June 2026 Longshore Maritime Update No. 325
Notes from your Updater:
The Update has reported that the Ninth Circuit applied the work-preservation doctrine as a complete defense to the claims brought by Samson Tug & Barge Co. against International Longshore & Warehouse Union, Alaska Longshore Division, and International Longshore & Warehouse Union, Unit 222, under the Labor Relations Management Act in connection with longshore work conducted at the Womens Bay terminal owned by Matson Navigation Co., which is a signatory to the All-Alaska Longshore Agreement. See Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Nos. 24-5730, 24-6017, 2025 U.S. App. LEXIS 21565 (9th Cir. Aug. 22, 2025) (per curiam). Samson Tug filed a petition for rehearing en banc, and on September 30, 2025, the Ninth Circuit declined to hear the case en banc. See Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Nos. 24-5730, 24-6017, 2025 U.S. App. LEXIS 25386 (9th Cir. Sept. 30, 2025). See November 2025 Update. Samson Tug filed a petition for certiorari with the United States Supreme Court, describing the situation as follows: “This case arose from the International Longshore and Warehouse Union, Alaska Longshore Division; and ILWU, Unit 222’s (collectively ‘ILWU’), attempt to force a family-owned shipping company, Samson Tug and Barge Co., Inc. (‘Samson’), to replace its work force with ILWU members. ILWU applied brazen coercion upon Samson’s landlord to evict Samson from the property if Samson did not hire ILWU labor.” On May 4, 2026, the Supreme Court declined to grant a writ of certiorari. Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Alaska Longshore Division, No. 25-1052, 2026 U.S. LEXIS 2004 (May 4, 2026).
Judge Bredar of the United States District Court for the District of Maryland has unsealed the indictment of Synergy Marine Private Ltd. d/b/a Synergy Marine Group, Synergy Maritime Private Ltd. d/b/a Synergy Marine Group, and Radhakrishnan Karthik Nair in connection with the allision between the DALI and the Francis Scott Key Bridge, asserting that the corporate defendants were operators of the vessel and Nair was a Synergy manager. The indictment charges that the defendants conspired to use the flushing pump as the continuous fuel supply pump for generators 3 and 4, but the flushing pump was not designed to automatically restart following a power loss and could not be started remotely from the engine control room. The indictment asserts: "If the M/V Dali had used the proper fuel supply and booster pumps, then the vessel would have regained power in time to safely navigate under the Key Bridge.” The indictment includes counts for conspiracy to defraud the United States and to commit offenses against the United States, failure to report a hazardous condition under the Ports and Waterways Safety Act, misconduct or neglect of ship officers resulting in death, obstruction of an agency proceeding, making false statements, violations of the Clean Water Act, and violation of the Rivers and Harbors Act. See United States v. Synergy Marine Private Ltd., No. 1:26-cr-118 (D. Md. Apr. 8, 2026).
After the indictment was unsealed, the vessel interests moved to stay the June trial setting in the limitation action, arguing that they were put in the untenable position of defending criminal charges and the civil case simultaneously. However, Judge Bredar declined to stay the civil trial.
On May 14, 2026, the United States Supreme Court handed down an important decision for maritime practitioners in a non-maritime case, holding that a federal court that has previously stayed claims pending arbitration has jurisdiction to confirm or vacate the resulting arbitral award of those claims. The Court distinguished its Badgerow opinion in which the Court held that a federal court may exercise jurisdiction in a suit to confirm or vacate an award only if the application establishes diversity or federal-question jurisdiction on its face. A federal court may not exercise jurisdiction merely on the basis that the underlying dispute, save for the arbitration agreement, would have been justiciable in federal court. In contrast, a case originally filed in federal court and then stayed pending arbitration does not require that the parties establish a jurisdictional basis to decide whether to confirm/vacate the award. The court has the same jurisdiction that it originally possessed. See Jules v. Andre Balazs Properties, No. 25-83, 2025 U.S. LEXIS 2035 (U.S. May 14, 2026) (Sotomayor).
On May 18, 2026, the Eleventh Circuit held that Mobile Baykeeper, an organization whose members alleged that their use of the Mobile River and neighboring waterways had been harmed by toxic leaching from a coal ash impoundment at an Alabama power plant located on the banks of the Mobile River had standing to challenge a plan for closure of the plant that allegedly violated EPA regulations and that the claims were ripe for review. Writing for the Eleventh Circuit, Judge Grant noted the power company’s “surprising objection that the plant had been poisoning the Mobile River for decades, so the claimed injuries could not be traced to the 2020 closure plan that would not be completed until at least 2031.” Judge Grant answered that the argument was “to say the least—not the most obvious defense to a request for a safe closure.” See Mobile Baykeeper, Inc., No. 24-12682, 2026 U.S App. LEXIS 14194 (11th Cir. May 18, 2026) (Grant).
On May 22, 2026, the Pennsylvania Supreme Court held that employees of former shipbuilder Dravo could not pierce the corporate veil to bring asbestos exposure suits against Dravo’s surviving parent company because the claims were time-barred. See In re Dravo LLC-Derivative Claims, Nos. 33 WAP 2024, 34 WAP 2024, 2026 Pa. LEXIS 887 (Pa. May 22, 2026) (Brobson).
On May 26, 2026, the Connecticut Appellate Court held that the Connecticut Port Authority could not assert a defense of sovereign immunity in response to a suit by a subcontractor in connection with “Infrastructure Improvements to Connecticut State Pier—New London, CT.” The subcontractor sought additional amounts to perform after an underwater inspection survey revealed that piles were substantially and materially different than what was stated in the bid documents. See Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co., No. AC 47355, 2026 Conn. App. LEXIS 171 (Conn. App. May 26, 2026) (Cradle).
On May 28, 2026, the Supreme Court unanimously held that a worker who transports goods on an intrastate leg of an interstate journey can qualify for the exemption in the Federal Arbitration Act (that nothing in the Act can be used to compel arbitration in disputes involving workers engaged in interstate commerce) even though the worker did not cross state lines or interact with vehicles that do. See Flowers Foods, Inc. v. Brock, No. 24-935, 2026 U.S. LEXIS 2297 (U.S. May 28, 2026) (Gorsuch).
On the LHWCA Front . . .
From the federal appellate courts
Second Circuit reversed decision that a volunteer firefighter who spent 3.8% of his time on a vessel could not pursue claims as a Sieracki seaman and for maritime negligence and remanded the case to determine whether the firefighter was doing seaman’s work and exposed to seaman’s hazards; In re Verplanck Fire District, No. 23-1218, 2026 U.S. App. LEXIS 12504 (2d Cir. Apr. 30, 2026) (Leval).
Verplanck Fire District is an all-volunteer fire district that provides fire protection and ambulance and EMS services to the hamlet of Verplanck in Westchester County, New York. Troy Dyckman has been a volunteer firefighter with the district since 2013. The majority of the calls for assistance are land-based, but the district also owns a 25.5-foot vessel, MARINE 1, which is used to perform services in and around the Hudson River in northern Westchester County from April through mid-November. Dyckman did not take the training to operate the vessel, but he was permitted to respond to calls on the vessel after completing a boating safety class. Dyckman was injured on August 9, 2020 on the vessel in a near collision in the Hudson River near Croton Point Park, New York, when he extended his leg between the two vessels to try to push the other vessel away. Dyckman applied for and received benefits under the New York Volunteer Firefighters’ Benefit Law, and the district filed this limitation action in federal court in New York, seeking to limit its liability to the value of the MARINE 1. Dyckman filed a claim in the limitation action, seeking to recover for Jones Act negligence and unseaworthiness. Alternatively, he sought to recover as a Sieracki seaman and for general maritime negligence. The district moved for summary judgment on all of the claims. With respect to the claims as a seaman for Jones Act negligence and unseaworthiness, the district argued that Dyckman’s vessel-related activities were only 3.8% of his total activities, far below the 30% guideline to satisfy the duration element of the connection test from Chandris. Dyckman responded that the volunteers “are permitted a flexible schedule—and therefore so should what is needed for them to be considered [a] Jones Act seaman.” Judge Halpern was unaware of any authority supporting the proposition that volunteers should be considered under a relaxed standard, and he held that Dyckman’s connection was insufficient in both duration and nature. Turning to the claim that Dyckman could recover for unseaworthiness as a Sieracki seaman because he was doing a seaman’s work and was incurring a seaman’s hazards, Judge Halpern stated that the key was whether Dyckman was an independent contractor under New York law. However, under New York law, the relationship of a volunteer firefighter and the district is statutorily defined as that of employer and employee. Consequently, Judge Halpern held that Dyckman was not entitled to recover under Sieracki, “which is a doctrine that ‘was developed precisely for independent contractors.’” Additionally, Judge Halpern stated that the Sieracki doctrine (as well as the warranty of seaworthiness) was not intended to extend to land-based workers like Dyckman, noting that Dyckman’s activities on the vessel were merely temporary or transitory in nature (of course, Sieracki’s duties as a longshore worker on the S.S. ROBIN SHERWOOD were temporary or transitory). Finally, Judge Halpern considered the district’s argument that Dyckman’s claim for maritime negligence was barred by the exclusive remedy provision of the New York Volunteer Firefighters Benefit Law. He reasoned that “New York’s interest in applying the VFBL outweighs a relatively weak federal interest in allowing a person such as Claimant to assert a general maritime tort claim against his employer.” Concluding that the exclusive remedy provision was not preempted by the maritime law, Judge Halpern held that the maritime negligence claim was barred by Dyckman’s receipt of benefits under the VFBL. See September 2023 Update.
Dyckman appealed the denial of his claims for Sieracki seaworthiness and maritime negligence, and Judge Leval wrote a 68-page opinion, reversing Judge Halpern. The district argued that the warranty of seaworthiness was not applicable because Sieracki only extends to a non-seaman if his relationship to the vessel is as an independent contractor, it does not extend to land-based workers such as Dyckman, and it extends only to those whose job is primarily as an aide to navigation. Judge Leval answered that Sieracki is based on the factual circumstances of a person’s work and injury and is not limited to independent contractors. He also stated: “Far from limiting seaman status to sea-based workers, Sieracki explicitly extended the duty of seaworthiness to land-based longshore workers,” adding that the issue was whether a worker was doing seaman’s work and incurring a seaman’s hazards. Judge Leval rejected the argument with respect to aiding in navigation, explaining that the requirement had been considered with respect to the Jones Act claim and not to a Sieracki claim and, in any event, the requirement had been jettisoned by the Supreme Court in Wilander. Judge Leval then considered whether the Sieracki seaworthiness remedy survived the 1972 Amendments to the LHWCA, noting the conflict in the circuits on the issue. He did not find the reasons enunciated by the Ninth Circuit in Normile to be persuasive and agreed with the Fifth Circuit and D.C. Circuit that the elimination of the seaworthiness remedy applied to persons covered by the LHWCA. As Dyckman is employed by a subdivision of the state government, he is not covered by the LHWCA. Accordingly, the Second Circuit reversed the decision on unseaworthiness and remanded the case to determine whether Dyckman satisfied the requirements to be a Sieracki seaman—that he was doing seaman’s work and exposed to seaman’s hazards. Judge Leval then addressed Judge Halpern’s denial of a maritime negligence remedy based on the exclusive remedy provision of the VFBL. Judge Leval noted the conflict in the circuits with the Fifth and Third Circuits holding that the state may not deprive a maritime litigant of his admiralty remedy, and the Eleventh Circuit enforcing the exclusive remedy in a state workers’ compensation law to bar a maritime remedy. Judge Leval concluded that giving effect to the state’s exclusive remedy provision to deprive Dyckman of a maritime negligence remedy would “work material prejudice to the characteristic features of the general maritime law, [and] interfere with the proper harmony and uniformity of that law in its international and interstate relations.” Therefore, the court reversed the dismissal of the maritime negligence remedy.
