April 2026 Longshore Maritime Update No. 323
Notes from your Updater:
On February 6, 2026, Judge Barbier of the United States District Court for the Eastern District of Louisiana declined to vacate the writs of sequestration sought by a contractor who performed drilling services on the outer Continental Shelf, offshore Louisiana, under a contract with the lease operator (which sought bankruptcy). The contractor brought this in rem action against the non-operating owners of the wells seeking sequestration of their interests in the wells in order to obtain payment for the services it provided for the benefit of the wells and the non-operating owners. See Atlantic Maritime Services, LLC v. Ecopetrol America, LLC, No. 2-20-cv-3097 c/w No. 2-20-cv-3099, 2026 U.S. Dist. LEXIS 24799 (E.D. La. Feb. 6, 2026).
On February 13, 2026, the Executive Office of the President of the United States released America’s Maritime Action Plan, which was developed by the Secretary of State and Assistant to the President for National Security Affairs and the Director of the Office of Management and Budget, in coordination with the Secretary of War, the Secretary of Commerce, the Secretary of Labor, the Secretary of Transportation, the Secretary of Homeland Security, and the United States Trade Representative, pursuant to Executive Order 14269, “Restoring America’s Maritime Dominance, signed by President Trump on April 9, 2025. President Trump stated: “We will soon revitalize our once-great shipyards with hundreds of billions of dollars in new investments and people coming from all around the world . . . to build ships in America. We want them built in America.” This is the Plan:
On March 3, 2026, the Ninth Circuit affirmed the conviction of Jerry Boylan, former captain of the M.V. CONCEPTION, under the federal statute punishing seamen’s manslaughter in connection with the fire on the vessel that killed 34 people. The court agreed with the Fifth and Eleventh Circuits that the statute only requires negligence, and not gross negligence. Although the jury instruction included the statutory term “misconduct,” the Ninth Circuit found any error to be harmless because the district judge instructed the jury that gross negligence was the required standard for culpability and the evidence of gross negligence was overwhelming: “never training his inexperienced staff on fire safety procedures, failing to adhere to the regulatory requirement to have a roving patrol, jumping overboard instead of attempting to save any of the passengers trapped below deck, and so on.” See United States v. Boylan, Nos. 24-3077, 24-6045, 2026 U.S. App. LEXIS 6154, 6161 (9th Cir. Mar. 3, 2026) (Owens).
On March 11, 2026, after the dismissal of an interlocutory appeal and a motion for leave to appeal, the Fifth Circuit declined to grant mandamus with respect to the certification of a collective action for all workers employed by liftboat owner Alliance Liftboats, whether captains, cooks, crane operators, or otherwise, who performed “a substantial amount of non-seaman work” but were “misclassified” as exempt seamen for overtime purposes, in violation of the Fair Labor Standards Act. See In re Alliance Liftboats, L.L.C., No. 26-30091, 2026 U.S. App. LEXIS 7245 (Mar. 11, 2026) (per curiam).
In our September 2025 Update, we reported that for 13 years, the City of Mackinac Island, Michigan “worked in relative harmony” with three companies that provided ferry service between mainland Michigan and the island (“a special place”), pursuant to a Franchise Agreement. “But Gordon Lightfoot’s gales of November came to the Straits early when private equity brought the ferries under common ownership.” The City adopted a new ordinance that gave the City the authority to regulate the rates, and the ferry companies brought this suit in admiralty in federal court in Michigan, challenging the basis for the City’s action. On June 30, 2025, Judge Jonker granted a preliminary injunction to the ferry companies, enjoining the city from implementing the ordinance during the pendency of the suit. See Shepler’s Inc. v. City of Mackinac Island, No. 2:25-cv-36, 2025 U.S. Dist. LEXIS 133904 (W.D. Mich. June 30, 2025). On March 12, 2026, the Sixth Circuit vacated the preliminary injunction with respect to the City’s regulation of rates and other aspects of ferry transportation, but it allowed the injunction to continue with respect to the regulation of rates at parking lots. See Shepler’s Inc. v. City of Mackinac Island, Michigan, No. 25-1668, 2026 U.S. App. LEXIS 7560 (6th Cir. Mar. 12, 2026) (Griffin).
On March 23, 2026, Judge McFadden of the United States District Court for the District of Columbia agreed that Healthy Gulf and other environmental groups had standing to challenge the Final Rule, issued in 2020 by the Bureau of Ocean Energy Management (stepping back, in part, from the “more drastic revisions” in the 2016 proposed rule because they would “[u]nduly burden the industry”), regulating emissions from oil and gas production at sea pursuant to the Outer Continental Shelf Lands Act and Clean Air Act; however, he held that the plaintiffs faltered on the merits, failing to establish that the Final Rule was “arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law” as set forth in the Administrative Procedure Act. See Healthy Gulf v. Bureau of Ocean Energy Management, No. 1:24-cv-2175, 2026 U.S. Dist. LEXIS 60712 (Mar. 23, 2026).
On March 27, 2026, the Fifth Circuit again (see September 2024 Update) addressed the challenge of Great Amberjack commercial fishers to the Gulf of Mexico Fishery Management Council’s amendment to the region’s fishery management plan, curtailing the catch limit of the Greater Amberjack. The court rejected the argument that council members were unlawfully appointed (under the Appointments Clause) and held that the court did not, therefore, have jurisdiction to consider the merits of the challenge. See Arnesen v. Lutnick, No. 24-60055, 2026 U.S. App. LEXIS 9067 (5th Cir. Mar. 27, 2026) (Higginson).
On the LHWCA Front . . .
From the federal appellate courts
Ninth Circuit granted the petition for review challenging the hourly rate awarded for the claimant’s attorney because the ALJ excluded commercial litigation rates but included general practice rates; however, the court agreed with placing the attorney in the 75th percentile, not using prior awards, and reducing his hours; Horton v. Director, OWCP (Specialty Finishes, LLC), No. 24-5011, 2026 U.S. App. LEXIS 3647 (9th Cir. Feb. 5, 2026) (per curiam).
Scott Horton, a ship painter in Portland, Oregon, suffered an injury to his back less than a week after he started working for Specialty Finishes, LLC. A hearing was held before Administrative Law Judge King, who awarded permanent partial disability benefits to Horton, finding that Specialty Finishes was the responsible employer but basing his average weekly wage on the work for his prior employer. After Horton obtained a job as a laundry worker at the VA hospital in Vancouver, Washington, ALJ Alford conducted a hearing and found Horton’s wage-earning capacity exceeded the average weekly wage found by ALJ King. Horton’s request for modification was denied, and the Benefits Review Board and Ninth Circuit declined petitions for review by both Horton and Specialty Finishes. See June 2019 Update. Horton’s attorney, Charles Robinowitz, filed an application for attorney fees in December 2016, seeking a fee of $87,370.40 based on an hourly rate of $466 for himself, $225 for an associate attorney, and $165 for a paralegal. Judge Alford awarded fees of $64,357.87 based on an hourly rate for Robinowitz of $356.67 for all but one hour (at $371.65), and hourly rates of $225 for the associate and $165 for the paralegal. The BRB vacated the award, and ALJ Alford issued another order in which he increased the hourly rate for Robinowitz to $391.25 (which he rounded to $400). He adjusted the time for travel because he believed the travel should have taken less time. The BRB affirmed the decision, and Robinowitz sought review with the Ninth Circuit. The court reasoned that awards are based on rates charged for “similar services by lawyers of reasonably comparable skill, experience, and reputation.” ALJ Alford used 75th percentile rates for Robinowitz for three practices areas—plaintiff civil litigation, plaintiff personal injury litigation, and general practice—with rates for lawyers with over 30 years of experience (he did not use the Morones Survey for commercial litigation rates). The Ninth Circuit affirmed the decision to place Robinowitz in the 75th percentile, as it is a “judgment call that the ALJ could reasonably have resolved either way.” However, the Ninth Circuit believed that the BRB erred in affirming the exclusion of commercial litigation rates based on the decision that the Morones Survey “likely includes class actions, shareholder derivate suits, complex contractual disputes,” and “complex multi-claim disputes between two corporate entities in lengthy Federal court jury trials.” The court explained that ALJ Alford improperly “conflated commercial litigation and complex litigation” in excluding evidence of rates for commercial litigation. The Ninth Circuit also held that the BRB erred in affirming the use of general practice rates without determining whether Robinowitz was a specialist or generalist, noting that the court has cautioned against an “ALJ’s decision to exclude commercial litigation as a comparator while including general practice.” The Ninth Circuit held that the BRB did not err in affirming the ALJ’s consideration of prior fee awards, reasoning that exclusive reliance on prior LHWCA fee awards is “an improper method of calculating hourly rates,” but that the ALJ is justified in considering prior awards if the applicant fails to carry his burden to produce evidence of the market rate. As Robinowitz met his burden of production with respect to market rates, ALJ Alford did not have to consider prior awards. Robinowitz argued that the BRB abused its discretion by declining to award an additional enhancement for the delay in the award, but the Ninth Circuit answered that the rate had been adjusted for inflation through 2021, and the additional two-year delay was “not so egregious or extraordinary” as to require additional enhancement. Finally, the Ninth Circuit affirmed the decision of ALJ Alford to reduce the travel time, reasoning that the court gives “considerable deference” to the decision that requested hours were “excessive, redundant, or otherwise unnecessary.” Therefore, the court granted the petition for review with respect to the calculation of the hourly rate.
The existence of gaps in the stowage of cargo covered by plastic sheeting was an open and obvious condition that precluded liability for breach of the turnover duty when a longshore worker fell in a covered gap; oversight of cargo operations was insufficient to establish control of the actual methods and operative details of the longshore work for the active-control duty; Renteria v. Grieg Star AS, No. 25-20131, 2026 U.S. App. LEXIS 6810 (5th Cir. Mar. 6, 2026) (Summerhays).
