August 2025 Longshore Maritime Update No. 315
Notes from your Updater:
On May 16, 2025, Judge Valderrama of the United States District Court for the Northern District of Illinois remanded the suit (alleging that the fossil fuel industry misled consumers and the public about climate change) brought by the City of Chicago against energy companies, who removed the suit from state court in Cook County, Illinois. Judge Valderrama rejected arguments proffered by the energy companies that they acted under federal officers by producing oil and gas pursuant to the federal mineral exploitation and production regime created by the Outer Continental Shelf Lands Act, supplying federally owned oil for gas and managing the Strategic Petroleum Reserve for the government, reasoning that “the City’s Complaint does not take aim at Defendants’ production of fossil fuels during World War II or the Korean War for that matter. Instead, the Complaint takes issue with Defendants’ alleged campaign of deception and misrepresentation in the 1980s of the dangers of fossil fuel vis-à-vis the environment.” The energy companies filed a notice of appeal on May 28, 2025. See City of Chicago v. BP P.L.C., No. 1:24-cv-2496, 2025 U.S. Dist. LEXIS 93940 (N.D. Ill. May 16, 2025).
On June 2, 2025, Judge Norton of the United States District Court for the District of South Carolina declined to grant summary judgment to the International Longshoremen’s Association in connection with the suit brought against the Union by a longshore worker, Christopher Pyatt, who was injured when he was struck by a truck while crossing the street to report to the hiring hall of Local 1422 in Charleston, South Carolina. Pyatt argued that the ILA, which had imposed a trusteeship over the Local, was responsible for overcrowded and unsafe conditions that resulted in him being forced to park across the street and walk across the road to the hiring hall. Judge Norton found that there was a fact question whether the ILA could be vicariously liable for the conduct of the trustee in approving the increase of available longshore workers without making any changes at the hiring hall to accommodate the influx of new workers. See Pyatt v. International Longshoremen’s Association Local 1422, No. 2:23-cv-5772, 2025 U.S. Dist. LEXIS 104110 (D.S.C. June 2, 2025).
On June 2, 2025, Judge Cogburn of the United States District Court for the Western District of North Carolina granted a preliminary injunction ordering Yachtinsure Services to adjust claims in excess of $150,000 with respect to marine and boat insurance policies issued by Clear Blue Insurance Co. and Clear Blue Specialty Insurance Co. in accordance with a General Agency Agreement by which Yachtinsure is the “Claim Adjuster.” See Clear Blue Insurance Co. v. Yachtinsure Services, Inc., No. 3:25-cv-109, 2025 U.S. Dist. LEXIS 124022 (W.D.N.C. June 2, 2025).
We have previously reported that Dr. Robert Stern, who “believes it to be his responsibility to guard the national resources of Long Beach Island and the waters adjacent to it, including the land animals, plants, and marine life,” and his organization, Save Long Beach Island, brought suit in federal court in New Jersey against the Department of Commerce, the Secretary of Commerce, and the National Marine Fisheries Service to object to the development of several windfarms in the waters of the Atlantic Ocean off the coast of New York and New Jersey. Finding that Stern lacked standing and that his claims were not ripe and were moot, Judge Kirsch dismissed the suit without prejudice. See Save Long Beach Island v. U.S. Department of Commerce, No. 3:23-cv-1886, 2024 U.S. Dist. LEXIS 35699 (D.N.J. Feb. 29, 2024). On June 11, 2025, Judge Kirsch addressed the claims of Save Long Beach Island and Dr. Stern, challenging six Incidental Harassment Authorizations and one Letter of Authorization issued by the National Marine Fisheries Service to windfarm developers off the coast of New York and New Jersey (focusing on two specific whale species—the North Atlantic Right Whale and the Humpback Whale) and directed that the case be closed. See Save Long Beach Island v. United States Department of Commerce, No. 3:23-cv-1886, 2025 U.S. Dist. LEXIS 110630 (D.N.J. June 11, 2025).
We reported in our April 2025 Update that Judge Robart of the United States District Court for the Western District of Washington declined to set aside the settlement entered into between insurers of gold and specie cargo on the S.S. PACIFIC, which sank off the Washington coast in 1875 after colliding with the sailing vessel ORPHEUS, and the company (Rockfish, Inc.) that believes it located the wreck of the PACIFIC (giving the insurers 1.598% of the net proceeds from gold cargo from the wreckage and the salvor 98.402% of the proceeds). See Rockfish, Inc. v. Unidentified Wrecked and Abandoned Vessel, No. 2:22-cv-1659, 2025 U.S. Dist. LEXIS 26400 (W.D. Wash. Feb. 12, 2025). On June 13, 2025, Judge Robart granted Rockfish the exclusive right to salvage the vessel and enjoined all other salvors from engaging in salvage operations within certain coordinates. As the trial of the case has been set for January 25, 2027, Judge Robart extended the duration of the injunction until that date. 2025 U.S. Dist. LEXIS 113074 (W.D. Wash. June 13, 2025) (Robart).
On June 18, 2025, Judge Tigar of the United States District Court for the Northern District of California upheld the removal by Ceres Marine Terminals and SSA Terminals, pursuant to the Class Action Fairness Act, of the putative class action filed by Jasmine Phillips in California state court against Pacific Maritime Association and more than 25 waterfront employers, asserting wage-and-hour claims under state law for failure to pay minimum wages, failure to pay overtime compensation, failure to provide required meal periods, failure to provide rest periods, failure to provide accurate itemized wage statements, failure to reimburse required expenses, and failure to pay sick wages. See Phillips v. Pacific Maritime Association, No. 4:25-cv-3241, 2025 U.S. Dist. LEXIS 116882 (N.D. Cal. June 18, 2025).
We reported in our June 2024 Update that Judge Trenga of the United States District Court for the Eastern District of Virginia dismissed the antitrust suit filed on behalf of a class of naval architects and marine engineers against Navy shipbuilders (asserting an “unwritten gentlemen’s agreement” not to “affirmatively recruit one another’s naval engineers” or naval architects), holding that the plaintiffs had not pleaded sufficient facts to toll the statute of limitations. See Scharpf v. General Dynamics Corp., No. 1:23-cv-1372, 2024 U.S. Dist. LEXIS 72184 (E.D. Va. Apr. 22, 2024). The plaintiffs appealed to the Fourth Circuit. On May 9, 2025, a majority of a panel of the United States Court of Appeals for the Fourth Circuit reversed the dismissal of the putative class action brought against the nation’s largest shipbuilders and naval-engineering consultancies alleging a wide-ranging “no-poach” conspiracy in which the companies formed a “gentlemen’s agreement” not to recruit each other’s employees in order to drive down wages. The panel disagreed with the analysis of Judge Trenga, who concluded that a “non-ink-to-paper” agreement could not constitute an affirmative act of fraudulent concealment that would toll the four-year statute of limitations in the Sherman Act. Writing for the panel of the Fourth Circuit, Judge Wynn stated: “We hold that neither logic nor our precedent supports distinguishing between defendants who destroy evidence of their conspiracy and defendants who carefully avoid creating evidence in the first place.” See Scharpf v. General Dynamics Corp., No. 24-1465, 2025 U.S. App. LEXIS 11258 (4th Cir. May 9, 2025). See June 2025 Update. The Fourth Circuit denied rehearing on June 13, 2025, and the shipbuilders and consultants, including Bath Iron Works, Electric Boat Corp., General Dynamics, Huntington Ingalls, Ingalls Shipbuilding, Newport News Shipbuilding, Bollinger Shipyards, Gibbs & Cox, Serco, CACI International, The Columbia Group, Thor Solutions, and Tridentis asked the Fourth Circuit to stay its decision while the defendants file a petition for certiorari with the Supreme Court. However, on July 8, 2025, the appellate court declined to stay the issuance of its mandate. See Scharpf v. General Dynamics Corp., No. 24-1465 (4th Cir. July 8, 2025) (per curiam).
On July 29, 2025, the Eleventh Circuit agreed with Chief Judge Hall of the United States District Court for the Southern District of Georgia that a .49-acre parcel of land on St. Simons Island, Georgia did not satisfy the test for “waters of the United States” under the Clean Water Act, based on the decision of the Supreme Court in Sackett (see June 2023 Update), so that Sea Island Acquisition, which owns a nearby hotel, could fill the wetland on the property to construct an office building and parking lot (it filled the wetland but covered it with sodding instead of constructing the building/parking lot). The property was adjacent to Dunbar Creek, but it lacked a “continuous surface connection” between the wetland and Dunbar Creek. See Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC, No. 24-10710, 2025 U.S. App. LEXIS 18934 (11th Cir. July 29, 2025) (Pryor).
On the LHWCA Front . . .
From the federal appellate courts
Ninth Circuit affirmed decision of ALJ and BRB denying benefits for tank cleaner’s knee replacements based on the credibility choice in favor of the employers’ radiologist over the claimants’ physicians; Armstrong v. Director, OWCP (All-Star Cleaning & Preservation, Inc.), No. 24-1492, 2025 U.S. App. LEXIS 12467 (9th Cir. May 22, 2025) (per curiam).
Jesse Armstrong worked as a tank cleaner in shipyards for nearly 25 years. His last employers were All Star Cleaning and Preservation and Tanks Plus. His work required that he climb into tanks on large ships along with crawling, squatting, kneeling, bending, and lifting and carrying heavy hoses. Armstrong suffered from a meniscal tear and developed arthritis in his knees that required knee replacements, and Armstrong presented a claim against his employers under the LHWCA. The employers controverted the claim, and the case was tried by Administrative Law Judge Hoffman. Armstrong presented evidence from four doctors that cumulative trauma did or could have contributed to his arthritis and meniscal tear. He presented the testimony at trial of Dr. James Baldwin, an orthopedist, that Armstrong’s work as a tank cleaner worsened his knees and accelerated his need for knee replacements. The employers presented the testimony of Dr. Houman Sabahi, a radiologist, who concluded that there was nothing in Armstrong’s work duties that would accelerate or worsen the arthritis. ALJ Hoffman held that Armstrong presented a prima facie case of cumulative causation, and that the employers rebutted the prima facie case based on the testimony of Dr. Sabahi. The judge then weighed the evidence and decided that Dr. Sabahi’s opinion was more persuasive, and she denied Armstrong’s LHWCA claim. The Benefits Review Board affirmed that decision as a credibility determination, and Armstrong filed a petition for review with the Ninth Circuit. Armstrong argued that Dr. Sabahi failed to rebut the presumption of causation because he did not completely exclude cumulative work as a tank cleaner as a factor that contributed to his need for knee replacements. The Ninth Circuit agreed with the BRB that the testimony of Dr. Sabahi rebutted the presumption and that there was substantial evidence from his testimony to support the denial of the claim. The Ninth Circuit explained that Dr. Sabahi’s opinion that Armstrong’s knee problems were attributable to genetics and age and not the result of the cumulative impact of his work as a tank cleaner were properly based on lack of medial osteophytes, that would have been present in injuries related to overuse; the fact that the knee arthritis was symmetrical and average for his age; and the well-preserved patellofemoral joint spaces, which should have been damaged in a claim for cumulative work-related injury. The Ninth Circuit also rejected Armstrong’s argument challenging the credibility choice of Dr. Sabahi over Armstrong’s doctors, noting that Dr. Sabahi’s testimony was based on medical imaging and other reliable sources. The appellate court concluded that the decision of the BRB was “free of legal error” and that “substantial evidence supports the denial of benefits.”
Fourth Circuit upheld ALJ’s denial of the claimant’s claim based on lack of credibility of the claimant and acceptance of the opinion of the employer’s choice of physician over that of the treating physician; verbosity is not required for the ALJ’s decision to comply with the Administrative Procedure Act; Willis v. Director, OWCP (Virginia International Terminals), No. 23-2048, 2025 U.S. App. LEXIS 12962 (4th Cir. May 28, 2025) (per curiam).
- Larry Willis, a longshore worker employed by Virginia International Terminals, injured his back when the trans-lifter truck he was driving hit a pothole. The accident occurred on Friday, May 18, 2018, and Willis described the incident as the pothole “just beat [him] to death.” However, he did not report the incident until after he finished work the following Monday for which he was paid for 12 hours of work. Virginia International paid periods of partial and total temporary disability, but the parties disputed the extent of Willis’ injury. The LHWCA claim was tried by Administrative Law Judge Markley, who found that the accident resulted in a back strain that was resolved within 12 weeks. ALJ Markley denied further benefits, finding persuasive the opinion of Dr. David Goss (an orthopedist and spine surgeon who examined Willis at the request of the employer) that Willis’ continuing pain was attributable to degenerative conditions shown in his MRIs and not to the 2018 pothole incident. ALJ Markley found Willis’ testimony that he was not suffering from back pain in the five years preceding the 2018 incident was not credible based on Willis’ extensive history of back problems. Willis appealed to the Benefits Review Board, arguing that ALJ Markley had not properly considered all of the evidence, and that the ALJ had violated the Administrative Procedure Act “by failing to address certain evidence in the record.” The BRB disagreed, upholding the decision with the reasoning that the ALJ “properly weighed causation based on the record as a whole and her decision to credit Dr. Goss’[] opinion over that of Dr. Arthur Wardell [his treating physician] is supported by substantial evidence.” Willis filed this petition for review with the Fourth Circuit, repeating his two arguments to the BRB, and the Fourth Circuit easily answered that “neither argument comes close to surmounting the high bar required to overcome our congressionally-mandated deference under the administrative scheme.” The appellate court found substantial evidence that “Willis’ testimony about his back pain lacked credibility,” citing the extensive history of incidents that caused him back pain before the 2018 pothole incident and his failure to disclose that extensive history. The court explained: “But it is reasonable to infer that a petitioner who previously lied about his lack of back pain to advance his claim for benefits may do so again.” The court also found substantial evidence to support the ALJ’s decision to give more weight to the opinion of Dr. Goss than to Dr. Wardell because “Dr. Wardell did not know that Willis had any previous back problems when he initially opined that the May 2018 work accident caused Willis’ ongoing back trouble” and because Dr. Wardell did not explain how driving into a pothole could result in the extent of injury reflected in the MRI. Finally, the appellate court rejected Willis’ APA claim that ALJ Markley failed to adequately explain her decision, stating that an ALJ’s duty of explanation “is not intended to be a mandate for administrative verbosity.” The court concluded: “If we understand what the ALJ did and why [s]he did it, we, and the APA, are satisfied.”
From the federal district courts
Judges in longshore worker’s suit against the owner/operator of the vessel under Section 5(b) of the LHWCA allowed most of the expert opinions on liability from Joseph P. Crosson and Mark A. Fazioli, but excluded most of the opinions of Katharine Sweeney; Brown v. MSC Ship Management, Ltd., No. 4:23-cv-182, 2025 U.S. Dist. LEXIS 92056 (S.D. Ga. May 14, 2025 (Ray), aff’d, 2025 U.S. Dist. LEXIS 112035 (S.D. Ga. June 12, 2025) (Wood).
Marlon J. Brown was injured while employed as a longshore worker by Gateway Terminals at Container Berth 4 of the Garden City Terminal of the Georgia Ports Authority. Brown claims that he fell while descending the gangway to disembark the M/V MSC GAYANE because a piece of the handrail was out of place, and the slip-resistant treat on the steps was worn. Brown brought this suit in state court in Chatham County, Georgia against the owner/operator of the vessel, asserting negligence claims under Section 5(b) of the LHWCA, and the defendants removed the case to federal court based on diversity. The parties challenged each other’s experts, and Magistrate Judge Ray first addressed the defendants’ arguments with respect to Joseph P. Crosson, an engineer specializing in metallurgical and weld-related structural failures and marine casualty investigations, who was hired to discuss the construction and deterioration of the gangway. He opined that there was more wear on the lower steps of the gangway with less slip resistance, there was evidence of disrepair in the lower steps, and there was no handrail on either side of the lower five steps. The defendants accepted Crosson’s qualifications with respect to engineering and metallurgy, but they argued that he was not qualified to testify about slip resistance because he lacked expertise or certification in tribometry (the study of slippage rates and friction coefficients). Magistrate Judge Ray accepted that training in tribometry would qualify the expert, but he added that the “witness need not be the best or most qualified authority in a field to be admitted as an expert.” The objection was, instead, “fodder for cross examination.” The defendants objected to the reliability of Crosson’s opinions because he did not inspect the gangway, did not take any readings, use any scientific equipment, perform any calculations, or generally engage in any “scientific inquiry of any kind.” Crosson looked at contemporaneous photographs and measurements taken years after-the-fact. Magistrate Judge Ray did not believe that the methodology was unreliable, stating that Crosson could “premise his opinions based on visual inspection and his own experience and expertise.” Finally, Magistrate Judge Ray agreed that Crosson’s testimony about the slip resistance would be helpful to the jury, but he excluded the opinions with respect to the state of disrepair as immaterial and his testimony on the absence of the handrails (obvious from photographs) as unhelpful. The defendants challenged the testimony of Katharine Sweeney, a master mariner who works as a marine consultant, with respect to gangway design, human factors analysis regarding the handrails and their role in Brown’s fall, what a longshore worker would notice, and the role of slip resistance in the fall. Magistrate Judge Ray agreed that Sweeney’s opinion with respect to the design of the gangway should be excluded because her expertise on use and repair of gangways did not qualify her to testify about design or manufacture. Likewise, Magistrate Judge Ray excluded the opinions of Sweeney about what longshore workers would have or should have noticed about the condition of the gangway as they are suitable for opinion of experts in human factors engineering, not a master mariner. In contrast to Crosson’s opinion, Sweeney’s opinion regarding slip resistance was excluded because she did not show qualifications or sound methodology to address a difference in slip resistance from the top to the bottom of the gangway as a cause of the fall. Magistrate Judge Ray did allow Sweeney’s opinion that the crew should have been more attentive to the design and wear of the gangway because of the risk of surges to the vessel while it is in port; however, he excluded Sweeney’s opinion with respect to the duties of the vessel defendants with respect to control of the gangway as those duties are governed by Scindia. Brown objected to the opinions of Marc A. Fazioli, a marine surveyor retained by the defendants, who opined with respect to the open and obvious condition of the gangway and the responsibilities of the longshore worker, the stevedore, and the vessel defendants. Magistrate Judge Ray rejected the objection to Fazioli’s qualifications, noting his work as a master of two types of vessels and teaching marine safety at Texas A&M University. Magistrate Judge Ray also denied the objection to the reliability of Fazioli’s opinions with respect to the responsibility of the longshore workers/stevedore and with respect to Brown’s descending the gangway in an uncontrolled manner, reasoning that Fazioli “inspected the documented evidence of Plaintiff’s fall and the circumstances surrounding the incident and relied on his personal knowledge of the maritime industry’s customs to arrive at his opinions.” Brown objected to Fazioli’s opinions with respect to the obligations of the stevedoring company for the gangway on the ground that the opinions were improper legal conclusions that contradicted legal principles establishing that the vessel is responsible for the gangway. Magistrate Judge Ray disagreed that gangways are under the control of the vessel as a matter of law, and he allowed the testimony with the caveat that Fazioli could testify as to practices normally followed by the longshore workers, but he could not give legal conclusions or instruct the jury on legal requirements of statutes and regulations. Finally, Magistrate Judge Ray excluded the testimony that the vessel passed inspection a month after the accident, as the gangway could have been in a significantly different condition at that time. Brown objected to the exclusion of opinions of Crosson and Sweeney, but Judge Wood denied the objections and affirmed the decision of Magistrate Judge Ray.
Vessel owner and operator were entitled to a jury trial after removal to federal court of a case brought at law in state court; Jones v. ABR Logistics, LLC, No. 2:24-cv-332 c/w No. 2:24-696, 2025 U.S. Dist. LEXIS 98410 (E.D. La. May 23, 2025) (Barbier).
Kendrell Jones and Quinn Joseph were galley hands employed by Last Generation, working on a fixed platform on the outer Continental Shelf of the Gulf of America off the coast of Louisiana (Block 299 of the Main Pass Area). They were being transported by the M/V MISS WYNTER to the platform when the vessel was involved in an allision with an object in a navigational channel. The workers brought suit against the owner and operator of the vessel in state court in Plaquemines Parish, Louisiana under the LHWCA and the general maritime law (stating that the claim was brought under the Saving-to-Suitors Clause), and the defendants removed the case to federal court based on the Outer Continental Shelf Lands Act and original admiralty jurisdiction. The defendants answered the suit and demanded a jury, and they separately filed a limitation action in federal court in Louisiana that was consolidated with the suit brought by the workers. The workers moved to strike the defendants’ jury demand 15 months later, and Judge Barbier noted that the workers brought the suit in state court at law under the Saving-to-Suitors Clause, which allowed either party to request a jury. The workers did not request a jury in state court, but that did not convert the action brought at law into an action brought in admiralty. The removal based on the OCSLA did not change the suit from an action brought at law, and the defendants timely requested a jury, which was their right under the Seventh Amendment in an action brought at law. Pursuant to Rule 39, once the jury demand has been made, a court may move the action to its nonjury docket only with the consent of the parties or if it determines that no right to a jury trial exists. Therefore, Judge Barbier held that, with the exception of the core vessel limitation issues (that were reserved to the court), all claims in the consolidated matter would be tried to a jury.
Asbestos-exposure suit by shipyard employee was removable under the Federal Officer Removal Act even though the worker disclaimed any federal causes of action for actions or inactions committed at the direction of a federal officer; LeBlanc v. Huntington Ingalls Inc., No. 2:25-615, 2025 U.S. Dist. LEXIS 98429 (E.D La. May 23, 2025) (Ashe).
Hyson M. LeBlanc worked at Avondale’s shipyards from 1966 to 1969, handling and using asbestos-containing products in connection with the construction and refurbishment of vessels for the Navy, Coast Guard, and Maritime Administration. LeBlanc was diagnosed with lung cancer and brought this suit in state court in Orleans Parish, Louisiana against the shipyard (now Huntington Ingalls) and supplier/manufacturer/seller defendants. His suit against the shipyard asserted that it failed to provide him a safe place to work, warn him of the dangers of working with asbestos, and failed to comply with the asbestos-safety standards set forth by the Walsh-Healey Public Contracts Act. LeBlanc disclaimed any federal causes of action based on actions or inactions committed at the direction of a federal officer. The shipyard removed the case to Louisiana federal court based on the Federal Officer Removal Act, raising three federal defenses: preemption from the exclusive remedy provisions of the LHWCA, federal contractor immunity from Boyle, and derivative sovereign immunity from Yearsley. LeBlanc argued that the shipyard had not raised “colorable” defenses because at least eight judges in the district had granted summary judgment on the government contractor defenses in nearly identical asbestos cases. Judge Ashe disagreed, answering that “the likelihood of success of Avondale’s defenses under a summary-judgment standard is immaterial at this stage of the case.” Judge Ashe explained: “A case against a federal officer may be removed even if a federal question arises as a defense rather than as a claim apparent from the face of the plaintiff’s well pleaded complaint,” reasoning that the “purpose of the removal statute is to protect the lawful activities of the federal government from undue state interference.” As federal jurisdiction survives the dismissal of federal defenses, the shipyard’s Boyle defense was colorable, and the motion to remand was denied.
Judge denied worker’s motion to withdraw his Rule 9(h) designation in the worker’s suit under LHWCA Section 5(b) against the vessel on which he was injured; Leblanc v. Shelf Work Boat, LLC, No. 2:25-cv-277, 2025 AMC 182, 2025 U.S. Dist. LEXIS 102734 (E.D. La. May 30, 2025) (Africk).
Benjamin Leblanc, an employee of Island Operating Co., was injured on the M/V SHELF ACHIEVER, a 126-foot offshore support vessel owned and operated by Shelf Work Boat, LLC, while being transported to an offshore platform (an exposed pipe/rebar on deck snagged his leg and caused him to fall). Leblanc brought suit against Shelf Work Boat and the SHELF ACHIEVER in state court in Lafourche Parish, Louisiana under the general maritime law and Section 5(b) of the LHWCA, asserting his “right to a bench trial under 9(H) as his claims are in Admiralty and under General Maritime law.” He also pleaded that he was entitled to maintain his action under the Outer Continental Shelf Lands Act and Louisiana state law. The defendants removed the case to Louisiana federal court based on jurisdiction from the Outer Continental Shelf Lands Act (asserting that the vessel transported personnel between platforms in the South Marsh Island Area and the Eugene Island Area of the OCS in the Gulf of America off the coast of Louisiana) and based on the court’s original admiralty jurisdiction (injury on a vessel on navigable waters). Once the case was in federal court, Leblanc moved to withdraw his claim for a bench trial and to have the matter set for a jury trial. Judge Africk reasoned that the plaintiff may designate the claim as an admiralty claim when a claim falls within the admiralty jurisdiction and another ground for jurisdiction, but a claim that is only cognizable in admiralty is an admiralty claim whether designated as such or not. Citing the Fifth Circuit Bynum case, Judge Africk stated: “[F]ederal jurisdiction of Section 905(b) claims is based upon general maritime law . . . and, accordingly, assertion in federal court of a Section 905(b) claim confers no more right to a jury trial than does any other claim asserted in federal court by reason of its maritime jurisdiction.” As “Plaintiff’s § 905(b) claims are therefore cognizable only in this Court’s admiralty or maritime jurisdiction, and plaintiff does not plead another cause of action that confers upon it a right to a trial by jury,” Judge Africk denied Leblanc’s motion.
LHWCA preempted state claim for retaliatory discharge and provided subject matter jurisdiction to remove a suit filed in state court alleging retaliatory discharge under state law and willful failure to comply with the terms of the LHWCA; Pitre v. Grand Isle Shipyard, LLC, No. 6;24-cv-1492, 2025 U.S. Dist. LEXIS 105480 (W.D. La. June 3, 2025) (Summerhays), adopting recommendation of 2025 U.S. Dist. LEXIS 85617 (W.D. La. Jan. 8, 2025) (Whitehurst).