Evidence from treating physician who replaced the original treating physician years after MMI and from the examining physician was sufficient to establish the date of the earlier permanency and MMI; GIS Holdings, L.L.C. v. Director, OWCP (Walter B. Crews, Jr.), No. 25-60500, 2026 U.S. App. LEXIS 12583 (5th Cir. Apr. 30, 2026) (per curiam).
Walter B. Crews, Jr. sustained an injury to his back in New Orleans, Louisiana while picking up a sack on September 2, 1995 during his employment for Grand Isle Shipyard. He underwent a discectomy and laminectomy, followed by the insertion of a morphine pump on September 20, 1997 (supplemented by Percocet). Crews argued that he was permanently and totally disabled after implantation of the pump, and GIS Holding and its carrier, Gray & Co., argued that Crews could return to work with restrictions. The dispute was tried in a formal hearing on March 28, 2023 before Administrative Law Judge Camp, who found that Crews was permanently and totally disabled from October 5, 2007. The employer/carrier appealed to the Benefits Review Board, arguing that ALJ Camp erred in crediting the opinion of Crews’ treating physician, Dr. Eric Gabriel, with respect to the permanency of Crews’ disability in 2007 as Dr. Gabriel did not start treating Crews until 2013 (after the retirement of his original treating physician). Dr. Gabriel opined in his deposition in 2022 that Crews’ condition reached MMI “a long time ago,” and it was “probably” when the pump was implanted because he has “been stable since then.” The employer/carrier also argued that ALJ Camp failed to account for the failure of Crews to cooperate with the vocational rehabilitation process in finding that Crews was permanently and totally disabled after the implantation. The BRB rejected the argument that Dr. Gabriel’s testimony was arbitrary and nothing more than “sterile conjecture,” noting that the employer’s examining physician, Dr. Bradley Heiges, agreed that Crews had reached MMI two weeks after the surgery. Therefore, the BRB affirmed the award of benefits (adding that the Board affirmed the finding of total disability “as unchallenged on appeal.” The employer/carrier filed a petition for review with the Fifth Circuit, listing the issue: “Did the Benefits Review Board err in affirming the findings of the ALJ that Claimant was at MMI, which resulted in finding that Claimant was entitled to permanent and total disability benefits from October 5, 2007, and continuing?” The employer/carrier added another issue in their brief: “Was it reversible error for the ALJ and BRB to determine that Claimant is not totally disabled, despite his refusal to undergo job retraining, which was approved by the physician?” The Fifth Circuit, like the BRB, found sufficient evidence from the medical opinions of Drs. Gabriel and Heiges to support the conclusion that Crews’ injury was permanent. The court then considered the argument that the evidence did not support the finding that Crews’ disability was total in nature. The employer/carrier did not contest that Crews’ established his prima facie case, and the Fifth Circuit held that the employer/carrier failed to demonstrate that suitable alternative employment exists. The court held that the employer/carrier forfeited the argument that Crews was disqualified from total disability benefits by refusing to engage in job retraining “because it did not make this argument in its petition for review before the BRB.” Therefore, the Fifth Circuit denied the petition for review.
From the federal district courts
Federal court has jurisdiction to enforce a compensation order, not the stipulations in the 8(i) settlement agreement; Cassimere v. Ports America Louisiana, LLC, No. 2:24-cv-2047, 2026 U.S. Dist. LEXIS 44161 (E.D. La. Mar. 4, 2026) (Long).
Raphael Cassimere, a longshore worker employed by Ports America Louisiana, was injured in August 2018 when a piece of cargo fell on him in the Port of New Orleans. Cassimere and Ports America agreed to a settlement of the LHWCA claim for $200,000 for Cassimere ($185,000 for compensation and $15,000 for medical benefits) and an additional $100,000 for his attorney. The parties submitted an 8(i) settlement agreement which was approved by the Department of Labor, and Ports America Louisiana paid the amounts due under the settlement agreement. The settlement agreement stated that Cassimere could return to work for Ports America Louisiana in any position he chooses and that he had the option of using the employer-provided shuttle bus to transport him from the longshore parking lot to his daily job site as a truck driver if he chooses. Ports America Louisiana acknowledged that Cassimere desired being allowed to park on the terminal facilities closer to his job site at the employer’s sole discretion and that only the employer could offer the parking accommodation. After consummation of the settlement, Cassimere brought suit against Ports America Louisiana in federal court in Louisiana, based on federal question jurisdiction, alleging that it breached the settlement agreement by refusing to allow him parking, requiring him to carry his gear from the greater distance, causing him substantial pain and significant difficulties. Ports America Louisiana moved to dismiss the suit for lack of subject matter jurisdiction and for failure to state a claim. Judge Long reasoned that the court had jurisdiction to enforce the terms of the compensation order, but Cassimere was not seeking to enforce the terms of the compensation order. He was seeking to recover damages for the failure to comply with the stipulations submitted to the District Director in the settlement agreement seeking the compensation order. Cassimere’s remedy to challenge the scope of the compensation order was to seek reconsideration with the District Director or to appeal to the Benefits Review Board. As the dismissal was for lack of subject matter jurisdiction, Judge Long dismissed the suit without prejudice.
Utility company that operates a generating station on the Ohio River stated a contractual indemnity claim against the dive company whose diver drowned while clearing debris from a pump bay; Louisville Gas & Electric Co. v. Bulldog Diving, Inc., No. 3:25-cv-105, 2026 U.S. Dist. LEXIS 59073 (W.D. Ky. Mar. 20, 2026) (Jennings).
Bulldog Diving is an Indiana diving company with its principal place of business in Rockport, Indiana. It performs commercial diving activities on inland waterways, primarily in Kentucky, Indiana, and Illinois. In 2016, Bulldog Diving entered into a general agreement with Louisville Gas & Electric, and in 2021 Louisville Gas hired Bulldog Diving to perform dive work and to inspect certain pump bays at the Mill Creek Generating Station located on the bank of the Ohio River near Louisville, with a purchase order incorporating the terms of the general agreement. A young member of Bulldog Diving’s dive team, Jaxxyn Wood, was killed while cleaning debris from a pump bay, and Louisville Gas settled a damage claim brought against it by Wood’s estate. Louisiana Gas demanded that Bulldog Diving defend it in the suit, but Bulldog Diving declined to indemnify Louisiana Gas, and its marine commercial liability insurer, Mitsui Sumitomo, responded that Louisiana Gas was not an insured under the policy. Louisiana Gas filed suit against Bulldog Diving in Kentucky state court, and the case was removed to federal court in Kentucky. Louisiana Gas subsequently amended its complaint to add Mitsui Sumitomo as a defendant. Meanwhile, Mitsui Sumitomo filed a declaratory judgment action in admiralty against Bulldog Diving and Louisiana Gas in New York federal court, seeking declarations that it does not have coverage for the claims against Bulldog Diving and that Louisiana Gas does not qualify as an additional insured on the Mitsui Sumitomo marine commercial liability policy. Bulldog Diving and Louisiana Gas moved to dismiss the case for lack of personal jurisdiction and, alternatively, to transfer the case to the federal court in Kentucky where the suit by Louisiana Gas against Bulldog Diving and Mitsui Sumitomo is pending. Mitsui argued that there is personal jurisdiction in New York because the policy was procured from Mitsui Sumitomo (a New York-based insurer) with a provision that the policy was governed by New York law. Judge Buchwald considered it doubtful that the court had personal jurisdiction in New York over companies based in Indiana and Kentucky that have no connection to New York except the “fortuity that Mitsui is headquartered in New York and the Policy is governed by New York law.” However, Judge Buchwald did not have to decide the personal jurisdiction issue if she transferred the case, for the convenience of the parties under Section 1404(a), to Kentucky where the parties are subject to personal jurisdiction. Finding the factors supported transfer of the case to Kentucky, Judge Buchwald denied the motion to dismiss without prejudice and transferred the case to the Kentucky federal court in which the other suit is pending. See May 2026 Update.
In the Kentucky suit brought by Louisville Gas against Bulldog, Bulldog moved to dismiss Louisville Gas’ claims for failure to state a claim. It first argued that the indemnification terms did not apply to Wood’s suit (or to the citation from the Kentucky Labor Cabinet Office of Occupational Safety and Health). Bulldog argued that the death claim was not encompassed within the provision requiring indemnity resulting from acts or omissions of Bulldog or from Bulldog’s performance under the contract because the actions only alleged misconduct by Louisville Gas. Judge Jennings did not believe that Kentucky law (applicable by a choice-of-law provision) was so restrictive and that the provision included claims resulting from negligence and gross negligence that arose from Bulldog’s performance of the contract. As to the KOSHA citation, the contract contained a provision extending indemnity to governmental claims related to Bulldog’s failure to comply with a law. Although the citation against Louisville Gas did not allege a violation by Bulldog, Louisville Gas pointed to a citation issued by KOSHA against Bulldog, and Judge Jennings held that Louisville Gas sufficiently alleged that the citation against Louisville Gas related to Bulldog’s failure to comply with applicable laws. Judge Jennings then held that Kentucky courts allow indemnity, even against claims for gross negligence. Therefore, she declined to dismiss the indemnity claims for failure to state a claim. Bulldog also moved to dismiss Louisville Gas’ claim for breach of contract for failure to name Louisville Gas as an additional insured, citing a letter from insurer Mitsui that it issued a Marine Commercial Liability policy to Bulldog that included an additional insured endorsement to the extent Bulldog is obligated by an insured contract to name an additional insured. Judge Jennings declined to dismiss the claim at this stage as it did not prove that Bulldog complied with the requirement to explicitly name Louisville Gas.
And on the maritime front . . .
From the United States Supreme Court
Federal Aviation Administration Authorization Act of 1994 does not preempt the liability of freight brokers for negligent hiring of drivers and carriers; Montgomery v. Caribe Transport II, LLC, No. 24-1238, 2026 U.S. LEXIS 2036 (U.S. May 14, 2026) (Barrett).
The Update has previously addressed the preemptive force of the Federal Aviation Administration Authorization Act of 1994, deregulating interstate transportation industries (see discussion of Federal Insurance Co. v. ClearFreight Inc. in the July 2024 Update). On January 13, 2025, the United States Supreme Court declined to grant a writ of certiorari to review the decision of the Eleventh Circuit in Gauthier v. Hard to Stop LLC, No. 22-10774, 2024 U.S. App. LEXIS 16696 (11th Cir. July 9, 2024) (per curiam), holding that personal injury claims against freight brokers for negligent hiring of an unsafe motor carrier are preempted by the Federal Aviation Administration Authorization Act. The question presented was: “Whether a wrongful death or personal injury claim against a freight broker that is based on the broker’s negligent hiring of an unsafe motor carrier to provide motor vehicle transportation invokes the state’s safety regulatory authority ‘with respect to motor vehicles,’ and, thus, falls within the safety exception.” Gauthier v. Total Quality Logistics, LLC, No. 24-592, 2025 U.S. LEXIS 229 (U.S. Jan. 13, 2025). See November 2025 Update. The Supreme Court finally agreed to decide the preemption issue in a case in which Yosniel Varela-Mojena was driving a load of plastic pots through Illinois for motor carrier Caribe Transport when he veered off course and struck Shawn Montgomery’s tractor-trailer, which was stopped on the side of the road. C.H. Robinson Worldwide, a broker, coordinated the shipment through Caribe Transport. Montgomery brought suit against Varela-Mojena, Caribe Transport, and C.H. Robinson Worldwide. He alleged that C.H. Robinson Worldwide was liable for his injuries because it negligently hired Varela-Mojena and Caribe Transport. The Seventh Circuit affirmed the district court’s holding that the FAAAA expressly preempted the negligent-hiring claim against C.H. Robinson Worldwide, but the Supreme Court reversed that holding. Writing for the unanimous Supreme Court, Justice Barrett held that the claim was saved from preemption by the exception to the preemption provision for the “safety regulatory authority of a State with respect to motor vehicles.” Thus, the Act does not preempt state suits against brokers who negligently arrange truck transportation with an unsafe carrier. Justice Barrett was careful to limit the exception to the preemption of the FAAAA, noting that the statute preempts state laws related to motor carrier prices, routes, and services that have no relationship to safety.
