Chief Judge Brown lifted the stay and administratively closed the limitation action, subject to reopening if necessary.

Vessel owner did not recover from shipyard for breach of contract but did recover punitive damages for wrongful detention of the vessel; Kenai Ironclad Corp. v. CP Marine Services, LLC, No. 19-2799, 2022 U.S. Dist. LEXIS 88306 (E.D. La. May 17, 2022) (Brown).


This litigation arises from the contract to convert the vessel M/V IRON DON from an offshore supply vessel to a salmon fishing vessel. The vessel owner, Kenai Ironclad alleged that it secured a charter for the vessel to fish in Alaska, and that the shipyard knew that the owner needed the work to be completed by June 20, 2019. Disputes arose between the parties, and the vessel owner asserted that the timely performance of the contract was jeopardized. When the owner came to pick up the vessel, the defendants blocked the owner from retrieving its vessel. The owner brought this action in federal court in Louisiana against the shipyard defendants for breach of contract and wrongful detention. Chief Judge Brown conducted a bench trial and held that there was no breach of contract but that, when the defendants detained the vessel, the work was complete and all sums owed had been paid. Thus, the defendants had no valid lien, and Chief Judge Brown found that the defendants had acted with bad faith and callous disregard for the safety of persons on the vessels (detention was accomplished by ramming and blocking the vessel). For punitive damages, Chief Judge Brown awarded the net day rate for the salmon fishing charter ($3,516.10) for the five days the vessel was detained, plus attorney fees, expert fees, expenses, court costs, and prejudgment interest at the Louisiana rate from the date the vessel was detained.

Judge applied pleading standards for complaints to affirmative defenses in passenger suit; Jennings v. Carnival Corp., No. 22-20205, 2022 U.S. Dist. LEXIS 89497 (S.D. Fla. May 17, 2022) (Damian).


Julianne Jennings brought this action in federal court in Florida, seeking to recover for injuries she sustained from a rough and unsafe bamboo massage performed by a OneSpaWorld massage therapist on the cruise ship MARDI GRAS. Jennings moved to dismiss affirmative defenses asserted by the cruise line and spa operator, and Magistrate Judge Damian applied the same general pleading requirements of Rule 8 to the affirmative defenses as are applied to a complaint. Magistrate Judge Damian agreed that the defenses of intervening/superseding cause, comparative fault, failure to mitigate damages, intervening/superseding medical condition, and pre-existing condition are legally valid affirmative defenses, but the pleadings lacked sufficient facts to show how and why the defenses applied. Accordingly, these defenses were stricken without prejudice to being repleaded. Although the defense that the passenger’s damages were caused in whole or in part by the action/inaction of third parties was not legally cognizable to the extent the defendants sought to apportion liability to non-parties, Magistrate Judge Damian allowed the defenses to be repleaded to the extent the defenses attributed fault entirely to others. As the defense of lack of notice was a denial and not an affirmative defense, Magistrate Judge Damian recommended that the defense be stricken with prejudice; however, the open-and-obvious defense was a proper defense and was not stricken.

Seamen’s marine liability expert could testify without inspecting the vessel based on his years of experience, but could not smear the defendant’s reputation; In re Tara Crosby, L.L.C., No. 17-5391, 2022 U.S. Dist. Lexis 89140 (E.D. La. May 18, 2022) (Ashe).