Joseph Pitre, an employee of Grand Isle Shipyard, claims that he was injured while working as an electrician for Grand Isle Shipyard on Shell’s production platform Enchilada in the Gulf of America. Pitre filed a claim for compensation under the LHWCA, and, according to his Separation Notice, his employment was terminated for failing to comply with the requirements of the Family and Medical Leave Act. Pitre alleges that he was released to return to work, but he was not reinstated. Pitre then brought this suit against Grand Isle Shipyard in state court in Evangeline Parish Louisiana, asserting claims of willful failure to comply with the terms of the LHWCA and retaliatory discharge in violation of Louisiana law. He alleged that his termination was “solely because Mr. Pitre asserted his claim for benefits under the LHWCA.” Grand Isle Shipyard removed the case to Louisiana federal court based on federal question jurisdiction “because Plaintiff asserts claims under the LHWCA” (Grand Isle Shipyard pleaded supplemental jurisdiction over the state claim). Grand Isle Shipyard then moved to dismiss the state claim for retaliatory discharge, arguing that it was preempted by the LHWCA. Magistrate Judge Whitehurst reasoned that both the LHWCA and the Louisiana workers’ compensation act provide remedies for retaliatory discharge. She noted that the Fifth Circuit had held that a worker who elected benefits under the LHWCA for an injury on the outer Continental Shelf was preempted from bringing a claim under the Louisiana statute. Therefore, she recommended that the motion to dismiss be granted without prejudice to Pitre’s right to pursue a claim for wrongful termination under the administrative procedures of the LHWCA.
Pitre objected to the recommendation, and Judge Summerhays requested supplemental briefing on the issue of whether the court had subject matter jurisdiction as the language in the recommendation seemed to suggest that the state retaliatory discharge claim was the sole claim for relief that Pitre was asserting. As the complaint alleged retaliation and that Pitre was injured by Grand Isle Shipyard’s willful refusal to comply with the terms of the LHWCA, Judge Summerhays reasoned that, although “inartful,” the allegation “could be construed as a distinct claim under the LHWCA.” The LHWCA claim, which was not the subject of the preemption motion to dismiss, remained pending and supplied the court with subject matter jurisdiction. Additionally, Pitre argued that his reference to the FMLA was an attempt to plead a claim under the LHWCA, which provided another basis for subject matter jurisdiction. Having found subject matter jurisdiction, Judge Summerhays adopted the recommendation and dismissed the state claim with prejudice.
Asbestos-exposure claims of beneficiaries of oilfield worker against his employer involving OCS and onshore exposure were barred by the exclusive remedy provision of the LHWCA, applicable to the OCS exposure, but the beneficiaries were permitted to amend their complaint to plead exposure within the twilight zone that may not be barred by the exclusive LHWCA remedy; Comb v. Anadarko US Offshore Corp., No. 2:24-cv-1834, 2025 U.S. Dist. LEXIS 110524 (E.D. La. June 10, 2025) (Brown).
The beneficiaries of Lee Comb assert that he was exposed to asbestos while employed by Anadarko to service switches and pumps on oil drilling and production locations onshore and offshore in the Gulf of America from approximately 1970 to 1980. After Comb died from lung cancer, his beneficiaries brought this suit in Louisiana federal court against Anadarko and suppliers of asbestos-containing products. He asserted a claim against his employer, Anadarko, under the LHWCA and/or the Outer Continental Shelf Lands Act for negligence and for strict liability as premises owner, and Anadarko filed a motion to dismiss based on the exclusive remedy provisions of the LHWCA (applicable to the OCS). The beneficiaries responded that they also alleged land-based exposure to asbestos, which was not subject to the LHWCA. However, Anadarko answered that, even if caused in part by land-based exposure, Comb’s claim was compensable under the LHWCA’s non-apportionment rule. Judge Brown agreed with Anadarko that the claims, as pleaded, were barred by the exclusive remedy provision of the LHWCA. However, she held that the beneficiaries should be allowed to file an amended pleading to include allegations related to the dates of exposure in the decedent’s land-based employment. As Comb was allegedly exposed to asbestos in land-based employment during the 1970s, the death claim might fall within the twilight zone of concurrent jurisdiction in which state and federal remedies exist concurrently, recognized by the Fifth Circuit in Barrosse v. Huntington Ingalls (see July 2023 Update).
Employer need not “rule out” the possibility of a connection between exposure to benzene and claimant’s multiple myeloma in order to rebut the Section 20(a) presumption; Wilson v. Fluor Corp., No. 3:23-cv-470, 2025 U.S. Dist. LEXIS 110898 (M.D. Fla. June 11, 2025) (Richardson), recommendation adopted, 2025 U.S. Dist. LEXIS 131411 (M.D. Fla. July 10, 2025) (Davis).
Jimmie D. Wilson claims that he sustained multiple myeloma from exposure to benzene while working as a fuel distribution manager for Fluor Corp. in Afghanistan (he also claimed that he suffered from post-traumatic stress disorder). He asserted that he was regularly exposed to JP8 jet fuel (and chemical additives that included benzene) from his cleaning up spills and transferring fuel. Wilson brought a claim for LHWCA benefits pursuant to the Defense Base Act, and his case was tried by District Chief Administrative Law Judge Johnson, who held that Wilson did not establish a prima facie case because he did not prove he was exposed to benzene in the course of his work or that benzene causes multiple myeloma. As Wilson did not invoke the presumption that his multiple myeloma was work related, ALJ Johnson also denied the claim for “secondary” psychological injuries that Wilson claimed arose from his diagnosis and treatment for multiple myeloma. Wilson appealed to the Benefits Review Board, arguing that ALJ Johnson applied an incorrect legal standard to find that Wilson was not entitled to the benefit of the Section 20(a) presumption. The BRB agreed that Wilson had established a prima facie case by showing that work conditions existed which could have caused his harm. The Board found sufficient evidence of benzene exposure and that the exposure could have caused the multiple myeloma. The BRB remanded the case for the ALJ to address whether Fluor rebutted the presumption with substantial evidence that Wilson’s multiple myeloma was not caused or aggravated by his work exposure to benzene. Administrative Appeals Judge Gilligan dissented, reasoning that there was substantial evidence to support ALJ Johnson’s decision that Wilson did not establish the elements of a prima facie case. On remand, ALJ Johnson held that Fluor had produced substantial evidence to rebut the Section 20(a) presumption and that a preponderance of the evidence did not establish a causal relationship between Wilson’s exposure to jet fuel or benzene and his diagnosis of multiple myeloma. ALJ Johnson gave greater weight to the testimony of Fluor’s expert, Dr. Suzanne Sergile, who opined that Wilson did not establish that benzene could cause multiple myeloma. Therefore, he denied Wilson’s claim for LHWCA benefits, and the Benefits Review Board affirmed the decision, concluding that ALJ Johnson reasonably weighed the evidence. The BRB also affirmed ALJ Johnson’s conclusion that the work exposure did not aggravate any preexisting condition. Wilson filed a petition for review in Florida federal court, arguing that ALJ Johnson improperly found that Fluor had produced substantial evidence to rebut the Section 20(a) presumption because it did not submit specific and substantial evidence disproving a causal link between Wilson’s cancer and his employment and because Fluor presented no evidence rebutting the presumption with respect to aggravation. Magistrate Judge Richardson found Wilson’s argument to be “misplaced,” reasoning: “The rebutting party need not disprove possible links between an injury and employment, but must only provide evidence that a reasonable mind might accept as adequate to support a conclusion that the injury was not work-related.” He added: “In other words, the employer must provide enough evidence to cast factual doubt on the prima facie case created by the section 20(a) presumption.” Wilson also argued that Fluor failed to rebut the presumption because a specific alternative cause for the injury was never identified; however, Magistrate Judge Richardson responded: “There is no requirement for the Employer to identify a specific alternative cause for the claimant’s injury, as the rebuttal standard is simply to provide evidence that the injury did not arise out of the employment. An employer need not affirmatively prove that the injury arose through other means.” Dr. Sergile testified about the possibility of an association between petroleum products and multiple myeloma but clarified that an association does not equal causation. Wilson argued that the admission of an association failed to “rule out” the possibility of a connection between benzene and multiple myeloma, citing the Eleventh Circuit’s Brown decision in which the court stated that the employer’s physicians failed to rule out a potential connection between the employment and injury and failed to rebut the Section 20(a) presumption. Magistrate Judge Richardson disagreed with Wilson’s argument, explaining that the court in Brown held that an employer “needs only to provide substantial evidence showing that the injury is unrelated to the employment.” Dr. Sergile cited the research findings that a causal connection had not been established between multiple myeloma and jet fuel or benzene, and Magistrate Judge Richardson concluded: “This by itself is sufficient to cast doubt on the causal link between benzene and multiple myeloma to rebut the section 20(a) presumption.” Therefore, Magistrate Judge Richardson recommended that the petition for review of the decision of the BRB, affirming the denial of benefits by ALJ Johnson, be denied. Wilson did not object to the recommendation, and, finding no plain error in the recommendation, Judge Davis adopted the recommendation and denied the petition.
Judge declined to allow employer and LHWCA carrier to amend their subrogation claim in the shipowner’s limitation action to assert claims for an independent right of subrogation and a Burnside action after the court denied their subrogation action based on a waiver of subrogation, after that decision was affirmed by the Fifth Circuit, after the settlement of the case, and six months after the deadline to amend pleadings; In re Aries Marine Corp., Nos. 2:19-cv-10850, 2:19-cv-13138, 2025 U.S. Dist. LEXIS 112621 (E.D. La. June 12, 2025) (Long).
Aries Marine owned the liftboat RAM XVIII, which was sent to house workers who were working on a platform in the West Delta region of the outer Continental Shelf of the Gulf of America off the coast of Louisiana (the workers were employed by Fluid Crane and United Fire). The vessel jacked up, and a construction crew worked until the next day when the vessel began to list and sank. Aries filed a limitation action in federal court in Louisiana, and seven workers on the rig filed claims against Aries under Section 5(b) of the LHWCA. Aries moved for summary judgment that it was entitled to exoneration of liability or, alternatively, limitation of liability. Judge Africk found a fact dispute whether the captain of the liftboat performed a preload before jacking up to ensure that the leg pads for the vessel were on stable ground and would not punch through the seabed. If the preload was not performed, Judge Africk concluded that the failure would constitute negligence under the vessel’s active control, in violation of the duty enunciated by the Supreme Court in the Scindia case. Turning to the limitation issue, Judge Africk noted that with respect to seagoing vessels, the privity or knowledge of the master at or before the beginning of the voyage is imputed to the owner. Aries did not dispute that the liftboat was a seagoing vessel (the accident did occur on the outer Continental Shelf more than 12 nautical miles from the coast). Thus, to the extent there was negligence of the captain before the voyage, it would be imputed to the owner. Judge Africk also cited evidence that the owner allegedly provided an unqualified captain whom it had failed to adequately train, and he declined to grant summary judgment as to limitation of liability. The vessel owner also moved to dismiss the punitive damage claims brought against it under Section 5(b) of the LHWCA on the ground that punitive damages are only recoverable against a third-party tortfeasor by a longshore worker who is injured in state territorial waters (and for lack of evidence of willful and wanton conduct). Judge Africk noted that the Fifth Circuit has not decided the question of whether punitive damages may be recoverable under Section 5(b), and he declined to grant summary judgment on the punitive damage claim. See February 2023 Update.
Fugro USA was hired to assist in positioning the liftboat by providing GPS positioning and performing a sonar scan for debris or obstructions on the sea floor. It provided plats that showed where prior vessels had been placed in the area, but the images Fugro provided only showed the impressions left by vessels that Fugro had helped to position. Therefore, it was possible that there were holes and impressions in the area that were not reflected in the data provided by Fugro to Aries. Fugro moved for summary judgment on the negligence claims asserted against it, noting that the claimants had placed the blame for the listing of the liftboat on Aries’ captain’s failure to conduct a preload (or on the conducting of an improper preload). In response to Fugro’s motion for summary judgment, the claimants argued that Fugro owed them a duty to advise the captain that there could be additional can holes in the area, that there were dark spots on the sonar images that might be additional can holes, and to exercise stop work authority when one leg of the liftboat penetrated deeper than had been expected. Judge Africk assumed for the motion that Fugro had a duty, but he could not find causation for any of the alleged failures, reasoning that, ultimately, the accident occurred because, as the claimants alleged, the captain failed to properly preload the vessel. The claimants’ expert confirmed that when the failure of the vessel occurs after the preloading, the preload was not adequate. As the preloading was not the responsibility of Fugro, Judge Africk dismissed the claims against Fugro.
Fieldwood, the owner of the platform, chartered the liftboat to provide worker housing in support of operations taking place on its platform. Fieldwood moved for summary judgment on the injury claims on the ground that, as the time charterer, it had no control over the vessel and assumed no liability for the negligence of the crew. Judge Africk noted that time charterers owe a “hybrid duty” arising from contract and tort to avoid negligent actions within the sphere of activity over which they exercise at least partial control. He added that a time charterer may be liable for directing the vessel to encounter natural hazards, such as dangerous weather or sea conditions. The claimants argued that Fieldwood was negligent by directing the liftboat to be positioned on the east side of the platform when it knew the conditions were hazardous and by limiting the scope of the marine surveyor (Fugro) to not include geo-technical data. As the claimants’ expert opined that it was likely that either soil samples existed for the location or that penetrations were known by Fieldwood, which, if credited, would permit a finding that Fieldwood had notice of the hazardous conditions and contributed to the failure, Judge Africk denied summary judgment to Fieldwood.
Judge Africk then considered the contracts between the parties for their indemnity obligations. Fieldwood entered into Master Service Contracts with both Fluid Crane and United Fire (employers of the claimants) by which Fluid Crane and United Fire agreed to indemnify Fieldwood for injuries to employees of Fluid Crane and United Fire. The indemnity extended to Fieldwood’s contractors (such as Fugro and Aries) if they entered into contracts with Fieldwood to extend indemnity (for injuries to their employees) to subcontractors of Fieldwood (such as Fluid Crane and United Fire). Fieldwood and Fugro entered into a Master Service Contract by which Fugro agreed to provide similar indemnity to Fieldwood and its contractors. Likewise, Fieldwood and Aries entered into a Master Service Contract by which Aries agreed to provide similar indemnity to Fieldwood and its contractors. Therefore, the contracts between Fieldwood, on the one hand, and Aries, Fugro, Fluid Crane, and United Fire, on the other hand, contained provisions by which each party agreed to indemnify the others for injuries to its own employees. Consequently, Fluid Crane and United Fire were obligated to indemnify Fieldwood, Aries, and Fugro for the claims brought by the employees of Fluid Crane and United Fire if the indemnity provisions were valid under applicable law. The validity required a determination of whether Louisiana law or maritime law applied. If maritime law applied, the agreements were valid. If Louisiana law applied, the indemnity was invalidated by the Louisiana Oilfield Indemnity Act. Judge Africk applied the requirement from the Fifth Circuit’s Doiron case (whether the contract provided or the parties expected that a vessel would play a substantial role in the performance of the contract) to determine whether the contracts were maritime or not. The contracts at issue were the contracts between Fieldwood and Fluid Crane and United Fire to perform work on Fieldwood’s platform. Although Aries and Fugro were involved with the role of the liftboat, that expectation was not relevant to the contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk distinguished cases in which the contract documents provided for the use of a vessel. In this case, “Aries and Fugro may have expected the vessel to play a substantial role in the completion of the work, but the same cannot be said of Fluid Crane and United Fire.” Therefore, Judge Africk concluded that Louisiana law applied, and he denied indemnity from Fluid Crane and United Fire to Aries and Fugro. He did not, however, hold that the LOIA invalidated the requirement for payment of defense costs when the indemnitee was found to be free from fault. Thus, if Aries were ultimately found free from fault, it would be entitled to reimbursement of its defense costs. Judge Africk had granted summary judgment on liability in favor of Fugro, so Fugro was entitled to recover its defense costs. Fluid Crane requested that Judge Africk order the defense costs be split evenly between Fluid Crane and United Fire, despite the fact that only one of the seven claimants was an employee of United Fire. Judge Africk agreed that, under Louisiana law, the defense obligation was incapable of division. Therefore, he ordered that the defense obligation be divided in equal portions between Fluid Crane and United Fire. See March 2023 Update).
One of the workers employed by Fluid Crane, Gilberto Gomez Rozas, was an undocumented immigrant who was not authorized to work in the United States. During his deposition and in discovery, Rozas repeatedly invoked the protection against self-incrimination in the Fifth Amendment, refusing to answer questions related to his citizenship and personal history. Aries argued that his claim should be dismissed with prejudice because Rozas had perpetrated a fraud on the court (and to deter future parties from similar conduct). In the alternative, Aries sought a sanction that Rozas be precluded from recovering past and future lost earnings at United States’ wage rates. Judge Africk reasoned that the party invoking the Fifth Amendment cannot hope to gain an unequal advantage against the party he has chosen to sue and that the defendant should not be required to defend against a party who refuses to reveal the very information that might absolve the defendant of liability. The Fifth Circuit has enunciated a balancing test that dismissal is appropriate only when less burdensome remedies would be an ineffective means of preventing unfairness to the defendant. In this case, Rozas did not commit perjury or provide false documents, but his invocation of the Fifth Amendment during depositions and discovery impeded Aries’ ability to investigate the claim for damages. Consequently, Judge Africk decided that the lesser sanction of precluding Rozas from seeking future wage loss awards at United States’ rates was the appropriate sanction. With respect to past wage loss, Rozas testified that he had not been working, and it had been four years since he prepared tax returns. The parties did not brief the issue of extending the sanction to past wage losses, so Judge Africk did not address the issue of past wage losses at this time. See April 2023 Update.
Aries moved for reconsideration of the decision on the contractual allocations involving Aries, Fugro Marine, United Fire, and Fluid Crane that was discussed in the March 2023 Update. Aries, Fugro, United Fire, and Fluid Crane were parties to contracts with Fieldwood that contained indemnity provisions that were enforceable under the general maritime law but that were unenforceable under Louisiana law. Applying the Fifth Circuit’s Doiron test, Judge Africk held that the contracts with United Fire and Fluid Crane were not maritime because there was no evidence that United Fire and Fluid Crane expected the vessel RAM XVIII would play a substantial role in the completion of the contract. Aries asked Judge Africk to reconsider that decision, arguing that Judge Africk erred by not considering Fieldwood’s expectations as to the use of the RAM XVIII. Judge Africk agreed that the expectations of Fieldwood were relevant (as it was a party to each of the contracts), but he answered that Aries did not cite any authority that the expectations of one party could establish that the parties expected that a vessel would play a substantial role. Thus, further discussion of Fieldwood’s expectations would not have changed the court’s analysis. Aries also argued that Judge Africk had added a third prong to the Doiron test—"did the vessel in fact play a substantial role in the completion of the contract?” Judge Africk disagreed, stating that the decision was based on the expectations of the parties and not on the use of the vessel (he noted that the actual use was only relevant, according to Doiron, when the parties’ expectations were unclear). Consequently, Judge Africk denied Aries’ motion for reconsideration. See June 2023 Update.
United Fire also sought reconsideration of Judge Africk’s decision to divide the defense costs equally between United Fire and Fluid Crane despite the fact that six of the seven claimants were employees of Fluid Crane and only one was an employee of United Fire. United Fire cited an opinion from Judge Vance of the United States District Court for the Eastern District of Louisiana that, absent a clear agreement to the contrary, insurers who owe a co-equal duty to defend must share the cost equally. However, United Fire did not identify any portion of the contracts that constituted a “clear agreement” to share defense costs in an unequal proportion, so Judge Africk held that relief was not available for arguments that had been previously considered and rejected (Judge Africk was not impressed with the analogy to seven individuals who had dinner together and split the bill for the appetizer so that each paid 6/7 of the cost, reasoning that defense costs “cannot be divided amount the claimants in the same manner that an appetizer would be shared among diners”).
As Fluid Crane and United Fire were the employers of the workers who were injured when the RAM XVIII capsized in the Gulf of America, their LHWCA carriers (American Longshore Mutual Association and the Louisiana Workers’ Compensation Corp.) paid benefits under the LHWCA for their injuries. ALMA and LWCC then brought subrogation claims to recover the benefits paid from the defendants. Fieldwood, Aries, and the plaintiffs moved for summary judgment, arguing that ALMA and LWCC had agreed to waive their rights of subrogation pursuant to the terms of the Master Services Contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk noted that the policies provided for waiver of subrogation when required by written contract, so he considered the requirements of the underlying contracts. The waiver in the MSCs extended to the “Company Group,” which was defined to include Fieldwood and its “invitees.” ALMA and LWCC argued, however, that Aries and the plaintiffs also fell under the definition of “third Party Contractor Group,” which would render the language of the indemnity and insurance sections of the contracts superfluous because all parties and contractors/subcontractors would be members of the Company Group. Fieldwood answered that there was no prohibition against an invitee satisfying another definition in the contract and that this interpretation would not lead to circular indemnity or absurd results. Therefore, Judge Africk addressed whether Aries and the claimants were, in fact, invitees, citing Louisiana law that defines an invitee as a person who goes onto premises with the expressed or implied invitation of the occupant on business of the occupant or for their mutual advantage. Fieldwood argued that it was the occupant of the platform (one who has possessory rights in, or control over, certain property or premises) and the RAM XVII (a time charterer is an occupant of the vessel because the vessel is under the ultimate direction, control, and command of the time charterer). It also argued that Fluid Crane and United Fire were invited by Fieldwood to the platform to work by their contracts and that they, and their employees, who performed the work that benefited Fieldwood, were, therefore, invitees. Judge Africk agreed that the employees of Fluid Crane and United Fire were invitees of Fieldwood and that LWCC and ALMA were required to waive subrogation in favor of the claimants. With respect to Aries, Fieldwood argued that the RAM XVIII, owned by Aries, was invited to erect itself within the boundaries of Fieldwood’s mineral lease to assist in the platform work, so Aries qualified as an invitee. Although Aries argued that no employee of Aries ever stepped foot on the platform, it did not dispute that the vessel was attached to the platform via a walkway and that its presence benefitted Fieldwood. Having concluded that Aries and the workers were invitees so that subrogation was waived, Judge Africk considered the validity of the waiver under Louisiana state law, which he had previously held was applicable to the contracts so as to invalidate the indemnity provisions. Citing the Fontenot decision from the Louisiana Supreme Court, Judge Africk noted that a waiver of subrogation provision does not violate the Louisiana Oilfield Indemnity Act if the contract does not also require indemnity. As there was unenforceable indemnity in this case, Judge Africk held that the statute did not void the waiver of subrogation (there was no evidence of payment for a “Marcel” Endorsement that would create an exception to the LOIA). Consequently, the subrogation claims of ALMA and LWCC were dismissed. See July 2023 Update.
ALMA and LWCC filed motions for reconsideration of the granting of Fieldwood’s motion for summary judgment on their subrogation claims as LHWCA carriers. LWCC argued that, notwithstanding the waiver of subrogation, it had a claim for an offset, pursuant to Section 33(f) for the net tort recovery of plaintiff Glenn Gibson. Fieldwood did not disagree with the legal proposition asserted by LWCC, but it argued that LWCC had insufficiently raised the argument in a single paragraph in its opposition with no citation to facts or legal authority, resulting in waiver of the contention. Judge Africk agreed that “LWCC’s briefing on this issue was less than clear;” however, he acknowledged that dismissal of the claim for an offset would be “legal error.” Therefore, he amended the granting of summary judgment to reflect that the order did not affect LWCC’s claim for an offset pursuant to Section 33(f). ALMA moved for reconsideration, arguing that it was not conclusively established that the vessel was attached to the platform via a walkway and that Aries did not meet the definition of an “invitee” under applicable precedent. Judge Africk, however, did not believe that the arguments were sufficient to grant reconsideration, and he denied them. Like LWCC, ALMA argued that it retained the right to claim an offset pursuant to Section 33(f). Fieldwood reiterated the argument that ALMA’s claim was waived, but, as Fieldwood did not contest the legal basis for the argument, Judge Africk granted the same relief to ALMA--that it retained the right to assert an offset against the LHWCA claim pursuant to section 33(f). See September 2023 Update.
ALMA appealed the dismissal of its intervention to the Fifth Circuit, presenting these issues:
- Whether Aries Marine is an “invitee” of Fieldwood within the definition
of the “Company Group” in the applicable Master Services Contract when
there is a genuine issue of material fact as to whether Aries Marine physically entered a premises controlled by Fieldwood?
- Whether the Fluid Crane Claimants qualify as “invitees” of Fieldwood within the definition of “Company Group” in the applicable Master Services Contract despite also qualifying as members of the “Contractor Group”?
- Whether the applicable Master Services Contract and ALMA insurance policy included an obligation on the part of Fluid Crane (Employer) and ALMA (Insurer) to waive subrogation in favor of Fieldwood, Aries Marine, and the Fluid Crane Claimants?
- Whether the Louisiana Oilfield Indemnity Act invalidates any purported waiver of subrogation in favor of the Fieldwood Group?
After hearing oral argument, the Fifth Circuit affirmed (without a written opinion) Judge Africk’s decision that the waiver of subrogation was not invalidated. See May 2024 Update.
Back in the district court, Aries filed a second motion for reconsideration of Judge Africk’s order granting in part and denying in part the motions for summary judgment filed by Aries, Fugro, United Fire, and Fluid Crane (holding that United Fire and Fluid Crane do not owe Aries contractual indemnity for the claims brought by Fluid Crane and United Fire employees because the indemnity provisions are unenforceable under Louisiana law). Aries asked the court to reconsider the conclusion on the ground that the decision of the Fifth Circuit in Earnest v. Palfinger was an intervening change in controlling law that confirmed that the contracts were maritime and that the indemnity provisions are valid under maritime law [an argument that was unsuccessfully made in the Offshore Oil Services case that is discussed in the November 2024 Update]. Aries argued that courts should employ a conceptual rather than a spatial analysis, (2) that courts should focus on what is considered “classically maritime” in evaluating the role of a vessel under a Doiron analysis, and (3) that the location of the work being performed under a contract is inconsequential under Doiron. Judge Long first noted that Judge Africk’s order was interlocutory and that, under Rule 54(b), Judge Long had the authority to revise the decision even in the absence of new evidence or an intervening change in or clarification of the substantive law. He did caution, however, that a successor judge should “carefully and respectfully consider the conclusions of prior judges before deciding to overturn them.” Nonetheless, Judge Long was not persuaded that he should alter Judge Africk’s ruling. He did not believe that the panel’s ruling in Earnest had changed the en banc ruling in Doiron that was applied by Judge Africk, and he added that any clarification of Doiron would not compel a conclusion that the contracts in this case are maritime. Judge Long explained that Judge Africk’s ruling correctly concentrated “on the contracting parties’ expectations.” The rulings did not rest on where the work was conducted, and there was no indication that Judge Africk would have reached a different result if he had considered what was “classically maritime” in evaluating the role of the vessel. As Judge Long was not convinced that the analysis in Earnest would have caused Judge Africk to conclude that the contracts were maritime, Judge Long declined to reconsider the ruling that the indemnity was invalid under Louisiana law. See December 2024 Update.