Note: After the decision of the Supreme Court, the Fourth Circuit vacated the grant of summary judgment in Fuelling v. Echo Global Logistics, Inc., No. 25-1217, 2026 U.S. App. LEXIS 14284 (4th Cir. May 18, 2026) (per curiam). The summary judgment was granted in favor of Echo Global Logistics in connection with a collision that killed the driver of a pickup truck. Echo Global selected S&J Logistics, owner of the 18-wheeler that collided with the pickup.
Note: On May 26, 2026, the Supreme Court denied the writ of certiorari sought by freight broker Total Quality Logistics in 2025, seeking review of the decision of the Sixth Circuit in Cox v. Total Quality Logistics, Inc., 142 F.4th 847 (6th Cir. 2025) that the safety exception in the FAAAA did not preempt a state negligence claim arising from the collision of a Golden Transit tractor-trailer driven by Amarjit Singh Khaira that killed Greta Cox and injured her grandson, Robert Brion Ragland. See Total Quality Logistics, LLC v. Cox, No. 25-145, 2026 U.S. LEXIS 2275 (U.S. May. 26, 2026).
Supreme Court reversed the decision of the Eleventh Circuit that cruise lines did not violate 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. Royal Caribbean Cruises, No. 24-983, 2026 U.S. LEXIS 2205 (U.S. May 21, 2026) (Thomas).
As we noted in our April 2022, June 2022, and November 2025 Updates, Judge Bloom of the United States District Court for 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-cv-23590, 19-cv-23591 (S.D. Fla. Mar. 21, 2022). The cruise lines moved to certify her order for an interlocutory appeal, but, on May 13, 2022, Judge Bloom declined the request. On December 30, 2022, Judge Bloom signed final judgments against MSC Cruises, Royal Caribbean Cruises, and Norwegian Cruise Line, each in the amount of $109,848,747.87 in treble damages (including interest) plus attorney fees and costs, and a final judgment against Carnival Corp. in the amount of $109,671,180.90 in treble damages (including interest) plus attorney fees and costs. (S.D. Fla. Dec. 30, 2022). On October 22, 2024, the Eleventh Circuit held that Havana Docks’ limited property interest had expired at the time of the alleged trafficking by the cruise lines and reversed the judgments against the cruise lines. See Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., Nos. 23-10151, 23-10171, 2024 U.S. App. LEXIS 26649 (11th Cir. Oct. 22, 2024) (Jordan).
The Supreme Court granted the petition for a writ of certiorari filed by Havana Docks and reversed the decision of the Eleventh Circuit. Writing for the Court, Justice Thomas held that the use of the docks by the cruise lines was sufficient to establish that they used property that was confiscated by the Cuban Government and that Havana Docks was not required to establish that the cruise lines trafficked in Havana Dock’s property interest. The property that was confiscated was not limited to the plaintiff’s interest in the property. It extended to property in which the plaintiff had an interest when the Cuban Government seized control of it after January 1, 1959. The statute provides a right to compensation based on the plaintiff’s former property interest and the later trafficking in the property by the defendants (helping support the Cuban Government). The Court remanded the case to the Eleventh Circuit to consider other defenses asserted by the cruise lines. Justice Kagan dissented, agreeing with the Eleventh Circuit that the cruise lines did not traffic in Havana Docks’ “time-limited—and long-ago expired—concession.”
Note: The Court also granted the petition brought by Exxon Mobil Corp. seeking to recover for the confiscation of the property of Standard Oil Co. in Exxon Mobil Corp. v. Corporación Cimex, S.A. (Cuba), No. 24-699, 2025 U.S. LEXIS 2812 (U.S. Oct. 3, 2025). The issue in that case is: “Whether the Helms-Burton Act abrogates foreign sovereign immunity in cases against Cuban instrumentalities, or whether parties proceeding under that Act must also satisfy an exception under the Foreign Sovereign Immunities Act.” Oral argument was presented to the Court on February 23, 2026.
From the federal appellate courts
Fifth Circuit reversed decision of federal judge who declined to refer seaman’s suit to arbitration based on delegation clause in Advanced Wage and Benefits Agreement signed by the seaman after his accident (finding a fact question whether the delegation clause and arbitration agreement were procured by fraud or duress); Hill v. Jackson Offshore Holdings, L.L.C., No. 24-30554, 2026 U.S. App. LEXIS 13040 (5th Cir. May 5, 2026) (Richman).
Jeremiah Hill was injured while serving as a seaman on the M/V BLIZZARD, owned and operated by Jackson Offshore. Jackson Offshore paid maintenance and cure benefits to Jackson and paid additional amounts to Hill in consideration of his signing an Advanced Wage and Benefits Agreement under which Hill agreed to submit his claims under the Jones Act and general maritime law to binding arbitration before the Society of Maritime Arbitrators. Jackson Offshore did treat Hill well, paying his net wages and renting him a furnished apartment in Harvey, Louisiana. The CEO of Jackson Offshore visited Hill frequently, reminding him that Jackson Offshore would provide ongoing financial support, but threatening that the company assistance would end if he retained an attorney. Hill asserted that he signed the Agreement because he “feared” that if he did not, he would lose his financial support, including maintenance and cure, and “he would be rendered homeless during the remainder of his recuperation.” Judge Zainey described the events surrounding the execution of the agreement as “troubling to say the least,” and Hill stated that he would not have signed the agreement had he been allowed to consult an attorney based on what he now understands as his rights as a seaman. Hill did consult an attorney and brought this suit in federal court in Louisiana under the Jones Act and general maritime law. Jackson Offshore moved to stay the suit and to compel arbitration, and Hill argued that the court should declare the agreement null and void. Jackson Offshore cited the delegation clause in the agreement and argued that the arbitrators, not the court, should decide the issues of fraud, coercion, and duress because those issues challenge the agreement as a whole and not just the delegation clause. Judge Zainey was not persuaded that Hill was challenging only the agreement as a whole without also challenging the delegation clause. Accepting Hill’s allegations, Judge Zainey considered it plausible that fraud and duress vitiated his consent to the delegation provision of the agreement and potentially the arbitration clause itself. Consequently, Judge Zainey denied the motion to compel arbitration and allowed discovery to proceed, limited to the issue of the enforceability of the arbitration agreement (after which Jackson Offshore could renew its motion to refer the claims to arbitration). See September 2024 Update.
Jackson Offshore appealed, and Hill argued that the appellate court lacked jurisdiction because Judge Zainey denied the motion without prejudice and did not rule that the agreement was invalid. Writing for the Fifth Circuit, Judge Richman disagreed, citing the reasoning of the Third Circuit: “We have jurisdiction over orders refusing to compel arbitration ‘irrespective of the fact that the [motion]was denied without prejudice.’” Turning to the arbitrability issue, Judge Richman noted that, under the Supreme Court’s decisions in Rent-A-Center and other cases, when the parties agree to delegate gateway contract-validity questions to the arbitrator, challenges to the validity of the contract as a whole go to the arbitrator, but challenges to the validity of the delegation clause itself are reserved to the court. Hill asserted that the agreement was obtained through fraud and/or while Hill was under economic duress. Although Hill framed his argument as challenging the delegation clause, noting that the agreement was “almost entirely” composed of the arbitration provisions, Judge Richman answered that his arguments about fraud and duress involved the agreement as a whole and were not limited to the arbitration provision. As Hill’s challenges attacked the agreement as a whole, they had to be referred to the arbitrator, and the court held that Judge Zainey erroneously denied the motion to compel arbitration. Judges Willett and Douglas concurred, agreeing that arbitration was required with respect to the challenges to the agreement. They debated the separate issue whether to continue to follow the Fifth Circuit’s Kubala decision, which Judge Willett described as adding an initial “free-floating inquiry into whether the arbitration agreement as a whole was validly formed.”
Eleventh Circuit agreed that two-dismissal rule barred a third declaratory judgment action by the insurer on a marine insurance policy, even though one of the dismissals was by agreement of the parties; Great Lakes Insurance SE v. Crabtree, No. 23-12020, 2026 U.S. App. LEXIS 14305 (11th Cir. May 19, 2026) (Newsome).
Great Lakes provided hull insurance for the S/V BRANDISON, owned by Bryan and Bethea Crabtree. The vessel was damaged in a fire at the Cracker Boy Boat Works in Riviera Beach, Florida, and Great Lakes denied coverage, claiming that the policy was a temporary binder, that the policy expired because the Crabtrees did not provide required materials, and that the Crabtrees made material misrepresentations in their application. Great Lakes brought a declaratory judgment action in federal court in Montana and voluntarily dismissed the suit when the attorney for the Crabtrees agreed to accept service in Florida. Great Lakes then brought suit against the Crabtrees in federal court in Florida and dismissed that action as well. Great Lakes then sued the Crabtrees in federal court in Montana, again, and the judge transferred the case to the federal court in Florida. While the federal actions were proceeding, the Crabtrees filed suit against Great Lakes in the circuit court in Miami-Dade County, Florida. The Crabtrees filed counterclaims in the federal action for breach of contract and extracontractual remedies under Montana and Florida law. Great Lakes based its federal action on admiralty jurisdiction and moved for a bench trial on its claims and those of the Crabtrees. Judge Altman agreed that the insurer’s suit on the policy on the vessel was based on a maritime contract and was within the admiralty jurisdiction. The Crabtrees argued that they were entitled to a jury trial on their counterclaims because Great Lakes was only pursuing a declaratory judgment in its complaint and the Crabtrees were pursuing damages against Great Lakes. Judge Altman did not believe that distinction made any difference as the counterclaim arose out of the same operative facts and marine policy that are at issue in the declaratory judgment action, and the Rule 9(h) designation by the plaintiff trumps the demand for a jury trial from the defendant in a counterclaim arising out of the same facts. Judge Altman also disagreed with the insured’s argument that Great Lakes had raced to the courthouse to deprive the Crabtrees of their right to a jury trial and was engaged in gamesmanship, citing the statement of the Montana judge that it was the Crabtrees who appeared to be engaged in gamesmanship with their agreement to accept service in Florida. Finally, Judge Altman noted that the Crabtrees implied, but “to their credit, they never explicitly argue,” that the court could not exercise admiralty jurisdiction because the fire occurred on land. Judge Altman explained that admiralty jurisdiction over contracts is implicated by the nature of the contract (marine insurance) and not by the location where the boat was damaged by the fire (contract jurisdiction is “conceptual” and not “spatial” as with respect to torts). Accordingly, Judge Altman granted Great Lakes’ motion for a bench trial of the case. See February 2022 Update.
Great Lakes and the Crabtrees then filed cross-motions for summary judgment in the federal action. The Crabtrees previously raised the two-dismissal rule pursuant to Rule 41(a)(1) (the second dismissal must be dismissed with prejudice), but Judge Christensen denied their motion to dismiss, concluding that the prior dismissals were attributable to gamesmanship on the part of the Crabtrees. The Crabtrees raised the argument again, and Great Lakes argued that, despite the clarity of Rule 41, the two-dismissal rule should not apply when one of the dismissals was not unilateral (citing cases from the Second Circuit and the Ninth Circuit that the two-dismissal rule does not apply when the defendant agreed to one of the dismissals). As Judge Altman sits on a district court within the Eleventh Circuit, he responded: “But in the world of the law, two plus nine doesn’t always equal eleven.” Judge Altman recognized that the two-dismissal rule is “potentially harsh,” but he believed that “we must apply it as written.” Finally, Great Lakes argued that Judge Christiansen’s prior ruling should be conclusive, but Judge Altman disagreed. She issued her order in the third suit (the case currently pending), and it was not a final judgment on the issue. Thus, Judge Altman held that the court had the authority to reconsider the order on a motion for summary judgment, and he granted summary judgment to the Crabtrees. See July 2023 Update.