After the M/V CROSBY COMMANDER sank on May 29, 2017 in the Gulf of Mexico, offshore Louisiana, the owner of the vessel, Tara Crosby, L.L.C., filed this limitation of liability action, and the vessel’s master and relief captain filed claims represented by the same counsel. The claimants also brought a third-party complaint against Tetra Technologies. Two years into the litigation, the claimants filed a motion to disqualify counsel for Crosby, Miles P. Clements and Joseph E. Lee, III, and Tetra filed a motion to disqualify counsel for the claimants. The basis for the motion against the claimants was that the same counsel could not represent both parties as their positions were in conflict. Relief Captain Hebert was at the wheel when the vessel became imperiled, and the Master, Pitre, was alleged to have made the decision to insert a “dog” into the towing winch, despite incoming severe weather, in violation of the policy of Crosby. Crediting the testimony of Professor Dane Ciolino, Judge Ashe noted that the claimants had not actually made any claims against each other and did not have to in this Jones Act case. Judge Ashe believed that their interests were not adverse and there was no conflict in their concurrent representation. Clements and Lee were engaged by Crosby to investigate the sinking prior to the suit at the time that the Coast Guard was investigating the incident. Before claimants were interviewed by the Coast Guard, they spoke to Crosby’s counsel and gave them permission to attend the interviews. The Coast Guard required that claimants provided written witness statements regarding the sinking, and Hebert wrote and signed his own statement, and also gave a recorded statement to Lee. Pitre asked Clements to transcribe his statement for him based on his interview, and Pitre then reviewed and signed the statement. Judge Ashe concluded that the claimants did not form an attorney-client relationship with Clements or Lee, and that neither attorney manifested an intent to provide legal services for them. During the Coast Guard investigation, the attorneys represented Crosby and attended the witness interviews as counsel for Crosby, not as attorneys for the claimants. Even the transcribing of the statement did not amount to legal advice or services. Claimants were aware that the attorneys represented Crosby, and that became abundantly clear when they presented settlement offers to the claimants on behalf of Crosby. If there were any conflict, Judge Ashe held that claimants waived the conflict by waiting for two years to raise it. See December 2019 Update.

The vessel owner moved to exclude the testimony of the claimants’ marine safety expert, Joseph R. Bridges, asserting that his opinions were inadmissible legal conclusions and would not aid the jury and that they were unreliable because he never inspected the vessel or its records. Judge Ashe held that Bridges’ opinions about compliance with safety management system policies and the ways in which weather and the vessel’s condition may have affected navigation, maneuvering, and ship handling were within his expertise as a seasoned sea captain and were the proper subject of expert testimony. However, conclusions about negligence and unseaworthiness that “smeared” the defendant’s reputation (such as that the company was going bankrupt and was not committed to safety, or about the adequacy of the investigation) were impermissible.

Without a voyage, a fired captain could not bring a claim under the Seaman’s Wage Act; She’s a Peach LLC v. Rivara, No. 21-81123, 2022 U.S. Dist. LEXIS 89494 (S.D. Fla. May 18, 2022) (Cannon).


Luke Rivara was employed by the owner of the vessel SHE’S A PEACH as its captain. He was fired on March 26, 2021 and paid wages through April 15, 2021. Although the parties did not enter into any written contract or separation agreement with respect to Rivara’s employment, Rivara filed a Notice of Claim of Lien on the vessel for unpaid severance pay. The owner then brought this action in federal court in Florida seeking a declaratory judgment that the vessel was not subject to a valid lien and for removal of the lien. Rivara filed a counterclaim under the Seaman’s Wage Act, and the owner moved for summary judgment on the counterclaim. As the statute requires a foreign or intercoastal voyage, and as no voyage was alleged (the counterclaim alleged that the vessel was in Florida waters at all times), Judge Cannon granted summary judgment on the counterclaim under the Seaman’s Wage Act.

Judge declined extremis defense in allision case for assist tugs whose crew members had time to take photos and videos of the incident and held that there were fact questions whether the assist tugs were negligent; Cornerstone Chemical Co. v. M/V NOMADIC MILDE, No. 20-1411, 2022 U.S. Dist. LEXIS 89135 (E.D. La. May 18, 2022) (Fallon).