Aries moved for summary judgment on two of the claimants’ theories of liability, arguing that Aries’ positioning of the RAM XVIII did not cause the liftboat to capsize (based on Judge Africk’s decision granting Fugro’s motion for summary judgment) and arguing that the claimants could not invoke res ipsa loquitur to support their negligence claim because Aries did not have exclusive control over the seabed, which Aries argued was the instrumentality that caused the injuries. Judge Long disagreed with both of Aries’ assertions. He explained that a Fugro surveyor provided Aries with the information that Aries’ captain used to choose the place where to place the liftboat’s legs on the seabed; however, it was the captain who made the “last call” on where to place the liftboat, and he did not perform a preload before jacking up to ensure that the legs would not punch through the seabed. Thus, there could not be issue preclusion or law-of the case because Judge Africk did not decide the same liability issue when he granted summary judgment to Fugro. Turning to the claimants’ pleading of res ipsa loquitur, Aries argued that it did not have exclusive control over the instrumentality that caused the accident—the seabed. The claimants responded that the thing which caused the injury was the liftboat, which was under the control of Aries. As Judge Africk had found a fact question with the failure to conduct a preload, Judge Long reasoned that there was a fact question whether the liftboat was the relevant instrumentality. Therefore, he declined to grant summary judgment to Aries on the theory of res ipsa loquitur.
Judge Long then addressed the motions filed by Fieldwood, charterer of the liftboat, and Aries (owner of the liftboat) and its insurer, U.S. Specialty, with respect to allocation of responsibility between these parties for the claims brought by the employees of Fieldwood subcontractors Fluid Crane and United Fire—whether Fieldwood must defend and indemnify Aries (and U.S. Specialty) from the personal injury claims. The answer required consideration of the time charter of the liftboat by Fieldwood from Aries, the master services contracts between Fieldwood and Fluid Crane and United Fire, and the policy issued by U.S. Specialty to Aries. The time charter required Aries to procure P&I and excess insurance that named as insureds the Charterer Group (Fieldwood and certain contractors) and to waive subrogation against the Charterer Group. The requirements applied to self-insurance and deductibles. The time charter included subcontractors within the indemnity of Aries and required Fieldwood to execute an agreement with its contractors with cross-indemnity and waiver of subrogation provisions. U.S. Specialty’s insurance policy contained P&I coverage that named Fieldwood as an insured with a waiver of subrogation when required by contract. The master services contracts between Fieldwood and Fluid Crane and United Fire contained cross-indemnity provisions requiring Fluid Crane and United Fire to indemnify Fieldwood’s contractor group (including Aries). The reciprocal cross-indemnification provisions would require Fluid Crane and United Fire to defend and indemnify both Fieldwood and Aries for injuries to the claimants (employees of Fluid Crane and United Fire), except that Judge Africk held that the indemnity was invalid under the LOIA. Aries and U.S. Specialty then sought indemnity from Fieldwood, arguing that the time charter required indemnity from Fieldwood with respect to the injury claims of employees of contractors of Fieldwood. Judge Long applied maritime law to the obligations under the charter party and Louisiana law to the policy issued by U.S. Specialty (citing Fifth Circuit cases that were based on Wilburn Boat). As the time charter required a waiver of subrogation from Aries’ insurers, and as the U.S. Specialty policy contained a waiver when required by contract, Judge Long held that Aries and U.S. Specialty had no rights to pursue Fieldwood. Judge Long then addressed the argument of Aries and U.S. Specialty that Fieldwood could not enforce the waiver of subrogation because Fieldwood breached the time charter by not obtaining valid indemnity from Fluid Crane and United Fire that extended to Aries and U.S. Specialty (as the indemnity was voided by the LOIA). Judge Long disagreed. He agreed that the time charter required the cross-indemnity provisions, but he answered that the time charter did not require that the indemnity provisions be valid. As in the Fifth Circuit’s LeBlanc case, Judge Long concluded: “Had Fieldwood and Aries wished to condition the waiver-of-subrogation and additional-insured provisions of the Time Charter on ‘the legal enforceability of’ the indemnity provisions in the Master Services Contracts, ‘they very easily could have done so.’” Judge Long then addressed the claims of Aries and U.S. Specialty that Fieldwood was required to defend and indemnify them pursuant to the indemnity provisions in the time charter. His analysis with respect to the waiver of subrogation applied similarly to the argument of Aries and U.S. Specialty that Fieldwood was required to indemnify them in the event it failed to obtain cross-indemnity provisions with subcontractors Fluid Crane and United Fire. Fieldwood cited a “thoughtful but nonprecedential” 2006 decision from Judge Fallon of the United States District Court for the Eastern District of Louisiana, which reasoned: one indemnification agreement was not substantially similar to another because the latter agreement was ‘void and unenforceable,’ and ‘a void and unenforceable indemnity agreement is the functional equivalent of no indemnity agreement.’” Judge Long distinguished the language in the contract construed by Judge Fallon, answering that the language in the time charter in this case did not condition the insurance obligations on the enforceability of the indemnity provisions. Finally, Judge Long noted that the indemnity excluded claims that are caused, in whole or in part, by the gross negligence of the Owner Group (Aries and U.S. Specialty). As Judge Africk declined to grant Aries’ motion for summary judgment on the punitive-damage claims against it, Judge Long declined the indemnity sought by Aries and U.S. Specialty for the claims that sought punitive damages. See January 2025 Update.
There was a settlement before the case was set for trial, and Judge Long entered a conditional order of dismissal and directed that any party that contended that it had a live claim requiring further litigation must file a motion to reopen as to that claim. Fluid Crane and American Longshore Mutual Association moved to reopen the case to allow them to litigate their “independent right of subrogation” and Fluid Crane’s Burnside negligence action against Aries Marine. Judge Long denied the motion, holding that the claims were not properly before the court because Fluid Crane and ALMA failed to timely and properly plead them. He noted that Fluid Crane and ALMA pleaded only one subrogation cause of action in their limitation claim, and the pleading did not include a Burnside action or an independent right of subrogation. The claim that was pleaded was denied by the court based on the waiver of subrogation, and the Fifth Circuit affirmed that decision. Fluid Crane and ALMA argued that they raised these actions in opposition to the motion for summary judgment in October 2024 and in a status report to the court later that month, but they cited no authority for the proposition that a limitation claimant may properly amend its claim in that manner or set forth good cause for the assertion that was made six months after the deadline for amendments to pleadings had expired. Fluid Crane and ALMA also argued that the independent subrogation/Burnside claims were raised in the pre-trial order, but Judge Long answered that the notice required claims to be described in section 3 of the proposed pre-trial order, but that section did not include any reference to the claims. Judge Long added that, even if the parties had intended to include the claims, they would have to satisfy the “good cause” standard, and he stated that he would not allow an amendment because they provided no excuse for the delay. Therefore, Judge Long declined to reopen the case to allow the claims for an independent right of subrogation and a Burnside action.
From the state courts
Vessel owners did not breach any Scindia duties to longshore worker who claimed to have developed mesothelioma from exposure to asbestos while unloading vessels as there was no admissible evidence of the knowledge of the vessel owners of the hazards of asbestos; Feigner v. American President Lines, LLC, No. 20STCV45382, 2025 Cal. Super. LEXIS 23968 (Cal. Super. Ct. Los Angeles May 29, 2025) (Iwasaki).
Gerald Feigner claims that he developed mesothelioma from exposure to asbestos and asbestos-containing products while engaged in longshore work in Long Beach, California between 1955 and the 1990s as well as when he was performing automotive and home maintenance. Gerald and his wife brought this suit against various ocean shipping companies and asbestos suppliers in state court in Los Angeles County, California, asserting claims for maritime negligence and strict liability. After Gerald died, his beneficiaries brought another suit in state court. Their claims against defendant Cooper/T. Smith Stevedoring assert that Gerald was exposed to raw asbestos, asbestos-containing pipe, and asbestos-containing talc rubber products while unloading those products from Cooper’s ships. Cooper moved for summary judgment on the ground that the plaintiffs presented no evidence of his threshold exposure with respect to Cooper. Specifically, Cooper argued that Gerald never unloaded asbestos-containing products from Cooper ships because it is not a shipping line. Cooper added that it had limited operations in Long Beach, beginning in 1972, that it did not work with asbestos or asbestos-containing products, and that Gerald had not worked for Cooper. Judge Dillon did not believe that Cooper’s evidence was sufficient to negate Gerald’s allegations. In his deposition, Gerald identified Cooper as a shipping company that operated throughout his career, including the period from 1955 to 1965. Thus, Judge Dillon ruled that Cooper failed to show that Gerald was not exposed to asbestos while unloading products from Cooper’s ships. Judge Dillon also declined to grant summary judgment to Cooper on the beneficiaries’ claim for punitive damages. Cooper cited the plaintiffs’ discovery responses that did not provide evidence of malice, fraud or oppression, but Judge Dillon answered that the plaintiffs would have no reason to know whether officers or managing agents of Cooper acted with malice toward him. See July 2025 Update.
Shipping defendants American President Lines, Matson Navigation, Maersk B.V., and A.P. Moeller Maersk then moved for summary judgment, contending that they had not violated any of the Scindia duties. They argued that they were entitled to rely on Feigner’s employer to protect him from the hazards of working around asbestos while unloading their ships. The shipping defendants also cited the lack of any evidence that the defendants knew or should have known that the shipments containing asbestos were hazardous to longshore workers such as Feigner. The beneficiaries argued that the defendants violated the turnover duty because they should have known of the hazards of asbestos by the time of Feigner’s exposure in the 1950s and 1960s and should not have turned over the vessel without warning of the danger (citing two research articles). However, Judge Iwasaki held that the articles were inadmissible. As the beneficiaries failed to present admissible evidence of the knowledge of the defendants of the hazards of asbestos, Judge Iwasaki granted the motion for summary judgment.
State workers’ compensation exclusive remedy provision barred state claims of worker injured on ice (possibly over navigable waters) while unloading a cargo sled at a man-made island drill site in the Beaufort Sea, and the LHWCA did not preempt the state statute; unloading of cargo sled satisfied the nexus prong of the test for admiralty jurisdiction, leaving a fact question to be determined whether the accident satisfied the locality test; Beckwith v. ENI Petroleum U.S., LLC, No. S-18591, Op. 7772, 569 P.3d 778, 2025 AMC 241, 2025 Alas. LEXIS 81 (Alaska June 6, 2025) (Henderson).
ENI Petroleum owns Spy Island, an 11-acre man-made island drill site in the Beaufort Sea on Alaska’s North Slope (together with the oil and gas leases for Spy Island). ENI Petroleum contracted with ENI Operating to conduct the exploration for oil and gas drilling on the island, and ENI Operating signed an agreement with ASRC Energy to provide labor and services to operate the oil fields. ASRC hired Brent Beckwith as a logistics equipment operator to assist in loading and unloading material brought by barge or other carriers over the Beaufort Sea to the island. From July to October, he unloaded and loaded barges and smaller landing craft. For the remainder of the year, after ice formed, Beckwith loaded and unloaded freight onto and off of hovercraft that moved over the frozen sea. Two months before his accident, the hovercraft broke down and was replaced with a tracked vehicle called a Pistenbully. Beckwith loaded and unloaded supplies onto and off the Pistenbully, including drilling equipment, trash, mud, food, pipes, and other equipment. In February 2018, the Pistenbully left a cargo sled on the ice near Spy Island, and Beckwith drove a forklift down a ramp from the island. While on the ramp, a co-worker lost control of a loader, which struck the sled and Beckwith’s forklift, crushing Beckwith’s leg. The parties disputed whether Beckwith was on the ramp or beyond the shoreline of Spy Island on the frozen sea (Beckwith submitted an affidavit from a worker who stated that Beckwith was lying at least 20 feet seaward of the shoreline). Beckwith applied for workers’ compensation under the LHWCA and the Alaska Workers’ Compensation Act, and ASRC paid benefits under the LHWCA. Beckwith (and his wife and daughter) brought a negligence suit in Alaska state court against ENI Petroleum and ENI Operating, pleading that the state court had jurisdiction under the Admiralty Jurisdiction Statute, 28 U.S.C. § 1333. Beckwith and the defendants filed cross-motions for summary judgment. The defendants argued that Beckwith was barred from bringing claims under state law by the exclusive remedy provision of the state workers’ compensation act (barring claims against the project owner) and that he could not bring claims under the general maritime law because he failed the maritime nexus test for admiralty jurisdiction (the defendants acknowledged a fact dispute whether the accident satisfied the locality test). The defendants argued that the accident could not potentially impact maritime commerce because it occurred between two vehicles that were not vessels on frozen ice near an oil drilling platform with no boat traffic at that time of year. They also argued that the accident did not relate to traditional maritime activity because oil and gas development is not a traditional maritime activity. Beckwith responded that maritime jurisdiction does not necessarily require the involvement of a vessel and that he was engaged in “a typical ‘longshoreman’ duty” in unloading and reloading cargo. He added that he is covered by the LHWCA, which preempts the state statute so that its exclusive remedy provision did not immunize the defendants from state-law claims. Beckwith noted that there is a history of maritime activity involving dog sleds traveling over frozen navigable waters in Alaska. Judge Roghair granted summary judgment to the defendants, holding that the exclusive remedy provision of the state act immunized the defendants. He also found that Beckwith failed to satisfy the nexus prong of the test for admiralty jurisdiction, stating that his analysis would differ if the cargo sled caused the injury or had Beckwith been aboard the cargo sled. He added that whatever damage the sled sustained was caused by a terrestrial vehicle. Beckwith appealed to the Alaska Supreme Court, arguing that Judge Roghair erred in his analysis of the LHWCA. Beckwith clarified that he was not asking the court to opine whether he was eligible for benefits under the LHWCA. Instead, he argued that his status as a longshore worker under the LHWCA supported maritime jurisdiction and that the LHWCA preempts any defenses under the state statute. Writing for the Alaska Supreme Court, Justice Henderson noted that the tests for coverage under the LHWCA and jurisdiction over maritime torts are different. Therefore, “Beckwith’s argument that his claimed eligibility for LHWCA benefits gives rise to maritime tort jurisdiction is unavailing.” Justice Henderson added that Judge Roghair correctly ruled that the LHWCA did not preempt the state compensation scheme. Accordingly, Judge Roghair properly dismissed Beckwith’s state claims against the defendants. Justice Henderson disagreed with Judge Roghair, however, on the issue of whether the nexus test for tort jurisdiction was satisfied. Justice Henderson agreed with Beckwith that the Beaufort Sea constitutes a navigable waterway, even though it is frozen in winter, and the location of the accident was disputed. However, Justice Henderson held that Beckwith had established as a matter of law that the accident had the potential to disrupt maritime commerce and that it had a substantial relationship to traditional maritime activity. Justice Henderson reasoned that the cargo sled served the purpose that a waterborne vessel would during the rest of the year—carrying cargo to the island, and the vehicles involved were being used to perform the typical maritime function of unloading cargo. The incident had the potential to impact maritime commerce by delaying cargo loading, limiting access to Spy Island, and diverting resources. Justice Beckwith explained that although “the vehicles involved in the accident are not . . . typical maritime vessels, the cargo sled performed the function that a barge or other watercraft would serve during other seasons.” Therefore, the court reversed the dismissal of the maritime tort claims and remanded the case to assess whether the locality prong was satisfied.
Defense/indemnity provision in subsequent, broader contract applied and required the terminal owner and its affiliated transportation company to defend and indemnify a repair contractor for an injury to an employee of the terminal sustained during the work; Jones v. Buck Kreihs Marine Repair, L.L.C., No. 2024-CA-0837, 2025 La. App. LEXIS 1101 (La. App. 4 Cir. June 11, 2025) (Belsome).
United Bulk Terminals engaged Buck Kreihs Marine Repair to replace an industrial weight scale at its coal yard on the Mississippi River in Davant, Louisiana. During the project, on February 19, 2010, Alvin Jones, an employee of United Bulk Terminals, was struck by a heavy box containing weight scale parts. Jones and his wife brought suit against Buck Kreihs in state court in Orleans Parish, Louisiana, and Jones’ wife and children continued the suit after his death. The LHWCA carrier for United Bulk Terminals, American Longshore Mutual Association, paid benefits (including a settlement) to Jones and his family in excess of $2.7 million and intervened in the litigation, citing an indemnity agreement in a 2008 General Services Agreement between Buck Kreihs and United Bulk Terminals. Buck Kreihs filed a third-party demand against United Bulk Terminals and U.S. United Ocean Services, a sister company to United Bulk Terminals that owns and operates ocean-going vessels responsible for transporting coal from United Bulk Terminals’ facility, arguing that a 2010 Agreement between Buck Kreihs and U.S. United contained an indemnity provision in favor of Buck Kreihs that applied to the incident and that required United Bulk Terminals and U.S. United to indemnify Buck Kreihs for the claims of the Jones family and ALMA. Judge Medley agreed with Buck Kreihs that the 2010 Agreement applied and held that United Bulk Terminals and U.S. United should defend and indemnify Buck Kreihs. United Bulk Terminals and U.S. United appealed to the Louisiana Court of Appeal for the Fourth Circuit, and, writing for the appellate court, Chief Judge Belsome reviewed the provisions of the 2008 and 2010 contracts. The 2008 Agreement between Buck Kreihs and United Bulk Terminals broadly allocated risk to Buck Kreihs for injuries arising from the Buck Kreihs’ work on United Bulk Terminals property, unless the injury was caused solely by the negligence of United Bulk Terminals. The 2010 Agreement between Buck Kreihs and U.S. United contained reciprocal indemnity provisions with respect to employee injuries between Buck Kreihs and “Company,” defined to include U.S. United and its affiliates, and it applied regardless of the negligence of the indemnitee. United Bulk Terminals and U.S. United argued that the 2008 Agreement applied to the injury because the contract was executed between Buck Kreihs and United Bulk Terminals, the accident occurred at United Bulk Terminals’ facility, it was United Bulk Terminals that hired Buck Kreihs to install the scale replacement, and the contract was never canceled or superseded. Buck Kreihs argued that the 2010 Agreement with U.S. United superseded the agreement and provided indemnity from both U.S. United and United Bulk Terminals. Chief Judge Belsome stated that contract law “presumes that the latter contract supersedes the earlier contract.” Application of this rule was supported by the “contractual evolution from the 2008 to the 2010 Agreement,” which evinced “a deliberate effort to broaden the scope of indemnity protection and align obligations across affiliated companies.” Chief Judge Belsome explained that “the 2010 Agreement’s broader indemnity framework, particularly its express reference to affiliated entities, evidences the parties’ intent to supersede the 2008 Agreement and apply a unified indemnity structure across affiliated companies.” Therefore, the appellate court affirmed Judge Medley’s ruling that United Bulk Terminals and U.S. United were required to defend and indemnify Buck Kreihs in this action. Judge Brown dissented, concluding that the 2008 Agreement was the governing contract, citing the “Purpose” section of the 2008 Agreement, providing that the contract was made “to set forth the obligations and responsibilities applicable to the parties hereto in the event the Contractor [Buck Kreihs] performs work and/or services pursuant to an oral or written request by the Company [UBT].” Judge Brown found that the “2010 Agreement cannot be said to have been applicable to Mr. Jones’ accident, which occurred as a result of work being performed per the purchase order between UBT and Buck Kreihs.”
And on the maritime front . . .
From the federal appellate courts
Second Circuit affirmed the district court’s order enforcing limits on contractual liability in vessel owner’s suit against bunker supplier for delivery of contaminated fuel based on the supplier’s terms and conditions, dismissing the negligence claim based on the economic loss rule, and dismissing the gross negligence claims as duplicative of the contract claim; Serifos Maritime Corp. v. Glencore Singapore Pte Ltd., No. 24-1303, 2025 U.S. App. LEXIS 13350 (2d Cir. June 2, 2025) (per curiam).
Serifos Maritime, owner of the M/T SERIFOS, contracted through a broker for the delivery of bunkers to the vessel in Singapore by Glencore with the broker accepting Glencore’s General Terms and Conditions. After the goods were delivered and the vessel was on a voyage from Singapore to Gabon, the vessel encountered engine issues because of “elevated levels of chloro-contaminates,” and the vessel had to make multiple diversions before returning to Singapore, where Glencore removed and replaced the remaining bunkers. Serifos brought this suit in federal court in New York against Glencore, alleging breach of contract, negligence and strict liability, intentional misrepresentation, and gross negligence. Glencore moved to dismiss the complaint, and Judge Schofield held that the claim for breach of contract was subject to three limitations in the Terms and Conditions. The Terms provided that Glencore was not liable for consequential or indirect damages and that its liability for off-specification fuel was limited to removing and replacing the fuel with a damage cap of $300,000. Finding that the limitations were not unconscionable, Judge Schofield held that the only recoverable damages for breach of contract were for removal and replacement of the bunkers, subject to the damage cap. As to the claim that Serifos could recover mitigation expenses to prevent catastrophic harm to the vessel based on claims of negligence and strict liability, Judge Schofield held that the economic loss rule barred recovery, noting that the complaint alleged that the fuel could damage the engine, not that the vessel suffered actual damage. Finally, Judge Schofield dismissed the claims for intentional misrepresentation and gross negligence, as they were duplicative of the claim for breach of contract. See November 2023 Update.
Serifos appealed to the Second Circuit, which agreed with Judge Schofield that the provisions of the contract (no liability for consequential damages and limiting liability to the cost of removing and replacing the fuel) applied to the claim of damages incurred to mitigate potential disastrous consequences of consuming fuel that was off-specification. The court answered: Serifos’s argument that the damages it seeks are ‘mitigation’ damages . . . and are thus not barred by the Section 7(a) waiver of ‘consequential or indirect damages’ . . . is foreclosed by section 7(d)’s sole remedy provision.” The appellate court also rejected the argument that liability limitations were void as a matter of public policy when the defendant acts with gross negligence, reasoning: “Under New York law, where, as here, ‘the clause limiting liability is negotiated at arm’s length by sophisticated parties, provides for more than nominal damages, and does not wholly exculpate the breaching party,’ the gross negligence public policy rule does not ‘overcome the public policy in favor of freedom of contract.’” Serifos also alleged that the limitations were void as a matter of public policy because Glencore engaged in intentional or willful misconduct. Assuming that such conduct could void a sole-remedy clause, the court held that Serifos had failed to allege sufficient facts to establish conscious misbehavior or recklessness. Turning to the negligence and strict liability claims, Serifos asked the court to craft a “fact specific exception” to the economic loss rule, which would exclude from the rule damages incurred in mitigation of physical damage; however, the court declined to do so. Finally, the court agreed with Judge Schofield that the gross negligence claim was duplicative of the claim for breach of contract and was therefore properly dismissed. Accordingly, the court affirmed the dismissal of Serifos’ claims.
Order resolving insurer’s declaratory claims against the insured was final for an interlocutory appeal under Section 1292(a)(3) even though it did not resolve the insured’s counterclaim for breach of the covenant of good faith and fair dealing; new-for-old provision in policy, limiting the hull insurer’s liability to no more than the cost of repair or a reasonable value, applied to limit the amount actually paid by the insured for repairs to the reasonable value of the repairs; Certain Underwriters at Lloyd’s of London v. Empress Marine Ventures, Ltd., No. 23-12567, 2025 U.S. App. LEXIS 16404 (11th Cir. July 3, 2025) (Luck).
Empress Marine insured its yacht NEVER SAY NEVER with Certain Underwriters at Lloyd’s. The vessel sustained damage in three incidents, beginning with a grounding while entering the channel to Puerto Plata in the Dominican Republic. Repairs were conducted over several years that exceeded $9.7 million, and Lloyd’s paid Empress Marine $3,259,432.20, arguing that the repairs should have been completed for far less than the amount paid by Empress Marine (Lloyd’s also asserted other defenses). Lloyd’s brought this declaratory judgment action in federal court in Florida under the court’s admiralty jurisdiction, and Empress Marine filed a counterclaim with two counts. The first argued that Lloyd’s breached the covenant of good faith and fair dealing, and the second sought a declaratory judgment whether there was insurance coverage for the loss and to determine the reasonable cost of the repairs. As New York law applied in accordance with the choice-of-law provision in the policy, Lloyd’s argued that the count for breach of the covenant of good faith and fair dealing was just a disguised claim for bad faith that is not permitted under New York law. Judge Singhal noted that New York law does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing when a breach of contract claim is pleaded based on the same facts. In this case, the counterclaim did not plead a claim for breach of contract, so Judge Singhal held that the claim for breach of the implied covenant of good faith survived a motion to dismiss. Judge Singhal then reviewed the second count, which mirrored the allegations in the first count. He therefore dismissed the second count. Finally, Empress Marine asserted that, because its counterclaim was based on diversity, it was entitled to a jury on the counterclaim. As the plaintiff’s Rule 9(h) designation precluded the defendant from exercising its right to a jury trial on the counterclaim based on diversity, Judge Singhal struck Empress Marine’s demand for a jury trial. See April 2022 Update.