Balvina Renteria, a longshore worker employed by Cooper/Ports America, was injured while unloading cargo of rolls of kraft liner board on the M/V STAR JUVENTAS in the Port of Houston, when she stepped into a gap in the cargo covered by plastic sheeting. She brought suit in state court in Houston, Texas against the owner/operator of the vessel for negligence under Section 5(b) of the LHWCA, and the defendants removed the case to federal court based on diversity. Judge Hoyt granted summary judgment to the defendants, and Renteria appealed the dismissal with respect to the turnover duty and the active control duty under Scindia. With respect to the turnover duty, Renteria acknowledged that she was generally aware of gaps between the rolls of cargo under the plastic sheeting, but she argued that the sheeting concealed irregular gaps that were a hazardous defect within the cargo stow. The defendants did not contest that they should have known of the gaps, but they argued that the defective condition was open and obvious. Writing for the Fifth Circuit, Judge Summerhays, sitting by designation from the United States District Court for the Western District of Louisiana, noted that Renteria had been discharging rolls of liner board from the hold for two days, and the workers were removing the last layer of cargo in the hold. Renteria was trying to step on top of the rolls but instead stepped on the plastic sheeting. As she knew of the gaps, Judge Summerhays held that the condition was open and obvious and that the defendants did not breach the turnover duty. For the active control duty, Judge Summerhays agreed that the duty was not extinguished if the condition was open and obvious, but Renteria would have to show that the defendants exercised “active control over the actual methods and operative details of the longshoremen’s work.” Renteria argued that the crewmembers attended daily safety meetings with the stevedore supervisor, oversaw cargo operations, and were instructed to intervene if they saw a longshore worker engaging in an unsafe practice. However, Judge Summerhays answered that these claims were insufficient to establish that the crew controlled the actual methods and operative details of the work. Therefore, the Fifth Circuit affirmed the summary judgment.
And on the maritime front . . .
From the United States Supreme Court
Supreme Court declined to hear seaman’s petition on the causation standard for toxic tort claims where the state court held that the seaman failed to establish causation in his Jones Act and unseaworthiness claims (asserting that his Hodgkin’s Lymphoma was caused by exposure to benzene while working as a tankerman); Costanza v. Florida Marine Transporters, LLC, No. 2024 CA 0913, 409 So.3d 1138 (La. App. 1 Cir. Apr. 17, 2025) (Theriot), rehearing denied, May 1, 2025, writ denied, 417 So.3d 61 (La. Sept. 24, 2025), cert. denied, No. 25-750, 2026 U.S. LEXIS 1109 (U.S. Mar. 2, 2026).
Calvin M. Costanza worked for Florida Marine Transporters from February 2011 until March 2012 as a deckhand, tankerman-in-training, and then tankerman. He claims that, while loading and unloading barges as a tankerman and tankerman-in-training, he was exposed to benzene. After leaving Florida Marine, Costanza went to work for AccuTRANS as a shore tankerman. In January 2015, Costanza was diagnosed with Hodgkin’s Lymphoma, and he brought this suit in state court in St. Tammany Parish, Louisiana against Florida Marine, seeking to recover for negligence under the Jones Act and unseaworthiness under the general maritime law (he added a claim for fear of cancer in his Fourth Supplemental and Amending Petition, which was dismissed as untimely). Judge Childress held a bench trial and found that Costanza failed to meet his burden on causation and dismissed his Jones Act and unseaworthiness claims, explaining that he found the opinions of Florida Marine’s experts (Dr. Allison Stock and Dr. Thomas Cosgriff) that there is no causal relationship between benzene exposure and Hodgkin’s Lymphoma to be more convincing than the opinions of Costanza’s expert (Dr. Patricia Williams), that benzene exposure can cause Hodgkin’s Lymphoma. Costanza appealed, challenging the dismissal of his claims based on his failure to meet his burden of proof on both general and specific causation. Writing for the Louisiana Court of Appeal, First District, Judge Theriot rejected Costanza’s argument that Judge Childress erred in his finding that Dr. Stock’s methodology was superior to that of Dr. Williams and in giving greater weight to the testimony of Dr. Cosgriff than to that of Costanza’s treating physician, Dr. Burke Brooks, Jr., explaining that the factfinder was free to accept or reject any opinion expressed by an expert. Judge Theriot added that the testimony of the treating physician “is not irrefutable, as the trier of fact is required to weigh the testimony of all medical witnesses.” Costanza also argued that Judge Childress erred in failing to apply the “featherweight” standard for causation for the Jones Act claim. However, Judge Theriot responded that Costanza still had to prove general and specific causal connection and, as Judge Childress rejected the opinion of Dr. Williams on causal connection, there was no evidence that benzene exposure can cause Hodgkin’s Lymphoma, regardless of whether a featherweight standard was applied (as Costanza failed to establish causation under the more favorable causation standard for the Jones Act claim, Judge Theriot similarly rejected Costanza’s unseaworthiness appeal under a proximate cause test). Finally, Judge Theriot rejected Costanza’s late addition of the claim for fear of cancer as untimely as it introduced a different theory that did not relate back to the date of the filing of the suit. See July 2025 Update.
After the Louisiana Supreme Court denied Costanza’s application for a writ of certiorari, Costanza filed a petition for a writ of certiorari with the United States Supreme Court, presenting this question:
Whether under 46 U.S.C.A. § 30104 (The Jones Act) relaxed causation standard, requiring only that the employer’s negligence play “any part, even the slightest, i.e. featherweight standard” in producing injury, applies to toxic tort claims involving scientific causation, or whether a plaintiff must meet the heightened Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) style requirement for dose response and threshold exposure evidence.
On March 2, 2026, the United States Supreme Court declined to hear the case.
Supreme Court declined to hear Eleventh Circuit affirmance that salvor had no rights, in rem or in personam, to salvage of the sunken French vessel LA TRINITÉ, as it qualified as a sunken military craft under the Sunken Military Craft Act and the rejection of the arguments of amici that the Act is an unconstitutional repudiation of the federal courts’ admiralty and maritime jurisdiction; Global Marine Exploration, Inc. v. Republic of France, No. 25-900, 2026 U.S. LEXIS 1408 (Mar. 23, 2026), denying cert. to No. 24-10148, 2025 U.S. App. LEXIS 21154 (11th Cir. Aug. 19, 2025) (Pryor).
In 1565, a French fleet, led by Captain Jean Ribault on LA TRINITÉ was dispatched to reinforce the French Huguenot settlement of Fort Caroline on the St. Johns River near what is now Jacksonville, Florida. King Phillip II of Spain ordered Pedro Menéndez de Avilés, who founded the nearby Spanish settlement of St. Augustine, to destroy the French settlement. While in pursuit of the Spanish flagship SAN PELAYO, Ribault encountered a hurricane that destroyed his fleet, allowing Menéndez de Avilés to capture and destroy Fort Caroline (ending French settlements in Florida). Global Marine entered into authorization agreements with Florida to conduct salvage activities in Florida coastal waters resulting in discovery of several shipwreck sites. However, Florida was in contact with the Republic of France based on the assumption that one of the sites was LA TRINITÉ. Global Marine brought an in rem action against the shipwreck in the federal court for the Middle District of Florida, and Magistrate Judge Spaulding held that the res was LA TRINITÉ and that it was France’s sovereign property. Global Marine then brought this suit in the Northern District of Florida against France, seeking an in personam lien award based on unjust enrichment, misappropriation of trade secret information, and interference with its rights and relations. France moved to dismiss the claim based on a lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act. Judge Winsor agreed with France that the commercial activity exception in the FSIA did not apply and dismissed the suit for lack of subject matter jurisdiction. Global Marine appealed to the Eleventh Circuit, which disagreed with the interpretation of the commercial activity exception in the FSIA. Writing for the Eleventh Circuit, Judge Lagoa characterized the actions of France as engaging in a marine archaeological recovery project that would identify, evaluate, mobilize, and oversee public and/or private resources and organizations. As those actions (fundraising, contracting with organizations and businesses to carry out excavations, and overseeing the logistics of the project) are commercial and of a type negotiable among private parties, Judge Lagoa considered them to fall within the exception and that the claims asserted in this suit were sufficiently “based upon” the commercial activities that the suit could proceed. See June 2022 Update.
Back in the district court, France moved for summary judgment, arguing that the Sunken Military Craft Act barred the complaint for a salvage award (prohibiting salvage awards with respect to any foreign sunken military craft located in United States waters without the express permission of the foreign state). Global Marine responded that the statute only barred in rem salvage claims, and Global Marine was pursuing an in personam salvage claim. Global Marine also argued that LA TRINITÉ was not a sunken military craft because it was not “on military noncommercial service” when it sank. Judge Winsor agreed with France that the Sunken Military Craft Act covered both in rem and in personam actions and that LA TRINITÉ was a sunken military craft. Accordingly, he granted summary judgment in favor of France. Global Marine appealed to the Eleventh Circuit, and, writing for the court, Chief Judge Pryor agreed that the statute extends both to in rem and in personam actions. Additionally, after an exhaustive history of 16th century storylines on the colonization efforts of France, Spain, Portugal, and the Netherlands and the religious wars as the Protestant Reformation spread from kingdom to kingdom, Chief Judge Pryor agreed that LA TRINITÉ was on military noncommercial service when it sank. Accordingly, he affirmed the summary judgment (also affirming the dismissal of Global Marine’s claims for unjust enrichment, trade-secret misappropriation, and tortious interference). Chief Judge Pryor also filed a concurring opinion to address the argument from amici curiae that the Sunken Military Craft Act, as interpreted by Judge Winsor and the Eleventh Circuit, was “likely unconstitutional as an impermissible repudiation of the federal courts[’] admiralty and maritime jurisdiction.” He addressed the argument in a concurring opinion as the parties did not raise it in the district court or on appeal. Chief Judge Pryor termed the argument “at best, dubious,” and he added that the amici “misunderstand the breadth of congressional power to ‘alter, qualify or supplement’ maritime law and jurisdiction,” noting that the Supreme Court had declared “as settled doctrine” in Southern Pacific Co. v. Jensen that “Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country.” Chief Judge Pryor noted the breadth of Congressional power with respect to military vessels and international relations, reasoning that a sunken military craft “carries enormous significance to a nation.” Chief Judge Pryor reasoned that the case cited by the amici, Panama Railroad Co. v. Johnson, was not applicable because the Sunken Military Craft Act did not remove a maritime subject from admiralty jurisdiction conferred under Article III to the federal courts. Instead, it “supplants general law derived from the ancient law of nations,” creating “a new regime for salvage of a sunken military craft within admiralty jurisdiction.” Congress has the authority to change the substantive maritime law of salvage rights for sunken military craft, and its legislation left Global Marine with no salvage rights. See September 2025 Update.