This litigation arises from the allision in the Mississippi River near the Cornerstone Chemical dock in Waggaman, Louisiana between the M/V NOMADIC MILDE and the M/V ATLANTIC VENUS. Cornerstone alleged that while the vessels were being disentangled with the aid of two tugs, the M/V ERVIN S. COOPER and the M/V NED FERRY, the NOMADIC MILDE allided with Cornerstone Chemical’s dock. Cornerstone Chemical brought suit against the NOMADIC MILDE and the ATLANTIC VENUS together with the M/V TOMINI SYMPHONY, which Cornerstone Chemical alleged had caused a dangerous wake that contributed to the original allision, and the owner/operator of the assist tugs. The owner and operator of the assist tugs filed a motion for summary judgment, arguing that the tugs were operating as assisting harbor tugs under the orders and control of the pilot on the NOMADIC MILDE and were acting in response to an extremis situation and were free of fault. Although the tugs followed the orders of the pilot, Cornerstone provided evidence that the pilot requested tractor tugs to assist in the disentangling of the vessels but that the tug operator dispatched conventional tugs that were less powerful and were unable to hold the NOMADIC MILDE’s position. Additionally, instead of using the tugs’ navigational systems to monitor the change in position of the NOMADIC MILDE, the crew members documented the dramatic scene for personal purposes (using their cell phones). Cornerstone’s expert opined that the failure of the tugs to notify the pilot of their inability to hold the NOMADIC MILDE set off a cascade of events that resulted in the allision with the dock. Thus, there was evidence of fault of the tugs to defeat the motion for summary judgment. As to the argument that fault of the tugs should be excused by the extremis doctrine, Judge Fallon found the doctrine to be inapplicable in view of the fact that the tugs were involved the incident for more than two hours, with time for the crew members to take photographs and videos, demonstrating that the situation was not a sudden peril. Moreover, the allegation that insufficient tugs were sent was unrelated to the emergency and any sudden danger to the vessels.

Summary ruling on maintenance and cure was premature; Beeman v. F/V JUMA, No. 8:21-cv-233, 2022 U.S. Dist. LEXIS 89703 (M.D. Fla. May 18, 2022) (Sansone).


James Beeman, captain of the F/V JUMA, brought this action in federal court in Florida under the Jones Act and general maritime law for injuries he allegedly suffered in the sinking of the vessel. His personal representative maintained the action after Beeman’s death and filed a motion for partial summary judgment seeking to recover maintenance and cure payments for the period from the sinking until Beeman’s death. The plaintiff submitted a statement of undisputed facts, but the vessel owner provided a declaration denying that Beeman was injured because of the sinking of the vessel. Judge Sansone reasoned that a claim for maintenance and cure generally presents fact questions and should not be disposed of by summary judgment nor should payment be decreed on motion. As the facts supporting the claim were disputed, Judge Sansone held that a summary ruling on maintenance and cure was premature.

Judge would not lift stay in limitation action without a stipulation of the claimant seeking indemnity/contribution; In re Rover Dolphin Tours, LLC, No. 2:22-cv-90, 2022 U.S. Dist. LEXIS 90433 (E.D. Va. May 19, 2022) (Smith).


The passenger vessel ATLANTIC EXPLORER was struck by a large wave after departing Virginia Beach, injuring passenger Sandy Bowman and damaging the vessel. Bowman brought suit in state court in Virginia Beach against the owner of the vessel, Rover Dolphin Tours, and its Captain, Mark Sedaca, and Rover Dolphin Tours filed this limitation action in federal court in Virginia. Bowman filed a claim in the limitation action, and Sedaca also filed a claim, asserting rights to indemnity and contribution from Rover for any judgment against him related to the incident. Bowman filed a motion to lift the stay to pursue her claim in state court with stipulations as to the authority of the limitation court, but Sedaca did not join in the stipulations and opposed dissolution of the concursus. Citing the cases holding that indemnity/contribution claims create a multiple-claim situation, Judge Smith held that all claimants must agree to the stipulations to protect the shipowner’s limitation rights. Although Bowman’s stipulation to prioritize the indemnity/contribution claim afforded Rover Dolphin Tours important protections, Judge Smith did not consider the stipulation sufficient to fully protect the owner’s rights (and there was still the possibility of additional claimants). Consequently, Judge Smith declined to lift the stay.