The parties filed cross-motions for summary judgment. Lloyd’s raised the arguments in its complaint, that Empress Marine violated the International Regulations for Preventing Collisions at Sea by operating the yacht outside of a marked channel, in breach of the compliance warranty that the owner would comply with all applicable laws and regulations governing the yacht’s operation. Lloyd’s also cited the new-for-old provision in the policy, limiting damage to the “fair and reasonable” incident-related expenses to repair the yacht (claiming that was no more than $4,150,000). Lloyd’s also cited the policy’s navigation-limit warranty (for operating the vessel outside of the inland and coastal waters of The Bahamas and the Turks and Caicos Islands without obtaining approval from Lloyd’s. Empress Marine moved for summary judgment on the claims brought by Lloyd’s, and Judge Singhal granted Empress Marine’s motion. He denied the defense based on the navigation limit because it was not pleaded in the complaint, and he rejected Lloyd’s reading of the new-for-old provision, stating that the “fair and reasonable” limitation only applied when there were no identifiable repair costs. In this case, there were readily discernible repair costs, and Lloyd’s had to pay the amount Empress Marine paid ($9,764,746.01) “without regard to whether the repairs were of a reasonable value. Judge Singhal did not address the counterclaim filed by Empress Marine, and that decision presented the issue of whether Lloyd’s had the right to appeal the judgment entered against it. Lloyd’s argued that the judgment was appealable as an interlocutory admiralty decree pursuant to Section 1292(a)(3), and, writing for the Eleventh Circuit, Judge Luck agreed. He noted that Judge Singhal had resolved Lloyd’s admiralty claims against Empress Marine, establishing the parties’ rights and responsibilities as to the yacht. Judge Singhal did not resolve the claim for breach of the covenant of good faith and fair dealing, but the order with respect to the claims on the policy was final for purposes of Section 1292(a)(3). Judge Luck then turned to the merits, holding that Judge Singhal did not err in granting summary judgment. Although Empress Marine did not argue that Lloyd’s’ pleading was inadequate to raise the navigation-limit warranty, Judge Luck held that Judge Singhal did not err in refusing to give relief to Lloyd’s on the claim that it did not raise in its complaint. Judge Luck disagreed, however, with Judge Singhal in connection with the interpretation of the limitation that Lloyd’s “shall be liable for no more than the cost of repair or a reasonable value.” Judge Luck reasoned that the language of the provision required that the liability be limited to the lesser of the cost of repair or the reasonable value of the damage. He explained: “The new-for-old provision tells us so for two reasons. First the provision limits Lloyd’s liability to ‘no more than’ one of two choices. ‘[N]o more than’ implies a ceiling on Lloyd’s liability, not a floor, as Empress Marine argues.” Judge Luck also believed that the use of the disjunctive “or” gave Lloyd’s the choice to limit its liability to the cost of the damage or the reasonable value of the damage. The limitation was not restricted to situations where the costs were not readily determinable (as in this case in which the insured paid an identifiable amount). Judge Luck concluded that New York law does not allow the court to rewrite the policy “to impose additional terms” under “the guise of interpretation.” Accordingly, the summary judgment was partially affirmed but was reversed with respect to the application of the limitation.
Fifth Circuit agreed that the district court properly excluded the opinions on specific causation of experts engaged by a cleanup worker in his suit claiming he suffered from chronic pansinusitis from work on the Macondo/DEEPWATER HORIZON spill, and accordingly the summary judgment in favor of BP was affirmed; Williams v. BP Exploration & Production, Inc., No. 24-60095, 2025 U.S. App. LEXIS 17074 (5th Cir. July 10, 2025) (Higginbotham).
Matthew Williams claimed that he suffered from chronic pansinusitis from exposure to oil and dispersants while performing oil spill response work in Mississippi after the Macondo/DEEPWATER HORIZON blowout. He brought this Back-End Litigation Option suit, and BP moved to exclude Williams’ proposed expert witnesses and for summary judgment based on failure to establish causation. Judge Guirola agreed that the opinions of Dr. Michael Freeman and Dr. James J.J. Clark should be stricken. Judge Guirola held that Dr. Freeman had not identified any reliable statistically significant association between oil spill response work and the chronic sinusitis from which Williams suffered. And, even if he had identified an association, he failed to explain how the guidelines for inferring causation from an association apply to the available evidence, providing only “vague, conclusory statements regarding the factors of specificity, temporality, plausibility, and coherence.” Therefore, Judge Guirola held that Dr. Freeman’s opinions on general causation did not satisfy the standards of Fed. R. Evid. 702 (he also held that Dr. Freeman’s opinion on specific causation was unreliable and inadmissible). Judge Guirola then addressed the opinions of Dr. Clark, which appeared to have been prepared for someone else because he mentioned a claimant with a different name in his discussion. Judge Guirola cautioned: “While typographical errors are understandable, one must beware of ‘cut and paste.’” Nonetheless, Judge Guirola found the opinions to be unreliable and inadmissible, and he excluded them. In the absence of expert evidence, Judge Guirola granted summary judgment to BP and dismissed the BELO suit with prejudice. See March 2024 Update.
Williams appealed to the Fifth Circuit, and Judge Higginbotham noted that the Fifth Circuit had applied the toxic tort standard for causation in a case claiming an injury allegedly caused by the Macondo/DEEPWATER HORIZON blowout, citing Prest v. BP (see November 2023 Update). Accordingly: “Sequence matters: a plaintiff must establish general causation before moving to specific causation. Without the predicate proof of general causation, the tort claim fails.” Williams argued that the court should apply the featherweight standard for causation in Jones Act cases, but Judge Higginbotham answered that the claim against BP did not arise under the Jones Act, and “‘[t]he reduced burden of establishing proximate cause in Jones Act cases is irrelevant’ to a holding that an expert’s testimony did not establish general or specific causation.” Although Judge Guirola held that Dr. Freeman’s opinions on both general causation and specific causation were unreliable, the Fifth Circuit declined to reach the reliability of his opinions on general causation because it affirmed the exclusion based on the unreliability of his opinions on specific causation. Dr. Freeman based his opinions on a differential etiology approach, citing 6 broad theories on the etiology for chronic pansinusitis and concluding: “Because Mr. Williams did not have any significant medical problems prior to his employment as part of the BPDWH oil spill response, the likelihood of any of these possible competing explanations is exceedingly small.” Judge Guirola found this to be unacceptable because Dr. Freeman “did not describe any attempts to evaluate whether any of the potential alternate causes he lists could have caused Williams’ pansinusitis, and there is no discussion of Williams’ subsequent work experience or home environment in Dr. Freeman’s report.” Judge Higginbotham did not find any abuse of discretion in the exclusion of Dr. Freeman’s opinion, explaining the failure to eliminate the possible causes to support the differential etiology approach: “After three sentences, and with zero analysis, the report concluded that Williams’ chronic pansinusitis must be due to his oil spill cleanup work.” Judge Higginbotham then agreed that Judge Guirola did not abuse his discretion in excluding the opinions of Dr. Clark on the ground that they appeared to have been prepared in part for another case and because they assumed benzene concentrations to be two times greater than they actually were. As there was no expert evidence to support the requirement for specific causation, Judge Higginbotham affirmed the grant of summary judgment.
Eleventh Circuit affirmed findings of fault on both the tug and owner of a sailboat whose mast was too tall to proceed under a bridge and struck a span of the bridge and affirmed the privity of the owner of the towing company for failing to ensure that the captain had ascertained the height of the mast; In re Jersey Shore Boat Towing & Salvage, Inc., No. 24-13009, 2025 U.S. App. LEXIS 17445 (11th Cir. July 15, 2025) (per curiam).
Abdel-Illah Zidal purchased the 30-foot sailboat ACTION that required extensive repair (it was incapable of moving on its own power and was not equipped with working electronics or a VHF radio). Zidal had “no clue” how sailboats worked. The boat was anchored on the Banana River in Brevard County, Florida, but it was set adrift after inclement weather snapped the anchor chain. The boat drifted to Mark Oakes’ dock in Merritt Island, Florida, where it grounded. After Zidal received a citation from the Florida Fish and Wildlife Conservation Commission for keeping the boat in a derelict condition, Zidal and Oakes sought towing services. Oakes contacted Charles Tharp, owner and manager of Absolute Boat Towing & Salvage to tow the sailboat to a marina just north of the Pineda Causeway (the boat would have to travel underneath the Causeway bridge on the Banana River). Absolute Boat used a 28-foot tug, ZODIAC, to tow the sailboat, and Tharp sent Captain Charles Nunn to operate the ZODIAC. Nunn knew that the clearance of the Causeway bridge was 43 feet, but he did not verify the height of the sailboat’s mast. Nunn stated that there is an industry rule-of-thumb to determine the height—multiply the length of the boat by one and a half. He then described the calculation: “I think that—if it’s a 27-foot boat, the number would work out to 48 feet, 6 inches, so—it’s well inside of the 43 feet of clearance of the Pineda Causeway” (described as “fuzzy math”). Nunn did not ask Zidal the height of the mast, but he did ask Zidal how his boat got to its location. Zidal said it came from the north, which indicated to Nunn that the boat had passed under the Causeway bridge. During the tow, Nunn was the sole crewmember of the tug, and Zidal was the sole crewmember of the sailboat. As the tow proceeded under the bridge, the mast struck the northern span of the bridge, and the boom swung and struck Zidal on the head. Absolute Boat, which bareboat chartered the ZODIAC, and Jersey Shore Boat Towing & Salvage, owner of the tug, brought this limitation action in Florida federal court, and Zidal filed a claim. The parties filed cross-motions for summary judgment with respect to liability and limitation, and Judge Berger held that a letter from Zidal to Absolute Towing advising that Zidal had sustained “personal injuries” while on the sailboat being towed by Absolute Boat was insufficient to trigger the six-month period to file the limitation action. Judge Berger held that Zidal was negligent for agreeing to take the helm in light of his inexperience and that the sailboat was unseaworthy. However, that negligence and unseaworthiness were not the sole proximate cause of his injury. Judge Berger held that the tug was at fault for failing to appreciate the risk of allision and making impermissible assumptions (“the unseaworthiness of the sailboat was so apparent that it was negligent for the Tug to attempt to proceed beneath the Pineda Causeway”). She added that the tug was acting as the dominant mind of the flotilla and should be held liable as such. Judge Berger also ruled that Tharp had privity because he did not require Nunn to ascertain the height of the mast before commencing the tow. Therefore, she dismissed the limitation action to the extent it sought to limit liability.
Absolute Boat appealed to the Eleventh Circuit, arguing that it was entitled to exoneration based on the unseaworthiness of the sailboat and application of the dominant mind doctrine and THE PENNSYLVANIA Rule. Absolute Boat also argued that Nunn’s negligence occurred outside of the privity or knowledge of Tharp. The Eleventh Circuit agreed with Judge Berger that Nunn was negligent in failing to verify the height of the mast before undertaking the voyage under a bridge known to have a clearance of 43 feet. His assumption that the sailboat had passed under the bridge because the boat “came from the north,” was not the same as being told that the boat had passed under the bridge. Absolute Boat also argued that Judge Berger erred in applying the dominant mind doctrine to the tug, as Zidal selected the destination and controlled the helm of the sailboat. The Eleventh Circuit disagreed, reasoning that Absolute Boat had not “overcome the presumption that a tug which tows her tow into an allision with a stationary object is presumptively at fault.” The appellate court also rejected the argument that the dominant mind doctrine is inapplicable because Zidal was not a third-party to the flotilla, calling the argument “meritless.” Additionally, the Eleventh Circuit agreed that Nunn’s violation of Inland Rule 7 (vessels shall use all appropriate means to determine if risk of collision exists) invoked THE PENNSYLVANIA Rule. Finally, the Eleventh Circuit agreed that Tharp could have discovered the unseaworthy condition of the sailboat with a reasonable inspection or inquiry and did not require Nunn to ascertain the height of the mast before the commencement of the tow, putting him in privity with the fault of Nunn.
Insurer’s declaratory judgment action was not ripe with respect to the duty to indemnify its insured for a parasailing accident but it was ripe with respect to the duty to indemnify (in connection with defenses to coverage based on watercraft exclusions); rescission claim (for misrepresentations) was separate from the policy defenses, and the District Court should reconsider its dismissal on abstention grounds; Nautilus Insurance Co. v. Captain Pip’s Holdings, LLC, No. 24-12440, 2025 U.S. App. LEXIS 18911 (11th Cir. July 29, 2025) (per curiam).
This insurance coverage litigation arises from a parasailing accident near Marathon, Florida. Daniel Couch and Tanner Helmers, employees of Captain Pip’s Holdings, were crewing the parasailing vessel, M/V AIRBORNE, when they lost control of the parasail due to deteriorating weather and untethered it from the vessel. The parasail dragged its passengers across the water and struck a bridge, resulting in one death and two injuries. Nautilus Insurance Co., which issued a commercial general liability policy and a commercial excess liability policy to Captain Pip’s Holdings, brought this suit in Florida federal court, seeking a declaratory judgment that it had no duty to defend the insured in the claims brought on behalf of the injured and deceased passengers based on the Watercraft Exclusion and Water-Related Recreational Equipment Exclusion in the policies. Nautilus also requested rescission of the policies based on material misrepresentations in the renewal application. Judge Martinez dismissed the complaint for lack of subject matter jurisdiction based on ripeness and abstention grounds, and Nautilus appealed. The Eleventh Circuit agreed with Judge Martinez that the issue of whether Nautilus owed indemnity under the policy was not ripe as there was no judgment in the underlying suit for injury/death. However, the appellate court disagreed with respect to the question of whether Nautilus was required to defend Captain Pip’s. Therefore, the Eleventh Circuit reversed the dismissal and remanded the case for consideration of the duty to defend. Judge Martinez dismissed the claim for rescission based on abstention. However, the abstention claim was not based on the watercraft exclusions. It was premised on misrepresentations that would void the policies. Therefore, Nautilus could seek rescission regardless of whether it had a duty to defend or indemnify. Accordingly, the Eleventh Circuit remanded the recission claim for proper analysis of abstention.
From the federal district courts
Judge in limitation action stayed order (pending appeal) granting summary judgment that the limitation action was untimely filed as there was also a third-party action in the federal suit that had not been dismissed; Judge declined to hold claimant in contempt for violating the monition because the dismissal was on appeal and it was unclear if the court was divested of authority pending the appeal; In re Genesis Marine, LLC, No. 24-cv-2881, 2025 U.S. Dist. LEXIS 91471 (E.D. La. May 14, 2025) (Brown).
On December 23, 2020, Brandon Darrow, a tankerman on the tug ANACONDA was injured while handling mooring lines at the Apex Oil Co. docking facility in Mt. Airy, Louisiana. Darrow brought suit in Louisiana state court against the owner of the tug, Genesis Marine, on December 23, 2021 (served on January 19, 2022). He filed a supplemental and amended petition on July 12, 2022 (served on July 18, 2022). Darrow did not include a specific statement of the amount of damages he was seeking in either petition, but Genesis stated in its answer: “[T]he amount of damages sued for in the Petition herein greatly exceeds the amount or value of Genesis’s interest in the M/V ANACONDA, and her freight then pending, if any; Genesis accordingly invokes the benefits of the provisions of the Revised Statutes of the United States of America and the acts amendatory thereof and supplementing thereto in limitation of the liability of shipowners.” On August 21, 2024, Darrow demanded that Genesis pay more than $20 million to settle the case, and Genesis filed this complaint for limitation of liability in federal court in Louisiana within six months thereafter (December 13, 2024), asserting that the value of the vessel was $12.5 million. Darrow filed an answer and claim in the limitation action and moved for summary judgment that the limitation action was not timely filed within six months of written notice of the claim. Chief Judge Brown reasoned that the six-month period is triggered by a notice that demonstrates a “reasonable possibility” that a claim will exceed the value of the interest of the petitioner in the vessel. Once a reasonable possibility is raised, the burden falls on the shipowner to conduct an investigation and file a limitation action, if necessary, within six months. Darrow argued that the statement in the answer filed in state court that the amount sought greatly exceeded the value Genesis’s interest in the vessel was a judicial admission. Genesis responded that it was a “boilerplate” affirmative defense and simply an allegation, not an admission. Chief Judge Brown did not have to decide whether there was a judicial admission, finding that there was a reasonable possibility the claim would result in damages in excess of $12.5 million (value of the vessel). More than six months before the limitation action was filed, medical evidence indicated that Darrow was permanently disabled after failed back surgeries that rendered him unable to be able to return to work. He had permanent spinal cord stimulators implanted, his lost wages were approximately $3.5 million, and his future medical expenses were in a range of $1.7 million. With the other elements of damages (past, present, and future mental and emotional pain and suffering and disability, as well as loss of enjoyment of life), there was a reasonable possibility of damages in excess of $12.5 million. Therefore, Chief Judge Bown granted summary judgment that the limitation action was not timely, and Genesis filed a notice of appeal on April 3, 2025. See June 2025 Update.
Chief Judge Brown did not enter a final judgment in the limitation action because Genesis also filed a third-party complaint against Petroleum Fuel and Terminal Co. As there was still a claim remaining against Petroleum Fuel, Genesis moved to stay all claims pending the appeal to the Fifth Circuit. Chief Judge Brown agreed that she should exercise her discretion to grant the stay, reasoning: “This Court has dismissed the limitation claim, and that ruling is currently on appeal. Therefore, it would be a waste of judicial resources to adjudicate the third-party claims at this point. If Genesis is successful on appeal, Darrow will be required to prosecute his own claim in this action, and all claims can then be adjudicated once without any repetitive discovery or other activity. Conversely, if Genesis’s appeal is not successful, all claims will be adjudicated in state court.” Genesis also asked the court to hold Darrow in contempt for violating the Monition for filing two motions in his state court action—seeking an expedited status conference to select a new trial date and requesting the resetting of a hearing for pre-trial motions. Darrow argued that there was no contempt because the court dismissed the limitation action; however, Chief Judge Brown noted that the order was not final, and no one had asked the court to enter a partial judgment under Rule 54(b). There was also a procedural conundrum. If the order granting summary judgment is an appealable order under Section 1292(a)(3), then “the appeal divests the district court of jurisdiction ‘over those aspects of the case on appeal.’” Chief Judge Brown declined to hold Darrow in contempt and stayed the limitation action pending appeal.
District court awarded attorney fees to marina after appellate court affirmed judgment against vessel owner for repairs; Naval Logistics, Inc. v. M/V FAMILY TIME, No. 1:23-cv-22379, 2025 U.S. Dist. LEXIS 92825 (S.D. Fla. May 15, 2025) (Lett), recommendations adopted sub nom. Naval Logistic, Inc. v. M/V FAMILY TIME, 2025 U.S. Dist. LEXIS 124861 (S.D. Fla. July 1, 2025) (Scola).
Naval Logistic (d/b/a Middle Point Marina) [the case was docketed in the Eleventh Circuit with the name “Naval Logistics” based on the notice of appeal filed by Vilenchik and the M/V FAMILY TIME] brought this action in federal court in Florida on June 27, 2023 to enforce a maritime lien for repairs to the vessel M/V FAMILY TIME, owned by Commercial Holdings Group, whose principal is Andrew Vilenchik. The dispute centered on whether the vessel’s condition was worse than what was disclosed, necessitating additional repairs. The vessel was arrested on September 7, 2023, and Middle Point Marina was appointed substitute custodian. Vilenchik appeared and sought reconsideration of the appointment of the marina as substitute custodian (and return of custody of the vessel to the U.S. Marshal), arguing that the marina had caused damage to the vessel and was not an appropriate custodian. Judge Scola noted that the courts routinely appoint substitute custodians on an ex parte basis based on allegations that the custodian has experience caring for vessels and acting as a substitute custodian. In this case the marina made the proper allegations and provided the required indemnification. Judge Scola was not persuaded that the owner’s concerns for the fate of its vessel in the marina’s hands were well-founded, as the marina had the incentive to preserve the vessel to protect its own recovery. Therefore, he declined to reconsider his order appointing the marina as substitute custodian. See December 2023 Update.
On January 9, 2024, Middle Point Marina filed a motion for an interlocutory sale of the vessel, arguing that the costs of storage and maintenance were disproportionate to the value of the vessel and that the owner had unreasonably delayed in securing the release of the vessel. The marina stated that the vessel was incurring storage charges of $135 per day, and the amount that had accrued by February 2, 2024 was $23,704.79, excluding the salvage claim for saving the vessel from a maritime peril. The marina argued that two of the three grounds for an interlocutory sale under Rule E(9) were satisfied because almost six months had passed since the arrest on September 7, 2023 (longer than the four months usually considered to be sufficient) and because the expenses were disproportionate to the value of the vessel (estimated to have a value between $50,000 and $99,000). The owner did not offer an explanation for the delay, and Judge Scola held that the sale was warranted by the unreasonable delay. Although one of the conditions in Rule E(9) was sufficient, Judge Scola also addressed the argument that the expenses were disproportionate. The owner disputed the marina’s evidence, but it did not argue that the vessel was worth more than $100,000. Weighing the cost of storage against the value of the vessel, even at the high range of the marina’s estimate, Judge Scola concluded that an interlocutory sale was justified. Finally, the owner argued that the interlocutory sale would prejudice the counterclaim that it recently sought to file. Judge Scola responded that the interlocutory sale was merely a substitution of the proceeds of sale for the vessel and would not prejudice the counterclaim. Therefore, Judge Scola ordered the interlocutory sale of the vessel. See April 2024 Update.
The parties then filed cross-motions for summary judgment on the merits. Middle Point Marina argued that it notified Vilenchik that he would have to remove the vessel after he refused to approve the revised estimates for the cost of additional repairs, and the failure to remove the vessel was a breach of the Agreement for which storage charges were owed. Vilenchik argued that he created a fact question on Middle Point Marina’s contract claim because he submitted an affidavit in which he argued that Middle Point Marina had caused damage to the vessel. Judge Scola answered that the claims made by Vilenchik were not responsive to the claim that Middle Point Marina provided necessaries (storage) for the vessel and that Vilenchik breached the contract by failing to remove the vessel. Vilenchik also argued that Middle Point Marina had not refuted the affirmative defenses raised by Vilenchik in the answer, but Judge Scola responded that the defendant, not the plaintiff, has the burden of proof with respect to affirmative defenses. Therefore, Judge Scola granted Middle Point Marina’s motion for summary judgment, but he deferred ruling on the amount of damages, costs, and attorney fees until the conclusion of the case. Vilenchik moved for summary judgment that he was not individually liable as the principal of the vessel owner, Commercial Holdings Group. However, Judge Scola noted that Vilenchik had signed the Shipyard Agreement and placed his name on the line marked “Owner.” Additionally, Middle Point Marina disputed whether Vilenchik ever mentioned that Commercial Holdings Group was the owner. Therefore, Judge Scola denied Vilenchik’s motion. See September 2024 Update.
Vilenchik moved for reconsideration on the granting of summary judgment to Middle Point Marina, arguing that there was a fact issue whether Vilenchik represented himself as owner of the vessel so as to be a proper defendant. Judge Scola responded that the argument was arguably waived by the failure to raise it in opposition to the motion for summary judgment. However, Judge Scola reiterated that Vilenchik had signed the agreement and placed his name on the line marked “Owner,” which warranted granting of the motion for summary judgment. Although Vilenchik submitted an affidavit disputing ownership of the vessel, Judge Scola did not believe that the affidavit, standing alone, was probative evidence that would rebut the decision on the motion for summary judgment. Therefore, he declined to grant reconsideration. As the parties stipulated to the damages, Judge Scola granted a final judgment in favor of Middle Point Marina for pre-arrest storage fees, custodia legis expenses, arrest costs, and attorney fees and costs. See October 2024 Update.
The defendants filed a notice of appeal to the Eleventh Circuit on September 27, 2024, and the defendants moved for a stay pending appeal. The defendants argued that Middle Point Marina did not need a bond from the defendants because it had the vessel in its possession, having bought the vessel with a value between $50,000 and $99,000 for $100, and the value of the vessel was more than the judgment for $40,437.30. Judge Scola, however, did not believe that the defendants’ argument provided a basis for dispensing with the ordinary requirement for the posting of a bond unless the defendant establishes his ability to satisfy the judgment and maintain that degree of solvency during the appeal. Therefore, he addressed the amount that should be required for the bond. Middle Point Marina argued that the bond should be at least $275,000, claiming that attorney fees and costs for the appeal would be at least $100,000, but Judge Scola noted the local rule that security to stay execution should be in the amount of 110% of the judgment. As the defendants offered a bond of 125%, Judge Scola agreed to stay execution of judgment (and post-judgment discovery) upon the posting of a bond of $50,535.38 (rejecting the addition of conditions, such as the requirement that the defendants not dissipate assets, as the bond was sufficient). Judge Scola also rejected, on December 17, 2024, Middle Point Marina’s motion for reconsideration, arguing that the bond should include the attorney fees it was seeking, claiming that $94,669.61 was uncontested and that the fees on appeal should also be included. As Judge Scola had previously declined to include attorney fees in the bond, he denied the request for rehearing. See February 2025 Update.
The Eleventh Circuit succinctly summarized the issues in the appeal. “When a marina furnishes services to a vessel—dockage, inspections, or repairs—and the vessel’s owner fails to pay or retrieve the vessel, the law affords a straightforward solution. The marina may assert a maritime lien, arrest the vessel, and, if necessary, seek judicial approval to sell it. This case follows that path.” In this case, the marina performed services for the vessel, received no payment, and “turned to the courts for recourse.” Judge Scola authorized the marina to serve as custodian, approved the sale so as to mitigate continued charges, and granted summary judgment to enforce the lien. The Eleventh Circuit affirmed all three rulings. The appellate court first held that the marina established that it had a maritime lien for dockage and inspection services, which are “clearly ‘necessaries.’” Although Vilenchik argued that the marina damaged his vessel, the Eleventh Circuit answered that this claim would not invalidate the lien and could be pursued as a counterclaim or in a separate action. The vessel’s request to file a counterclaim was denied by Judge Scola as untimely, and the appellate court found no abuse of discretion in that decision. The Eleventh Circuit also rejected Vilenchik’s argument that he was not the vessel’s true owner and did not authorize the services, reasoning that he delivered the vessel to the marina, signed the Shipyard Agreement identifying himself as the owner, and remained the sole point of contract throughout the dealings, which was sufficient to establish his apparent authority to create the lien. Vilenchik also objected to the appointment of the marina as substitute custodian. The appellate court noted that, in order to qualify, the “proposed custodian must accept full responsibility, carry appropriate insurance, and agree to hold the United States and the Marshal harmless from any liability arising during the custody.” The marina satisfied those conditions, and Vilenchik did not identify any specific risk, conflict, or inadequacy in the marina’s qualifications. Therefore, there was no error in the appointment of the marina as substitute custodian. Finally, the Eleventh Circuit addressed Judge Scola’s decision to order an interlocutory sale, agreeing that all of the factors set forth in Rule E(9) were satisfied. The marina had incurred over $25,000 in storage fees, and Vilenchik had not posted a bond or sought to recover the vessel. The appellate court explained: “Courts are not required to let storage costs accumulate indefinitely in the hope that the owner might eventually act.” The Eleventh Circuit concluded: “Federal maritime law provides a clear and orderly process for enforcing liens and resolving disputes involving vessels. The District Court followed that process.” As each decision of Judge Scola “was grounded in the record and consistent with established legal principles,” the court of appeals affirmed the decisions. See July 2025 Update
Back in the district court, Middle Point Marina requested an award of attorney fees in the amount of $125,952.50 and costs in the amount of $2,494.61, based on the provision in the original agreement that Middle Point Marina was entitled to reasonable attorney fees from the owner if it engaged an attorney to collect any unpaid invoices. Middle Point Marina sought fees at the rates of $450 and $425 per hour for partners and $300 per hour for associates, and Magistrate Judge Lett agreed that the rates were reasonable. The defendants disputed 80.1 hours of time as excessive, vague, and duplicative, and Magistrate Judge Lett agreed to a “modest flat rate cut of approximately 20 hours of associate time and 10 hours of partner time as excessive or vague. Magistrate Judge Lett denied the request for a reduction based on duplicative entries, agreeing with Middle Point Marina that “it is commonplace for associates to have their work reviewed by senior attorneys, and multiple attorneys working on a particular matter does not strike the Court as excessive in billing, particularly when only accounting for fewer than six total hours of billing between two attorneys.” Therefore, Magistrate Judge Lett recommended fees be awarded of $115,702.50 plus costs/expenses of $2,494.61 (a total of $118,197.11). The defendants objected, and Judge Scola agreed that having “multiple attorneys billing for the same matter is not inherently duplicative.” Although the defendants emphasized two particular time entries, Judge Scola agreed with the across-the-board cut. Finally, after Vilenchik’s counsel withdrew, Vilenchik filed an untimely objection. Judge Scola noted that the objections failed on the merits. He rejected the argument that it was the improper arrest of the vessel that “created a self-inflicted dispute,” citing the affirmance of the arrest and sale by the Eleventh Circuit. Judge Scola also rejected the argument that Middle Point Marina’s counsel improperly billed for post-judgment collection and discovery abuse, stating that Middle Point Marina was only seeking proper post-judgment information. Accordingly, Judge Scola awarded fees and expenses in the amount of $118,197.11.