Great Lakes appealed to the Eleventh Circuit, arguing that there is an exception to the res judicata effect of Rule 41 when one of the dismissals was pursuant to an agreement between the parties. Writing for the Eleventh Circuit, Judge Newsome declined to write that exception into the Rule. Great Lakes also argued that the prohibition should not apply because it refiled the suit in Montana and not in the Southern District of Florida, noting that it was the Crabtrees who initiated the transfer of the third suit from Montana to Florida. Judge Newsome rejected that distinction, answering that the second dismissal was with prejudice and a further suit in any court on the same claim was barred by res judicata, regardless of where it was filed. Therefore, Judge Altman correctly granted summary judgment to the Crabtrees in the third suit.
Fifth Circuit declined to rehear its decision rejecting the argument that an expert must provide a specific dose of a chemical in an exposure case to establish general causation, but the court still affirmed the striking of expert testimony in a BELO case arising from the Macondo/DEEPWATER HORIZON blowout and the granting of summary judgment to BP in the absence of expert testimony on causation; Ruffin v. BP Exploration and Production, Inc., No. 23-30854, 2025 U.S. App. LEXIS 11437 (5th Cir. May 12, 2025) (Elrod), opinion withdrawn, 2026 U.S. App. LEXIS 15129 (5th Cir. May 27, 2026) (Elrod).
Floyd Ruffin brought a Back-End Litigation Option suit against BP for exposure to harmful toxins while working as a shoreline clean-up worker, boom deployer, boom recoverer, and boom decontaminator for five months after the Macondo/DEEPWATER HORIZON oil spill. Ruffin presented the opinion of Dr. Benjamin Rybicki, a genetic and molecular epidemiologist, to support causation for Ruffin’s diagnosis of Prostatic Adenocarcinoma, but Judge Lemelle held that his opinion failed to comply with the Fifth Circuit’s requirements because it did not provide an expert dose at the general causation level and did not provide an opinion on specific causation. Ruffin’s remaining expert was a toxicologist, Dr. James Clark. However, Judge Lemelle excluded his opinions because he made no harmful-dose or exposure-dose findings and did not evaluate general causation based on toxicity (disease association or the Bradford Hill factors). Instead, he provided a toxicity assessment based on EPA thresholds. As the exposure assessment report did not identify the level of toxins that is harmful and that could be associated with the symptoms, it failed the requirements to support general causation (he also did not provide an opinion on specific causation). Accordingly, Judge Lemelle granted summary judgment to BP. See December 2023 Update.
Ruffin appealed to the Fifth Circuit and argued that Dr. Rybicki’s methodology was permissible under Daubert. Dr. Rybicki used a differential etiology (process of elimination) approach to determine the cause of Ruffin’s prostate cancer. He ruled out other possible exposures to polycyclic aromatic hydrocarbons that are associated with an increased risk of prostate cancer and concluded that exposure to oil in the clean-up was Ruffin’s most significant exposure to PAHs in terms of intensity. BP argued that to establish general causation, the plaintiff must show by expert testimony that the chemical to which he was exposed was capable of causing his particular injury or condition in the general population, and that required an expert to identify the minimum amount (“dose”) of the chemical necessary to cause the injury/condition in the general population. Writing for the Fifth Circuit, Chief Judge Elrod disagreed with BP, explaining that general causation only requires that a substance be capable of causing the condition in the general population. A specific quantitative “dose” might be sufficient to establish general causation, but Chief Judge Elrod added that expert testimony may be relevant and admissible even if it does not provide a specific dosage. She cited the Bradford Hill criteria, commonly used for evaluating causation in epidemiological studies, which “consider a ‘[d]ose-response relationship’ as but one factor among others such as ‘[t]emporal relationship,’ ‘[b]iological plausibility,’ ‘[s]pecificity of the association,’ and ‘[c]onsistency with other knowledge.” Chief Judge Elrod also noted that the court has allowed a numerical “range” supported by other associations/connections. By way of example, Chief Judge Elrod stated: “Assuming that the underlying methods are reliable, our cases illustrate that an expert can provide a harmful ‘level’ of exposure to a chemical that is relevant to general causation by, for example, establishing a significant association between occupational exposure and the relevant condition or by providing qualitative examples of exposure, such as ingestion, that are generally known to cause the relevant condition.” Accordingly, Chief Judge Elrod held that Dr. Rybicki’s testimony was not irrelevant on the basis that he failed to provide a quantitative exposure dosage of PAHs that would cause prostate cancer. However, she held that Dr. Rybicki’s testimony was still insufficient to establish general causation. Dr. Rybicki admitted that PAHs comprise over 200 chemicals that are ubiquitous in the environment, but the only one that has been confirmed to be carcinogenic is benzo(a)pyrene, and neither Dr. Rybicki nor Ruffin claimed that benzo(a)pyrene was the chemical to which Ruffin was exposed. Dr. Rybicki’s testimony that Ruffin was most likely exposed to PAHs in crude oil did not mean that Ruffin was exposed to the carcinogenic PAH benzo(a)pyrene. Finally, Chief Judge Elrod pointed out that the expert must establish a link with the specific cancer from which the plaintiff suffers and not cancer generally. Although Dr. Rybicki linked benzo(a)pyrene to cancer, he did not demonstrate that it causes prostate cancer. In the absence of expert testimony, Chief Judge Elrod agreed that summary judgment was proper. See June 2025 Update.
Although the Fifth Circuit panel affirmed the grant of summary judgment, BP moved for rehearing en banc, presenting this issue: “Whether in a toxic-tort case, an admissible general-causation opinion must identify a threshold level of exposure to a substance capable of causing the plaintiff’s alleged condition in the general population?” In response, the Fifth Circuit panel withdrew its prior opinion and substituted an opinion with revised analysis to respond to the argument raised by BP. No active judge voted for rehearing en banc, so the petition for rehearing en banc was denied. BP presented an extensive review of the decisions of the Fifth Circuit and concluded that “14 appellate judges have uniformly concluded that proof of general causation requires experts to identify a threshold ‘harmful level of exposure to a chemical’ at which the claimed ‘physical symptoms manifest.’” It added: “When an expert opinion ‘includes no identification of the necessary dose of exposure to’ a substance for a plaintiff’s ‘complained-of symptoms to manifest in the general population,’ the decisions recognize that the opinion must be ‘excluded.’” BP also argued that the original decision conflicted with rulings from other circuits, most notably the Eleventh Circuit. Writing for the panel in the substituted opinion, Chief Judge Elrod disagreed that “some kind of exactitude in minimum dangerous dosage is required.” She noted that the court had “characterized the minimum showing as ‘the harmful level of exposure to a chemical’” and that the court had quoted the Eighth Circuit’s rejection of “a mathematically precise table equating levels of exposure with levels of harm” and instead defined the standard as “‘evidence from which a reasonable person could conclude’ that the chemical caused the condition.” Chief Judge Elrod added that even when an expert does provide a quantitative-dosage estimate, “we have allowed a numerical ‘range’ supported by other, non-dosage associations, such as the chemical’s ‘toxicological profile’ and the ‘temporal connection’ between workplace exposure to a chemical and the incidence of a condition.” Chief Judge Elrod concluded: “Simply put, to support general causation, an expert must proffer a reliable opinion that the chemical at issue can cause the disease at exposure levels that a human could realistically have experienced. That does not necessarily require that an expert generate a numerical output like ‘FORTY-TWO.’” Having rejected BP’s rehearing argument, Chief Judge Elrod retained the analysis that, nonetheless, Ruffin’s expert failed to establish that PAHs cause cancer in the general population and that his opinion was properly excluded. Therefore, the court affirmed the summary judgment in favor of BP.
From the federal district courts
Jet ski owner waived right to compel arbitration for injury claim of jet ski renter by filing limitation action, answering the claim in the limitation action, and moving to default other potential claimants without mentioning its right to arbitrate; Key West Jetski, Inc. v. Sayre-Scibona, No. 4:25-cv-10067, 2026 U.S. Dist. LEXIS 31873 (S.D. Fla. Feb. 17, 2026) (Augustin-Birch), recommendation adopted, 2026 U.S. Dist. LEXIS 55046 (S.D. Fla. Mar. 17, 2026) (Leibowitz).
Megan Sayre-Scibona signed a Bare Boat Lease Rental Contract and Release of Liability, Assumption of Risk, Waiver of Claims, Indemnification & Binding Arbitration Agreement in order to rent a Yamaha Waterjet Powercraft from Key West Jetski. Sayre-Scibona was operating the vessel as part of a jet ski tour but lost control of the vessel and impacted an anchored vessel. Key West Jetski filed this complaint in Florida federal court seeking to limit liability, and Sayre-Scibona was the sole claimant (the court entered a default judgment against other potential claimants). Sayre-Scibona then moved to lift the stay in the limitation action so that she could pursue an action against Key West Jetski in state court, and Key West Jetski moved to compel arbitration. Sayre-Scibona argued that Key West Jetski had waived its right to seek arbitration, and Key West Jetski responded by citing cases holding that the filing of a limitation action did not waive the right to pursue arbitration. Magistrate Judge Augustin-Birch distinguished the cases because Key West Jetski filed the limitation action and answered the claim of Sayre-Scibona without ever invoking or mentioning its right to arbitrate. Accordingly, she recommended denying the motion to compel arbitration. As there was only a single claimant, as Sayre-Scibona entered into the proper stipulations, and as the arbitration defense was waived, Magistrate Judge Augustin-Birch recommended that the stay be lifted.
Key West Jetski objected to the recommendations, arguing that Magistrate Judge Augustin-Birch failed to address the “gateway” issue—that the parties agreed to arbitrate the issue of whether there was a waiver of the right to arbitrate. Judge Leibowitz disagreed. The delegation clause stated that the parties agreed to “submit any dispute, claim, or controversy, relating to and/or arising from . . . Participant’s participation in the Activities . . . , including the determination of the scope or applicability of this agreement to arbitrate, to binding arbitration.” Judge Leibowitz noted that the agreement also provided: “As a threshold matter, the [Arbitration] Panel shall confirm whether the Waiver and Release contained in this Agreement are enforceable under applicable law.” Concluding that the delegation language did not require arbitration of the issue of whether Key West Jetski waived its right to arbitrate, Judge Leibowitz rejected the objection. He also rejected the objection to the recommendation that Key West Jetski waived its right to arbitrate, adding to the factors enumerated by Magistrate Judge Augustin-Birch that Key West Jetski moved for a default judgment against other potential claimants before asking the court to compel arbitration. Therefore, Judge Leibowitz adopted the recommendations with respect to waiver of arbitration and lifting the stay, noting that Key West Jetski could raise the contractual waiver of liability/release as a defense in the state proceeding or before the federal court “in due time.”
Judge agreed that Ryan WWLP still existed for shipowner against owner of dock on which seaman fell, but he denied summary judgment to the shipowner because the seaman did not bring an unseaworthiness claim against the shipowner and there was insufficient evidence of a contract or third-party beneficiary status between the shipowner and dock; fact issues precluded summary judgment on the seaman’s claims against the dock owner; Troy v. Grand River Navigation, No. 0:23-cv-2961, 2026 U.S. Dist. LEXIS 48644 (D. Minn. Mar. 10, 2026) (Tunheim).