Issuing marine insurance policies in Florida with New York choice-of-law clauses is not immoral, unscrupulous, or in violation of law; Clear Spring Property & Casualty Co. v. Viking Power LLC, No. 21-62306, 2022 U.S. Dist. LEXIS 91192 (S.D. Fla. May 20, 2022) (Altonaga).


Viking Power owned the 82-foot Horizon yacht, MISS DUNIA, insured by Clear Spring and Certain Underwriters at Lloyd’s. The vessel was destroyed by fire, and the insurers denied coverage, as Viking Power claimed, based on “merely technical language” in the policy. The insurers filed this suit in federal court in Florida seeking a declaration that there was no coverage for the loss, and Viking Power brought counter-claims for breach of contract and violation of the Florida Deceptive and Unfair Trade Practices Act. The statutory count alleged that the insurers violated the Act by issuing policies in Florida governed by New York law and then denying coverage for reasons permitted by New York law. As the Act exempts insurance companies, Chief Judge Altonaga ruled that the statutory count should be dismissed. The insurers also argued that the statutory count should be dismissed because Viking Power did not allege any unfair trade practice. In the first place, the fact that New York law allows denial of claims for breach of warranty that is unrelated to the loss could not be the basis for an unfair trade practice when it is the well-entrenched rule in New York (and is the federal rule and rule in many states). Second, Chief Judge Altonaga held that Viking Marine did “not plausibly allege that issuing marine insurance policies with choice-of-law clauses in favor of New York law amounts to a practice that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’” She found nothing unfair about holding parties to the terms of a policy that were freely entered into and renewed, and she dismissed the statutory claim and denied leave to amend the count as futile.

Judge applied release/exculpatory clause in storage contract for vessel entered into by the vessel owner’s father to defeat the subrogation claim by the vessel owner’s insurer against the marina where the vessel was stored; Certain Underwriters at Lloyd’s of London v. Brewer Ferry Point Marina, Inc., No. 3:20-cv-1099, 2022 U.S. Dist. LEXIS 92501 (D. Conn. May 20, 2022) (Hall).


Stephen Rak owned a 50-foot Outerlimits powerboat that he stored each summer at the Safe Harbor marina in Old Saybrook, Connecticut. Each year, Stephen’s father, John Rak, entered into a contract with the marina for the storage of the vessel, and that contract contained provisions for a waiver of subrogation and for a release of the marina, regardless of its negligence. On August 3, 2018, the marina took the vessel out of indoor storage, launched it into the water, and inspected the engine compartment for water. The Raks departed the marina on the vessel, took on fuel at a gas dock, crossed Long Island Sound, and docked the vessel in Montauk, New York. There was no noticeable water in the vessel when they docked the vessel. An hour later, however, the Raks were informed that the vessel was sinking. Stephen jumped into the water and checked for the drain plug and found it was missing. The Raks were able to stop the leak and install a new drain plug, but the vessel was damaged, and the vessel insurers paid approximately $130,000 to Stephen Rak for the damage. The Underwriters brought this subrogation action against the marina in federal court in Connecticut, and the marina moved for summary judgment based on the release and waiver of subrogation clauses and because there was no evidence that the marina was negligent. The Underwriters argued that the clauses in the storage contract were not applicable because the contract was between the marina and John Rak. Judge Hall disagreed, holding that Stephen Rak was a donee beneficiary to the contract as the intent of the contract was for the storage of his vessel at the marina. Although the contract was missing some terms, the essential terms of the contract were clear as reflected in the conduct of the parties. Thus, Judge Hall considered the release/exculpatory clause and held that it clearly and unequivocally released the marina from liability for its negligence. The Underwriters argued that the exculpatory provision was unenforceable under the general maritime law (citing Bisso), but, applying maritime law, Judge Hall declined to apply the public policy analysis from the Bisso towing agreement to a storage contract. Finding no overreaching, Judge Hall held that the insurer’s subrogation claim was barred by the release and that the marina was entitled to summary judgment. Finally, Judge Hall held that, regardless of the contract provisions, the Underwriters failed to establish a fact question of negligence of the marina and that summary judgment was also appropriate on that basis.