Passenger failed to sufficiently plead notice to the cruise line of the overcrowded conditions on a ferry, but the passenger was allowed to replead an agency theory with the excursion/tour operator; Buesking v. Princess Cruise Lines, Ltd., No. 2:24-cv-4935, 2025 U.S. Dist. LEXIS 93356 (C.D. Cal. May 15, 2025) (Almadani).
Daryel Buesking, a passenger on the ENCHANTED PRINCESS, was injured during an excursion from Naples, Italy to the island of Capri when he tripped over an obstacle on the ferry (believed to be a bulkhead door threshold). Asserting that the ferry was overcrowded with passengers who were instructed to board at the same time in a chaotic process, Buesking brought this suit in federal court in California against the cruise line, the excursion operator, and the on-site tour operator. His complaint alleged three causes of action against the cruise line, general negligence, negligent failure to warn, and agency liability for the negligence of the excursion operator. The cruise line moved to dismiss the allegations against it, first arguing that the Passage Ticket Contract contained a provision disclaiming liability for shore excursions. The cruise line argued that the Contract was incorporated into the complaint because the complaint alleged that the action was brought in federal court in accordance with the forum-selection clause of the Contract. Judge Almadani disagreed, reasoning that the contract was not required for the passenger to state a claim for negligence for breach of a duty owed to a passenger and noting that it was the cruise line which submitted the terms of the Contract as a defense. Judge Almadani added that the Contract was not authenticated. Accordingly, she declined to dismiss the complaint based on the shore-excursion liability disclaimer in the Contract. The cruise line also moved to dismiss the allegations of general negligence and failure to warn on the ground that the complaint failed to allege facts establishing that the cruise line should have known that the ferry would be unreasonably crowded or that there was an unreasonably dangerous unmarked threshold on the ferry. Judge Almadani agreed that the cruise line’s knowledge of the number of passengers on the excursion from its sale of tickets did not establish knowledge of the cruise line of overcrowding as there was no notice of the capacity of the ferry or the number of passengers from the general public. Judge Almadani also did not find notice from the initial approval process for the excursion and annual inspections as the facts did not correspond to the particular ferry or the date and conditions of this particular trip. She explained: “The incident alleged here involved a variable condition at an excursion location. This distinction matters because the former context requires more factual content than the latter to support a reasonable inference of actual or constructive notice.” Similarly, Judge Almadani found insufficient notice of the risk of the unmarked threshold, reasoning that the passenger would need to allege facts to support the inference that the cruise line undertook “the duty to structurally inspect for every conceivable hazard on every conceivable means of conveyance that the tour operator might have used to transport tour participants to the island of Capri.” Therefore, Judge Almadani dismissed the counts involving negligence and failure to warn, but allowed Buesking leave to amend. See April 2025 Update.
Buesking added allegations related to the cruise line’s notice of the overcrowding conditions, and the cruise line moved to dismiss the amended complaint, arguing that Buesking still failed to plausibly allege that the cruise line had notice of the overcrowding. Although Buesking alleged that the initial approval process of the tour and yearly inspections should have discovered the crowded conditions, Judge Almadani found too many logical gaps in the theory to support an inference that the same or similar overcrowding that caused the injury in this case existed during prior inspections. Buesking also argued that because the cruise line was in privity with the tour, it should have known of the exact number of planned passengers on the ferry; however, Judge Almadani responded that the tour operator was a purchaser of tickets and had no reason to know the total number of passengers on the ferry. Buesking argued that the cruise line’s website advice to passengers that the boarding area in Capri could be busy and that it would vary the tour times to avoid overcrowding reflected notice to the cruise line that the ferry would be overcrowded. However, Buesking was injured while aboard the ferry in Naples, not at the boarding area in Capri. Judge Almadani reasoned that knowledge that Capri is a popular and crowded ferry destination does not show that the cruise line knew that the ferry to Capri would be overcrowded. Similarly, customer reviews complaining of the congested conditions on Capri did not give notice of the conditions on the ferry to the island. Finally, Buesking alleged that the tour operator and excursion operator were agents of the cruise line so that their negligence would be imputed to the cruise line. The problem with that theory was that Buesking did not prove notice on the part of the agents. Therefore, there was no negligence to impute to the cruise line. Accordingly, Judge Almadani again dismissed the complaint. The dismissal was with prejudice except that she allowed Buesking an opportunity to correct the deficiency with respect to the agency claim. Buesking filed a notice appeal from the dismissal on June 5, 2025.
Judge dismissed seaman’s claims for maintenance and cure and failure to pay maintenance and cure with prejudice as there was no outstanding amount owed for maintenance and cure and the seaman could bring another suit if a dispute arose in the future; the Judge also dismissed with prejudice the seaman’s damage claims in his Jones Act negligence and unseaworthiness claims seeking to recover for non-physical injuries, including mental and emotional pain and suffering and loss of society (but not physical pain and suffering); Hudson v. Diamond Offshore Management Co., No. 2:24-cv-1240, 2025 U.S. Dist. LEXIS 93578 (E.D. La. May 15, 2025) (Milazzo).
Olen Hudson, an employee of Diamond Offshore Management Co., was injured on the M/V OCEAN BLACKHORNET when a wooden platform onto which he was stepping broke from underneath him. Hudson brought suit against Diamond Offshore in federal court in Louisiana as a seaman under the Jones Act and general maritime law, and Diamond Offshore moved for partial summary judgment on Hudson’s claims for denial of maintenance and cure, enhanced damages stemming from the alleged denial of maintenance and cure, and non-pecuniary damages on the Jones Act negligence and unseaworthiness counts. With respect to the claims for denial of maintenance and cure and enhanced damages from failing to provide maintenance and cure, Diamond Offshore argued that it had fully paid maintenance and cure and there was no outstanding obligation. Hudson did not dispute that there was no outstanding amount owed; however, he argued that the dismissal should be without prejudice because there could be a future dispute. Judge Milazzo explained that a seaman may bring multiple suits for maintenance and cure, so the dismissal would not bar him from bringing another suit for maintenance and cure if a dispute arose in the future. Therefore, she dismissed the maintenance and cure claims with prejudice. Turning to the issue as to the damages recoverable on the claims for Jones Act negligence and unseaworthiness, Judge Milazzo distinguished the claims for pain and suffering, which are recoverable, and the claims for loss of enjoyment of life, mental anguish/emotional pain and suffering, loss of consortium, and punitive damages, which are not recoverable. Consequently, she dismissed with prejudice the claims for non-physical injuries, including past, present, and future mental and emotional pain and suffering and any other non-pecuniary damages.
Passenger failed to establish notice of dangerous condition of water on the deck at the Mega Dance Party on the Lido Deck of the cruise ship when she could not state how long the water had been present and when the 53 prior slip-and-fall accidents were not sufficiently similar; Ohanlon v. Carnival Corp., No. 1:24-cv-20773 2025 U.S. Dist. LEXIS 122401 (S.D. Fla. May 16, 2025) (Martinez).
Danielle Ohanlon, a passenger on the CARNIVAL SUNSHINE, slipped and fell on a slippery substance on the deck that she believed to be water, while dancing at the Mega Deck Party on the Lido Deck of the vessel. Ohanlon did not realize the floor was wet until she had to crawl to get through the crowd after her fall, and she did not know where the substance came from or how long the substance was on the deck before her fall. Ohanlon brought this suit in federal court in Florida, alleging claims for negligent maintenance, negligent failure to correct, and negligent failure to warn. The cruise line moved for summary judgment, arguing that there was no evidence of a dangerous condition, no evidence of notice of the dangerous condition, and that there was no duty to warn as the condition was open and obvious. Judge Martinez only addressed the lack of notice as there was no evidence establishing how long the substance was present on the deck prior to Ohanlon’s fall. Although the cruise line disclosed 53 prior incidents (on the SUNSHINE and its sister-class ships) of slips and falls on the exterior areas of the Lido Deck, only one involved a passenger slipping while dancing, and that incident was almost five years before Ohanlon’s fall. Therefore, Judge Martinez did not believe that the cruise line was on notice of a dangerous condition, and he granted summary judgment to the cruise line. Ohanlon filed a notice of appeal on June 20, 2025.
Judge agreed that attachment of bank accounts was proper for costs incurred by the time charterer when the tariff increased while the vessel stayed offshore because the voyage charterer failed to timely pay the charter hire, but the judge reduced the amount of security because it may be years before the vessel interest had to pay the cargo receiver; Bunge S.A. v. Xcoal Energy & Resources, No. 4:25-cv-1339, 2025 U.S. Dist. LEXIS 94666 (S.D. Tex. May 19, 2025) (Rosenthal).
Bunge time chartered the MV MAPLE WISDOM from Maple Leaf Bulk Carriers for a 26- to 30-month period beginning in 2024 and then voyage chartered the vessel to Xcoal Energy to carry a cargo of approximately 80,000 metric tons of bulk coal for a voyage from Norfolk, Virginia, to a discharge port in China. The voyage charter contained a clause on initial freight payment: “100% freight and any undisputed load port demurrage due latest before breaking bulk at the discharge port.” 79,650 metric tons of coal were loaded on the vessel in Norfolk, and the original discharge port was identified as Tianjin. Bunge sent an invoice to Xcoal in the amount of $2,532,031.60, but Xcoal changed the discharge port several times and advised that it would pay the invoice closer to the estimated arrival date. Eventually, Xcoal named Zhanjiang as the final discharge port, and Bunge advised that the vessel was scheduled to arrive on February 8, 2025 and demanded payment by February 7 or the master would be instructed to keep the vessel outside of the Chinese territorial sea. The vessel remained offshore until March 3, 2025, when Xcoal paid the freight and demurrage in the amount of $2,835,994.40. During the period that the vessel remained offshore while Bunge awaited payment, China imposed an additional 15% tariff on coal imported from the United States. When the vessel arrived, the cargo receivers arrested the vessel to obtain security for the additional 15% tariff. The vessel was released for security in the amount of $2,480,896 in the form of a letter of undertaking from Gard P&I. The voyage charter contains a New York arbitration clause, and Bunge brought this suit in federal court in Texas against Xcoal, seeking more than $3 million in security for the arbitration (including the security for the release of the vessel and losses resulting from the arrest of the vessel). The suit was brought as a Rule B attachment proceeding against Xcoal’s accounts at PNC bank. Judge Rosenthal ordered the issuance of the writ of attachment and held a hearing on Xcoal’s motion to vacate the writ. Judge Rosenthal ruled that Bunge had stated a prima facie case for breach of the voyage charter, and Xcoal responded that Bunge was actually seeking indemnity from Xcoal for the claims of the cargo receivers, which was a contingent claim as there was no final judgment or settlement of that claim. That did not affect Judge Rosenthal’s conclusion that Bunge had brought a claim for breach of contract: “The fact that damages are contingent does not convert a contract claim into an indemnity claim.” She added: “Bunge’s claim is not based on breach of an indemnity obligation; it is based on Xcoal’s failure to timely pay, in violation of the freight-payment clause.” Judge Rosenthal did agree with Xcoal that the amount of the security should be reduced based on equitable considerations. There was uncertainty when, if ever, Bunge might be liable for the $2 million letter of undertaking. Accordingly, Judge Rosenthal concluded that the security should include the hire and fuel expenses incurred from the delay, half of the security posted for the release, and a reasonable estimate of costs and interest. Thus, she reduced the security from $3,689,696 to $2,094,848.
Whether the presence of an osprey nest on the vessel that prevented towing of the vessel and led to the cancellation of the towage contract for the time being resulted in a breach of the contract could not be decided on motions for summary judgment; Signet Maritime Corp. v. International Shipbreaking Ltd., No. 4:25-cv-2904, 2025 U.S. Dist. LEXIS 95644 (S.D. Tex. May 20, 2025) (Rosenthal).
International Shipbreaking hired Signet Maritime to tow a decommissioned aircraft carrier, JOHN F. KENNEDY, from Philadelphia, Pennsylvania to International Shipbreaking’s yard in Brownsville to be dismantled. The parties agreed that Signet would deliver the vessel between May 29, 2024 and June 5, 2024. On May 24, 2024, a Navy representative informed International Shipbreaking that an active osprey nest had been found on the aircraft carrier, and the vessel could not be moved under the Migratory Bird Treaty Act. International Shipbreaking cancelled the tow “for the time being.” In September 2024, the Navy advised that the ospreys were no longer present and that the vessel could be towed. International Shipbreaking approached Signet about towing the vessel, but, ultimately, International Shipbreaking contracted with another company to tow the vessel. Signet then brought this suit against International Shipbreaking in federal court in Texas for breach of contract. Signet argued that that the contract was a “hell or high water” contract that could not be cancelled and sought the lump sum of $1,835,970. The parties filed cross-motions for summary judgment, and Judge Rosenthal noted that the tow was non-cancellable and that Signet had begun to perform by mobilizing its tug to tow the vessel. Signet argued that the performance was temporarily precluded, but that International Shipbreaking could still have upheld its end of the bargain by allowing the tow to move forward once the ospreys left; however, International Shipbreaking breached the contract by cancelling it in its entirety when it became clear that the tow could not occur for several months. International Shipbreaking responded that the Navy still controlled and directed the work under its contract and that International Shipbreaking contacted Signet about towing the vessel after the ospreys migrated from the ship. However, Signet could no longer tow the contract with a single tug as previously agreed and needed multiple tugs. The Navy declined to approve the two-tug proposal, and International Shipbreaking had to contract another towing company and pay double the price. With this record, Judge Rosenthal found multiple fact disputes that required denial of the motions for summary judgment.
Insurer that issued payment bond for the obligations of dredging company LaQuay and that settled with Great Lakes (which chartered vessels to the dredging company) after LaQuay failed to pay charter hire, was authorized to settle any claims by LaQuay against Great Lakes pursuant to the indemnity agreement entered into between the insurer and LaQuay that assigned LaQuay’s rights to the insurer in the event of default; T.W. LaQuay Marine, LLC v. Great Lakes Dredge & Dock Co., No. 1:21-cv-1221, 2025 U.S. Dist. LEXIS 96183 (N.D. Ill. May 20, 2025) (Cummings).
T.W. LaQuay Marine contracted with the Army Corps of Engineers to perform pipeline dredging work in Cameron County, Texas, and Travelers issued a payment bond to secure LaQuay’s obligations under the project. LaQuay entered into a bareboat charter with Great Lakes Dredge & Dock Co. to use its dredging vessels for the project, and Great Lakes sent LaQuay a notice of default for failing to meet the payment obligations a few months later. Eventually, Great Lakes filed a formal claim against the payment bond; LaQuay filed a suit against Great Lakes in the United Stated District Court for the Southern District of Texas; and Great Lakes brought this suit in the United States District Court for the Northern District of Illinois against LaQuay and Travelers. The Texas suit was transferred to the Northern District of Illinois (in accordance with a forum-selection clause) and was consolidated with the suit filed in Illinois. Travelers approached Great Lakes to discuss settlement of Great Lakes’ claims against the payment bond and LaQuay, and Travelers and Great Lakes entered into a settlement by which Great Lakes’ claims against Travelers and LaQuay and LaQuay’s claims against Great Lakes were settled and released. Great Lakes then moved for summary judgment, arguing that the claims asserted by LaQuay against it had been settled, but LaQuay argued that Travelers did not have authority to settle the claims. Great Lakes cited the General Agreement of Indemnity between Travelers and LaQuay under which LaQuay assigned all of its rights in the event of default to Travelers; that gave Travelers the sole right to prosecute any claim in the name of LaQuay; and that designated Travelers as the attorney-in-fact for LaQuay. LaQuay argued that the assignment provision was not triggered and that Travelers did not have authority to settle the tort claims brought by LaQuay. Judge Cummings found no ambiguity in the provisions of the indemnity agreement, and he declined to read implied terms into the agreement requiring notice to LaQuay of its intent to settle or to require a judicial determination of default. Accordingly, he granted summary judgment to Great Lakes.
Judge declined to grant a new trial and granted nominal costs to the defendant after ruling that a seaman failed to prove Jones Act negligence or unseaworthiness; Merced v. United States, No. 3:22-cv-1160, 2025 U.S. Dist. LEXIS 96780 (D. Ore. May 21, 2025) (Immergut).
Jaime Merced was injured while working as a seaman on the SS PACIFIC TRACKER, owned by the United States, while the vessel was moored in Portland, Oregon. Merced’s supervisor, Bosun Kevin Kellum, placed a portable A-frame ladder on the right side of the fixed ladder, so that Merced could tighten the bolts securing a cover plate on top of a vent. Merced, who was standing on the fixed ladder, encountered difficulty with one of the bolts. Kellum told Merced to stop work and to take his morning coffee break. Kellum walked away, and Merced continued working briefly and then stepped onto the portable ladder. The portable ladder fell over, and Merced fell to the deck. Merced brought this suit in federal court in Oregon against the United States under the Jones Act and general maritime law (unseaworthiness and maintenance and cure), and the United States moved for summary judgment on the claims for negligence and unseaworthiness. The United States argued that Merced unexpectedly side-stepped to the portable ladder that he knew was unsupported and unsecured. Merced answered that he did not know the portable ladder was unsecured and that Kellum should have been holding the ladder when Merced attempted to thread one more bolt. The United States objected to Merced’s “sham” declaration that he and his co-workers always tied off the step ladder and did not hold it for each other when working on the vents, citing his deposition testimony that “somebody has to be there holding it.” Judge Immergut did not find the contradictions to be sufficiently clear and unambiguous to apply the sham affidavit rule, and she concluded that there were fact disputes with respect to negligence and unseaworthiness (inappropriate footpads on the ladder for the deck surface). The United States also argued that Merced acted recklessly by side-stepping to the portable ladder, and this act was a superseding cause that should cut off any liability for negligence and unseaworthiness. Merced argued that the doctrine of superseding cause only applies to intervening acts of third parties, but Judge Immergut disagreed and held that Merced’s conduct could be a superseding cause. However, Judge Immergut explained that the doctrine applies where the injury was brought about by a later cause of independent origin that was not foreseeable. She answered that Merced’s alleged negligence did not operate independently of the negligence of the United States, and Merced’s acts were not so unforeseeable as to create a break in the chain of causation. Rather, the actions of the parties reflected a situation of comparative fault. The United States also moved for summary judgment on Merced’s claim for maintenance and cure, citing the joint statement of agreed facts that Merced had reached maximum medical improvement and that the United States had paid for all related medical expenses. Although Merced responded to the motion with a contention that he had not reached maximum recovery, Judge Immergut held him to his stipulation and granted summary judgment. Finally, the United States sought to strike the opinions of Merced’s marine safety expert, Captain Pinetti, with respect to the use and function of ladders, arguing that the opinions were a matter of common knowledge. Judge Immergut declined to exclude the testimony, reasoning that appropriate types of ladders, securing of ladders, and methods of movement between ladders are not common knowledge. She also held that failure to consider all facts and reliance on disputed facts were not reasons to exclude the testimony and were better left for cross-examination. See November 2024 Update.
The claims for Jones Act negligence and unseaworthiness were tried to the bench, and Judge Immergut resolved the factual disputes by finding that Merced was not credible when he testified that side-stepping to the portable ladder was a routine practice aboard the vessel. She found credible the testimony of crewmembers that there was no established work practice of standing with one foot on the fixed ladder and one foot on the portable ladder while working on the vent top. She concluded that the United States did not breach a duty to provide a safe place to work because the portable ladder was not placed in a position to allow sidestepping to the ladder (but was placed in position to be used later in the day to screw in the bolts that could not be reached from the fixed ladder). Similarly, Judge Immergut found that no work methods were unseaworthy, and that no equipment or condition was unseaworthy. Therefore, there was no negligence or unseaworthiness. See June 2025 Update.
Merced filed a motion for a new trial, and the United States filed a bill of costs, seeking recovery of $45,865.36. Merced objected to the bill of costs, citing his limited financial resources. To support the motion for a new trial, Merced identified what he claimed were three undisputed facts that required a verdict in his favor. Judge Immergut answered that Merced’s contentions were largely raised at trial and addressed in the Findings of Fact and Conclusions of Law. As Merced did not identify any manifest error of law or fact, Judge Immergut denied the motion for a new trial. With respect to Merced’s claim of indigency so as to rebut the presumption in favor of awarding costs, the United States argued that the evidence established that Merced could earn $58,000 per year as a merchant seaman and that Merced’s experts testified that he was capable of earning at least $35,000 per year. The United States ascribed Merced’s financial situation “primarily to his failure to search for work.” Judge Immergut appreciated the point that Merced’s “financial situation is, in part, of his own making,” and he noted: “This Court is generally not inclined to decline to award costs when a plaintiff has failed to secure gainful employment despite being able to do so.” However, in this case, the equities weighed in favor of a nominal award. Judge Immergut cited the “stark contrast” between the financial resources of Merced and the United States, noting that Merced is the father of four children, three of whom are under the age of 18. His wife makes approximately $3000 a month stocking shelves at Walmart. Assuming he could earn $35,000 per year, the total annual household income for a family of 5 would be $74,000. Thus, an award of $45,865.36, approximately 15 months of income, would be inequitable. Considering Merced’s “limited financial resources, the economic disparity between the parties, and the closeness of the issues,” Judge Immergut reduced the bill of costs to $100.
Exculpatory cap of $500,000 in ship repair contract did not conflict with exclusion for consequential and economic losses and applied to the claim of vicarious liability against the ship repairer for damage during a tow from one side of the marina to the other; In re Port Everglades Launch Service, Inc., No. 0:23-cv-62315, 2025 U.S. Dist. LEXIS 123139 (S.D. Fla. May 22, 2025) (Dimitrouleas).
The SELAH, a 116-foot Azimut motor-yacht owned by DWB Asset Management and insured by Accelerant Specialty, was brought to Bradford Marine’s facility in Fort Lauderdale for repair. Bradford Marine engaged Cape Ann Towing to tow the SELAH from its berth on one side of the marina to a travel lift on the other side. While en route, the vessel began to take on water and suffered damage. Cape Ann Towing brought this limitation action in federal court in Florida, seeking to limit liability for the two towing vessels that were involved in the towing. DWB Asset Management and Accelerant Specialty, subrogee of DWB Asset Management, brought claims in the limitation action based on negligence and breach of the warranty of workmanlike service. The claimants also brought a third-party claim against Bradford Marine for negligence, breach of the warranty of workmanlike service, and vicarious liability. Bradford Marine moved for partial summary judgment, arguing that its liability was capped at $500,000 pursuant to the exculpatory clause in the Dockage and Repair Contract with DWB Asset Management. The claimants argued that the exculpatory clause was ambiguous because it conflicted with the provision that Bradford Marine was not liable for any economic losses or consequential damages: “if Bradford disclaims all consequential and economic damages, they argue, there is little or nothing left to apply toward the purported $500,000 limit, rendering the cap illusory.” Bradford answered that the contract differentiated between direct damages and consequential damages, excluding consequential damages and capping liability for direct damages, such as the cost of repair. Judge Dimitrouleas agreed with Bradford Marine, reasoning that to find an ambiguity, “there must be a genuine inconsistency or uncertainty in meaning.” Applying ordinary rules of construction, the clauses could be given meaning with no ambiguity. The claimants also argued that the exculpatory cap did not apply to the towage as the limitation only applied to “liability under this agreement.” Judge Dimitrouleas disagreed, reasoning that the liability was capped for “any theory of recovery, which encompassed all three causes of liability asserted, including the claim for vicarious liability. Therefore, he held that the liability of Bradford Marine was capped at $500,000.
Subcontract work on the construction of a cruise ship was not performed on a fixed-price basis, and the subcontractor was entitled to seek damages against the shipyard for additional work and delays and to pursue extracontractual claims, except for unjust enrichment; LaShip, LLC v. Jamestown Metal Marine Sales, Inc., No. 2:23-cv-6815, 2025 U.S. Dist. LEXIS 98406 (E.D. La. May 23, 2025) (Barbier).
Judge Barbier, who has presided over many disputes involving ship repair and construction in 27 years on the federal bench, summarized this case: “Buying a car means driving off the lot with confidence; building a vessel means finally setting sail—only to discover the ‘finished’ product is still a work in progress.” The dispute in this case is between shipbuilder, LaShip, and one of its subcontractors, Jamestown Metal, in connection with the construction of the VIKING MISSISSIPPI. River 1 entered into a time charter with Viking USA to charter a luxury cruise liner that Viking USA would operate on the Mississippi River. River 1 contracted with LaShip to build the vessel, with a required delivery in July 2022 (with a bonus for early delivery). LaShip subcontracted with Jamestown Metal to supply and install passenger cabins for the construction in Houma, Louisiana, based on the delivery date of June 2022. There were setbacks in the construction from five hurricanes, Winter Storm Uri, and the COVID pandemic. LaShip tried to earn the early delivery bonus, but it was not able to do so, and when the vessel was delivered, there were deficiencies. When the vessel was delivered, passengers complained of numerous defects in the cabins, such as shower drains and lighting in the cabins not working. LaShip and River 1 filed this suit against Jamestown Metal in state court in Terrebonne Parish, Louisiana, and Jamestown Metal removed the case to federal court in Louisiana based on diversity, and Jamestown Metal asserted 10 claims in a counterclaim, including breach of contract, bad faith, detrimental reliance, quantum meruit, and unjust enrichment. LaShip moved for summary judgment on the counterclaims, and Judge Barbier held that the contract claims for additional work, change orders, and delays could proceed as the contract was not a fixed price contract. Judge Barbier explained: “Jamestown is a sophisticated business—it would not have gone into such a vessel construction project based on a fixed price contract. Neither would LaShip.” Turning to the extracontractual claims, Judge Barbier found fact disputes for all of the claims, except he dismissed the claim for unjust enrichment as it is only permitted in the absence of a contract. Judge Barbier then held a bench trial between June 16 and June 25, 2025.