David Troy served as a second mate for the tug DEFIANCE and barge ASHTABULA. He was employed by Grand River Navigation, owner of the tug and operator of the barge. The ASHTABULA arrived at the Wisconsin Central ore dock in Duluth, Minnesota to load cargo at 0430 on January 3, 2023. The ARTHUR ANDERSON had completed loading ore earlier in the day, and Grand River’s crew was sweeping the dock to remove taconite pellets on the dock from the prior cargo operation. The cleaning stopped because the sweeping vehicle had to exit the dock before next ship attached its lines. Grand River had the obligation to load the vessels, but Wisconsin Central had the obligation to maintain the dock in reasonably safe condition. There was no written contract between Wisconsin Dock and Grand River. Troy arrived at the dock to board the barge, and the dock was not well lit and was covered with pellets. He slipped and fell on pellets that were rolling under his feet. Although there is an elevated catwalk system that enables workers to travel the length of the dock without walking on the dock surface, there was no sign directing Troy to the walkway, and no one advised him how to access the vessel. Troy brought this suit in federal court in Minnesota against Grand River (Jones Act negligence and maintenance and cure) and Wisconsin Central (negligence, premises liability, and breach of an implied warranty of workmanlike performance). He brought the suit under the court’s admiralty jurisdiction with supplemental jurisdiction for the claims against Wisconsin Central. Grand River and Wisconsin Central brought crossclaims against each other for contribution and indemnity. Grand River moved for summary judgment on its crossclaim for indemnity against Wisconsin Central, and Wisconsin Central moved for summary judgment on the claims asserted against it by both Troy and Grand Central. The parties did not dispute that maritime law applied to Troy’s claims against Grand Central and his implied warranty claim against Wisconsin Central. The parties disputed whether maritime law or state law applied to Troy’s negligence and premises liability claims against Wisconsin Central. Judge Tunheim agreed with Wisconsin Central that Troy’s negligence and premises liability claims failed the locality test for admiralty jurisdiction and that there was no admiralty jurisdiction over them. However, he held that the court could exercise supplemental jurisdiction over the claims because they arose out of the same common nucleus of operative fact as the admiralty claims. Judge Tunheim similarly rejected Troy’s argument that admiralty law applied to the claims and held that Minnesota law would apply. Judge Tunheim then addressed Grand River’s claim for indemnity against Wisconsin Central under the Ryan warranty of workmanlike performance. He reviewed the history of Sieracki and Ryan and noted that courts have continued to recognize that a shipowner may be entitled to assert a Ryan WWLP indemnity claim in seamen cases even after the 1972 Amendments to the LHWCA, but the warranty was subject to the defense that the warranty is available only absent conduct on the part of the shipowner that precludes indemnity. Wisconsin Central presented two arguments in opposition to Grand River’s motion for summary judgment on its WWLP claim. First, Wisconsin Central argued that Grand River failed to show that it is a party to a contract or a third-party beneficiary. Grand River relied on the Sixth Circuit Oglebay Norton case, which held that a contract is not required for Ryan indemnity. Citing the Supreme Court’s decisions in Crumady and Waterman, Judge Tunheim held that there must either be a contract between the shipowner and contractor or the shipowner must be a third-party beneficiary to a contract. Wisconsin Central argued that Grand River was an invitee, and Judge Tunheim held that there was a question as to the relationship between the parties that precluded summary judgment. Wisconsin Central also argued that the WWLP was not applicable in this case because it applies to unseaworthiness claims against the vessel owner and not negligence claims. Judge Tunheim agreed and held that comparative fault was the appropriate way to allocate responsibility under the “broader trend in maritime law.” Judge Tunheim then considered Wisconsin Central’s motion for summary judgment. He found that there is a fact dispute about which party is responsible for the taconite pellets on the dock. Wisconsin Central argued that Troy’s account of his fall established that the condition was open and obvious. Judge Tunheim found that there was sufficient evidence to suggest that Troy did not appreciate the probability and gravity of the threat of the harm posed by the pellets and did not recognize that the danger was obvious (the area was dimly lit and he had not been instructed not to walk on the dock). Judge Tunheim also noted that the premises owner could still be liable if it was foreseeable that the worker would proceed to encounter the danger, and the absence of signage directing him to the catwalk together with the poor lighting was sufficient to create a fact question. Judge Tunheim did grant summary judgment to Wisconsin Central on Troy’s claim for breach of an implied warranty of workmanlike performance as “Troy is not a shipowner in need of the indemnity.” Finally, Judge Tunheim denied summary judgment on Grand River’s contribution and indemnity claims against Wisconsin Central, noting that comparative fault will be applied (including allocation of responsibility for maintenance and cure).
Magistrate Judge found fact questions on the duration and nature elements of the connection test for seaman status for a dive technician who performed inspection work on bridges, bulkheads, and other structures; Ricketts v. Moffatt & Nichol, Inc., No. 1:23-cv-5011, 2026 U.S. Dist. LEXIS 60328 (E.D.N.Y. Mar. 10, 2026) (Merkl).
Moffatt & Nichol is a global infrastructure advisory firm that provides engineering and consulting services to marine terminal and transportation clients. It employed David Ricketts as a Dive Technician in its Norfolk, Virginia office to assist with underwater inspections, topside inspections, and inspections of bridges, bulkheads, and other structures “from the water up.” Some of his inspections required use of a vessel; others did not. Some inspections occurred from shore or on the back of a truck. Much of his time was spent in administrative and maintenance work. Although Ricketts was based in Norfolk, he was injured in an assignment for the New York office of Moffatt & Nichol. His injury occurred in Jersey City, New Jersey while unloading dive equipment to be used on a pile driver. He was standing on the lift gate of his pickup truck when the lift gate dropped on one side, causing Ricketts to fall to the ground. Ricketts brought suit against Moffatt & Nichol in federal court in New York under the Jones Act and general maritime law, and the parties filed cross-motions for summary judgment on Ricketts’ seaman status. Using Ricketts’ inspection reports, Moffatt & Nichol calculated that Ricketts was employed for 8,432.5 hours, including 1,815 hours on a vessel (21.52%). Ricketts did not contest the calculations, but he argued that Ricketts’ time on a boat should be measured by the day, should only include his time on a boat in New York, and should exclude weekends and paid time off, which would increase the percentage to 42.1%. Ricketts argued that his transfer to New York was a new assignment so that the duration element of the connection test for seaman status test should be considered based on his employment in New York. Moffat & Nichol answered that he had the same title and responsibilities in both locations, so the duration should be measured from his employment as a whole. Magistrate Judge Merkl found that Ricketts raised a sufficient fact issue on the reassignment issue, reasoning that his job title and essential duties remained the same, but the proportion of time he spent on a vessel increased significantly while he was working in New York. Magistrate Judge Merkl also found that there was a fact question as to how to evaluate the hours attributable to Ricketts’ time spent in the service of a vessel in navigation. Magistrate Judge Merkl then considered whether Ricketts satisfied the nature element of the connection test for seaman status. Ricketts went home every day after work, and he did not use the vessel as a vessel in navigation for most of the day. However, Judge Merkl found a fact question because Ricketts was regularly operating a vessel during his workday, continuously planning dive and inspection operations with the option of using a vessel, and diving into bodies of water. Accordingly, Judge Merkl denied the motions for summary judgment.
Employer established McCorpen defense to seaman’s claim of failure to pay maintenance and cure for heart attack; Conner v. REC Marine Logistics, LLC, No. 2:25-cv-458, 2026 U.S. Dist. LEXIS 53297 (E.D. La. Mar. 16, 2026) (Fallon).
Jonathan Conner was employed as a deckhand by REC Marine on the GOL WARRIOR. His shoulder began hurting after he pulled some rope on January 27, 2024. He reported the pain to the captain who advised him to take Tylenol. Connor continued to work until the shoulder pain returned. Conner was eventually diagnosed as having suffered a heart attack. At the time he reported the symptoms, Connor was aware that he had suffered a heart attack in 2014, but the captain was unaware of Connor’s prior heart attack. Connor brought this suit against REC Marine in federal court in Louisiana, asserting claims for Jones Act negligence, unseaworthiness, and failure to pay maintenance and cure. REC Marine moved for summary judgment on all of Conner’s claims, and Judge Fallon granted summary judgment on the claim for failure to pay maintenance and cure. After Conner’s first heart attack, he underwent cardiac catheterization and had a stent implanted. He was prescribed medication for hypertension, but he stopped taking it a few months later. Conner applied for employment with REC Marine in 2021. He circled “No” for heart disease, high blood pressure, surgical procedures, history of hospitalization, and history of heart surgery, although he initially circled “Yes” next to “Been a patient in a hospital” and then crossed it out and circled “No.” Conner explained that “the prior myocardial infarction was a one-off adverse reaction to synthetic marijuana” and had no bearing on whether he could do his job and on whether he was at risk for a future heart attack, but Judge Fallon found that Conner “objectively failed to answer these questions truthfully.” Judge Fallon concluded that REC Marine established the three elements of a McCorpen defense of intentional concealment of a prior medical condition—intentional misrepresentation, materiality, and a causal connection between the withheld information and the injury that was eventually sustained. Judge Fallon then addressed whether to dismiss Conner’s claim for punitive damages for willful and wanton disregard of the maintenance and cure obligation. As REC Marine had no obligation to pay maintenance and cure because of the McCorpen defense, Judge Fallon held that Conner would not be allowed to recover punitive damages in connection with the dismissed maintenance and cure claim.
Widow of passenger on cruise ship who alleged that her husband died as a result of inferior treatment because he was Black sufficiently stated claims under Section 1981 and the Florida Civil Rights Act (subject to its exhaustion requirement); determination of whether damages were limited under DOHSA could not be made based on the allegations in the complaint; Williams v. Carnival Corp., No. 1:25-cv-21514, 2026 U.S. Dist. LEXIS 54093 (S.D. Fla. Mar. 16, 2026) (Williams).
Teresa Williams, Kevin Williams, and their son were passengers on the Carnival cruise ship VENEZIA. Teresa alleges that during the early morning of April 1, 2025 (around 0300), Kevin woke up feeling ill, struggling to breathe, shaking, and sweating profusely. He was taken to the ship’s medical center, and Teresa was told that Kevin would require hospitalization upon arrival at the Dominican Republic later that morning. The ship’s staff called several times to demand payment of the invoice of $222 for treatment before they departed the ship. When the vessel arrived in port, the cruise line did not provide assistance and directed the family to a port agent who took them to a private hospital that demanded $10,000 for treatment. Teresa could not wire the money, and “they were forced to go to a decrepitly run-down public hospital instead.” Teresa spoke to the United States Embassy, which questioned why an airlift did not pick up Kevin directly from the cruise ship. She answered that she was not given that option. Teresa began arranging for an airlift to the United States, when Kevin passed away on April 2, 2024. Teresa Williams brought this suit in Florida federal court against the cruise line alleging that their treatment as Black passengers was not equal to the treatment provided to other passengers. She alleged violations of 42 U.S.C. Section 1981, the Florida Civil Rights Act, wrongful death under Florida law, and negligence (including compensatory damages, punitive damages, and attorney fees). The cruise line moved to dismiss the claims, and Judge Williams held that Teresa had stated a claim under Section 1981 for intentional racial discrimination in her allegations that Kevin was treated differently from other non-Black passengers who were in critical condition and needed life-saving medical care. Judge Williams also found that the cruise ship was a place of public accommodation within the meaning of the Florida Civil Rights Act, but the allegations in the complaint did not state the prerequisite that the plaintiff must have filed a complaint with the Florida Commission on Human Relations. As Teresa alleged in her response that she had filed a complaint, Judge Williams dismissed this count without prejudice so that Teresa could cure the failure to plead the exhaustion requirement. Finally, the cruise line pleaded that the Death on the High Seas Act provided the exclusive remedy for any death on the high seas (including maritime incidents occurring within the territorial waters of foreign states) and limited recovery to pecuniary losses. Based on the pleading, Judge Williams was unable to identify the relevant wrongful act or omission that consummated in an actual injury or the time and place of the injury. It could be that Kevin sustained a mortal injury as a result of wrongful conduct on the high seas, but at the stage of the motion to dismiss, Judge Williams could not determine that DOHSA barred recovery of nonpecuniary damages.