Late claim was allowed in limitation action even though the claimant had not asserted that action in state court proceedings; In re South Shore Lake Erie Assets & Operations, LLC, No. 1:21-cv-2343, 2022 U.S. Dist. LEXIS 93354 (N.D. Ohio May 24, 2022) (Gwin).


Dr. Frank Opaskar and South Shore Marine were negotiating the purchase of a new boat with the trade-in of Dr. Opaskar’s 33-foot vessel. Dr. Opaskar set out in the vessel across Lake Erie with Christopher Kedas, a salesman for South Shore, and Christopher’s son. The boat’s engine exhaust malfunctioned during the trip, and all three passengers on the boat were found dead on the vessel, probably from carbon monoxide poisoning. There was a dispute whether ownership of the vessel had transferred, and limitation actions were filed by South Shore Marine and Dr. Opaskar’s widow. A separate Rule D action was brought to litigate ownership of the vessel between Dr. Opaskar and South Shore Marine. Three motions to dismiss were filed in the limitation actions, challenging whether the petitioners adequately pleaded ownership of the vessel as both actions denied that the petitioner was the owner of the vessel and claimed the right to exoneration/limitation in the alternative in the event the petitioner was found to be the owner. Judge Gwin held that the constitutional injuries alleged by the petitioners were actual and concrete. The petitioners were subject of suits that had to be defended, and those suits gave the petitioners standing to seek exoneration/limitation. As to whether the pleadings satisfied the Iqbal/Twombly standard for lack of privity or knowledge, Judge Gwin held that, although sparse, the allegations were sufficient. See May 2022 Update.

Four claims were filed in the South Shore limitation action, and a default order was entered at the end of the period to file claims. Just over a month later, Chagrin River Marine filed a motion to reopen the time to file claims and to set aside the default. Chagrin River, a defendant in state-court suits, desired to present a contribution claim against South Shore Marine. As Chagrin River had not received actual notice of the limitation action (despite being named as an interested party), and as the addition of one claim would not result in prejudice or delay after four claims had been filed, Judge Gwin held that Chagrin River had met the “low bar” to file a late claim. Although South Shore Marine argued that Chagrin River had forfeited its right to file a claim in the limitation action by failing to sue South Shore Marine in state court, Judge Gwin found no authority to support that argument and set aside the default.

Autistic and dependent younger brother had no claim for death of seaman in state waters; attorney’s revelation of the reason for an unsuccessful mediation resulted in sanctions; In re Scandies Rose Fishing Co. LLC, No. 3:20-cv-5376, 2022 U.S. Dist. LEXIS 93979 (W.D. Wash. May 25, 2022) (Settle).


The SCANDIES ROSE iced up and sank in rough seas off the Alaska Peninsula less than 3 miles from Sutwik Island, Alaska. The owner and operator of the vessel brought this limitation action, and the estates of the deceased seamen brought wrongful death and survival claims in the limitation action under the Jones Act and general maritime law. The parties reached a partial settlement by which the owner/operator interpleaded the balance of their insurance policy into the registry of the court. The estates then brought a cross-claim against survivor Dean Gribble, claiming that his recovery should be reduced by his comparative negligence, claiming that Gribble knowingly brought illegal marijuana on the vessel and consumed it immediately before and while he was operating the vessel. Judge Settle found no support for the proposition that one crewmember may assert a contributory negligence claim against a fellow crewmember under the Jones Act or general maritime law. Concluding that the comparative fault affirmative defense is available only to the employer, Judge Settle dismissed the cross-claim with prejudice. Judge Settle then addressed damages that were sought by the estates of the deceased seamen, and he held that the damages available did not include the cost of recovering bodies, loss of society, loss of future earnings, and loss of society. Gribble sought sanctions for the frivolous pleading on comparative negligence and damages, and the attorney for the estates argued that the law of damages in maritime cases is “still in its infancy.” Noting that the Jones Act is now 101 years old, Judge Settle held that the arguments were frivolous and issued a sanction of 50% of the fees incurred by Gribble’s counsel in bringing the motion to dismiss the claims. See December 2021 Update.