Global Marine filed a petition for a writ of certiorari with the United States Supreme Court, stating the questions presented as:
Global Marine Exploration discovered a 16th century shipwreck lost for centuries and sought compensation for its efforts under longstanding admiralty salvage law. The court of appeals held that the Sunken Military Craft Act (“SMCA”) eliminates all salvage remedies, including traditional in personam actions. The panel did so without implementing SMCA’s limiting dictate, that it only applies to actions “directed at” a sunken military craft.
In the Eleventh Circuit, Amici and the United States presented full briefing on the constitutional consequences of that interpretation under Article III.
The panel declined to consider these arguments, this Court’s significant admiralty precedent, and conflicting case law from the Seventh Circuit, reasoning that it was barred by the party presentation principle from interpreting a statute using analysis not presented by the parties themselves.
The Questions Presented Are:
- Whether SMCA’s prohibition that “no salvage rights or awards shall be granted” bars all admiralty salvage claims—including long-recognized in personam actions—or instead applies only to in rem claims “directed at” the res.
- Whether the party presentation principle prevents a federal court from considering ordinary tools of statutory interpretation, including context and constitutional avoidance, that bear directly on the meaning of a statute solely because those arguments were primarily developed by amici and the United States.
On March 23, 2026, the Supreme Court declined to hear the case.
From the federal appellate courts
Eleventh Circuit affirmed dismissal (without leave to amend) of passenger’s complaint for his injury during disembarkation from the cruise ship for lack of notice, rejecting the passenger’s argument that he did not have to plead notice (because the cruise line allegedly created the dangerous condition) as he did not assert that argument in the district court; Reyes v. Royal Caribbean Cruises Ltd., No. 25-10512. 2026 U.S. App. LEXIS 6435 (11th Cir. Mar. 4, 2026) (per curiam).
Humberto Reyes, a passenger on the FREEDOM OF THE SEAS, disembarked from the vessel in Miami. He was directed by employees of the cruise line to board an escalator in the terminal (with luggage) to proceed to a lower floor for the immigration checkpoint and exits. The luggage of a passenger in front of Reyes on the escalator became stuck, and passengers fell backward, landing on Reyes. Reyes brought this suit against the cruise line in federal court in Florida, and the cruise line moved to dismiss the complaint on the ground that it did not sufficiently allege notice of the dangerous condition. Judge Martinez agreed that the complaint did not provide facts establishing the notice of the cruise line. He noted that the only allegation that could be construed as demonstrating notice was that the alarms sounded and the cruise line failed to stop the escalator from continuing to move. Although Judge Martinez was not inclined to strain to make an argument that the passenger failed to make, he added that there were no facts alleged as to how long the alarms sounded and whether the cruise line had time to correct the condition. Therefore, Judge Martinez dismissed the complaint. In deciding whether to allow an amendment, Judge Martinez noted that Reyes had amended his complaint to allege that the cruise line created a dangerous condition by overloading the escalators with passengers and luggage and that the cruise line should have known that overloading the escalators created a dangerous condition. Judge Ramirez explained that the “minimal additions” were “legal conclusion masquerading as fact” and would not prevent dismissal. Consequently, as Reyes failed to correct the deficiencies in the complaint, Judge Martinez dismissed the complaint without leave to amend. See April 2025 Update.
Reyes appealed the dismissal to the Eleventh Circuit, arguing that he did not have to establish notice to the cruise line if it created the hazardous condition. The Eleventh Circuit rejected that argument because Reyes did not raise it in response to the last motion to dismiss, arguing instead that he had corrected the defects in his complaint. As he did not present the “newly minted appellate issue” to the district court, he forfeited the argument that he was not required to plead notice of the dangerous condition allegedly created by the cruise line. Noting that Reyes conceded that he had not corrected the deficient pleading of notice, the Eleventh Circuit affirmed the dismissal and the denial of leave to amend.
Fifth Circuit agreed that Grapevine Lake in North Texas has no interstate navigable access, and the federal court lacked admiralty jurisdiction over the limitation action brought by the owner of a vessel that exploded on the lake; Deno v. Progressive Casualty Insurance Co., No. 25-10507, 2026 U.S. App. LEXIS 6626 (5th Cir. Mar. 5, 2026) (per curiam).
Doug Deno’s vessel M/V 1999 CARVER 406 AFT CABIN caught fire and exploded while it was docked at Silver Lake Marina on Grapevine Lake in North Texas. At least ten boats burned, and one person was injured. Deno filed a petition for limitation of liability in federal court in Texas. Several insurers filed answers/claims and moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that the incident did not occur on navigable waters. Judge Pittman noted that Grapevine Lake is an artificial reservoir located northwest of Dallas-Fort Worth Airport and was created by a dam on Denton Creek, which is located wholly within the State of Texas. The dam blocks access to navigable waters, and there was no evidence that anyone traveled interstate from the lake. Deno cited a consent agreement and final order from the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance defining Grapevine Lake as a navigable water, but Judge Pittman answered that reliance on the order was misplaced as navigable waters within the Clean Water Act are broader than those for admiralty jurisdiction (assuming that the treatment of the lake under the CWA was still valid after the decision of the Supreme Court in Sackett (see June 2023 Update). Judge Pittman concluded: “Grapevine Lake is not navigable because it is landlocked, located entirely within the State of Texas, and primarily used for flood-control and recreation.” Therefore, he dismissed the case for lack of jurisdiction.
The Fifth Circuit began by stating that the Limitation Act does not confer admiralty jurisdiction, and Deno would have to establish that the locality and connection prongs of the test for admiralty tort jurisdiction were satisfied. Turning to the locality test, the appellate court noted that the lake was landlocked in one state, and a dam blocked vessels from passing to the navigable Trinity River. Deno argued that the treatment of the lake by the Corps of Engineers (as satisfying the definition of “waters of the United States” for the Clean Water Act) supported his argument that the lake was navigable for tort jurisdiction. However, that treatment arose from a consent decree that was not binding on the court in this case. Deno also argued that water had been released from the lake through the dam into the Trinity River, but the court found that argument to be insignificant on the question whether the lake was navigable at the time of the incident. Deno also argued that the standard for navigability is not whether the body is a current continuous highway for interstate or international commerce but whether it is capable or susceptible for commercial use. The court disagreed, answering that the lake is landlocked and blocked by a dam and is “not a navigable body of water at all” (regardless of current usage or susceptibility). Finally, the Fifth Circuit rejected Deno’s reliance on the opinion of a marine consultant and surveyor that the lake is navigable, noting that the opinion relied on regulations that do not control the tort jurisdiction inquiry. Accordingly, the appellate court affirmed the dismissal of the case for lack of subject matter jurisdiction.
From the federal district courts
Breach of cross-default provision in loan agreement for purchase of vessel allowed the mortgagee to declare the loan in default and to foreclose on the ship mortgage; American Bank of Oklahoma v. Robinett, No. 4:25-cv-92, 2026 U.S. Dist. LEXIS 20641 (N.D. Okla. Feb. 2, 2026) (Eagan).
On May 18, 2021, David J. Robinett and Gayla E. Robinett executed a note, loan agreement, and preferred ship mortgage with American Bank of Oklahoma for the purchase of a 2021 Invincible Fisherman boat. The loan agreement contained cross-collateralization and cross-default provisions that stated that the borrowers would be in default on the loan if they are in default on any other agreement/debt with American Bank and that any cross-collateralization clause on another loan was void and ineffective as to the vessel loan. American Bank recorded the mortgage with the Coast Guard on April 22, 2022. On October 21, 2022, Robinett’s Floor Covering borrowed $1.7 million from American Bank, and the Robinetts executed guaranties for the debt. The Robinetts defaulted on the later flooring loan, and American Bank declared the vessel loan in default and brought this action in federal court in Oklahoma seeking an in personam judgment against the Robinetts and an in rem judgment against the vessel. American Bank moved for summary judgment on the default and for a judicial sale of the vessel. The Robinetts argued that the cross-collateralization clause prevented American Bank from using the default on the flooring loan as a default on the vessel loan, because the cross-collateralization clause nullified any attempt to link the vessel loan with the flooring loan. Judge Eagan disagreed, explaining that the Robinetts were conflating provisions that have distinct and independent purposes. The cross-collateralization clause prevents the bank from using another loan to secure the debt created by the vessel loan, and the cross-default provision identifies situations that constitute a default on the vessel loan. The cross-default provision “does not permit American to use any other collateral to secure the Boat Loan.” The Bank used the default on the flooring loan as the basis to accelerate the loan on the vessel, which was permitted by the loan agreement. The Robinetts made a general argument that state and federal law prohibited the bank from using a consumer loan as a guaranty or collateral for the commercial loan, but Judge Eagan rejected the assertion as lacking factual and legal support. Finally, the Robinetts argued that the delay in recording the ship mortgage prevented its enforcement, but Judge Eagan dismissed the argument for lack of authority that the delay prevented the court from entering an in rem judgment. Therefore, Judge Eagan entered a judgment against the Robinetts, in personam, and against the vessel, in rem, in the amount of the balance on the vessel loan ($241,184.27), but she held that it was premature to order a sale of the boat or to address priority of the mortgage over other creditors.