Court lacked admiralty jurisdiction in suit by a cruise passenger against the Croatian travel agency that arranged bus transportation from the port in Croatia to the Krka National Park in Croatia seeking to recover for injuries when the passenger was struck by the bus at the Park; Campbell v. SP Cruises OPCO Ltd., No. 1:24-cv-20955, 2025 AMC 177, 2025 U.S. Dist. LEXIS 98698 (S.D. Fla. May 23, 2025) (Lenard).
Dawn L. Campbell, a citizen of Canada and a passenger on the AZAMARA JOURNEY, was injured during a shore excursion from the Port of Dubrovnik, Croatia to the Krka National Park in Croatia when she was struck (after departing the bus at the Park) by the bus that transported her to the park. The bus was arranged by Gulliver Travel (a travel agency based in Croatia), which subcontracted the passage to another party, which company then subcontracted the same duty to another company, which company hired a subcontractor to drive the bus. Campbell brought this suit against the cruise line and Gulliver Travel in federal court in Florida, and the cruise line moved to dismiss the complaint on the ground that the ticket contained a waiver of the cruise line’s liability for injuries that occurred during shore excursions. The cruise line argued that the waiver was not invalidated by federal law because the voyage did not include travel involving a United States port. Campbell responded that the waiver was invalidated by the Athens Convention and other European Union regulations and directives (or there was ambiguity that had to be resolved in her favor). Judge Lenard noted that the United States has not signed or ratified the Athens Convention and that the Convention did not have binding effect in this case. Although the ticket did mention the Convention with respect to limits of liability of the cruise line for injuries and deaths, that incorporation did “not cause the Ticket Contract in its entirety to fall under the scope of the Athens Convention or any of the laws of the European Union.” Therefore, Judge Lenard did not consider the waiver to be invalidated by the Convention or any other EU laws, describing the passenger’s argument as “meretricious.” As the language of the waiver was clear and was reasonably communicated to the passenger, Judge Lenard held that the waiver was valid and enforceable under the general maritime law. See February 2025 Update.
Gulliver Travel moved to dismiss the complaint on the ground that the court lacked subject matter jurisdiction. Campbell’s complaint was based on diversity and admiralty jurisdiction, and Gulliver Travel argued that there was no diversity because Gulliver Travel and Campbell are aliens and that there was no admiralty jurisdiction because the incident occurred on land. Campbell argued that there is diversity because Gulliver Travel is, in fact, Intercruises Shoreside and Port Services, Inc. (a Delaware company) with its principal place of business in Florida. Although the website for Gulliver Travel states that it is “a part of” Intercruises, Judge Lenard did not find sufficient evidence that Gulliver and Intercruises are the same legal entity. Therefore, Judge Lenard held that there was no diversity. Turning to admiralty jurisdiction, Campbell cited the Eleventh Circuit’s Doe v. Celebrity decision in which the court found that the connection prong of the test for admiralty tort jurisdiction was satisfied in the case of a sexual assault by a crewmember against a passenger while ashore in a port of call. Judge Lenard answered that Campbell’s argument “overlooks the different roles served by the cruise line in Doe and Gulliver in the present case,” in which Gulliver Travel’s “potential liability to Plaintiff is not an outgrowth of a duty owed to Plaintiff while she was a passenger on the Azamara Journey.” Judge Lenard reasoned that Gulliver Travel did not participate in maritime commerce and that the incident did not involve a vessel. Thus, the general character of activity that gave rise to the injury was “too far removed from traditional maritime activity and the link to maritime commerce is only indirect.” With respect to the locality prong of the test for maritime tort jurisdiction, Campbell cited the reasoning of Doe v. Celebrity that “there was little practical difference between the port-of call and other parts of the ship—they were, at all times, equally accessible to passengers” and that “a ruling that admiralty jurisdiction did not extend literally beyond the gangplank in this case would upset the very uniformity that the Supreme Court has determined is so important for maritime activity.” Judge Lenard explained that the Eleventh Circuit’s expansion of the locality for maritime torts to incidents within the port of call was “a modest expansion of the traditional requirements of the location prong as set forth in Grubart.” However, a “46-mile bus trip to Krka National Park would place the site of the tort well beyond the ‘outer boundaries of admiralty jurisdiction.” Thus, neither the locality nor connection prongs of the test for admiralty jurisdiction were satisfied, and Judge Lenard granted the motion to dismiss the case for lack of subject matter jurisdiction (although she gave leave to Campbell to conduct jurisdictional discovery with respect to diversity).
Questions on the application of an indemnity agreement between a dock owner and tug owner 13 years before a breakaway of a tug and derrick barge resulted in denial of the dock owner’s motion for summary judgment seeking defense and indemnity in connection with the injury and property damage claims brought against the owner of the dock at which the derrick barge was docked as safe harbor in Hurricane Zeta; All Coast, LLC v. Shore Offshore Services, LLC, No. 2:21-258, 2025 U.S. Dist. LEXIS 98982 (E.D. La. May 23, 2025) (Zainey).
This litigation arises from a breakaway incident involving the derrick barge THOR and the tug CROSBY ENDEAVOR that occurred during Hurricane Zeta on October 28, 2020. Patrick Burnett was employed by Premier Offshore Catering as a catering hand on the derrick barge THOR, owned and operated by the Thor Interests. As Hurricane Zeta approached Port Fourchon, Louisiana, the THOR sought safe harbor and was tied to the Martin Energy Services Dock No. 16 with its assist tug, CROSBY ENDEAVOR, operated by Crosby Tugs. The storm surge from the hurricane caused the THOR and CROSBY ENDEAVOR to break away from the dock on October 28, 2020 and to come into contact with other vessels and property along the Bayou Lafourche channel. Burnett and another Premier catering hand, Lewis Andrews, filed suit in Texas state court against Premier, the operator of the THOR, and others, and Burnett’s suit was removed to federal court where it has been stayed by the filing of limitation actions by the Thor Interests and by Crosby Tugs. Burnett filed claims in both limitation actions, and, beginning in December 2020, the Thor Interests requested that Burnett undergo an independent medical examination. However, Burnett has undergone at least four invasive surgeries, three of which occurred after the court ordered him to submit to a medical examination (five days after the order, Burnett allegedly underwent a five-level lumbar surgery, and he had two subsequent corrective surgeries). The Thor Interests and Premier then moved for sanctions. Magistrate Judge Roby noted that both Burnett and his attorney, J. Kyle Findley, had a duty to preserve evidence of Burnett’s back condition, and the duty arose when Burnett made a claim for cure and the THOR interests made the demand for a medical examination. As there was a duty to preserve the pre-surgical condition of his back, Magistrate Judge Roby addressed whether there was intentional spoliation of evidence of that condition when Burnett underwent surgery without having the requested and ordered IME, and she concluded that there was. She described the response of Burnett and his counsel to the defendants’ request: “However, rather than cooperate in the process, Burnett’s counsel challenged the request, the form of the evaluation, and in response to the Motion to Compel, filed a motion to bifurcate. This type of conduct disregards the Federal Rule of Civil Procedure 1, which requires cooperation in the discovery of evidence.” She found that the conduct “could not have been asserted for any reason other than intentional delay resulting in a change in Burnett’s presurgical condition” and she described the contention from Burnett’s counsel about the timing of the back fusion in short proximity to the court’s order (a “unique scenario that led to the surgery being performed days after the Court’s IME order”) to be “ludicrous.” The question was then presented whether there was prejudice from the spoliation. The defendants argued that Burnett’s physical condition had been irreversibly changed, resulting in a total of more than $1 million in medical expenses. Magistrate Judge Roby agreed that “prejudice abounds.” After finding that Burnett’s lawyer acted in bad faith, Magistrate Judge Roby considered whether Burnett acted in bad faith. She ordered a limited deposition of Burnett, and she found that portions of his testimony were “not accurate” and were “totally unbelievable.” She concluded that “Burnett’s counsel failed to uphold his duty of candor to the Court” and that “Burnett and his counsel’s deliberate and intentional disregard of this Court’s Order and their duty of candor, warrants sanctions.” Consequently, she recommended sanctions against Burnett and his attorney that the cost of the five-level laminectomy and fusion ($459,735) should not be recovered, that post-laminectomy procedures in the amount of $377,551.87 should not be recovered, that an adverse inference should be given regarding the precursor surgery ($142,828), and that attorney fees should be awarded to the Thor Interests and Premier for the filing of the motion for sanctions. See August 2023 Update.
Burnett advised the court that he had settled his claims with the parties who filed the spoliation/sanctions motion and that the motion was accordingly moot. The movants agreed to release and waive any claims that Burnett or his lawyer committed any sanctionable conduct. Burnett’s counsel urged the court to deny the spoliation/sanctions motion and to vacate Magistrate Judge Roby’s recommendation as the matter had been resolved. Judge Zainey agreed that the settlement did moot the issue whether elements of damages should be excluded as a sanction for spoliation. However, he noted that the sanctions arose from the bad faith violation and flouting of an order issued by a United States Magistrate Judge. Judge Zainey was “pleased that Burnett had managed to settle his claims against the THOR interests and Premier;” however, he emphasized that the “settlement does nothing to ameliorate the offense committed against the Court.” He remained persuaded that the bad faith conduct committed by Burnett and his lawyer “-conduct that demonstrates an utter disrespect for the rule of law—merits sanctions that are not mooted simply because of the private settlement reached in this case.” Judge Zainey did not vacate Magistrate Judge Roby’s report and recommendation and instead adopted her decision. Judge Zainey advised that Magistrate Judge Roby “is certainly free to craft another form of sanction if she concludes that the settlement . . . would preclude the THOR interests and Premier from seeking attorney fees.” See December 2023 Update.
Martin Energy, owner/operator of Dock 16, then filed a motion for summary judgment in the numerous consolidated cases, asserting that it was entitled to indemnity and defense costs from Crosby Tugs with respect to all the claims for property damage and personal injury asserted against Martin Energy. Martin Energy and Crosby Tugs had no business dealings or discussions with respect to the mooring of the THOR at Dock 16, but Martin Energy cited an old Facility Access and Indemnity Agreement between Martin Energy and Crosby Tugs that Martin Energy claimed was still in effect and that obligated Crosby Tugs to defend and indemnify Martin Energy. “In other words, if Martin is found liable for any part of the damages . . . caused by THOR’S breakaway—liability that would be based on defects in Martin’s dock, whether caused by Martin’s own failure to maintain its facility or some other omission by Martin—Martin wants Crosby to pay for it, along with all of its defense expenses.” Judge Zainey did not believe that Martin Energy had established that there was, as a matter of law, an existing contract as Martin Energy produced two agreements, within about six months of each other in 2007/2008, which “suggests that Martin sought a signature each time Crosby accessed Martin’s facility, a circumstance that undermines Martin’s contention that any indemnity agreement that Crosby executed in 2007 remained in force in 2020). And, even if an agreement remained in force, Judge Zainey noted that the agreement applied only when Crosby Tugs accesses a Martin Energy facility. Judge Zainey believed that it was implausible to characterize Crosby Tugs as having accessed the facility by its tug being moored to the THOR. Finally, Judge Zainey reasoned that the indemnity extended to injuries sustained while on or adjacent to the facility or for property damage arising from the presence or activities of Crosby Tugs on or adjacent to the facility. Accordingly, Judge Zainey denied the motion for summary judgment.
Passenger who was injured while being transported in a wheelchair through the Port of Vancouver to board a cruise ship presented a fact question whether the Canadian contractor responsible for shoreside ground handling services was an agent of the cruise line to impute negligence to the cruise line; Meyer v. Princess Cruise Lines, Ltd., No. 2:24-cv-1987, 2025 U.S. Dist. LEXIS 100329 (C.D. Cal. May 23, 2025) (Court).
Theresa M. Meyer’s husband arranged for a 10-day Alaskan cruise for his wife and him on the CROWN PRINCESS, departing from Vancouver, British Columbia. Meyer entered the security area at the Port of Vancouver, and her husband requested a wheelchair. A man named Larry emerged from behind a desk where there was a sign for the cruise line and eventually brought a wheelchair that he used to push Meyer through the terminal. When they reached the security/customs area, Meyer had to stand, but Larry did not properly lock the wheelchair and Meyer fell. The cruise line claims that Larry worked for DNA Canada, which provides shoreside ground handling services in Canada, including assisting guests at piers, but Meyer testified that Larry was wearing clothing with a cruise line logo. Meyer brought this lawsuit against the cruise line and DNA Canada in California federal court, asserting a claim for maritime negligence, and the court dismissed DNA Canada for lack of personal jurisdiction. The cruise line then moved for summary judgment on the ground that it owed no duty for the shoreside acts of an independent contractor. Although the cruise line argued that Meyer did not explain how maritime law applied to the shoreside injury, Meyer cited the provision in the Passage Contract that the resolution of disputes between the cruise line and passenger would be governed by the general maritime law. Applying maritime law, Judge Court noted that the cruise line could be held vicariously liable for the negligence of its agent, and that agency can be actual (cruise line had sufficient right to control the activities of DNA Canada) or apparent (cruise line caused Meyer to reasonably believe DNA Canada was its agent). Adding that the existence of an agency relationship is a question of fact under the general maritime law, Judge Court held that Meyer had established a fact question of both actual and apparent agency based on Larry wearing a vest with the name and logo of the cruise line; Larry emerging from a desk in front of a wall with the cruise line name; the absence of any signage for DNA Canada; the cruise line requiring Meet and Greet Representatives to use cruise line signage and clipboards with uniforms approved by the cruise line; the cruise line approving staffing requirements of DNA Canada and giving passenger capacity information to DNA Canada so it would know how many staff were required to be on site; the cruise line approving and assisting with training and credentials of DNA Canada staff; the cruise line requiring DNA Canada to use its software to check in guests and to be familiar with its check-in systems; the cruise line requiring DNA Canada to adhere to its procedures for lost-and-found property and to fill out its form for injuries; the cruise line paying DNA Canada for its greeter positions and requiring them to speak fluent English; the cruise line requiring DNA Canada to indemnify and insure the cruise line for any incidents; and the cruise line providing guests with a survey to rate the DNA Canada staff (used to determine if the contract with DNA Canada should be terminated). The cruise line cited the provision in the Passage Contract that the cruise line does not control pre-cruise transportation provided by independent contractors and does not accept liability for pre-cruise transportation. Meyer argued that the provision was an unenforceable exculpatory clause in violation of Section 305027, which prohibits provisions limiting the liability of the owner or agent of a vessel transporting passengers involving a port in the United States. As Judge Court held that there was a fact dispute whether DNA Canada was an agent or independent contractor, she declined to “provide an advisory opinion analyzing the potential implications of Section 30527.
Passenger failed to sufficiently plead that misrepresentations of the cruise line with respect to CCTV footage caused her not to request a rape kit with the loss of her ability to pursue a claim for sexual assault; D.S. v. Carnival Corp., No. 1:24-cv-24428, 2025 U.S. Dist. LEXIS 99981 (S.D. Fla. May 27, 2025) (Goodman).
D.S., a passenger on the CARNIVAL RADIANCE, brought this suit against the cruise line, asserting that she fell down a flight of stairs on the vessel as a result of being overserved alcohol. D.S. also alleged that she was prevented from being able to know if she had been sexually assaulted because the cruise line misrepresented the contents of closed circuit television surveillance, which caused her not to request a rape kit. Her amended complaint contained two counts, vicarious liability for over-service of alcohol and vicarious liability for the alleged misrepresentation by an employee of the cruise line. The cruise line moved to dismiss the first count because D.S. failed to identify a negligent employee, failed to allege that an employee knew or should have known that she was too intoxicated to receive another drink, and failed to sufficiently allege causation. Chief Magistrate Judge Goodman disagreed with the cruise line with respect to the identification of the employee, finding it sufficient that D.S. listed the bars and pleaded that the bartenders over-served her (although he cautioned that these allegations would probably not survive a motion for summary judgment). Chief Magistrate Judge Goodman also disagreed that the pleading was conclusory as to the notice of her intoxicated state, noting that she pleaded she was swaying, stammering, slurring her speech, had alcohol on her breath, and was acting in a belligerent manner while in plain view of the crew who were serving the alcohol. However, Chief Magistrate Judge Goodman did not believe the allegation was sufficient that, due to her intoxicated state that was caused by over-service of alcohol, D.S. stumbled while attempting to walk down a set of stairs and suffered a severe fall. Chief Magistrate Judge Goodman reasoned that D.S. did not sufficiently allege causation because she failed to appropriately define what the incident was and how over-service caused it. Therefore, Chief Magistrate Judge Goodman recommended that D.S. be required to replead the first count. The cruise line argued that the allegations in the second count failed to plead a claim for intentional misrepresentation because D.S. failed to adequately plead that an employee misrepresented or omitted a material fact, failed to include a plausible allegation of inducement, and insufficiently alleged how she suffered a detriment as a result of the misrepresentation. Chief Magistrate Judge Goodman answered that D.S. complied with the heightened pleading requirement of Rule 9 for a misrepresentation claim as she sufficiently alleged the “where, when, who, and how a crew member misrepresented or omitted a material fact.” However, Chief Magistrate Judge Goodman believed that the allegations on inducement and reliance were too vague and conclusory for the court to determine causation. He noted that the misrepresentation after the fall could not have been a cause of the fall and he questioned how she was injured when the crew member offered to administer a rape kit. Therefore, he recommended that the second count be amended to sufficiently allege the misrepresentation claim. Chief Magistrate Judge Goodman then addressed the cruise line’s argument that D.S. was not entitled to seek punitive damages because she failed to show intentional misconduct by the cruise line or that the cruise line authorized or ratified the tortious conduct of its crew. Chief Magistrate Judge Goodman noted the intra-district split on the issue of whether punitive damages are allowed in maritime cases. He did not have to decide how that issue should be resolved as he concluded that the allegations were too vague and conclusory to meet the standard that “the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” He recommended that if Judge Williams agreed with his recommendation, D.S. should be given leave to replead the claim for punitive damages “if [she] has a good faith basis to allege the necessary facts to support a punitive damages claim because of exceptional circumstances of intentional wrongdoing.” D.S. did not object to the recommendations, and Judge Williams adopted them. See June 2025 Update.
After D.S. filed her amended complaint, the cruise line moved to dismiss the misrepresentation count, asserting that D.S. failed to plead that a crewmember knew or should have known that the misrepresentation was false, failed to plausibly allege inducement, and failed to sufficiently plead that D.S. justifiably suffered a detriment as a result of the alleged misrepresentation. D.S. alleged that the crewmember’s representation that nothing harmful had happened to D.S. was clearly false, as D.S. had fallen down the stairs and had bruises on her that were clearly visible to the crewmember. The allegations repeated those in the prior complaint, for which Chief Magistrate Judge Goodman stated: “Plaintiff’s repeated allegation that her bruises were ‘clearly visible’ and ‘from a fall’ creates an inferential leap that is ‘too great’ for this Court to follow because the [Second Amended Complaint] fails to include any allegations supporting why her bruises were clearly visible and from a fall.” Although D.S. tried to establish knowledge of bruising from shipboard medical records, Chief Magistrate Judge Goodman responded that he was not permitted to consider an argument outside the pleading and exhibits attached thereto. He added that he had provided guidance in his prior recommendation as to how to satisfy the knowledge element, but D.S. did not include any allegations responsive to the recommendation. The cruise line’s second argument is that D.S. failed to plausibly allege inducement or that she suffered a justifiable detriment because her reliance on the alleged misrepresentation was unjustified. Chief Magistrate Judge Goodman agreed, stating: “If she knew she had fallen down the stairs (as she alleges), and that this fall left her with ‘clearly visible’ bruises, then how could she believe a crew member telling her that the CCTV did not demonstrate that anything harmful happened to her?” He added: “Plaintiff did not need to ascertain what the CCTV showed because, at a minimum, she herself knew that she had fallen and that she was visibly bruised.” The amended complaint alleged that the misrepresentation was the cause of great bodily harm in that, but for the crew member’s breach, the incident and damages would not have occurred. As the incident was described as her fall down the stairs, Chief Magistrate Judge Goodman questioned, “[h]ow could the alleged misrepresentation have caused her fall, when she fell before she spoke with the crew member? Therefore, Chief Magistrate Judge Goodman recommended that the misrepresentation count be dismissed. Although D.S. was on “thin legal ice” after failing to object to the prior recommendations, Chief Magistrate Judge Goodman recommended that she be “permitted one final chance to frame a negligent misrepresentation claim.”
Conclusory allegations of vicarious liability of cruise line with respect to passenger’s fall on slippery steps were insufficient to state a claim; Rodriguez v. Carnival Corp., No. 1:24-cv-23179, 2025 AMC 206, 2025 U.S. Dist. LEXIS 101010 (S.D. Fla. May 28, 2025) (Moore).
Antonio Rodriguez, a passenger on the CARNIVAL DREAM, was injured when he slipped on the wet metal edging of the exterior staircase from Deck 11 to Deck 10 of the vessel. Rodriguez brought this action against the cruise line in Florida federal court with five counts of direct and vicarious liability. The cruise line moved to dismiss the vicarious liability counts as an improper attempt to avoid the notice requirement for maritime torts. Count IV alleged that the cruise line knew or should have known of the dangerous condition because a crewmember named Troy, who was working at the bar, witnessed the fall and asked him if he was okay. The crewmember was in viewing distance with a direct line of sight to the stairs and saw the water before the incident but did not clean up the area before the fall. Thus, the cruise line is vicariously liable. Although Rodriguez asserted that he had done more than was necessary by actually naming Troy, Judge Moore held that the rest of the allegations were vague and conclusory. Therefore, he dismissed Count IV. Count V alleged that the cruise line was vicariously liable for the negligence of employees in the design, construction, and selection of the subject area. However, the allegation that employees “participated in and/or approved of the design of the subject area including the unreasonably slippery stairs” was too conclusory and based on boilerplate accusations that were insufficient to state a claim. Therefore, Judge Moore dismissed that count as well.
Indemnity and contribution claims in a limitation action brought by “potential” defendants who have not been sued by the injured party were not premature and were not dismissed, creating a multiple claimant situation; In re Cooper Marine Inc., No. 2:24-cv-2778, 2025 AMC 178, 2025 U.S. Dist. LEXIS 101684 (E.D. La. May 28, 2025) (Fallon).
Gage Garcia was a deckhand on the towing vessel, M/V HONEST BOB, owned and operated by Cooper Marine. The vessel was performing fleet operations on the lower Mississippi River, moving barges between a loading terminal and barge fleet. Garcia died in an unwitnessed incident, and Cooper Marine brought this limitation action in Louisiana federal court. Claims were filed in the limitation action by the Estate of Garcia, Nucor Steel, and Ingram Barge. Nucor Steel owned the river terminal facility where the HONEST BOB was assisting in the transfer of iron pellets for shipment. Nucor Steel alleged that Garcia died in the fleeting operation under the control of Cooper Marine, and that, if a claim is presented against Nucor Steel, it should receive indemnity and contribution from Cooper Marine. Nucor Steel also brought a claim against third-party defendant Cooper/T. Smith Stevedoring with which Nucor Steel contracted to perform barge fleeting services. Ingram Barge brought a claim for contribution and indemnity as the owner of the barge IN176102 that was involved in the fleeting operation in which Garcia died. Ingram Barge also brought a separate limitation action that was consolidated with the HONEST BOB limitation action, and Nucor Steel and Cooper Marine filed claims in that suit. The Garcia Estate filed a motion for summary judgment on the claims of Nucor Steel and Ingram Barge, arguing that they are improperly hypothetical and speculative, stating that they were brought “if” and “to the extent” that the Estate sues Nucor Steel and Ingram Barge. However, the Estate had not sued Nucor Steel and Ingram Barge, and the Representative of the Estate contended that the claims for indemnity and contribution should be dismissed. The Representative argued “that the presence of these other parties only serves to improperly impede his ability to request that the Court lift the limitations stay and allow him to proceed against Cooper Marine in state court.” Judge Fallon answered that the court had “already held that a potential defendant in a maritime accident case may properly bring indemnity and contribution claims against the limitations petitioner, even where the potential defendant has not yet actually been sued in state court.” Judge Fallon noted that the Estate had reserved its right to sue other parties and had not filed stipulations releasing the other claimants from suit. He added that the Estate had not filed suit in state court, so it was not clear what defendants would be named. Finally, it was not speculative to assume that Ingram Barge would be sued as Cooper Marine had already brought a claim in the Ingram Barge limitation proceeding asserting that Ingram Barge was at fault. Therefore, Judge Fallon declined to dismiss the claims of Nucor Steel and Ingram Barge (and he did not have to reach the argument whether the Estate had standing to seek dismissal of claims brought by Nucor Steel and Ingram Barge against Cooper Marine).
Judge transferred limitation action to the district where the wreckage of the vessel was located, noting that the transferee court could consider whether to transfer the case for the convenience of the parties and witnesses; In re Bayou Boys Boat Rental LLC, No. 2:25-cv-121, 2025 AMC 211, 2015 U.S. Dist. LEXIS 102481 (W.D. La. May 29, 2025) (Cain).