District Judge revised his calculation of seaman’s future economic loss in accordance with Fifth Circuit instruction to explain calculation of lost income stream; Vaughn v. American Commercial Barge Line, LLC, No. 2:18-cv-7735, 2026 U.S. Dist. LEXIS 54774 (E.D. La. Mar. 17, 2026) (Barbier).
Jamal Vaughn, a deckhand employed by American Commercial Barge Line on its vessel M/V EXPLORER, was injured when the EXPLORER struck a moored vessel while traveling from Baton Rouge to Harahan, Louisiana for repairs. Vaughn brought this suit against ACBL in federal court in Louisiana, asserting claims for Jones Act negligence, unseaworthiness, and maintenance and cure and seeking to recover damages that included pain and suffering on the Jones Act and unseaworthiness claims and punitive damages and attorney fees for willful failure to pay maintenance and cure. ACBL moved for partial summary judgment that Vaughn had reached maximum cure and was not entitled to maintenance and cure, citing the opinion of the orthopedic surgeon who performed two arthroscopic surgeries on Vaughn’s right shoulder and who signed off on Vaughn being at maximum cure with respect to his right shoulder. Shortly before that finding from Vaughn’s orthopedic surgeon, Vaughn began treating with a different orthopedic surgeon, Dr. Andrew G. Todd, with respect to his neck and back. Dr. Todd performed disc replacement surgery and epidural steroid injections and opined that Vaughn had reached nonsurgical maximum improvement but would continue to require intermittent epidural steroid injections that were “meant to address ongoing complaints of pain.” ACBL argued that any future treatment was palliative, and that the opinion that Vaughn had reached nonsurgical maximum improvement indicated he was at maximum cure because Vaughn had elected not to have further surgery at this time. Judge Barbier disagreed, holding that Dr. Todd’s communications reflected an issue of fact remained as to whether Vaughn had reached maximum cure and whether further treatment was curative. Therefore, he held that ACBL had not carried its burden to provide unequivocal evidence that Vaughn had reached maximum cure. For the same reason, Judge Barbier declined to dismiss Vaughn’s claims for punitive damages and attorney fees for willful failure to pay maintenance and cure, reasoning that, absent an unequivocal justification to terminate maintenance and cure, the employer may subject itself to liability for punitive damages and attorney fees for terminating benefits. Finally, ACBL sought summary judgment on Vaughn’s claims for non-pecuniary damages for mental anguish, emotional distress, loss of enjoyment of life, and pain and suffering. Judge Barbier agreed that nonpecuniary damages such as loss of society are not recoverable by a seaman in his claims for Jones Act negligence and unseaworthiness; however, Judge Barbier found no controlling case precluding a Jones Act seaman from recovery for pain and suffering, and he noted that the Fifth Circuit had permitted awards of pain and suffering by seamen. Categorizing pain and suffering as pecuniary damages, Judge Barbier declined to dismiss Vaughn’s claim for pain and suffering. See June 2023 Update.
ACBL stipulated to liability, and Judge Barbier held a bench trial on damages. Judge Barbier awarded Vaughn $221,246 for past wage loss (accepting the estimate from Vaughn’s expert) and awarded $750,000 for loss of future earnings “extrapolating from the calculations by competing economists.” He also awarded damages for future medical expenses ($150,000), pain and suffering and future disability ($350,000 in past physical and mental pain and suffering and $400,000 for future pain, suffering, and permanent disability) that neither party appealed. Judge Barbier declined to award punitive damages or attorney fees for failure to timely pay cure. ACBL appealed the calculation of past and future wage losses, and Vaughn appealed the denial of punitive damages and attorney fees. ACBL argued that Judge Barbier failed to take into account that Vaughn voluntarily failed to return to work for more than a year and a half before trial, and that the award for past wage loss should be reduced by $38,287.09. Vaughn answered that his physician did not tell him that he could return to work, that he was in pain, that he was continuing his medical treatment, and that he was unsure whether an employer would accommodate his treatment. Giving deference to the findings, Judge Richman, writing for the Fifth Circuit, accepted Judge Barbier’s finding that Vaughn was credible and that he sufficiently attempted to mitigate damages by calling potential employers. The issue with respect to future wage loss involved the application of the Fifth Circuit’s Culver II adjustment for inflation. Under Culver II, the fact finder must calculate the lost income stream and then apply an appropriate below-market discount rate. Vaughn’s economist calculated the loss as $1,604,256, and ACBL’s economist gave a range with a midpoint of $450,836.82. The experts both used a below-market method in their calculations. Judge Barbier extrapolated from the opinions to reach a finding of $750,000; however, Judge Richman explained that extrapolating from the expert opinions “does not provide sufficient reasoning for appellate review.” Accordingly, the Fifth Circuit vacated the finding so that Judge Barbier could set forth his reasoning for “application of the four steps set forth in Culver II, with an explanation of the evidence that supports the findings at each step.” Judge Richman then addressed Vaughn’s claim for failure to timely pay cure. She noted that the seaman faces a “high burden,” establishing that the employer was not just unreasonable but also “egregiously at fault”—“the seaman must demonstrate ‘an element of bad faith.’” Vaughn complained that it took ACBL 2 ½ years to investigate and pay bills incurred for his medical treatment, and ACBL responded that it was making good faith efforts to reimburse expenses when it was not receiving necessary paperwork to document the expenses. Judge Richman reasoned that this case was unlike cases in which punitive damages were permitted because ACBL acknowledged the claim, investigated it, did not refuse to make payments entirely, and did not terminate payments when Vaughn retained counsel. She stated that “ACBL’s untimely payments are not an independent basis for punitive damages,” citing the Fifth Circuit’s Ober decision in which the court noted that the cases “do not support such an award on the basis of untimely payment alone.” She explained that ACBL was entitled to request documentation and concluded: “Prior to this point, ACBL had no obligation to pay cure benefits in light of Vaughn’s failure to submit proof of payment.” Therefore, Judge Barbier did not err in denying the claim for punitive damages and attorney fees. See November 2025 Update.
After the Fifth Circuit reversed Judge Barbier’s extrapolation from the opinions of the experts ($1,604,256 and a midpoint of $450,836.82) to reach a finding of $750,000 for the future wage loss, Judge Barbier recalculated the future loss. He accepted defense expert Boudreaux’ estimate of $28,733.12 per annum for 26.08 years for a net of $450,836.82 at a 1.3% below-market discount rate. However, he agreed with Vaughn’s expert Wolfson of a work-life expectancy of 33.04 years, and he added seven years of future wage loss to Boudreaux’ calculation. Discounted to present value, Judge Barbier reduced the future wage loss from his prior award of $750,000 to $600,000. As he calculated the future wage loss to begin at the initial judgment, Judge Barbier held that post-judgment interest would accrue from the date of the initial judgment.
Stipulation on priority of recovery converted multiple claimants into the equivalent of a single claimant to allow lifting of the stay in a limitation action involving a collision between two jet skis; In re Paradise Parasail, LLC, No. 1:25-cv-2119, 2026 U.S. Dist. LEXIS 56158 (D. Md. Mar. 18, 2026) (Gallagher).
Paradise Parasail rented jet skis to Daniel Tristan Fishman and Saurav Kumar Ghosh as part of a guided tour led by its employees within Herring Creek and the Ocean City Inlet in Maryland. The jet skis collided, resulting in two injuries. Paradise Parasail filed this limitation action in Maryland federal court for the two jet skis, and claims were filed by Ghosh and his daughter. The claimants moved to lift the stay, and the Ghosh claimants entered into a stipulation to create the functional equivalent of a single claim situation—the minor’s claim would have complete priority over Ghosh’s claim. Ghosh’s claim would only be paid if there is a remainder in the limitation fund after payment of the minor’s claim. They acknowledged that the total claims could not exceed the limitation fund. Judge Gallagher reasoned that the joint stipulation eliminated the risk of simultaneous demands against the fund and effectively converted the two claimants into a single claimant. Paradise Parasail objected that the stipulation did not state that it was irrevocable, but Judge Gallagher answered that once it was relied on by the court, “it is effectively irrevocable whether the word is used or not.” Paradise Parasail also argued that the court should not lift the stay because it asserted a counterclaim relating to the Participant Agreement, Release and Assumption of Risk signed by Ghosh before operating the jet ski. Judge Gallagher answered that Paradise Parasail could raise the issues relating to the agreement in the state proceeding after the stay was lifted. Therefore, she agreed to lift the stay.
Judge resolved dispute over title to vessel in Rule D action (California title gave way to Coast Guard title); Del Rey Enterprises LLC v. Agamalian, No. 2:25-cv-2533, 2026 U.S. Dist. LEXIS 61222 (C.D. Cal. Mar. 18, 2026) (Staton).
This case involves a dispute over title to the recreational yacht, IT’S ALL GOOD. On May 16, 2018, Arsen Mkerchyan attended an auction for the vessel on behalf of Del Rey Enterprises, of which Mkerchyan is managing member. Artak Agamalian attended as representative of his car dealership, Rennauto Group. Rennauto purchased the vessel and was issued a California Certificate of Ownership. Del Rey contends that Agamalian and Rennauto bid on the vessel on behalf of Del Rey’s managing member Mkerchyan and that Mkerchyan paid the invoice for the vessel the day after the purchase. On June 19, 2019, Agamalian’s wife, Gaiane Saretsian, executed a bill of sale as owner of Rennauto to Del Rey, but Agamalian disputed the validity of the bill of sale. Del Rey recorded the bill of sale with the Coast Guard’s National Vessel Documentation Center, which issued a Certificate of Documentation in Del Rey’s name. Del Rey paid the monthly dock fees to moor the vessel, purchased insurance for the vessel, paid the property taxes for the vessel, and paid for maintenance on the vessel. In November 2024, documentation was submitted to the California DMV to transfer ownership from Rennauto to Agamalian, and a Certificate of Ownership was issued reflecting that Agamalian was the owner. Agamalian then moved the vessel to a dock in Los Angeles Harbor, and Del Rey filed a stolen vessel report with the Los Angeles County Sheriff’s Department. In December 2024, Agamalian submitted the California Certificate of Ownership to the Coast Guard and applied for a Certificate of Documentation in his name, and the Coast Guard issued a Certificate of Documentation for the vessel to Agamalian on January 6, 2026. Del Rey then brought a Rule D action in California federal court, seeking title to the vessel, and the vessel was arrested. Del Rey moved for summary judgment, and Judge Staton ruled that Agamalian did not provide probative evidence of his conclusory assertion that the 2019 bill of sale was void. Judge Staton then considered the effect of the California Certificate of Ownership and held that the certificate became void when the vessel was documented in Del Rey’s name with the Coast Guard. Judge Staton then applied state law to decide the ownership of the vessel. As she held that the bill of sale was valid, and as the California title was invalid, Del Rey was the owner of the vessel under California law. Accordingly, Judge Staton entered a judgment quieting title to the vessel in the name of Del Rey, adding that Agamalian had no interest in the vessel. She also ordered Agamalian to pay the custodia legis expenses for the arrest and custody of the vessel during the lawsuit. Agamalian filed a notice of appeal on May 20, 2026.
Claims for attorney fees in actions by vessel owner and captain against other vessel’s operator (arising in limitation action involving death and injury claims of passengers who were thrown overboard when their vessel crossed the wake from the other vessel) were stricken, but contribution claims were properly pleaded; Quantum Leap Charters, LLC v. Estate of O.K, No. 4:24-cv-271, 2026 U.S. Dist. LEXIS 57774 (D.S.C. Mar. 19, 2026) (Dawson).