Judge declined to exclude opinions of petroleum engineer with respect to operations in which a roustabout was injured on an offshore rig, reasoning that his experience and analysis of industry standards and regulations would aid the fact finder to understand the complicated procedures for working on an offshore vessel in the oil and gas industry; Kitrell v. Ensco Offshore, LLC, No. 2:24-cv-2947, 2026 U.S. Dist. LEXIS 20711 (E.D. La. Feb. 2, 2026) (Vitter).
Caleb Kittrell, a roustabout employed by Ensco Offshore, was injured while working on Rowan Offshore Luxembourg’s jack-up rig, VALARIS 144, in the Gulf of America off the coast of Louisiana. Kittrell was struck by a jet line hose he was sent to disconnect, not knowing that it was still pressurized. Kittrell brought this suit in Louisiana federal court against Ensco and Rowan under the Jones Act and general maritime law, and the defendants engaged Perrin R. Roller, a professional petroleum engineer, to opine about the operations. Roller did not find anything improper with the operations, permitting, instructions, and job safety analysis. Kittrell filed a Daubert challenge, arguing that the opinions were speculative and conclusory and were not supported by proper reasoning and methodology. Kittrell cited the speculative nature of the opinion that the crew had been performing jetting operations for several weeks and that Kittrell would have seen and known the operations. Chief Judge Vitter answered that the opinion was not completely unsubstantiated, and the remedy was not exclusion but cross-examination. Kittrell did not argue that Roller, who had 40 years of experience in the industry, including work with this task, was unqualified, but he argued that his methodology was insufficient and that his opinions were not helpful to the layman. Chief Judge Vitter disagreed, stating that Roller’s reliance on his experience and standards and regulations in the industry would “aid the trier of fact to understand the complicated practices and procedures of working on a vessel in the oil and gas industry.”
Company that performed repair work on a vessel in Missouri was not subject to personal jurisdiction in actions arising from an accident on a waterway in Idaho; waterway was not currently navigable when the chute allowing logs to pass by a dam had not been used for almost 70 years (except to allow floating rubber duckies to pass through for a 50th anniversary celebration), and the limitation action for an accident on the waterway was dismissed; the Judge allowed the vessel owner’s third-party claims to proceed after the dismissal of the limitation action based on diversity jurisdiction, but he required the third-party complaint be pleaded as a complaint in diversity; In re Crazy Pants LLC, Nos. 2:23-cv-23, 2:24-cv-305, 2:24-cv-307, 2026 U.S. Dist. LEXIS 23574 (D. Idaho Feb. 3, 2026) (Winmill).
Gregory Daiker, a resident of Laclede, Idaho, purchased the KING OF THE MAY, a high-performance speedboat from its manufacturer, Marine Technology Inc. of Wentzville, Missouri, in 2018. Daiker formed Crazy Pants, LLC, a Montana limited liability company, to own the vessel, and Montana RV Registration, LLC, to act as the sole manager of the vessel. Daiker inspected the boat in Missouri, but Marine Technology delivered the boat to Daiker in Idaho. There was a problem with overheating of the engines, and Performance LLC performed work to correct the problem along with additional work at its principal place of business in Osage Beach, Missouri. Marine Technology towed the boat to Montana, and Daiker towed it the rest of the way to Idaho. On June 28, 2022, Daiker was allegedly operating the boat on the Pend Oreille River near Old Thama Ferry Road in Bonner County, Idaho at more than 100 miles per hour while intoxicated. The boat flipped over, resulting in the deaths of Daiker and his three passengers, John Schulte, Aaron Faulhaber, and Jason Maxson. Faulhaber’s widow brought suit against Crazy Pants and Daiker’s estate in Idaho state court, and Crazy Pants brought suit in Idaho federal court seeking to limit liability. Beneficiaries of the passengers filed claims in the limitation action, and petitioner Crazy Pants (together with Daiker’s Estate) filed a third-party complaint asserting product liability claims against Marine Technology, Performance, and others. They also brought a spoliation claim that the third-party defendants had altered or destroyed the boat after the accident so that it was no longer available for inspection. The beneficiaries of the passengers then filed complaints in the federal court against the product-liability third-party defendants. The third-party defendants challenged the admiralty jurisdiction for the limitation action, and Performance also moved to dismiss the claims against it for lack of personal jurisdiction. The parties disagreed whether the court should apply the purposeful-direction or the purposeful-availment framework to determine whether there was personal jurisdiction over Performance, but Judge Winmill held that neither test was satisfied. Performance did not sell the vessel, did not deliver it in Idaho, and did not market its services in Idaho. Its involvement was to accept a referral from Marine Technology to work on the boat from its principal place of business in Missouri. The accident in Idaho was insufficient to establish personal jurisdiction as Performance did not direct any meaningful conduct to Idaho. If Performance were the only defendant in the case, Judge Winmill would have transferred the case to federal court in Missouri. However, he dismissed Performance from all of the suits in light of the complex, multi-defendant nature of the case. Judge Winmill then addressed whether the court had admiralty jurisdiction for the limitation complaint. For the locality test, Judge Winmill noted that the waters flowing from Montana to the Pend Oreille River are dammed on the eastern side of Idaho by the Cabinet Gorge Dam, and the waters flowing westward to Washington are dammed by the Albeni Falls Dam. Thus, it is not possible to travel across state lines by vessel. However, the Albeni Falls Dam was originally constructed with a log chute that allowed passage of timber from Idaho westward into Washington. Almost 70 years ago, the companies that used the log chute stopped using it, and the chute has fallen into disrepair. The chute did reopen in 2005 (for a 50th anniversary celebration) to allow floating rubber duckies to pass through the chute. It retains its Tainter gate, which lifts to allow movement of logs, but the gate has been decommissioned and has not been serviced since 2005. A boom barrier blocks access to the chute. Crazy Pants argued that the waterway was navigable because the log chute could, “with reasonable improvements,” be returned to operational status. Judge Winmill rejected that argument, stating: “But that is not the right question. The relevant inquiry focuses on present physical conditions and capabilities, not historical conditions or hypothetical future conditions, after restoration. A waterway is not ‘navigable in fact’ merely because it once supported interstate commerce or because it could be rendered capable of doing so again through repair, rehabilitation, or discretionary governmental action.” Judge Winmill focused on “the current physical condition” of the waterway to decide navigability, reasoning that “the undisputed evidence establishes that the log chute at the Albeni Falls Dam has not been used for decades, is in a state of disrepair, and could not be placed into service absent substantial inspection, design, and rehabilitative construction.” That represented “a current physical reality inconsistent with concluding that the waterway is presently susceptible of supporting interstate commerce.” Accordingly, Judge Winmill held that the court lacked admiralty jurisdiction over the limitation complaint. Crazy Pants pleaded that its third-party complaint in the limitation action should not be dismissed because there is diversity between the parties. The product defendants argued that the court had to dismiss the third-party action because the anchor pleading was dismissed. Judge Winmill disagreed, answering that the cases cited by the product defendants did not require that the court “dismiss third-party claims that independently satisfy the requirement of 28 U.S.C. § 1332 simply because they were initially asserted through impleader and the underlying action has been dismissed.” He did require that the action be restructured as a non-admiralty case based on diversity, stating that Crazy Pants must file an amended complaint based on diversity.
Dispute whether the towage contract extended to the tow of a barge with a cargo of building modules was subject to the arbitration clause in the towage contract because the dispute was “in connection with” the towage contract; Heko Services, Inc. v. MAKUSHIN BAY, No. 3:25-cv-125, 2026 U.S. Dist. LEXIS 23567 (D. Alaska Feb. 4, 2026) (Gleason).
Heko Services is a cargo services provider that transports cargo to destinations in Alaska. Heko chartered a barge, the ITB 252, to carry cargo to destinations in Alaska (it was negotiating for transportation of building modules and gravel aggregate to different locations), and it required an ocean towing vessel to tow the barge. Heko contacted Resolve Americas to discuss a towage agreement for Resolve’s vessel, MAKUSHIN BAY. The parties entered into a towage agreement for the barge that did not mention the building modules, and a dispute arose with respect to the first cargo of building modules. Heko notified Resolve that it breached the towage agreement (when it declined to transport the modules) and demanded arbitration. It also brought this suit in federal court in Alaska against the vessel and Resolve, asserting claims for breach of contract, foreclosure of a maritime lien on the vessel, equitable or quasi estoppel, and a referral to arbitration. Resolve appointed its arbitrator, but it moved to dismiss the complaint on the ground that there was no contract to tow the barge with the building modules. It also opposed arbitration on the ground that there was no contract for the tow and, accordingly, no arbitration agreement. Heko filed a cross-motion seeking to compel arbitration. Judge Gleason noted the disagreement between the parties on the issue of whether Resolve would tow the building modules, but she did not have to decide whether there was such an agreement. She only had to find that the dispute arose in connection with the towage agreement as the contract provided for arbitration of any dispute “arising out of or in connection with this contract.” Therefore, she held that the claims were arbitrable; she declined to dismiss the suit (whether there was a contract for the towing of the building modules was for the arbitrators to decide); and she stayed the suit pending arbitration.