Bayou Boys Boat Rental owns and operates the CAPTAIN CAMERON, a crew boat that primarily operates as a fuel boat for marine construction projects. Bayou Boys was hired by B&S Equipment Co., a contractor for Troy Construction, to provide vessels for Troy’s pipeline construction project in and around Sabine Lake (located on the border between Texas and Louisiana). The vessel was operating from the Troy Shipyard in Orange County, Texas and exploded near Shell Island in the Sabine River. The wreckage was moved to Orange, Texas where it has remained since the accident. Two seamen were injured from the explosion, Jeremy Smith and Franklin Rivas. Bayou Boys brought this limitation action in the United States District Court for the Western District of Louisiana, and Smith and Rivas filed claims and moved to transfer the case to the United States District Court for the Eastern District of Texas. B&S Equipment and Troy Construction also filed claims, and B&S Equipment and Bayou Boys responded that the case should be transferred to the United States District Court for the Eastern District of Louisiana for the convenience of the parties and witnesses. Smith and Rivas argued that no other suits had been filed and that the complaint should only have been filed, pursuant to Rule F(9), in the Eastern District of Texas--where the vessel is located. As the wreckage is located in the Eastern District of Texas, Judge Cain held that the plain language of Rule F(9) did not permit transfer to the Eastern District of Louisiana and required transfer to the Eastern District of Texas, where the convenience of the parties could be considered: “The parties could not have initially filed this suit in the Eastern District of Louisiana, because the vessel was located in the Eastern District of Texas. Accordingly, the matter must be transferred to that district and any arguments for transfer based on convenience can be heard there.”
Judge allowed late claim in limitation action when the claimant did not receive actual notice of the action and the claimant and location of the allision were 100 miles from the published notice; In re C&J Marine Services, Inc., No. 2:24-cv-103760, 2025 U.S. Dist. LEXIS 103760 (E.D. La. June 2, 2025) (Africk).
After the tug M/V JOSSET, owned and operated by C&J Services, and its tow of three barges allided with the Grosse Tete Bridge in Louisiana, C&J Services filed this limitation action in Louisiana federal court. The court set the deadline to file a claim as December 18, 2024, and the Louisiana Department of Transportation and Development filed a timely claim as owner of the bridge. The court issued a default order on January 17, 2025 and set the case for trial on July 28, 2025. On May 16, 2025, the Iberville Parish Council sought leave to file an untimely claim (and to continue the trial). The Parish argued that it sustained costs associated with ferrying passengers across the bayou and argued that it had not received notice from the publication in The Times Picayune, a newspaper of general circulation in New Orleans, 100 miles away from the location of the allision in Iberville Parish. The Parish argued that it filed the claim within five months of the deadline; that no right or liability of the parties had been determined; and that it did not receive actual notice. Judge Africk did not believe that allowing the claim would adversely affect the rights of the parties as the theory of liability asserted by the Parish was the same as the State agency; the suit had been pending for less than a year; and discovery related to the damages sought by the Parish would not require duplication of the discovery involving the physical damage to the bridge. Therefore, Judge Africk found that equitable considerations weighed in favor of granting leave to file the claim. He declined to grant a continuance at this time; however, he advised that he would consider a brief continuance if C&J Services requested it.
Passenger provided sufficient evidence of notice to the cruise line of the dangerous condition of a wet gangway from the warning cones near the gangway, the presence of crew near the gangway, and minutes of a meeting four months before the accident regarding the need for safeguards for gangway slipperiness; passenger established a dangerous condition from her testimony of the wet condition of the gangway; Magistrate Judge recommended sanctions for passengers late disclosure/production of the shoes she was wearing when she slipped and fell; Wilkerson v. Carnival Corp., No. 1:23-cv-24050, 2025 U.S. Dist. LEXIS 105049 (S.D. Fla. June 3, 4, 2025) (Moore, Elfenbein).
Cheryl Wilkerson, a passenger on the CARNIVAL GLORY, was injured when she slipped and fell on a wet gangway on Deck 0 while disembarking from the vessel. Wilkerson brought this suit against the cruise line in Florida federal court, alleging negligent failure to remedy, negligent failure to warn, and negligent design/installation/approval of the gangway and vicinity. The cruise line moved for summary judgment that there was no evidence of notice, of failure to remedy a dangerous condition, and that the cruise line participated in the design/installation/approval of the gangway. With respect to notice, Wilkerson established that there were two warning cones placed by the cruise line at the entrance to the gangway, stating: “Caution wet floor.” The cruise line argued that the cones were located near but not on the gangway and the notice was for the gap between the gangway and the doors. Judge Moore held that there was a fact issue for the jury to decide whether the notice was meant for the condition of the gangway or the area between the gangway and the doors with respect to the claim for failure to warn. As for the notice for the claim of negligent failure to remedy, Judge Moore found sufficient evidence from the meeting minutes regarding the need for safeguards for gangway slipperiness four months prior to the incident and from Wilkerson’s testimony that she waited in line for at least five minutes and she did not see anyone carry or spill a drink in that time (together with the fact that there were security personnel within 10 feet of the gangway). Wilkerson did not challenge the motion with respect to the negligent design, and Judge Moore granted summary judgment on that claim. Finally, although Wilkerson testified that she did not see the liquid on the gangway and did not know what the substance was, her testimony that her shorts, hands, and knee were damp after the fall was sufficient to create a fact issue as to the existence of a dangerous condition.
The cruise line moved for sanctions for the late failure of Wilkerson to produce the shoes she was wearing after giving multiple different versions about possession of the shoes and with respect to the late production of photographs of the shoes. After an evidentiary hearing, Magistrate Judge Elfenbein recommended that sanctions we awarded for Wilkerson’s late disclosure of the shoes, her counsel’s failure to timely disclose photographs of the shoes, and her counsel’s failure to accurately certify Wilkerson’s discovery responses. Magistrate Judge Elfenbein recommended that discovery be reopened for seven days to allow the cruise line’s expert to examine the shoes and amend his expert opinion to address the impact of the shoes and to allow him to testify about any supplemental opinion; that Wilkerson’s expert be precluded from testifying about the impact of the shoes on his opinions; that Wilkerson pay reasonable attorney fees and costs with respect to the motion for sanctions and Wilkerson and hearing, and that the firm pay attorney fees and costs for the efforts to obtain an accurate response to their discovery request and for the supplemental brief related to sanctions against counsel. The case settled before Judge Moore ruled on objections to the recommendations.
Seaman who mistakenly filed two claims in limitation action against one of the two limiting petitioners but failed to timely file a claim against the other limiting petitioner was allowed to file a late claim; seaman’s allegation that he was employed by the defendant and that the defendant was the owner, operator, or manager of the vessel was sufficient to plead claims under the Jones Act and general maritime law; Magistrate Judge did not have to decide if the seaman must personally sign the stipulations to lift the stay in the limitation action as he submitted a signed copy in his reply; In re D&S Marine Service, LLC, No. 4:24-cv-3575, 2025 U.S. Dist. LEXIS 125606 (S.D. Tex. June 3, 2025) (Bennett); 2025 U.S. Dist. LEXIS 125583 (S.D. Tex. June 4, 2025) (Bryan).
Javen Lott injured his leg while working as a crewmember on the M/V BRIANNA ELIZABETH. Lott filed a Jones Act suit in state court in Harris County, Texas against D&S Marine Service and D&S Marine Management, and the defendants filed answers in the state suit and brought this limitation action in federal court in Texas. Lot filed two sets of answers and claims in the limitation action, but both named D&S Marine Management and neither named D&S Marine Service. D&S Marine Management answered both claims, noting in a footnote that Lott had filed two identical claims against D&S Marine Management. After the deadline to file claims passed, the two petitioners filed motions for entry of default. D&S Marine Management requested a default against all claimants except Lott, and D&S Marine Service requested a default against all potential claimants, including Lott. Lott sought leave to file a late claim against D&S Marine Service or to amend his claims against D&S Marine Management to add D&S Marine Service. D&S Marine Service argued that negligence of counsel in failing to timely prosecute a claim is not good cause to permit a late claim, but Magistrate Judge Bryan held that Lott had not wholly failed to file a claim. This was a scrivener’s error by naming the same entity in two claims. D&S Marine Service pointed out that Lott’s counsel was charged with knowledge of the statement in the footnote that two pleadings had been filed against D&S Marine Management, but Magistrate Judge Bryan did not believe that notice from D&S Marine Management was sufficient to negate good cause, particularly when counsel for Lott immediately sought to correct the error after the motion for default. D&S Marine Service also cited cases in which Lott’s counsel represented parties who were denied leave to file a late claim, but Magistrate Judge Bryan held that those cases were not at issue in this case. As there was no prejudice, Magistrate Judge Bryan held that the equitable result was to permit Lott to correct his scrivener’s error by filing a claim against D&S Marine Service (she also held that an amendment to the previously filed claim to change D&S Marine Management to D&S Marine Service would relate back to its timely filing). Accordingly, Magistrate Judge Bryan recommended that Lott be allowed to file his claim against D&S Marine Service. See May 2025 Update.
Judge Bennett noted that the court has discretion to permit the late filing of a claim and that the standard in evaluating the request is “forgiving and equitable.” He concluded that all of the factors to be considered supported permitting the claim: “Considering Lott’s prompt Motion for Leave, his demonstrated intent to assert a claim against [D&S Marine Service], and the absence of prejudice to [D&S Marine Service], the Court agrees with Judge Bryan that default against Lott is not warranted under these circumstances.”
D&S Marine Management filed a motion to dismiss for failure to state a claim, arguing that Lott could not allege claims under the Jones Act or for maintenance and cure because he did not plead that D&S Marine Management was Lott’s employer, and that he could not assert an unseaworthiness claim because he did not allege that D&S Marine Management was the owner or operator of the vessel. D&S Marine Management first claimed that D&S Marine Service had admitted that it was Lott’s employer, but Magistrate Judge Bryan responded that the Fifth Circuit allows a seaman to have more than one Jones Act employer. Additionally, D&S Marine Management argued that Lott’s allegation with respect to employment by D&S Marine Management was conclusory; however, Magistrate Judge Bryan held that the allegation that Lott was employed by D&S Marine Management on the vessel was sufficient to survive a motion to dismiss. Similarly, Lott’s allegation that the vessel was owned, operated or managed by D&S Marine Management and at all times was unseaworthy was sufficient to state a claim for unseaworthiness. Therefore, Magistrate Judge Bryan recommended that the motion to dismiss be denied.
Lott also argued that the limitation stay should be lifted based on the single-claimant exception, submitting stipulations to protect the petitioners’ rights under the Limitation Act. The petitioners argued that it was premature to dissolve the injunction with the pending motions with respect to the late claim and with respect to the sufficiency of the allegations of Jones Act and maritime claims. But those objections were resolved with the orders of Judge Bennett and Magistrate Judge Bennett on the late filing and the motion to dismiss. The petitioners argued that Lott’s stipulations were insufficient because he did not personally sign them, citing the requirement from the Fifth Circuit that all claimants must agree to the stipulations. Magistrate Judge Bryan noted that the Fifth Circuit did not say that the claimants must personally sign the stipulations, only that they must agree to them, and that other courts had approved stipulations that were signed by counsel. Nonetheless, Lott attached a signed copy of the stipulations to his Reply, and Magistrate Judge Bryan lifted the stay and abated the limitation action pending resolution of Lott’s action in state court.
Court permitted arrest of vessel in the United States for a tort occurring outside of United States waters even though it involved a foreign seafarer, hired aboard a foreign owned and foreign flagged vessel, who was assaulted in foreign waters by a foreign crewmember; Girmay v. M/Y EALU, No. 0:25-cv-60661, 2025 U.S. Dist. LEXIS 107963 (S.D. Fla. June 6, 2025) (Hunt), recommendation adopted, 2025 U.S. Dist. LEXIS 128059 (S.D. Fla. July 7, 2025) (Dimitrouleas).
Damera Elsabet Girmay, a stewardess on the luxury charter yacht EALU was attacked in her bed on the yacht and sexually assaulted by a senior crewmember on the vessel while the vessel was in navigable waters in the English Harbor of Antigua in the West Indies. Girmay filed a verified complaint against the vessel, in rem, and its owner, in personam, in Florida federal court, invoking the admiralty jurisdiction of the court and Rule 9(h). She asserted in rem claims against the vessel for unseaworthiness and maintenance and cure, and she alleged in personam claims against the owner for Jones Act negligence, unseaworthiness, and maintenance and cure. Judge Dimitrouleas ordered the issuance of a warrant of arrest, and the yacht was arrested in Fort Lauderdale, Florida. The owner of the yacht, EALU MI LLC, filed a claim of owner and moved to vacate the arrest, arguing that the tort did not satisfy the locality test because it did not occur on the navigable waters of the United States (an act committed by a St. Maarten national on a St. Vincent and Grenadines’ flagged vessel with the crewmember’s employment agreement between a Marshall Island Company and the plaintiff, a citizen of the United Kingdom and allegedly also a citizen of the United States). Citing the Lauritzen/Rhoditis factors, the owner argued that the “United States is not the world’s court for any seaman to bring an action entirely unrelated to the United States.” Magistrate Judge Hunt began by reasoning that the post-arrest hearing is not intended “to resolve definitively the dispute between the parties, but only to make a preliminary determination.” The owner argued that because the tort did not take place on navigable waters of the United States, Girmay “cannot properly assert her claim” as contemplated by Section 1333. The owner quoted the language from the Supreme Court in Victory Carriers, “maritime law governs only those torts occurring on the [high seas and the] navigable waters of the Unted States,” and cited cases using that statement to conclude that United States admiralty law does not extend to torts occurring in territorial waters of other nations. Magistrate Judge Hunt answered that other courts have held that the statement in Victory Carriers was dicta (the tort in that case occurred in the United States) and that admiralty jurisdiction extends to torts occurring in foreign waters. He concluded that both the locality and nexus tests were satisfied so that there was probable cause for the existence of admiralty jurisdiction to arrest the vessel. Whether the Jones Act applied under the Lauritzen/Rhoditis factors or whether there was in personam jurisdiction over the owner were not pertinent to the inquiry whether to vacate the arrest. As there was no defect in the arrest, Magistrate Judge Hunt recommended denial of the request to vacate the arrest.
The owner appealed to Judge Dimitrouleas, arguing that United States admiralty law and subject matter jurisdiction should not extend to the case of “a foreign seafarer, hired aboard a foreign owned and foreign flagged vessel, who was allegedly assaulted in foreign waters by a foreign crewmember.” The owner added that “there is not a single Lauritzen and Rhoditis factor that supports jurisdiction over Plaintiff’s Jones Act allegations,” and “the relevant authority indicates that choice of law can be dispositive on the question of jurisdiction.” Judge Dimitrouleas first decided which jurisdictional test to apply. He noted that the in rem action was brought to enforce liens for a seaman’s claims for unseaworthiness and maintenance and cure. He added that Jones Act claims do not give rise to a lien or permit arrest of a vessel. Therefore, the authority to arrest the vessel was determined by the jurisdiction to enforce the asserted liens. He concluded: “This is a question of whether the Court has admiralty jurisdiction.” Judge Dimitrouleas then considered the locality/nexus prongs of the test and stated his agreement with Magistrate Judge Hunt that the locality test was satisfied, reasoning that “Courts in this Circuit have exercised jurisdiction over incidents occurring on navigable waters in the Caribbean.” The argument that the case involved a foreign seafarer, hired aboard a foreign-owned and foreign -flagged vessel, who was assaulted in foreign waters by a foreign crewmember was not material to the issue whether the incident occurred on navigable waters (Judge Dimitrouleas did note that it was possible that the claims could be dismissed based on forum non conveniens or foreign comity concerns). Judge Dimitrouleas also agreed that the nexus test was satisfied. Therefore, he approved the recommendation of Magistrate Judge Hunt.
Master of vessel was required to replead his claims for wages, negligence, unseaworthiness, and maintenance and cure to identify the defendants liable for each claim, with the judge reasoning that only one defendant can be liable but that the Master could, at the pleading stage, name multiple defendants; Shaishnikoff v. M/V NAMAKA, No. 2:24-cv-1586, 2025 U.S. Dist. LEXIS 108103 (W.D. Wash. June 6, 2025) (Evanson).
Edward Shaishnikoff was hired during the Seattle Pacific Marine Expo by Kevala Jokiel and Tomo Kovacevic, owners of the passenger vessel NAMAKA, to serve as the vessel Master until the vessel arrived in Honolulu, Hawaii. The oral agreement provided that he would be paid $400 per day plus lodging ashore if necessary. Shaishnikoff claims that he was owed at least $27,600 in unpaid wages, plus $4,128 for payments made for the benefit of the vessel for crew wages and other expenses, and at least $1800 for lodging while the vessel was in port and undergoing repairs or upgrades. Shaishnikoff also claims that he was injured when a piece of the grinding wheel being used by a crewmember broke off and pierced Shaishnikoff’s eye. Shaishnikoff brought this suit in federal court in Washington against the vessel, Jokiel and Kovacevic, and Nui Tours LLC and Tours around Paradise LLC, businesses owned by Jokiel and Kovacevic. He asserted claims for wages under state law and federal statute, Jones Act negligence, unseaworthiness, maintenance and cure, and failure to pay maintenance and cure. The defendants argued that the claims must be dismissed because Shaishnikoff failed to identify which defendant was the subject of each cause of action. Judge Evanson agreed that the complaint must be dismissed, but he agreed that Shaishnikoff should be allowed to amend the complaint to identify the defendants responsible for each action. The defendants objected that Shaishnikoff must identify a single employer for his claims, arguing that there can only be one employer under the Jones Act. Judge Evanson agreed with the defendants that “only one employer can be held liable under the Jones Act;” however, he added that the seaman “can assert the claim against multiple defendants at the pleading stage because whether an employer/employee relationship exists is typically a fact issue reserved for the jury.” Thus, “Although a seaman may have more than one Jones Act employer for purposes of filing suit, only one employer will be liable on recovery.” However, in the amendment, Shaishnikoff would have to name the multiple defendants against whom he was asserting each claim (Judge Evanson added that the same employer requirement applied to claims under the Jones Act and for maintenance and cure and unseaworthiness [the Fifth Circuit differs on the single employer rule, and the warranty of seaworthiness is owed by the owner/operator]). Judge Evanson also cautioned that in the amended complaint, Shaishnikoff would have to explain whether he intended to pierce the corporate veil of Nui Tours and Tours around Paradise. Finally, Judge Evanson reviewed the allegations of breach of contract, Jones Act negligence, unseaworthiness, and maintenance and cure, and held that Shaishnikoff had sufficiently alleged causes of action, except that he would have to plead that the defendants were on notice of the dangerous condition for the Jones Act claim.
It was too late to remove a case (based on federal jurisdiction over COGSA claims) four years after a COGSA theory of liability explicitly became an issue in the wrongful death suit brought on behalf of a truck driver whose rig overturned because the cargo in the container he was hauling was not properly secured; Semidey v. General Noli USA, Inc., No. 0:24-cv-61946, 2025 U.S. Dist. LEXIS 109725 (S.D. Fla. June 9, 2025) (Hunt).
Florencio Semidey was operating a truck carrying a container with tile pallets in Broward County Florida in 2007 when the pallets containing the tiles shifted in the container, causing the truck to overturn and resulting in the death of Semidey. Semidey’s personal representative brought suit in state court in Broward County, Florida in 2008, and General Noli was added in an amended complaint in 2009, asserting that it arranged for the packing and loading of the container and for its overseas transport and that General Noli failed to secure the tiles with bracing to prevent them from shifting. The plaintiff alleged NVOCC strict claims for the importation of the goods, and 11 years later, in 2020, the plaintiff explicitly spelled out a COGSA theory of liability. Four years later, the state court allowed the plaintiff to assert a duty source based on COGSA, and General Noli removed the case to Florida federal court, noting that COGSA confers removal jurisdiction. The plaintiff objected to the removal on the ground that the COGSA claim had existed for 15 years (specifically stated four years before the removal), and the 30-day period for removal had long since passed. Magistrate Judge Hunt agreed, reasoning that General Noli should have been aware of the COGSA claim from the time that the amended complaint was filed. However, Magistrate Judge Hunt recommended that the plaintiff not be awarded attorney fees because the amended complaint did not directly refer to COGSA and because the defendant consistently argued that there was no COGSA claim.
Federal court sitting in admiralty declined to bestow ownership on the State for a lake within the state so as to invoke the state statute preventing interference with fishing and to establish a cause of action in favor of a crawfisherman on private property; Thibodeaux v. Bernhard, No. 6:21-cv-61, 2025 U.S. Dist. LEXIS 110252 (W.D. La. June 10, 2025) (Joseph).
Magistrate Judge Whitehurst provided the colorful introduction for this case: “In Louisiana, known as the sportsman's paradise, one's rights to hunt and fish are sacred. Crawfish are an especially important commodity in south Louisiana. These culturally crucial crustaceans are found in abundance in the renowned landscape of the Atchafalaya Basin, where the rights of private swampland owners at times clash with those of commercial crawfishermen. This case features Defendants, owners of swamp area known as Lost Lake in the Atchafalaya Basin, against Plaintiffs, seasoned commercial crawfishermen who have crawfished Lost Lake for years.”
The dispute arose on Lost Lake, across the Atchafalaya River from Butte Larose in St. Martin Parish, Louisiana. Devin Thibodeaux, a commercial crawfisherman, was harvesting his crawfish traps in water over property owned by Kenneth Bernhard, whose son, Adam Bernhard, manages the property, when Adam Bernhard intercepted and collided with the skiff occupied by Thibodeaux. Bernard declared that Thibodeaux was trespassing, and ordered him to retrieve his traps, exit the property, and never return. Bernhard then summoned a sheriff’s deputy who issued a citation to Thibodeaux for criminal trespass. Thibodeaux brought this action in federal court under the court’s admiralty jurisdiction, asserting a conversion claim under Louisiana state law. Bernhard moved to dismiss the case for lack of admiralty jurisdiction, claiming that Thibodeaux did not sufficiently allege the location of the incident for the locality portion of the test for admiralty jurisdiction, nor did he allege how the actions of the defendant had a connection to traditional maritime activity. Magistrate Judge Whitehurst agreed that the allegations were insufficient, but she gave Thibodeaux an opportunity to amend the complaint to provide more specific allegations on the elements of the test for admiralty jurisdiction. See October 2021 Update.
After Thibodeaux filed an amended complaint and Bernhard again moved to dismiss the complaint for lack of admiralty jurisdiction, Magistrate Judge Whitehurst classified the incident as interference with the plaintiff’s ability to harvest crawfish from their traps with the potential to disrupt maritime commerce, but she recommended that the case be dismissed because the general character of the activity giving rise to the plaintiff’s claims (described as harassment, verbal accosting, declaration of trespass, and ordering the plaintiff to leave the property) was not sufficiently related to traditional maritime activity. Judge Joseph found the characterization to be deficient in two important respects—it failed to encompass the allegation that the plaintiff was forcefully intercepted and stopped, an alleged intentional obstruction of a navigable vessel, and it failed to account for the reason for the conduct—impeding the plaintiff from freely navigating in the waterway while conducting commercial crawfishing. Judge Joseph instead described the defendant’s activities as “alleged physical obstruction of a navigable vessel, verbal threats, and other intimidating actions designed to impede commercial fishing and navigation. Accordingly, Judge Joseph concluded that the maritime connection test was satisfied and remanded the matter to Magistrate Judge Whitehurst to make factual findings on whether the locality test was satisfied. See July 2022 Update.
Magistrate Judge Whitehurst held an evidentiary hearing and found: Lost Lake is a perched lake (a perched lake is one in which the bottom of the lake is above the mean level of water in the surrounding river channels) situated in a crook of undeveloped swampland between the Atchafalaya River and the Butte LaRose Cutoff Channel. Lost Lake’s bottom is perched 1 to 2 feet above the mean river stage at Butte La Rose. When the Atchafalaya River is at high stage (19 feet), Lost Lake is accessible in various routes through the woods. Otherwise, access to Lost Lake is only through a 10- to 20-foot-wide drainage channel from the Atchafalaya River. The Lake is accessible through flooding and/or the ditch about 30% of the time, or about 110 days in the crawfish season, annually. Magistrate Judge Whitehurst summarized: “Lost Lake, a privately owned, non-state claimed, flood-prone area, which standing alone, without the seasonal access provided by [a] drainage ditch, is not navigable.” That raised the question: “But what of the drainage ditch, which has permitted limited navigation relatively recently?” Rather than determining the difficult question whether Lost Lake was navigable for admiralty jurisdiction, Magistrate Judge Whitehurst ruled that there was a sufficient possibility of a federal navigational servitude that the court could exercise federal question jurisdiction with supplemental jurisdiction over the plaintiffs’ state-law claims. Judge Joseph, however, chose to supplement the lengthy factual findings of Magistrate Judge Whitehurst and concluded that Lost Lake was navigable-in-fact and that the case fell within the court’s admiralty jurisdiction. The defendants argued that Lost Lake did not form an interconnected highway of commerce because it only seasonally “communicates” with the Atchafalaya River, but Judge Joseph answered that the Fifth Circuit had found that seasonal accessibility does not preclude a finding of navigability. Judge Joseph agreed with Magistrate Judge Whitehurst’s finding that Lost Lake was accessible to the Atchafalaya River about a third of the year through the short ditch, which “wholly coincides with crawfish season,” and is “commercially significant” for that Basin. Judge Joseph concluded: “Lost Lake is navigable-in-fact, and therefore a navigable body of water for the purposes [of] this Court’s admiralty jurisdiction.” See August 2023 Update.
Bernhard appealed to the Fifth Circuit, which described the Atchafalaya Basin as “our nation’s largest floodplain swamp,” offering “picturesque scenery of bottomland forests, swamps, bayous, and backwater lakes.” Bernhard did not contest on appeal the nexus element of the test for admiralty jurisdiction, but the Fifth Circuit began by considering that element as the court had to ensure that it had authority over the case. The court agreed that the actions of the defendant disrupted maritime commerce by preventing Thibodeaux from freely navigating his vessel in the Lost Lake area of the Atchafalaya Basin. The court added that the detention of Thibodeaux’s vessel and traps resulted in his inability to engage in commercial fishing, a traditional maritime activity. Therefore, the court considered the nexus element to be satisfied. Turning to the “more hotly contested issue,” the navigability of Lost Lake, the court considered the accessibility of the Lake through the twenty-foot drainage canal that coincided with the crawfish season. Bernhard cited the Fifth Circuit’s Parm v. Shumate case, addressing a privately owned lake that received runoff from the flooding of the Mississippi River. The court distinguished Parm, however, because Lost Lake has a direct, seasonal connection to a navigable river via the canal; Lost Lake has historically supported commercial fishing activity; and Parm involved the navigational servitude and not admiralty jurisdiction. Based on “the unusual facts shown before us,” the Fifth Circuit held that Judge Joseph did not err in holding that Lost Lake was navigable for purposes of admiralty jurisdiction. See July 2024 Update.