Claimant Gribble then challenged whether Erik Cobban, the autistic younger brother of deceased seaman David Cobban, was entitled to bring a claim, even though dependent on his brother, in view of the fact that David was survived by his mother, Elgia, who asserted a claim. Gribble argued that the Jones Act provides recovery in tiers, that David Cobban had no first-tier beneficiaries (spouse or children), and he had a second-tier beneficiary (his mother). Therefore, Erik Cobban, a third-tier beneficiary, could not recover under the Jones Act or general maritime law. Judge Settle agreed that Erik could not recover under the tiers set forth in the FELA (incorporated into the Jones Act), and that the beneficiary structure in the Death on the High Seas Act was not applicable to this accident in state waters. As claims under the general maritime law involving the death of a seaman in state waters are limited to the beneficiaries in the Jones Act, Judge Settle applied the beneficiary structure from the Jones Act, not the structure from DOHSA, for Erik’s general maritime law claim. Gribble again sought sanctions because Erik disclosed in his response to Gribble’s motion that Gribble was the hold out at an unsuccessful mediation. Calling the filing “an ethical violation that should be plain to any lawyer,” Judge Settle declined to revoke the pro hac vice status of Erik’s attorney, but he did order him to pay the attorney cost of the Motion to Strike and for Sanctions, including the reply.

Video of fall and deposition testimony were insufficient to disprove allegation of defect in stairs on cruise ship; Hager v. Royal Caribbean Cruises, Ltd., No. 21-cv-20802, 2022 U.S. Dist. LEXIS 94102 (S.D. Fla. May 25, 2022) (Huck).


Passenger Sheila Hager brought this suit in federal court in Florida to recover for injuries she sustained when she fell down a staircase on the ALLURE OF THE SEAS. Her complaint alleged that the nosing and anti-skid strips were so worn and damaged that the steps were unlevel and protruding, causing her to lose her balance and fall. The cruise line moved for summary judgment, arguing that Hager’s version was contradicted by CCTV footage of the fall and by her deposition testimony. The cruise line argued that the video showed that Hager simply lost her balance and fell and that she did not trip or slip on anything. Noting that Hager’s pleading complained of the condition of the stairs, Judge Huck answered that the video was not clear or close enough to show the intricacies of the steps. Therefore, Judge Huck could not deem the video evidence to contradict Hager’s allegations. In her deposition, Hager testified to slipping on water from a nearby surfing ride, stating that her foot slid out from underneath her, and that she did not trip. However, she testified that her shoe caught on something, and her expert opined that Hager could have slipped on water and then tripped on the uneven steps. Thus, her testimony did not foreclose a claim that she tripped, slipped, or both, leading to a credibility determination for the jury. The cruise line also moved for summary judgment with respect to notice and the open and obvious condition of the stairs, but the description of the worn and damaged condition reflected that the condition was in existence for a sufficient period to require corrective measures, and there was evidence that the staircase was subject to multiple work orders for the anti-slip tape. Judge Huck found this evidence to be sufficient on the notice issue. Although the cruise line cited Hager’s testimony about the water on the deck, it did not present evidence that a reasonable person would have observed the hazardous nature of the anti-slip tape on the step, and Judge Huck denied summary judgment on this argument.

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

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“[C]onsumption of alcoholic beverages has a tendency to make intoxication more probable.”

Hall v. Carnival Corp., No. 21-cv-20557, 2022 U.S. Dist. LEXIS 61864 at *17, 2022 WL 990625 (S.D. Fla. Apr. 1, 2022) (Bloom).

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© Kenneth G. Engerrand, May 31, 2022; redistribution permitted with proper attribution.

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