Rotten board above the deck in the area where cargo is landed did not, as a matter of law, make the vessel unseaworthy in the claim of a seaman who was on the board when it collapsed; Wright v. Jackson Offshore Operators, LLC, No. 2:25-cv-92, 2026 U.S. Dist. LEXIS 23864 (E.D. La. Feb. 5, 2026) (Ashe).
Blake Hunter Wright was employed as an able seaman on the M/V STORM, owned and operated by Jackson Offshore. He asserts that he was traversing the aft work deck of the vessel, located at Port Fourchon, Louisiana, when a rotten wooden deck board collapsed, resulting in an injury to his left knee. Wright brought this suit against Jackson Offshore in Louisiana federal court, with allegations under the Jones Act and general maritime law (including unseaworthiness of the vessel). Wright moved for partial summary judgment that the vessel was unseaworthy because the board was “internally rotten” and, therefore, not reasonably fit for its intended purpose of providing a work area for the ship’s crew. Jackson Offshore responded that Wright had not shown that the board was not reasonably fit for its intended purpose, which was to provide a durable and rough surface on which to land and transport cargo and, when necessary, to fail so as to prevent damage to the steel deck. Additionally, to the extent there is a secondary purpose of providing a safe walking surface, there was a question whether a board collapsing and allowing a seaman to fall up to 2 inches was an unreasonable risk of harm that would constitute an unseaworthy condition. Judge Ashe agreed that there were fact questions, reasoning that the issue of seaworthiness is “generally best left for a jury to decide.”
U.S. court lacked subject matter jurisdiction to vacate London arbitration award in favor of foreign cruise line against foreign seaman, and it lacked personal jurisdiction over seaman’s claim seeking an order that the award was not enforceable (as violative of US public policy) based on the prospective waiver doctrine; Das v. MSC Cruise Management (UK) Ltd., No. 1:24-cv-25059, 2026 U.S. Dist. LEXIS 25201 (S.D. Fla. Feb. 5, 2026) (Lett), opinion adopted, 2026 U.S. Dist. LEXIS 37443 (S.D. Fla. Feb. 24, 2026) (Williams).
Subhojit Das, an Indian seaman on the Maltese vessel MSC VIRTUOSA, owned and operated by MSC Cruise Management (UK) and MSC Malta Seafarers Co., injured his back while lifting a heavy trash bin to dispose of food waste. Das initiated arbitration proceedings against the defendants (in accordance with the parties’ collective bargaining agreement) before the London Maritime Arbitrators Association Small Claims, and the arbitrator ruled in favor of the defendants, issuing an award of fees and costs in the amount of $10,638.83. Das brought suit in Florida federal court to set aside the award on the ground that United States law applied (because the defendants’ base of operations is in Florida) and the award violated the public policy of U.S. in favor of the wards of the admiralty and by not allowing him to pursue his Jones Act remedy. The defendants moved to dismiss the claim on the grounds that the court lacked personal jurisdiction over them and because the court lacked subject matter jurisdiction as the seat of the arbitration was England (primary jurisdiction), and only courts in the primary jurisdiction can vacate an arbitral award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Magistrate Judge Lett agreed that the court lacked subject matter jurisdiction to vacate the award. She noted that the New York Convention allocates responsibility between the primary jurisdiction (the seat of the arbitration or the country whose law governs the conduct of the arbitration) and secondary jurisdictions (signatories to the Convention). As the primary jurisdiction for this action was England (seat of the arbitration and the country whose law was applied), Magistrate Judge Lett concluded that it was beyond the court’s authority (as a secondary jurisdiction) to vacate the award. Therefore, she recommended that the suit be dismissed for lack of subject matter jurisdiction. Magistrate Judge Lett then considered Das’s argument that the court could still decide whether to enforce the award on the ground that the award was contrary to the public policy of the United States based on the prospective waiver doctrine. She could not vacate the award, which would remain intact and enforceable in another nation where Das has assets; however, the court would have the right to refuse to enforce the award in the United States and to hear the Jones Act claim. The court could only grant relief if it had personal jurisdiction. There was no specific jurisdiction over this action involving an Indian seaman injured on a foreign flagged vessel on a voyage between London and Lisbon (no voyages on which Das sailed ever entered the United States), and there was no general jurisdiction even if it were assumed that the base of operations for the defendants was in Florida. Therefore, Magistrate Judge Lett recommended that the request to deny enforcement of the award be dismissed for lack of personal jurisdiction. Das did not object to the recommendation, and Judge Williams adopted the recommendation and dismissed the suit without prejudice.
Cargo seller’s allegations were insufficient to establish that the affiliated company with a bank account that was attached under Rule B was an alter ego of the cargo buyer so as to support personal jurisdiction and the attachment of the account of the alleged alter ego; Andersons Inc. v. Sadot LLC, No. 2:25-cv-1118, 2026 U.S. Dist. LEXIS 25144 (S.D. Ohio Feb. 6, 2026) (Watson).
Andersons, Inc. entered into an agreement with Sadot LLC for Sadot LLC to buy Argentine wheat. The cargo was loaded onto a vessel to be shipped to Sadot LLC in Ecuador. Sadot did not pay for the cargo, and Andersons did not permit the cargo to be discharged from the vessel, resulting in demurrage charges. Andersons asserts that Sadot LLC made misrepresentations to the vessel owner to obtain discharge of the cargo, and Sadot LLC has not paid either for the cargo or the demurrage. Alleging that Sadat Latam LLC, a subsidiary of Sadot LLC, and Sadot LLC are alter egos, Andersons brought suit against both companies in federal court in Ohio, alleging claims for breach of a maritime contract and the tort of maritime conversion and seeking attachment of a bank account maintained by Sadot Latam with Wells Fargo Bank. The defendants did not appear, and Andersons moved for default judgment. Judge Watson declined to grant the default, concluding that Andersons had not sufficiently pleaded that Sadot Latam was an alter ego of Sadot LLC. The failure to plead an alter ego claim gave concern to Judge Watson with respect to the Rule B jurisdiction over Sadot LLC as Andersons did not allege that Sadot LLC had any property within the district other than the bank account held in the name of Sadot Latam. Accordingly, Judge Watson declined to enter the default judgment and ordered Andersons to show cause why the court had personal jurisdiction over Sadot LLC. Andersons responded to the show cause by amending its complaint to name Sadot LLC, Sadot Latam LLC, and Sadot Group Inc., with more substantial allegations to support its alter ego theory and still seeking maritime attachment.
Vessel master’s providing of “Pre-Supply Notice” of “no-lien” to the master of the subcontracted barge that delivered the bunkers to the vessel on the order of the charterer was insufficient to establish that the bunker supplier that contracted with the charterer had notice of a no-lien clause in the charter party; Fueling Maritime Middle East FZCO v. M/V CAPELLA, No. 1:26-cv-33, 2026 U.S. Dist. LEXIS 30978 (S.D. Ala. Feb. 6, 2026) (Murray), adopted as modified, 2026 U.S. Dist. LEXIS 30161 (S.D. Ala. Feb. 13, 2026) (Beaverstock).
Victory Shipping, charterer of the M/V CAPELLA, asked Fueling Maritime Middle East, a foreign corporation located in Dubai, United Arab Emirates, to supply bunkers to the vessel in Richards Bay, South Africa. The bunkers were supplied by a subcontractor (FFS Refiners) from its delivery barge BONGANI, and Fueling Maritime issued an invoice to Victory Shipping and the vessel in the amount of $262,805.84 pursuant to its Terms and Conditions of Sale. The invoice was not paid, and Fueling Maritime brought this suit in federal court in Alabama against the vessel, which was arrested in Mobile. The owner of the vessel, Capella Shipholding, made a limited appearance and moved for release of the vessel, asserting that, before the bunkers were supplied, the master of the vessel issued to Fueling Maritime a “Pre-Supply Notice” of “no lien” provisions from the charter. Fueling Maritime presented an affidavit from Rizwan Nasir, a bunker trader and account specialist, who stated that he received no document or information indicating there was a no-lien clause or other lien prohibition and that he would have demanded payment in advance if such notice had been provided. Capella responded with the Pre-Supply Notice that was stamped by the master of the BONGANI on the date that the bunkers were supplied. The stamped copy did not reflect whether it was provided before or after the bunkers were supplied; but it did contain the exact volume of bunkers that were provided, indicating that it was not provided to/stamped by the master of the BONGANI until after the bunkers were supplied. Magistrate Judge Murray stated that Capella had the burden to show that Fueling Maritime had actual knowledge of the no-lien provision before supplying the bunkers, adding that “the receipt of documents by an arm’s length agent or contractor does not automatically impute knowledge to the principal.” As there was no evidence that Fueling Maritime received the Pre-Supply Notice, let alone that the document was supplied before the bunkers were supplied, Capella failed to establish that Fueling Maritime had actual notice of the no-lien clause, and Magistrate Judge Murray recommended that the motion for release of the vessel be denied. Capella objected, and Judge Beaverstock agreed that Capella had failed to establish that Fueling Maritime had actual notice of the clause. With the exception of the correction of one statement in the recommendation, Judge Beaverstock adopted the recommendation.
Judge awarded damages to vessel owner against charter broker for breach of its fiduciary duties in the collection of charter hire; R&R Boats, Inc. v. GOL, LLC, No. 2:24-cv-1875, 2026 U.S. Dist. LEXIS 25958 (E.D. La. Feb. 9, 2026) (Fallon).
We reported in the November 2025 Update the differing results reached by Judge Guidry and Judge Vance of the United States District Court for the Eastern District of Louisiana in cases involving similar issues to this case brought before Judge Fallon of the same court.