Robert Powers was captain of the M/V FEAR KNOT, operated by Quantum Leap Charters. While operating the FEAR KNOT on a charter through the Intracoastal Waterway near Little River, South Carolina, the vessel passed a recreational vessel operated by Edward Eldridge that was carrying 12 passengers. The recreational vessel was destabilized by the wake, causing several passengers to be ejected. O.K suffered fatal injuries. Quantum Leap brought this limitation action in federal court in South Carolina, and claims were filed on behalf of O.K. and other passengers, who brought a third-party claim against Robert Powers. Powers brought a fourth-party claim against Eldridge. Powers and Quantum Leap sought to assess all liability to Eldridge, and they also sought contribution and attorney fees for defense of the injury and death claims. Eldridge moved to strike the claims for attorney fees and contribution, and Judge Dawson noted that Powers and Quantum Leap did not identify any contract, statute, or basis in maritime law that would entitle them to recover attorney fees (there was no allegation of bad faith or vexatious conduct). Accordingly, Judge Dawson struck the request for attorney fees. As the litigation arose from a maritime accident that involved multiple actors in which fault has not been determined, Judge Dawson held that the contribution claim was sufficiently alleged.
Texas law invalidated indemnity obligation in contract to maintain lifeboats on platform offshore Louisiana as maritime law applied to the contract and enforced the choice of Texas law; Earnest v. Palfinger Marine USA Inc., No. 6:20-cv-685, 2026 U.S. Dist. LEXIS 59521 (W.D. La. Mar. 19, 2026) (Summerhays).
Jeremy Earnest, Brandon Dupre, and other workers on Shell Oil’s Auger tension-leg platform located on the outer Continental Shelf in the Gulf of Mexico off the Louisiana coast were injured or killed while Shell was conducting a quarterly test of the lifeboats on the platform. A lifeboat containing the workers was lowered into the ocean, disconnected, and operated in the Gulf. The lifeboat was then reconnected and hoisted back to the platform but fell to the ocean because of the failure of a corroded cable that attached the lifeboat to the platform. Suits were brought in Louisiana state court against Palfinger Marine, alleging it was responsible as the owner and manufacturer of the control release cables and release handle to the hooks for the lifeboat. Some of the suits named Shell as a defendant under Section 5(b) of the LHWCA. The defendants removed the suits to federal court in Louisiana, and Shell moved for summary judgment, arguing that the claim under Section 5(b) was only available for a maritime tort and that maritime law did not apply to the incident. Before addressing the issue of admiralty jurisdiction, Judge Summerhays concluded that the incident occurred on an OCSLA situs, that the workers’ employment furthered mineral development on the OCS, and that the accident would not have occurred but for their employment on the platform. Therefore, the OCSLA provided jurisdiction over the accident. Judge Summerhays then addressed whether admiralty law applied and held that, although the accident involved a lifeboat that fell to the ocean, the accident was inextricably linked to the operation of the platform. It was a test of the hook, cable, and davit system on the platform in which the platform equipment failed. Judge Summerhays disagreed with two district court decisions holding that maritime law applied to accidents involving lifeboats, reasoning that the lifeboats were not used in connection with traditional maritime activities. As he held there was no maritime jurisdiction over the claim against Shell, Judge Summerhays dismissed the Section 5(b) claim. See April 2022 Update (Dupre v. Palfinger).
After Judge Summerhays ruled that maritime law did not apply to the accident and that Louisiana law applied as surrogate federal law pursuant to the OCSLA, Palfinger moved to dismiss the claims for punitive damages that were asserted under the general maritime law. Judge Summerhays reiterated that the OCSLA applied as the lifeboat was physically connected to the platform and was being lifted toward its berth on the platform at the time of the accident. As he had held that Louisiana law applied, and as the plaintiffs set forth no provision of Louisiana law that would allow punitive damages, Judge Summerhays dismissed the claims for punitive damages.
Judge Summerhays then addressed the choice of law for the contract between Shell and Palfinger for the maintenance of the lifeboats, as the contract contained a provision for Shell to indemnify Palfinger for death or injury of Shell employees. Palfinger argued that the contract was governed by maritime law under which the indemnity was valid. Shell argued that the contract was governed by Louisiana law, under which the indemnity was invalid. Judge Summerhays analyzed two en banc decisions of the Fifth Circuit to reach his decision on the applicable law, Grand Isle Shipyard v. Seacor Marine and In re Larry Doiron, Inc. The court in Grand Isle rejected tort analysis to determine the law applicable to a contract and instead used a focus-of-the-contract test. Thus, a claim would arise on an OCSLA situs if a majority of the performance under the contract was to be performed on an OCSLA situs, such as the tension-leg platform, and it was immaterial that the location of the accident was on navigable waters. As the majority of the work under the Shell-Palfinger maintenance agreement was to occur on the Auger platform, an OCS situs, Judge Summerhays then addressed the question whether maritime law applied to the contract in accordance with the Fifth Circuit’s test to determine the applicable law for OCS situses, applying the test from the Doiron case. As the contract involved services to facilitate the drilling or production of oil and gas on navigable waters, the question became whether the contract provided (or the parties expected) that a vessel would play a substantial role in the completion of the contract. Reasoning that the work (inspecting components of the lifeboats and the davits and cables) occurred on the platform and did not require a vessel, Judge Summerhays held that maritime law did not apply to the contract. Palfinger finally argued that the contract was inherently and historically maritime as it involved lifeboats. However, even assuming that he could consider an argument that differed from the analysis required by Doiron, Judge Summerhays answered that just because lifeboats were involved did not make the contract maritime, as the lifeboats were functioning as safety equipment supporting oil and gas exploration on a platform and not functioning as vessels in maritime commerce. Turning to application of the Louisiana Oilfield Indemnity Act, Judge Summerhays held that the contract pertained to a well as the services were necessary to sustain the manpower for the platform to produce oil and gas from wells. Therefore, the LOIA applied and voided the indemnity. Finally, Palfinger sought to apply Texas law pursuant to the choice-of-law provision in the contract, but Judge Summerhays followed the long-standing rule in the Fifth Circuit that the choice of state law in the OCSLA is mandatory, and contractual provisions cannot alter it. Consequently, he dismissed the indemnity claim against Shell (Palfinger’s tort indemnity claim also failed under Louisiana law).
Shell Oil Co. and Shell Offshore moved for summary judgment on Earnest’s claims that they were negligent in maintaining and inspecting the hook and cable system for the lifeboat, and Judge Summerhays agreed that Shell Oil and Shell Offshore had no liability under the general maritime law or the LHWCA as state law applied. However, he found sufficient evidence of a triable issue under state law whether Shell Oil and Shell Offshore were informed of the defective cable, and he denied summary judgment to them. See September 2022 Update.
Shell Offshore filed a supplemental memorandum in support of its motion for summary judgment, arguing that Judge Summerhays had not addressed the immunity afforded Shell Offshore as an LHWCA borrowing employer. Judge Summerhays then addressed the Ruiz factors, beginning with the most critical factor--who had control over the employee and the work that he was performing. The declaration of an employee of Shell Exploration, however, established that Earnest worked for Shell Exploration, the work was controlled and supervised by Shell Exploration and its employees, Shell Exploration had the right to discharge its employees, and it paid them. Shell Offshore, claimed that the Shell Exploration employees were borrowed servants of Shell Offshore by an agency relationship created under a contract between Shell Offshore and Shell Exploration (the contract provided that Shell Exploration was authorized to act on Shell Offshore’s behalf). However, the contract also provided that the Shell Exploration employees remained employees of Shell Exploration, and Shell Offshore did not point to any facts or legal authority that the agency provision in the contract rendered Shell Exploration employees borrowed employees of Shell Offshore. Accordingly, Judge Summerhays declined to reconsider his denial of summary judgment to Shell Offshore as an LHWCA borrowing employer. See October 2022 Update.
Palfinger appealed to the Fifth Circuit the decision that the contract between Palfinger and Shell was not maritime. Writing for the Fifth Circuit, Judge Southwick began with the agreement of the parties that the Auger Tension Leg Platform was not a vessel. Judge Southwick then addressed the application of the Fifth Circuit’s en banc decision in Doiron (setting forth a test to determine whether a contract involving oilfield operations is maritime). He summarized: “The focus of this analysis is on the contract and the parties’ expectations, and the role of the vessel should be viewed in light of what is considered classically maritime.” Judge Southwick noted that Judge Summerhays had focused on the “use of a vessel” in determining whether the contract provided for (or the parties expected) that a vessel would play a substantial role in the performance of the contract. Judge Southwick reasoned that the Doiron test allows a finding that a contract is maritime when a vessel is not the object of the contract but requires the use of a vessel. However, the test “does not require the opposite finding when the maintenance and repair of vessels are the purposes of the contract, as such are traditional maritime activities.” This turned the application of the test to the issue of whether the lifeboats are vessels, as the contract pertained solely to the lifeboats and their physical and operational connection to the platform. Applying the Lozman test, he considered the lifeboats to be vessels, even though they could also be described as safety equipment on the platform. Finally, Judge Southwick considered the argument that the lifeboats were not, themselves, engaged in maritime commerce. Judge Southwick answered that under Doiron the questions are whether the purpose of the contract is to provide services to facilitate the drilling or production of oil and gas on navigable waters and whether the contract anticipated substantial use of a vessel. It was not necessary that the vessel itself be engaged in maritime commerce. See February 2024 Update.
Back in the district court, Palfinger and Shell filed cross-motions for summary judgment. Now that maritime law was applicable to the contract, Shell argued that the parties’ choice of Texas law was valid under the general maritime law, and that the Texas Oilfield Indemnity Act invalidated the indemnity because the indemnity obligation was not supported by any requirement that Shell provide insurance. Palfinger responded that Shell could not change its prior position that the OCSLA provided for the application of Louisiana law, which was rejected by the Fifth Circuit when it held that maritime law applied. Judge Summerhays declined to find that Shell was estopped to change its position because it was now required to comply with the decision of the Fifth Circuit that maritime law applied to the contract. Judge Summerhays then addressed application of the TOIA as maritime law presumes the enforceability of the parties’ choice of law. The TOIA applies to an agreement that “pertains to a well,” and Judge Summerhays cited the Fifth Circuit’s summary of Texas law that the contract must bear a close nexus to a well and be directed toward the goal of obtaining or maintaining production from a well (noting that the statute also applies to contracts for services “in connection with a mineshaft, drift, or other structure intended for use in exploring for or producing a mineral.” Judge Summerhays reasoned that Palfinger’s services concerned the components of a platform that support production from approximately 18 oil and gas wells. Although Palfinger argued that its work did not have a close nexus to the wells because there was no physical or functional connection or relation to well activities, Judge Summerhays answered that the services were directed toward maintaining production from the wells—it provided services to the platform that were required by the Coast Guard for oil and gas production to continue. Accordingly, Judge Summerhays held that the TOIA applied to the indemnity obligation, and he dismissed Palfinger’s indemnity claim against Shell. Palfinger filed a notice of appeal to the Fifth Circuit on April 13, 2026.
Judge awarded sanctions for sloppy lawyering of a vessel owner’s Florida counsel in coverage litigation against the vessel’s owner’s insurer that was transferred from Florida to Delaware; Stokes v. Markel American Insurance Co., No. 1:19-cv-2014, 2026 U.S. Dist. LEXIS 107869 (D. Del. May 15, 2026) (Bibas).