In the case decided by Judge Guidry, Offshore Liftboats, which operates crewed vessels for marine transportation in support of oil and gas production, contracted with GOL to broker Offshore Liftboats’ vessels to charterers. The brokerage agreement provided for a fee based on a percentage of the charter hire. Charterers would pay the charter hire to GOL, which would remit the hire (minus the brokerage fee) to Offshore Liftboats. The agreement stated that GOL would not be responsible for the charterers’ non-payment of charter hire, but that GOL would undertake all reasonable efforts to collect the hire (although Offshore Liftboats retained the right to try to collect unpaid invoices directly from the charterer). GOL arranged for charters with Cox Operating, which stopped paying invoices that grew to $3,339,343.78 before Cox Operating sought bankruptcy. Offshore Liftboats then brought this action in federal court in Louisiana seeking to recover the unpaid invoices based on failure to undertake reasonable efforts to collect the charter hire. GOL moved for judgment on the pleadings, citing the contract provision that it would not be responsible for non-payment of charter hire. Offshore Liftboats responded that GOL breached the separate obligation to use reasonable efforts to collect the charter hire. Judge Guidry declined to resolve the dispute over the contract terms at the preliminary stage of the litigation. He agreed the brokerage agreement provided that GOL would not be responsible for non-payment of charter hire. However, the allegations went beyond non-payment. Judge Guidry explained that Offshore Liftboats “attributes its damages to [GOL’s] failure to use reasonable measures to collect the charter hire, not Cox’s non-payment.” That was sufficient to state a claim for breach of contract, and discovery was necessary to determine whether GOL made all reasonable efforts to collect the hire. See Offshore Liftboats, LLC v. GOL, LLC, No. 2:24-cv-1632, 2025 U.S. Dist. LEXIS 178597 (E.D. La. Sept. 12, 2025) (Guidry).
In the case decided by Judge Vance, Seacor, which provides crewed vessels for marine transportation in support of oil and gas production, similarly contracted with GOL to broker Seacor’s vessels to charterers, and the contract provided that Seacor appointed GOL as its agent “solely for the purpose of obtaining charters” for Seacor vessels. The agreement contained the same provisions as in the previous case that charterers would pay the charter hire to GOL, which would remit the hire (minus the brokerage fee) to Seacor. The agreement stated that GOL would not be responsible for the charterers’ non-payment of charter hire, but that GOL would undertake all reasonable efforts to collect the hire (although Seacor retained the right to try to collect unpaid invoices directly from the charterer). Seacor provided vessels to Cox Operating that were brokered by GOL, but Cox Operating stopped paying for the charters and sought bankruptcy. GOL filed a claim in the bankruptcy proceeding that included approximately $2.7 million in unpaid invoices for Seacor’s charters (Seacor also filed a claim), and Seacor brought this suit in federal court in Louisiana against GOL, seeking the full amount of the outstanding invoices and an accounting with respect to payments GOL received from Cox Operating in the bankruptcy action ($13 million). Seacor and GOL filed motions for summary judgment, and Judge Vance began by finding that the brokerage agreement was unambiguous, concluding that whether GOL owed Seacor payments depended on whether GOL received payment on Seacor’s invoices. The Trade Agreement in the bankruptcy proceeding did not specify the invoices it was paying. However, the purpose of the agreement was to pay companies that continued to provide services to support Cox Operating in reorganization. As Seacor stopped providing services to Cox Operating months before the bankruptcy and did not commit to providing post-petition services, Judge Vance held that GOL did not have the discretion to pay Seacor from the $13 million disbursed in the Trade Agreement. Therefore, she held that GOL did not breach its duty to remit funds to Seacor. Judge Vance also rejected Seacor’s claim of breach of fiduciary duty, answering that GOL’s fiduciary duties were limited as it was Seacor’s agent only for obtaining charter hire and remitting payments actually received (GOL did not have a fiduciary duty over money to which Seacor was not entitled). Finally, Judge Vance addressed Seacor’s claim that GOL did not use reasonable efforts to collect the charter hire. GOL argued that it sought payment of unpaid invoices before the bankruptcy action and even filed liens on Seacor’s behalf. It continued collection efforts after the bankruptcy, including preserving the liens in the bankruptcy proceeding. However, Seacor argued that there were “significant other” steps that GOL could have taken, pre-petition, but it did not specify that those steps were. As Seacor did not identify additional actions or provide an industry standard that GOL failed to meet, Judge Vance found that Seacor failed to raise an issue of material fact that GOL did not use all reasonable efforts. Therefore, she dismissed Seacor’s claims with prejudice. See Seacor Marine, LLC v. GOL, LLC, No. 2:24-cv-2409, 2025 U.S. Dist. LEXIS 180892 (E.D. La. Sept. 16, 2025) (Vance).
Before Judge Fallon addressed the merits in the suit brought against GOL by R&R Boats in federal court in Louisiana arising out of GOL’s brokering vessels that were chartered to Cox Operating, GOL sought to disqualify the law firm representing the plaintiff (R&R Boats), asserting that an attorney at the firm previously represented Cox Operating in its bankruptcy action. Judge Fallon denied the motion on September 22, 2025 and then considered the motion for summary judgment filed by GOL. Judge Fallon agreed with GOL that the Brokerage Agreement is a maritime contract and that maritime law, not Louisiana law applies. Therefore, R&R was not allowed to proceed on an open account claim under Louisiana law. In declining to grant summary judgment, Judge Fallon noted two distinctions between the contract with R&R Boats and the contract with Seacor. First, the agreement with R&R omitted the word “solely,” so the scope of the duty owed by GOL to R&R was potentially broader. Second, R&R presented evidence that created a fact dispute whether GOL undertook all reasonable efforts to obtain payment. Judge Fallon concluded: “Because the scope of GOL’s duty and the question of whether GOL’s actions undertaken to secure payment for R&R constitute ‘all reasonable efforts’ are issues pregnant with fact, the entry of summary judgment as to R&R’s breach of contract claim would be inappropriate. The claim must proceed to trial.” See February 2026 Update.
Judge Fallon held a bench trial on January 13 to 14, 2026. He held that maritime law embraces general principles of agency and that GOL was R&R Boats’ collection agent with respect to Cox so that GOL owed fiduciary duties of loyalty, good faith, disclosure, and performance to R&R Boats. He found that the interests of GOL and R&R Boats became misaligned when GOL was given access to an insufficient amount to pay all of GOL’s operators. Judge Fallon held that GOL willfully breached its implied duties under the agreement to operate in good faith and loyally to R&R Boats. He awarded R&R Boats $1,430,000, “11% of the $13 million that GOL received from Cox, in recognition of the fact that the $2,815,561.40 balance owed to R&R under the Cox invoices constituted 11% of GOL’s total prepetition claim in the Cox bankruptcy action; and additionally that R&R may ultimately recover all or some portion of the balance owed to it by Cox via R&R’s claims in the still-pending Cox bankruptcy.”
Suit by offshore worker in state court under the Jones Act and general maritime law was removable to federal court under the OCSLA, but the defendants’ showing that the worker’s assertion of the Jones Act claim was not plausibly pleaded was insufficient to satisfy the standard for improper joinder, and the Judge severed the Jones Act claim and remanded it to state court; Allen v. Chevron U.S.A., Inc., No. 25-cv-4831, 2026 U.S. Dist. LEXIS 25995 (S.D. Tex. Feb. 9, 2026) (Rosenthal).
Jeffrey Allen, a rig clerk employed by DC International was injured while working on the drillship VALARIS DS-18, located on the outer Continental Shelf of the Gulf of America, offshore Louisiana. Allen brought suit against Chevron and DC International in state court in Harris County, Texas, asserting claims under the Jones Act and general maritime law, and Chevron removed the case to federal court pursuant to the court’s federal question jurisdiction and the original jurisdiction of the Outer Continental Shelf Lands Act. Allen moved to sever and remand the Jones Act claim to state court, and Chevron and DC International argued that the Jones Act claims should not be severed and remanded because Allen did not plausibly allege a Jones Act claim. Judge Rosenthal agreed that Allen’s Jones Act pleading was insufficient, but she added that the Fifth Circuit requires more definite proof of futility in order to establish that the claim was improvidently pleaded (fraudulent joinder). Although the pleading did not adequately plead a Jones Act claim, the defendants did “not argue that Allen could not plead a claim against them under the Jones Act,” and they did not put forward discrete evidence that Allen had no possibility of recovery. Accordingly, Judge Rosenthal severed and remanded the Jones Act claims against DC International and Chevron.
Claim of vessel owner against NBC Universal for tortious interference with prospective business advantage when it put the series Below Deck on hold and the charterer cancelled its charter of the vessel on which the series would be filmed did not contain sufficient facts to satisfy Rule 9 and was dismissed; the Judge did not decide whether the charter was terminable at will so as to defeat the claim for tortious interference with contract as he stayed that claim in light of the arbitration between the owner and NBC on the contract claim; Exodus Transport Ltd. v. NBC Universal Media LLC, No. 1:25-cv-2751, 2026 U.S. Dist. LEXIS 26014 (S.D.N.Y. Feb. 9, 2026) (Oetken).
NBC Universal and the TV series “Below Deck” have made appearances in the Update with respect to the claims of Emile Kotze who claimed that he was sexually harassed, manipulated, racially harassed, and subjected to degrading treatment and unsafe working conditions as a deckhand on the 161-foot yacht, STAY SALTY. See September and November 2025 Updates. NBC Universal returns in connection with the agreements between Exodus Transport and Mountain View Production to charter the luxury sailing yacht ZENJI for the filing of the series. NBC Universal put the series on hold and allegedly directed Mountain View Production to cancel the agreements, resulting in this suit by Exodus against NBC Universal for tortious interference with contract and tortious interference with prospective economic advantage. NBC moved to dismiss the complaint for failure to state a claim, and Judge Oetken addressed each of the claims. With respect to tortious interference with prospective economic advantage, Exodus alleged that NBC withheld from Exodus that it was highly likely that it was going to cancel the series in order that Exodus would enter into the charter. As the allegations fell far short of the pleading requirements of Rule 9, Judge Oetken dismissed the claim with prejudice (Exodus had already been given an opportunity to amend). Turning to the claim of tortious interference with contract, NBC argued that there could not be a claim for interference with a contract that is terminable at will. NBC contended that the agreement was terminable at will because it had a provision for liquidated damages in the event of cancellation. Exodus responded that the charter did not contain a provision permitting termination and could not be terminable at will if there were damages for its termination. As NBC and Exodus were engaged in an arbitration in London to determine whether Mountain View Production breached the charter and how much Exodus was owed as a result of the cancellation, Judge Oetken agreed to stay the claim for tortious interference with contract pending resolution of the arbitration.
Vessel owner was entitled to indemnity from the master of a fishing boat for the penalty assessed by NOAA for “Proceeds of Unlawful Activity” based on the terms of the indemnity agreement in the Master’s employment agreement; John & Jane, LLC v. Isabel, No. 1:24-cv-11508, 2026 U.S. Dist. LEXIS 26108 (D. Mass. Feb. 9, 2026) (Saris).
John & Jane, LLC employed Russell Isabel as master of the F/V JANE ELIZABETH. During a scallop-fishing voyage from New Bedford, Massachusetts, Isabel harvested scallops in an area forbidden by federal law. The National Oceanic and Atmospheric Administration imposed a monetary assessment on both J&J and Isabel that resulted in payment by Isabel of $20,033.33 and payment by J&J of $40,651.25. J&J sought indemnity from Isabel for the portion of the assessment that it paid and for defense costs in connection with the enforcement action. Isabel declined to pay, and J&J brought this action in federal court in Massachusetts against Isabel. J&J cited the Agreement Between Owner and Master that contained a provision requiring the Master to indemnify the Owner from penalties, fines, expenses, costs, and attorney fees from illegal activities. Isabel signed the agreement on the signature page and at the end of the medical questionnaire for the master, and a representative of J&J signed the agreement at the end of the medical questionnaire. The parties filed cross-motions for summary judgment with respect to the enforcement of the indemnity provision, and, applying maritime law, Judge Saris held that both parties had given their assent to the contract. As there were no contractual terms in the medical questionnaire, Judge Saris held that the owner representative’s signature on the questionnaire “plainly manifested J&J’s assent to the entire Agreement and not only to Isabel’s responses to the questionnaire.” Additionally, Judge Saris found unmistakable assent via performance under the contract. Therefore, she concluded that the parties formed a binding contract as a matter of law. Isabel disputed whether the monetary assessment from NOAA constituted a “penalty” under the indemnity provision as it contained a “Base Penalty” and “Proceeds of Unlawful Activity.” Isabel agreed with NOAA to pay the Base Penalty, leaving the difference in Proceeds of Unlawful Activity” to be paid by J&J. Reviewing definitions of the word penalty as including money exacted as punishment for a wrong, Judge Saris reasoned that the assessment was issued to redress a wrong for violating the regulations. Therefore, she considered the payment to be a penalty, triggering the duty to indemnify. Judge Saris also rejected a series of “perfunctory arguments” that the indemnity provision was unenforceable as it was unconscionable and against public policy and would allow J&J to be unjustly enriched. She found the provision “represents a reasonable agreement” to make Isabel responsible for the unlawful conduct. Accordingly, Judge Saris held that J&J was entitled to damages in the amount of $40,651.25, and she added that the court would address the request for attorney fees and costs in a post-judgment motion.
Mother could not bring pro se complaint on behalf of her minor children in connection with an incident on a cruise ship, and the allegations of the mother and grandmother would have to be separated into separate counts; DeMaio v. Royal Caribbean Group, No. 1:25-cv-21718, 2026 U.S. Dist. LEXIS 27116 (S.D. Fla. Feb. 9, 2026) (Bloom).
Alexandra DeMaio brought this suit, pro se, against Royal Caribbean in connection with an incident that occurred during a cruise from Port Canaveral, Florida to Cozumel, Mexico on the MARINER OF THE SEAS. According to the Second Amended Complaint, Alexandra, her mother (Tara Recine), and Alexandra’s three minor children were in their two cabins getting ready for a fun-filled day at the pool on the vessel when Alexandra observed an older male passenger in an adjacent cabin peering around the balcony divider and into the cabin window, viewing Alexandra’s daughter who was putting on her swimsuit. Alexandra confronted the passenger, who called security with a “fabricated version of the incident” as “a way to narrate the events to avoid consequences and deny responsibility.” Alexandra asserts that she was falsely imprisoned for 24 hours and subject to intentional infliction of emotional distress by crewmembers until they requested to be allowed to leave the ship in Cozumel. Alexandra brought the complaint on behalf of herself, her minor children, and her mother, with claims for negligence, false imprisonment, and intentional infliction of emotional distress. The cruise line moved to dismiss the complaint, and Judge Bloom agreed that the claims brought by Alexandra on behalf of her children must be dismissed because minors cannot bring their own claims without an authorized representative. With respect to the claims on behalf of Alexandra and her mother, Alexandra asserted that they were pro-se co-plaintiffs. Judge Bloom answered that the plaintiffs would have to clearly state which plaintiff was bringing each claim, with each claim stated separately in a distinct count with facts to support each element of the cause of action. Additionally, the allegations for the three causes of action were comingled, continuing to add facts and assertions from the previous claims. Although this was the second amended complaint, Judge Bloom allowed Alexandra to correct the noted deficiencies with a third amended complaint.
Judge denied passenger’s claims that the time limitation in the ticket was unenforceable because of violations of safety standards and fraudulent inducement with respect to the medical capability of the cruise ship and dismissed the passenger’s suit asserting failures with respect to the medical care given on the ship; O’Brien v. Royal Caribbean Cruises Ltd., No. 1:25-cv-24393, 2026 U.S. Dist. LEXIS 27857 (S.D. Fla. Feb. 9, 2026) (Bloom).
Roberta Bobbie O’Brien, a passenger on the HARMONY OF THE SEAS, began experiencing flu-like symptoms on September 30, 2022 and sought treatment at the ship’s infirmary. She claims that her treatment was inadequate, resulting in the worsening of her condition. She finally disembarked on October 2, 2022 and was transported by ambulance to Cape Canaveral Hospital where she required nearly a week of hospitalization in an isolation unit in order to recover “from what should have been a treatable condition if diagnosed promptly.” O’Brien brought this suit, pro se, against the cruise line on September 24, 2025, asserting counts for willful and wanton negligence of the cruise line and Captain Johnny Faevelen, vicarious liability of the cruise line for the negligence of the captain, willful and wanton failure of the cruise line and captain for failing to provide medical evaluation, vicarious liability of the cruise line for the failure to provide medical evacuation, gross negligence against the cruise line for comprehensive medical facility failures, negligence of the cruise line, and negligent infliction of emotional distress of the cruise line. The cruise line moved to dismiss the complaint as time barred by the one-year limitation in the ticket, and O’Brien responded that the limitation was unenforceable because the cruise line’s violations voided the contract. O’Brien argued that the cruise line violated the mandatory equipment standards in 46 U.S.C. Section 3509. Judge Bloom declined to void the limitation or the contract in the absence of any case law or statute supporting that claim. O’Brien also argued that the contract was void for fraudulent inducement, asserting that she would have disembarked if she had known of the inadequacy of the medical capabilities. Judge Bloom answered that there was no support for the theory and, additionally, the inducement argument was based on fraudulent statements made after the contract was formed. As O’Brien had adequate notice of the limitation, Judge Bloom held that it was enforceable and dismissed the suit with prejudice. O’Brien filed a notice of appeal on February 26, 2026.
Judge declined to modify the injunction in a limitation action involving two accidents as the claimant from one accident could not show that there was no privity for any possible negligent act, the stipulations did not address the possibility of an indemnity or contribution claim from a potential co-defendant in a state proceeding, and there was the possibility of a claim from the other incident, even though the time had passed for a claim to be filed but no final default had been entered; In re Bostwick, No. 8:24-cv-2708, 2026 U.S. App. LEXIS 26753 (M.D. Fla. Feb. 10, 2026) (Covington).
James Robert Bostwick and Aristakat Charters, owner and owner pro hac vice of a 2002 ProKat 2860 motor vessel, brought this action seeking limitation of liability in connection with two incidents in Venice, Florida. Nicholas David Wells injured his legs in an incident on May 29, 2024, and Raymond Berard passed away on November 2, 2024 after a scuba diving excursion. Wells filed a claim in the limitation action, but no claim was filed in connection with the death of Berard. The petitioners filed motions for entry of a default, but the court declined to enter a final judgment of default until all pending claims were resolved. Wells moved to modify the injunction to allow him to pursue his claim in state court. The petitioners argued that Wells did not present a single claimant situation for two reasons. First, there was no final default against the Berard beneficiaries who could seek to file a claim. Second, the petitioners argued that Wells was injured on an excursion booked with Isla Divers, which had personnel on the vessel. The petitioners asserted that that Wells would undoubtedly name Isla Divers as a defendant in the suit, which would bring claims for indemnity and contribution against the petitioners. Wells responded that the petitioners were not entitled to limitation as a matter of law because of their privity or knowledge with the negligent acts of the vessel. Judge Covington rejected the defense that the petitioners could not establish they were without privity or knowledge, stating that at this stage of the proceedings, the record did not demonstrate that “there is no genuine dispute that the Vessel owners, the Petitioners, at all times had ‘actual knowledge of’ every possible negligent act or omission which could have, and did, contribute to the accident.” Judge Covington then addressed the adequacy of the stipulations presented by Wells. She agreed that the case presented a multiple claims situation because of the possibility of claims from potential co-defendants in a state proceeding. Wells stipulation promised not to enforce a judgment or award in an action outside the limitation court against the petitioners. It left open the possibility that Wells might obtain a judgment against Isla Divers and thereafter seek to enforce that judgment that would result in a claim for indemnity or contribution against the petitioners before the limitation action was adjudicated. The stipulation was also insufficient to convert the case into the equivalent of a single claimant situation because the court had the discretion to allow a late claim by beneficiaries of Berard. Thus, without stipulations by Berard beneficiaries, a multiple claim situation was possible. Accordingly, Judge Covington declined to modify the limitation injunction.