James Stokes’ vessel, MIDNIGHT EXPRESS, sank while moored in Ocean View, Delaware during heavy rain from Hurricane Michael in October 2018. He brought this suit against the hull insurer for the vessel, Markel, in Florida state court, and Markel removed the case to federal court based on diversity. Chief Judge Altonaga transferred the case to the federal court in Delaware, and the parties filed motions with respect to experts, choice of law, and summary judgment. Stokes argued that the court should strike the reports of Markel’s experts, Robert K. Taylor and Matthew Schmahl. Taylor, Markel’s expert engineer and naval architect, conducted a float test and leak test, but Stokes’ expert testified that the tests were not conducted in accordance with industry standards and did not provide reliable support for Taylor’s opinions. The assertions from Stokes’ expert did not, however, persuade Judge Stark that Taylor had employed improper methodology, and Judge Stark declined to strike Taylor’s opinions. Stokes objected to the opinions of Schmahl, a marine surveyor with nearly 40 years of experience, and Judge Stark considered him to be qualified to discuss whether damage to component parts was caused by submersion and that his opinions were not duplicative of Taylor’s more general opinions on causation. Before considering the merits, Judge Stark had to decide the applicable law. As the suit was originally removed to federal court as a diversity case, Judge Stark applied Florida conflicts principles, including giving effect to the policy’s choice-of-law provision that maritime law would apply to the policy except that state law would apply when no substantive maritime principle or precedent was applicable. This left a decision to be made when there was established maritime law. Regardless of whether maritime or state choice-of-law applied to determine what state law to apply to the contract, Judge Stark held that Florida law did not apply. Florida applies lex loci contractus, and the contract was not executed in Florida. Stokes purchased the insurance and executed the policy in the District of Columbia, although he used the boat for most of the year in Florida and was in Florida when he negotiated and accepted the terms of an endorsement that extended the contractual period. Thus, Judge Stark held that the law of the District of Columbia would apply to the contract claims in the absence of an established maritime principle. There was a conflict in the legal principles that would apply to the tort claims, so Judge Stark applied the Florida significant relationships test and held that the law of the District of Columbia would apply with respect to representations made by Markel during the purchase of the policy by Stokes in the District of Columbia. Turning to the merits, Markel argued that the loss was not fortuitous or accidental, that a design defect was the proximate cause of the loss, and that the vessel was unseaworthy, in violation of the policy’s seaworthiness warranty. The policy included a sudden accidental damage clause, which the parties agreed was synonymous with the fortuity doctrine. Judge Stark considered the fortuity doctrine to be an entrenched principle of admiralty law, applying when a loss is unforeseen, unexpected, unintended, unavoidable, or caused by the insured’s own negligence, but not when it results from intentional misconduct of the insured or an inherent defect or normal wear and tear. Although heavy rainfall can be considered to be a fortuitous event, there were disputes about the severity of the rain, whether design defects caused the loss, and whether the vessel was seaworthy. Judge Stark held that, under maritime law, courts consider the predominant or determining cause, and that, when two causes appear to exist, the court should consider the cause that rendered the loss inevitable (rejecting application of the concurrent causation doctrine under state law as it did not apply under admiralty law). As the parties presented different views of what caused the loss, the determination of coverage would depend on which party was found to be correct on causation. The fact dispute precluded summary judgment on the contract claim. Applying D.C. law to the tort claims, Judge Stark held that tort claims may be sustained concurrently with a contract claim only if they are based on conduct distinct from the conduct underlying the contract claim. The claims for negligent misrepresentation and fraud did not satisfy that requirement and were dismissed (as they were not independent of the contract); however, the claim for fraudulent inducement leading up to the procurement of the policy was independent and survived the motion for summary judgment. See May 2022 Update.
Stokes filed a new complaint that alleged breach of contract and six other claims, and Markel moved for summary judgment on all of the claims other than the claim for breach of contract. Judge Bibas of the Third Circuit, sitting by designation, dismissed all of the other claims. He dismissed the claim for a declaratory judgment as it sought the same relief as the claim for breach of contract. Stokes’ claim for conversion (because Markel kept the boat after determining that it was not a total loss) did not state a tort claim independent of the contract, and Stokes will be able to address this alleged wrongdoing in his contract claim. Judge Bibas dismissed the claim for breach of an implied covenant of good faith and fair dealing on the ground that there is no such claim under D.C. law and the covenant is a theory about which contractual duties were breached. Judge Bibas did not find a private right of action under D.C. law for unfair claim settlement practices and dismissed that claim, and he found that Stokes did not adequately plead a claim for breach of the D.C. Consumer Protection Procedures Act. Finally, although his fraud claim was previously dismissed, Stokes repleaded it under D.C. law, claiming that it was distinct from his prior pleading under the laws of the Eleventh Circuit. Finding that it was, again, insufficiently pleaded, Judge Bibas dismissed it. See April 2023 Update.
The case was tried to a jury, which found in favor of Stokes that the cause of the sinking was a fortuitous loss, that the cause of the sinking was not a design defect, and that the vessel was not unseaworthy at the commencement of the policy coverage. Judge Bibas entered a judgment in favor of Stokes in the stipulated amount of $646,000, and Stokes sought post-trial relief of pre- and post-judgment interest, attorney fees and costs, and reinstatement of claims that the court previously dismissed. Judge Bibas agreed that Stokes should recover pre-judgment interest, but Markel argued that the interest should accrue from the date that it denied the claim, three years after the vessel sank in 2018. Reasoning that a good-faith dispute over liability does not justify denying pre-judgment interest, Judge Bibas agreed to award interest from the date that Stokes notified Markel of the sinking of the vessel in 2018. Judge Bibas declined to award pre-judgment interest at the rate set by Delaware law (5%), which exceeded the average risk-free rate for short-term Treasury bonds for the pre-judgment period (2.54%), reasoning that it would be “lavishing a premium on Stokes far above the riskfree return that he would have earned if he had been paid when his boat sank.” Judge Bibas agreed to award costs and post-judgment interest, but he declined to award attorney fees to Stokes, answering that maritime law, not Florida law applies to this case. Judge Bibas stated that maritime law generally requires the parties to pay their own fees; however, it does let parties recover attorney fees for breach of a marine insurance contract when the applicable state law allows it. However, the applicable law is that of the District of Columbia, which does not allow attorney fees absent bad faith. Accordingly, as Stokes only prevailed on his “run-of-the-mill claim for breach of contract,” Judge Bibas held that he was not entitled to attorney fees. Finally, Stokes argued that because the jury found that Markel breached the insurance contract the court should reinstate the extra-contractual claims that had previously been dismissed. It was not clear to Judge Bibas “why he thinks that is proper; as best I can tell, he seems to think that because Markel breached a contract, he now gets a second crack at arguing that Markel acted in bad faith.” However, Stokes offered nothing “beyond this bald and specious syllogism,” and Judge Bibas noted that this was “not the first time that Stokes’s counsel has tried to use an unrelated motion to relitigate positions that he already lost.” In denying Stokes’ motion to reinstate the dismissed claims, Judge Bibas concluded: “Now counsel is at it again. I once again deny the request to relitigate issues that have already been resolved and I once again do not look kindly on counsel’s obstinacy. Such conduct risks sanctions, including an award of attorney’s fees to opposing counsel.” See July 2025 Update.
Stokes filed a notice of appeal to the Third Circuit (on which Judge Bibas sits) from the denial of his request for post-trial relief (including the denial of his requests for attorney fees and to reopen the case) as well as the prior order dismissing his extra-contractual claims. The appeal was dismissed on January 15, 2026 on agreement of the parties, but Judge Bibas exercised his continuing jurisdiction in the district court to sanction some of the lawyers for Stokes with respect to their pretrial conduct and the bill of costs. Judge Bibas reasoned: “While litigating this ordinary insurance-coverage case, James Stokes’s lawyers committed a series of errors.” Judge Bibas noted that counsel’s submission of a proposed pretrial order with 23 witnesses for a three-day trial (with many witnesses on issues that were not going to be heard at trial) and the failure to submit a proper exhibit list and later revealing that one exhibit was more than 1000 photographs was vexatious and unreasonable and indicated bad faith. However, Judge Bibas previously ordered counsel to pay sanctions and declined to impose additional sanctions for these violations. Judge Bibas did sanction counsel for violating his limit on motions in limine by cramming three motions into one heading, each raising arguments that the court had previously rejected, trying to pursue a theory on which the insurer had won summary judgment, and listing extracontractual damages as an issue for trial despite dismissal of the non-contract claims. Judge Bibas declined to sanction counsel for seeking attorney fees under Florida law despite several opinions that Florida law did not apply to this case, even though it was vexatious, unreasonable, and in bad faith. Judge Bibas did not conclude that this conduct multiplied the proceedings or increased costs as Florida law was only one basis for the request and it was not laborious for counsel or the judge to reject it. Judge Bibas did sanction counsel for the bill of costs that he described as hodgepodge with “downright impudent” requests and minimal documentation. He noted that counsel demanded reimbursement for “shaving cream, a random cappuccino, and an undescribed purchase from ‘Freaky Tiki Teez.’” Only $140 of the requested $193,491.08 was taxable (99.928% was not taxable), which was “well beyond mistaken judgment or well-intentioned zeal.” Based on Judge Bibas’ observations, he held that Stokes’s Florida-based counsel was to blame for the conduct, not the local Delaware counsel. Accordingly, Judge Bibas ordered Stokes’s Florida counsel to pay the excess costs and fees that the insurer reasonably incurred because of the improper motion in limine, the pursuit of a barred theory, the pursuit of damages for dismissed claims, and the unreasonable bill-of-costs. He further ordered that Florida counsel “shall not ask local Delaware counsel or their client to foot the bill for any part of this sanction and shall not seek reimbursement or indemnity from either of them or deduct these amounts from Plaintiff’s recovery.” Judge Bibas gave this explanation: “Loose lips sink ships; sloppy lawyering gums up courts.”
Kenneth G. Engerrand
Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
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Concurring with the denial of rehearing en banc in ExxonMobil Research & Engineering Co. v. National Labor Relations Board, No. 23-60495, 2025 U.S. App. LEXIS 33000, at *2-*5 (5th Cir. Dec. 17, 2025) (en banc), Judge Ho of the Fifth Circuit stated:
I’m grateful to the dissenters for flagging this case for further review. Had I been on the panel, I’m sure I would’ve taken their approach. But the issue before us today is not how the three-judge panel should’ve decided this case, but whether all seventeen of us should now rehear it.
Our rules disfavor rehearing en banc. See Fed. R. App. Proc. 40(a); 5th Cir. R. 40.2.1. After all, it’s a far greater tax on resources to litigate disputes before seventeen judges rather than three. See 5th Cir. R. 40.2.1 (“each request for en banc consideration must be studied by every active judge of the court and is a serious call on limited judicial resources”).
Accordingly, members of our court have defended the denial of rehearing en banc on the ground that counsel failed to adequately present the issues before the three-judge panel. In Siders v. City of Brandon, 130 F.4th 188 (5th Cir. 2025), we denied rehearing en banc on the ground that the plaintiff brought her religious liberty claim under the Free Speech Clause, rather than the Free Exercise Clause. I dissented. I noted that religious expression is (obviously) protected by the Free Speech Clause, too.
My point is not to relitigate Siders. It’s just to state that, if inadequate lawyering is a sufficient reason to refuse rehearing en banc, then that’s what we should do here. Indeed, what was merely alleged in Siders is undisputed here: This petition features a First Amendment claim that the party never presented to the panel—suggesting the theory is either patently meritless or wrongly neglected by prior counsel.
I assume it’s the latter, because prior counsel also forfeited over two-thirds of his oral argument time before the panel.
It seems obvious that counsel should litigate diligently before the three-judge panel, before insisting on the attention of all seventeen members of the court.
This isn’t “punishment.” Post, at 14. It’s a principle. It’s not punishment for your appeal to be decided “only” by three judges (indeed, that’s what we do in the vast majority of our appeals). It’s a principle that you should actually use the opportunity to litigate before those three judges, before asking for more.
If you can’t even be bothered to use your time before three judges, it seems peculiar to demand more time from all seventeen of us. I wouldn’t reward that behavior. And my unwillingness to reward it isn’t punishment.
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© Kenneth G. Engerrand, May 29, 2026; redistribution permitted with proper attribution.