Judge enforced limitations on liability and damages from bunker supply contract in connection with supply of contaminated fuel; Classic Maritime Inc. v. Glencore Singapore Pte Ltd., No. 1:24-cv-9741, 2026 U.S. Dist. LEXIS 27619 (S.D.N.Y. Feb. 10, 2026) (Vyskocil).
Classic Maritime, time charterer of the M/V BACON, M/V RANGIROA, M/V TAMPA, and M/V MARAN BRILLIANCE, contracted with bunker supplier Glencore Singapore to purchase bunkers at a fixed price monthly over a period of time that were to be delivered to its vessels in Singapore. The contract was governed by Glencore’s General Terms and Conditions for the Sale of Marine Fuel. The bunkers (sourced from the Port of Khor Fakkan in the United Arab Emirates) were contaminated with chlorinated organic compounds that can give rise to catastrophic risks at sea and that resulted in extensive litigation (see August 2025 Update for a decision of the Second Circuit). Classic Maritime and three of the vessel owners brought this suit in federal court in New York against Glencore Singapore, with claims for breach of contract, negligence, strict liability, intentional misrepresentation, gross negligence, and intentional misconduct. They sought recovery for the damage suffered by the engines and associated equipment and expenses to mitigate the damage threatened by the contaminated bunkers. With respect to the contract claim (pleaded by Classic Maritime), Glencore Singapore asserted two limitations in the Terms and Conditions: (1) that Glencore Singapore was not liable for consequential or indirect damages, including damage to the vessels, and that the maximum liability was the lesser of the price charged to the buyer for the bunkers or $300,000; and (2) that the buyer was required to take all reasonable measures to eliminate or minimize costs associated with off-specification bunkers, and that Glencore Singapore would only be responsible for direct expenses incurred for removal and replacement of the bunkers, subject to the maximum liability of $300,000. Classic Maritime argued that Glencore Singapore’s gross negligence or willful misconduct rendered the clauses unenforceable as a matter of public policy, but Judge Vyskocil answered that gross negligence only invalidates exculpatory or nominal damages clauses. Classic Maritime argued in response that the clauses were effectively exculpatory or nominal because they would result in Classic Maritime only receiving $300,000 for replacement fuel after paying nearly $1 million for bad bunkers and spending another $1 million to get the ships to Singapore where Glencore Singapore insisted the de-bunkering and re-bunkering take place. Noting that the parties agreed that Glencore Singapore removed and replaced the fuel in Singapore, Judge Vyskocil held that Classic Maritime had to allege willful misconduct in order to disable operation of the limitation provisions. However, Classic Maritime merely invoked words such as intentional, willful, and potential catastrophe but did not plead the concrete facts to support the claim. Therefore, the contract claim was barred to the extent it sought anything more than $300,000 for the direct expenses incurred for removal and replacement of the fuel. All the other damages, such as the costs to divert the ships to Singapore, were barred. Accordingly, Judge Vyskocil dismissed the contract claim but gave Classic Maritime leave to amend. With respect to the tort claims for negligence and strict liability, Judge Vyskocil was not convinced that the economic loss rule should bar the claims as the plaintiffs alleged physical damage suffered by the engines. However, it was not necessary to delve into the proprietary interest in the vessels because of the contractual limitations. Although the vessel owners were not in privity with Glencore Singapore, Classic Maritime was liable for the damage to the engines in accordance with the charter parties. Thus, the vessel owners’ contracts with Classic Maritime barred them from bringing tort actions against Glencore Singapore in this case. Their remedy was contemplated under the charter party provisions that required Classic Maritime to supply the vessels with fuel that complied with the specified ISO Standard and MARPOL Annex. Finally, Judge Vyskocil dismissed the claims for intentional misrepresentation and gross negligence because they are subject to the contract limitation and were not pleaded with sufficient facts. Thus, the complaint was dismissed with leave given only to replead the contract claim.
Court lacked admiralty jurisdiction over limitation action involving a passenger who fell into the water while disembarking the vessel because the incident did not pose a threat to maritime commerce; In re Sail Charter NYC, LLC, No. 1:25-cv-7812, 2026 U.S. Dist. LEXIS 28779 (S.D.N.Y. Feb. 10, 2026) (Vyskocil).
Sail Charter NYC is owner of a 1922 62-foot Herreshoff vessel, VENTURA, which was docked at North Cove Marina, Hudson River, in Manhattan, New York. The vessel was chartered by The Mark Hotel for a private function, and Rick Mallette was a participant in the function. While disembarking the vessel from a staircase, Mallette fell into the water. Mallette filed a lawsuit in state court in New York County against Sail Charter and others, and Sail Charter brought this limitation action in federal court. Mallette filed a claim in the limitation proceeding and argued that the court lacked admiralty jurisdiction. Judge Vyskocil noted the allegation that the tort occurred on navigable water, but she decided the case based on the connection portion of the test for tort jurisdiction. Judge Vyskocil was convinced that the general character of the activity giving rise to the incident showed a substantial relationship to traditional maritime activity. She believed that Sail Charter’s description (transport and care of passengers on a vessel on navigable waters) was more appropriate than Mallette’s description (“a private social function hosted aboard a moored sailboat, involving drinking, mingling, and a short pleasure cruise”). However, Judge Vyskocil did not believe that the incident could “realistically pose a threat to maritime commerce.” Mallette’s emphasis on the recreational nature of the ship and incident did not persuade the Judge because, citing Richardson, Judge Vyskocil explained that the federal interest in protecting maritime commerce can only be fully vindicated if all operators of vessels on navigable waters are subject to uniform rules of conduct. But Judge Vyskocil cited the reasoning of the Second Circuit in Tandon and concluded that “an incident on and around a dock—including in the water of a marina—does not pose the same risks as the same incident would in open water,” quoting: “At worst, an incident of this sort might temporarily prevent commercial vessels from mooring at the permanent dock around which the fight [on the dock with the injured party falling into the water] occurred.” As the scope of admiralty law had “little or nothing to do with the issues that are likely to appear” in the case, Judge Vyskocil dismissed the case for lack of subject matter jurisdiction. Sail Charter filed its notice of appeal on February 24, 2026.
Kenneth G. Engerrand
Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1915 23rd Suite B Gulfport, MS 39501 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
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In his dissent in Fiedler v. United States, No. 24-5064, 2026 U.S. App. LEXIS 3033 (9th Cir. Jan. 30, 2026), in which a majority of the panel of the Ninth Circuit rejected the claims against the United States that were brought by beneficiaries of the passengers and crew who were killed in the fire on the CONCEPTION based on the discretionary function exception implied by the courts for the waiver of sovereign immunity in the Suits in Admiralty Act, Judge Bumatay stated at *32-*34:
While I have my doubts that the Republic would crumble if the United States were subject to money damages for longstanding admiralty tort claims, this policy-based analysis turns the separation of powers on its head. The separation of powers means that we judges must stay in our lane. The Constitution unquestionably confers on Congress the task of deciding when to waive the government’s immunity. As the Supreme Court has instructed us, “the power to waive the federal government’s immunity is Congress’s prerogative, not ours[.]” Kirtz, 601 U.S. at 48. That definitionally precludes us from second-guessing Congress’s choice to waive immunity. “[W]e have no business rewriting the statute to supply exceptions that Congress did not provide.” Jones v. United States, 155 F.4th 1270, 1270–71 (11th Cir. 2025) (Pryor, C.J. respecting the denial of initial hearing en banc) (simplified) (observing that the Eleventh Circuit’s precedent holding that SIAA includes a discretionary-function exception was “wrong the day [the Eleventh Circuit] decided it”). Indeed, “judges engage in activism, not ‘restraint,’ when they amend the statutes Congress writes.” Id.
Instead, the separation of powers requires us to acknowledge that—when it comes to sovereign-immunity waivers—“[t]he right governmental actor (Congress) is making a decision within its bailiwick (to waive immunity) that authorizes an appropriate body (a court) to render a legal judgment.” Thacker, at 226. While we “may question the wisdom of holding federal agencies accountable for their violations,” “Congress’s judgment commands our respect and the law it has adopted speaks clearly.” Kirtz, 601 U.S. at 64. Here, Congress has clearly spoken: “a civil action in admiralty in personam may be brought against the United States” when a claim could be brought against a private person. 46 U.S.C § 30903(a). No ifs, ands, or buts.
Finally, courts importing the discretionary-function exception into SIAA conjure a parade of horribles to justify the judicial intrusion. For example, we’re told that “without a discretionary function exception, the government could be held liable for an initial decision to build a dam across a particular navigable waterway or to otherwise change the course of a navigable waterway,” the “government could be held liable for the Coast Guard’s drug-interdiction activities,” or “the government could perhaps even be held liable for an inaccurate weather forecast.” McMellon, 387 F.3d at 342. Whether these policy-based justifications make sense, that’s for Congress to balance and weigh—not us. After all, “Congress is ‘far more competent than the Judiciary’ to weigh such policy considerations.” Egbert v. Boule, 596 U.S. 482, 491 (2022) (simplified).
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© Kenneth G. Engerrand, March 31, 2026; redistribution permitted with proper attribution.