After losing the jurisdictional argument in the Fifth Circuit, Bernhard filed a motion for complete summary judgment, arguing again that the court lacked admiralty jurisdiction, citing “newly discovered” evidence of the low water mark of the Atchafalaya River establishing that “Lost Lake is landlocked” and that interstate travel through the landlocked waterway is not possible. Bernhard asserted that the court should reconsider the previous decision because the evidence was “substantially different,” but Judge Joseph disagreed and held that Bernhard had failed to present substantially new evidence that warranted reconsideration of the finding of admiralty jurisdiction. Judge Joseph then turned to the merits of the motion for summary judgment on the claim that Bernhard was guilty of harassment of fishermen in violation of the Louisiana statute that prevents interference with a fisherman on waters managed by the state or on private waters where the fisherman has been given permission by the owner. Bernhard argued that he was entitled to judgment because the State of Louisiana does not manage Lost Lake and the plaintiffs did not have permission to crawfish on Bernhard’s private property. The plaintiffs responded that Lost Lake is subject to a public use servitude rendering trespass impossible. After noting the “imprecision of the parties’ arguments,” Judge Joseph explained that the state statute is not dependent on the existence of a servitude and only provides a cause of action for interference with a fisherman on lands managed by the State or upon which permission has been given. As the State does not claim ownership or domain over Lost Lake or manage the Lake (reflected in a letter from the State), and as the plaintiffs did not have permission to take crawfish from the Lake, the statute did not provide a cause of action. The plaintiffs argued that a servitude of public use arises by operation of law, but Judge Joseph answered that the State had not claimed ownership, and a contrary holding “would result in a federal court sitting in admiralty bestowing ownership upon the State—with all the incumbent obligations and liabilities—of heretofore privately owned property for which it makes no claim.” The plaintiffs also argued that there is a federal navigational servitude under the Commerce Clause, but Judge Joseph reasoned that the servitude “is concerned with navigational rights and commerce, and likely does not encompass a right for commercial fishermen to harvest crawfish from privately owned property.” The plaintiffs also brought a claim of conversion for taking the crawfish that had been trapped by the plaintiffs. However, the evidence reflected that the traps had been retrieved by the plaintiffs and that the claim involved “harvestable” crawfish (not harvested crawfish). As such, there was no conversion. Accordingly, Judge Joseph granted summary judgment and dismissed the plaintiffs’ claims with prejudice.
Maritime law, not the state open-account statute, applied to payments due pursuant to a bareboat charter entered into under a master service agreement; Gulf Coast Bank & Trust Co. v. Talos Energy, Inc., No. 2:25-cv-205, 2025 U.S. Dist. LEXIS 110488 (E.D. La. June 10, 2025) (Brown).
In 2019, Talos Production and DHD Offshore Services entered into a Master Service Agreement governing work performed by DHD Offshore for Talos Production as an independent contractor. Four years later, the parties entered into a bareboat charter for Talos to charter the Derrick Barge 85 (heavy lift and pipelay vessel) under the existing Master Service Agreement. DHD Offshore charged Talos for work performed under the Master Service Agreement, and it assigned its accounts receivable to Gulf Coast Bank. Gulf Coast Bank brought this suit in state court in Orleans Parish, Louisiana against Talos under the Louisiana Open Account Statute. Talos removed the case to Louisiana federal court based on diversity and filed a motion for judgment on the pleadings, requesting dismissal of the claim based on the state statute. Talos argued that the claims were based on the bareboat charter and Master Service Agreement, which are maritime in nature, preempting the state statute. Talos acknowledged that a fraction of the invoices related to non-maritime work, but that did not change the nature of the contract as maritime. Gulf Coast Bank argued that its right to recover was governed by its contract purchasing the accounts receivable, which is not a maritime contract, and that a significant amount of the invoices ($648,000 of the total of $1,978,623.58) involved non-maritime work. Gulf Coast Bank argued, in the alternative, that it should be allowed to amend its complaint to assert a claim for breach of a maritime contract. Judge Brown agreed with Talos that the purchase agreement for the accounts did not govern the dispute because the only contracts that could be enforced against Talos were the bareboat charter and the Master Service Agreement. She held that the Master Service Agreement and the bareboat charter “are undisputably maritime contracts.” Although some of the invoices related to non-maritime work, Judge Brown explained that the Supreme Court has endorsed a “conceptual rather than spatial approach” in determining whether a contract is maritime. She explained: “if the ‘substantial’ purpose of the agreement is in pursuit of ‘maritime commerce,’ incidental non-maritime elements do not alter a contract’s maritime quality.” As the “substantial purpose of the agreement is in pursuit of maritime commerce,” Judge Brown held that maritime law governs the dispute. Finding the state open account statute (allowing recovery of attorney fees) to be inconsistent with maritime law’s application of the American Rule (each party bears its own fees), Judge Brown dismissed the state open-account claim and permitted Gulf Coast Bank to amend its claims under maritime law.
Judge enforced one-year limitation period in passage ticket, rejecting the passenger’s arguments that the limitation was not reasonably communicated, that it was unconscionable, and that it should be extended by equitable tolling; Wedin v. Carnival Corp., No. 2:24-cv-8035, 2025 U.S. Dist. LEXIS 111063 (C.D. Cal. June 10, 2025) (Wright).
Susan Wedin, a passenger on the GRAND PRINCESS, was injured while playing a game on the ship. She brought this action, pro se, against Princess Cruise Lines and Carnival Corp. in California federal court, asserting a claim for failure to provide a safe environment for the passengers, and the defendants moved to dismiss the claim as time barred and for failure to state a claim. As argument with respect to the timeliness of the suit involved evidence outside the four corners of the complaint, Judge Wright converted the motion to a motion for summary judgment. Princess argued that the suit was barred as to Princess because of the one-year limitation in its Passage Contract. Wedin responded that federal maritime law provides a three-year statute of limitations for a maritime tort, that the terms of the Passage Contract were not reasonably communicated to Wedin, that the contract was an unconscionable contract of adhesion, and that equitable tolling should apply to extend the filing period. Although Wedin pleaded that the tort occurred in international waters, she alleged in her opposition that the injury occurred on territorial waters and that the laws of Bermuda, Canada, California, or Arizona should apply. Judge Wright limited his analysis to the allegations in the complaint, and he held that federal maritime law governed the Passage Contract and the tort (reasoning that the tort satisfied the test for admiralty jurisdiction). Judge Wright then explained that Congress has authorized the cruise line to shorten the limitation to a year if it has reasonably communicated the limitation. The bold and capital type near the top of the first page clearly gave notice of the limitation, but Wedin argued that the court should not use the physical characteristics test because it was unconscionable to apply a test for printed tickets in the context of the digital ticket in this case that does not have the physical characteristics of a printed ticket. Judge Wright rejected that argument as the test analyzes the characteristics of the contract, regardless of whether it is in print or in digital form. As to the circumstances surrounding the purchase, Judge Wright agreed with Princess that Wedin had sufficient time and means to inform herself of the one-year limitation, noting that she read and accepted the terms and had to scroll through the “IMPORTANT NOTICE” heading to complete the acceptance. Princess also reminded her of the Passage Contract’s terms after her injury. Although Wedin argued that the terms of the contract were unclear to the average passenger with no legal background, Judge Wright held that the provision clearly provided that the statute of limitations was one year. Finally, Judge Wright rejected the argument that the terms were unfair in comparison to the three-year limitation period in maritime law and the two-year period in California, stating that the Ninth Circuit has upheld one-year limitations as “reasonable and fair.” Therefore, he held that the one-year limitation was enforceable. Wedin also claimed that the one-year period should be extended by equitable tolling because she is a layperson who mistakenly believed that the three-year maritime limitation applied. However, Judge Wright noted that she was reminded of the terms and conditions of the contract, yet she went outside of the contract to find the maritime three-year limitation. Wedin also argued that her ability to file suit was impacted by the recurrence of symptoms related to post-concussion syndrome, which temporarily subsided and gave her the impression that no further claims were necessary. Judge Wright answered that Wedin was still aware of her initial injuries and could have brought suit within the time provided in the ticket. Accordingly, he rejected the claim of equitable tolling and granted summary judgment dismissing the negligence claim against Princess. Carnival moved to dismiss the complaint on the ground that Wedin did not plead any allegations against it or address its relationship with Princess. Judge Wright agreed and dismissed the complaint against Carnival, with leave to plead a claim against Carnival. Judge Wright also dismissed the claim for punitive damages as Wedin dropped the claim in her amended complaint and advised that she was no longer requesting punitive damages.
Judge agreed to briefing on the issue of whether the charterer of a vessel that was wrongfully arrested may request attorney fees three months after the arrest was vacated when the charterer had not filed a counterclaim for wrongful arrest; Geoserve Energy Transport DMCC v. 07 VEGA S, No. 3:24-cv-2148, 2025 U.S. Dist. LEXIS 111149 (S.D. Cal. June 11, 2025) (Huie).
Geoserve Energy was contacted by Infinity Shipping to provide bunkers to the M/V 07 VEGA 7. The order originated with the time charterer of the vessel (Ocean7 Projects), through a broker, who placed the order with a company (TSL Shipping) that subcontracted with Infinity Shipping, which subcontracted with Geoserve. Geoserve contracted for the supply of the bunkers, and Ocean7 Projects paid TSL, which arranged for payment of $188,254 for the fuel. Infinity Shipping later advised Geoserve that the payment should be applied for the bunkers supplied to a different vessel, the T RIGEL, to which Geoserve had provided bunkers. Infinity Shipping ultimately paid $20,000 for the bunkers for the 07 VEGA S, but did not pay the remainder of the $188,254. Geoserve brought this suit in federal court in California against the vessel, and the vessel was arrested. Ocean7 Projects appeared in the proceeding and advised: “We are stunned to see Infinity instructing these funds to be allocated to another vessel than the 07 Vega S . . . . We have no knowledge or involvement with the T Rigel, and there is absolutely no connection with the 07 Vega S.” At a post-arrest hearing, Geoserve, Infinity Shipping, and Ocean7 Projects agreed to the posting of security and for the release of the vessel, and Judge Huie released the vessel. Ocean7 Projects then filed a motion to dismiss the action, and Geoserve did not file a response. Judge Huie dismissed the complaint, without leave to amend based on the failure to file a response and also on the merits, concluding that the complaint did not allege that Infinity Shipping was an agent for Ocean7 Projects and that the payment extinguished the lien. Geoserve moved to set aside the dismissal, and Judge Huie reiterated his prior decision on the merits. He again concluded that there was no evidence that Infinity Shipping was acting as an agent for Ocean7 Projects and that the lien was extinguished when Ocean7 Projects made the payment to TSL (a downstream party who seeks to reallocate the payment does not thereby resurrect the lien). Finally, Judge Huie noted that once the arrest was vacated, there was no longer a basis for maintaining an in rem action against the vessel. Accordingly, he declined to reconsider the dismissal of the complaint. See May 2025 Update.
Ocean7 Projects did not file a counterclaim seeking damages for wrongful arrest of the vessel. It did file an ex parte application for countersecurity, stating that it would file a motion, but no such motion was filed. Judge Huie denied the application as the complaint had been dismissed and the arrest had been vacated. Ocean7 Projects then filed a motion seeking an award of attorney fees based on wrongful arrest of the vessel, and Judge Huie denied the motion for failure to comply with the meet-and-confer requirements and as being untimely under Rule 54(d)(2). Ocean7 Projects moved for reconsideration, and Judge Huie granted reconsideration with respect to compliance with the meet-and-confer requirements. As to the timeliness of the motion for damages, filed three months after entry of judgment, Ocean7 Projects argued that it was not seeking attorney fees subject to Rule 54 (requiring the filing within 14 days of the judgment). Instead, Ocean7 Projects sought attorney fees as an element of damages for wrongful arrest of the vessel that fall within the exception to Rule 54, where “the substantive law requires those fees to be proved at trial as an element of damages.” Ocean7 Projects cited the decision of the Supreme Court in Vaughan v. Atkinson, permitting an award of attorney fees as an element of damages in maintenance and cure cases, but Judge Huie noted that the seaman in that case brought an admiralty suit seeking to recover such damages and did not first assert the claim in a post-judgment motion. Ocean7 Projects was unable to cite any statute, rule, or case that specifically addressed the timeliness of a motion to recover damages for wrongful arrest of a vessel. It argued that “the deadline to pursue damages and costs arising from a wrongful arrest” was “triggered from the date of a final unappealable order establishing the arrest is invalid.” However, Judge Huie reasoned that the argument was contrary to the policy behind Rule 54(d)(2)(A): “to assure that the opposing party is informed of the claim before the time for appeal has elapsed.” Judge Huie added: “Ocean7’s proposed rule would allow a defendant not to alert the plaintiff, to wait for the plaintiff’s time to appeal to expire, and finally to file a motion seeking previously undisclosed damages—here, in excess of seven times the amount claimed by the plaintiff in the underlying lawsuit. In those circumstances where the plaintiff does choose to appeal a final judgment, Ocean7’s proposed rule would seem to incentivize inefficient and time-consuming successive appeals.” Believing he would benefit from additional briefing, Judge Huie requested the parties to file briefs on the issue of whether the motion for fees was timely and should be heard on the merits.
Service on defendants in Hong Kong in connection with collision between foreign-flagged vessels 67 miles off the coast of California was proper under the Hague Convention, Federal Rule 4(f)(2)(A), and Hong Kong law; owner of vessel flagged in Hong Kong was not subject to personal jurisdiction in the United States when it relinquished control of the vessel to the bareboat charterer, but limited jurisdictional discovery was necessary to determine if the charterers were subject to personal jurisdiction in the United States; Judge ordered the parties to show cause why the California suit should not be stayed pending the outcome of the suit previously filed between the parties in China; Cabo Virgenes Shipping, Inc. v. Cosgold Lake Maritime, Ltd., No. 2:24-cv-10720, 2025 U.S. Dist. LEXIS 111189 (C.D. Cal. June 11, 2025) (Walter).
On December 18, 2022, two foreign-flagged vessels, the CABO KAMUI (Panama) and the COSGOLD LAKE (Hong Kong), collided at the Pacific Lightering Areas in the United States Exclusive Economic Zone, approximately 67 nautical miles off San Clemente Island. Cabo Virgenes Shipping is the owner of the CABO KAMUI. Cosgold Lake Maritime, owner of the COSGOLD LAKE, bareboat chartered the vessel to Pan Cosmos Shipping, which time chartered the vessel to China Shipping, which sub-time chartered the vessel to China Pool, which voyage chartered the vessel to Phillips 66 to transport crude oil for use in Phillips 66’s marine terminal located in the Port of Los Angeles. The COSGOLD LAKE was scheduled to call at the lightering area for ship-to-ship transfer of the cargo to tank vessels. The first suit that was filed (on December 6, 2024) was by bareboat charterer Pan Cosmos against Cabo Virgenes in the Ningbo Maritime Court of the People’s Republic of China. Cabo Virgenes challenged the jurisdiction of the court, but it filed a counterclaim seeking compensation of $1.4 million. The court rejected the jurisdictional challenge, and Cabo Virgenes filed an appeal. Cabo Virgenes filed this suit on December 12, 2024 in federal court in California against Cosgold Lake Maritime, Pan Cosmos, China Shipping, and China Pool, seeking the same amount as in its counterclaim in the suit filed in China. Cabo Virgenes served the defendants by registered mail and personal service through a Hong Kong solicitor firm at their common registered office in Hong Kong. The defendants moved to quash the service on the ground that Cabo Virgenes did not accomplish service through Hong Kong’s Central Authority under Article 5 of the Hague Convention, and, alternatively, they moved to dismiss the suit for lack of personal jurisdiction. Cabo Virgenes responded that service through Hong Kong’s Central Authority was not necessary because the Hague Convention permits service by alternative methods, and the service in this case complied with Hong Kong law. However, Judge Walter noted that affirmative authorization to use the methods of service had to come from the law of the forum in which the suit was filed. Federal Rule 4(f)(2)(A) permits service as prescribed by the foreign country, which directed Judge Walter to determine whether Cabo Virgenes effectuated service in compliance with Hong Kong’s domestic law. Reasoning that the delivery at, and mail to, the registered office was sufficient under Hong Kong law, Judge Walter denied the motion to quash. As to the motion to dismiss for lack of personal jurisdiction, Judge Walter examined the owner separately from the charterers. He noted that Cosgold Maritime does not conduct business in the United States except at the direction of charterers. It does not determine the schedule or ports at which the vessel calls and does not man or operate the vessels. Cosgrove Maritime argued that the bareboat charter provided that Pan Cosmos would keep Cosgold Lake advised of the intended employment of the vessel, but Judge Walter did not believe that was sufficient to overcome the fact that Cosgold Lake had relinquished control of the vessel to the bareboat charterer and the contract did not specifically provide that the vessel would enter the state of California. Therefore, Judge Walter dismissed Cosgold Lake for lack of personal jurisdiction. However, Judge Walter believed that limited jurisdictional discovery was appropriate with respect to the personal jurisdiction over the charterers, and he declined to dismiss the charterers until after that discovery was completed. Nonetheless, Judge Walter found that the two suits were “an incredible waste of judicial resources, as well as the parties’ time and money.” Accordingly, he ordered the parties to show cause why the California suit should not be stayed pending the resolution of the proceedings in China.
Cruise line passenger sufficiently pleaded a claim for negligent design, but inadequately pleaded notice for claims of failure to warn, failure to maintain, and negligence with respect to a fall allegedly caused by a slippery substance on stairs and a wet handrail; Copeland v. Carnival Corp., No. 1:25-cv-21765, 2025 U.S. Dist. LEXIS 114105 (S.D. Fla. June 16, 2025) (Altman).
Raegan Copeland, a passenger on the CARNIVAL BREEZE, was injured when she fell on a slippery surface as she descended a midship interior staircase from Deck 4 to 3 on the vessel. When she tried to use the handrails to stop her fall, she found that the handrail was wet and/or [Judge Altman warned Copeland about “her copious use of ‘and/or’ throughout her Complaint”] slippery and could not prevent her fall. Copeland brought this suit against the cruise line in Florida federal court, asserting four counts of negligence. The cruise line moved to dismiss the complaint for failing to adequately allege notice and for bringing duplicative counts. Although Copeland alleged that the cruise line knew of the dangerous condition, Judge Altman held that statement was insufficient to allow the court to draw the inference that the cruise line had actual notice. Judge Altman noted that, “to her credit,” Copeland did not suggest that she properly pleaded notice. However, Judge Altman also held that Copeland did not sufficiently allege constructive notice as to the counts for failure to warn, failure to maintain, and general negligence based on her pleading that the dangerous condition existed for a sufficient length of time, as there was no factual support for the assertion. Recognizing the deficiency, Copeland cited two decisions as evidence of substantially similar incidents, but she did not explain how the accidents in those cases were similar. Judge Altman reasoned that “allegations that other passengers slipped on a ‘substantially similar interior staircase and/or flooring surface’ on the same vessel” are not “enough to establish constructive notice, unless the plaintiff can explain how the staircase she slipped on is similar to the staircases” in the cited cases (Judge Altman was also concerned that two cases might be insufficient to establish constructive notice). Judge Altman did believe that Copeland had sufficiently pleaded a case for negligent design with the allegations that the cruise line failed to “adequately select, install, and/or approve of reasonably safe flooring material” and failed to “adequately select, design, and/or approve the subject area with sufficient and adequate handrails or support structures, particularly in areas where foreign substance are likely to accumulate.” Although he could not say that the count was “particularly well-pled,” Judge Altman found that it was similar to allegations that had been allowed to proceed in another case. Therefore, he granted the motion to dismiss as to three counts with leave to amend.
Presence of crewmembers in the vicinity of an elevator that malfunctioned on a cruise ship did not establish how long the malfunction had existed; Thomas v. Carnival Corp., No. 1:24-cv-22914, 2025 U.S. Dist. LEXIS 115756 (S.D. Fla. June 17, 2025) (Martinez).
Linda Thomas, a passenger on the CARNIVAL CONQUEST, was injured while entering an elevator on Deck 9 of the vessel when the doors prematurely closed without warning. She brought this suit in Florida federal court against the cruise line for negligent maintenance and failure to warn, and the cruise line moved to dismiss the complaint for lack of notice. Thomas argued that the cruise line had notice of the risk posed by the elevator because crewmembers were present near the elevator with sufficient time to invite correct measures and because of a similar incident on a different Carnival ship in 2018. Judge Martinez rejected the first assertion of notice because the inference that nearby crewmembers would have seen the elevator malfunctioning prior to the incident “is unfounded without facts suggesting that the malfunction had existed for any length of time beforehand.” Although Thomas argued that “the presence of a malfunction, in and of itself, supports the allegation that the hazard had existed for a sufficient time,” Judge Martinez responded that the “argument is circular and does not support an allegation of constructive notice because . . . the mere existence of a condition does not mean the Defendant knew about it.” Judge Martinez also concluded that notice was not sufficient from the prior incident because Thomas provided no facts to suggest that the elevator on the other ship was similar to the elevator that injured her or that the incident was similar, and the incident took place more than six years before Thomas’ incident. Accordingly Judge Martinez dismissed the complaint without prejudice with the warning that an amended complaint “must cure the deficiencies identified in this Order” and that if Thomas fails to cure the deficiencies, the case “will be dismissed with prejudice without further warning.”
Alleging the absence of a handrail on stairs caused the fall of a passenger on a cruise ship did not establish notice of a dangerous condition on the part of the cruise line; Jackson v. MSC Cruises S.A., No. 1:24-cv-23920, 2025 U.S. Dist. LEXIS 116309 (S.D. Fla. June 17, 2025) (Gayles).
Paul Jackson, a passenger on the MSC SEASCAPE, fell while descending the staircase of the vessel’s theater because of the absence of handrails. He brought this suit against the cruise line in Florida federal court asserting a single count that included claims for negligent maintenance, negligent failure to warn, and negligent design. The cruise line moved to dismiss the complaint for comingling the three theories of negligence into a single count and for failing to sufficiently allege notice of the risk-creating condition. Judge Gayles agreed that the complaint would have to be repleaded for the comingling of theories, and he also agreed that the complaint failed to adequately allege notice. Jackson’s statement that the cruise line should have known of the dangerous condition of the stairway because of the absence of handrails was conclusory and did not set forth how the cruise line should have known of the danger. Jackson also argued that Coast Guard regulations mandate handrails, but Judge Gayles answered that the allegation did not establish notice on the part of the cruise line. Accordingly, he dismissed the complaint without prejudice.
Suit in state court against OCS platform owner by passenger who was injured when a fishing boat allided with the operator’s unlit platform was removable to federal court under the OCSLA, even though the activity in which the passenger was engaged was not connected to oil and gas exploration and development; however, another suit from the same incident was remanded to state court for procedural defects in the removal (the removal was late and did not have the consent of all defendants); Rijos v. Sanare Energy Partners, LLC, No. 2:24-cv-2214, 2025 U.S. Dist. LEXIS 116077 (E.D. La. June 18, 2025) (Long); Royster v. Sanare Energy Partners, LLC, No. 2:25-cv-968, 2025 U.S. Dist. LEXIS 141535 (E.D. La. July 24, 2025) (Long).
Carlos Rijos was riding as a passenger in a sport-fishing vessel owned by Linedout Pro Fishing and operated by Gerald Mitchell Mosely. The vessel left a marina in Cocodrie, Louisiana to participate in a fishing tournament off the coast of Louisiana. The vessel allided with an unmarked, unlit platform, owned by Sanare Energy Partners, that is located on the outer Continental Shelf of the Gulf of America. Rijos brought suit against Sanare Energy, Linedout Pro Fishing, and Mosely in Louisiana state court, seeking to recover for his injuries, invoking the Saving-to-Suitors Clause, and Sanare removed the case to Louisiana federal court based on jurisdiction from the Outer Continental Shelf Lands Act. Rijos moved to remand the case, arguing that the OCSLA was not applicable, but Judge Long disagreed. He reasoned that the OCSLA broadly confers jurisdiction over cases arising out of, or in connection with, any operation conducted on the OCS that involves exploration, development, or production of minerals of the OCS, and he cited the Fifth Circuit’s “but-for” requirement for the connection that the appellate court previously applied to an allision between a tug and a platform. As the allision in this case would not have occurred but for the existence of Sanare’s oil and gas platform, Judge Long held that the court had jurisdiction. Although Rijos argued that OCSLA jurisdiction was not triggered by the recreational vessel, Judge Long answered that the argument was “untethered to the statutory text.” He explained that the statute “does not require that an on-OCS operation cause the injury sparking the suit.” The accident only has to arise out of, or in connection with an OCS operation involving exploration/production of OCS minerals. Judge Long added that nothing in the text of the OCSLA “conditions OCSLA jurisdiction on the nature of the vessel involved, the identity or status of the plaintiff, the sector of the plaintiff’s employment, or even the ‘relationship’ between the plaintiff and the on-OCS operation.” Judge Long also rejected the argument that Rijos’ claims sounded in admiralty, because the jurisdiction and choice-of-law claims are “entirely independent.” Thus, the court has original jurisdiction under the OCSLA “even when maritime law eventually provides the substantive rule of decision.” Finally, Rijos argued that he had not invoked the OCSLA in his state pleading, but Judge Long answered that the argument was “misplaced,” citing Judge Brown’s famous statement that the court “need not traverse the Serbonian Bog of the well pleaded complaint rule” because the OCSLA “expressly invests jurisdiction in the United States District Courts.” Accordingly, Judge Long denied the motion to remand.
Claude Royster, IV, was thrown from the vessel in the allision, and his body has not been recovered. Ralitsa Royster brought suit in state court in Terrebonne Parish, Louisiana against Sanare Energy, Linedout Pro Fishing, and Mitch Mosely, and Sanare removed the case to Louisiana federal court based on jurisdiction from the Outer Continental Shelf Lands Act. However, the removal was filed 34 days after service of the petition, and defendant Linedout, which had been served, did not join in the removal and later objected. Ralitsa moved to remand based on the procedural defects, and, finding no exception to excuse the defects, Judge Long ordered the case remanded to state court.
Removal of seaman’s suit was proper under the OCSLA, but the court severed and remanded the Jones Act claim and retained the maritime claims; Tauriac v. Staffing the Universe, LLC, No. 4:24-cv-4290, 2025 U.S. Dist. LEXIS 130245 (S.D. Tex. June 18, 2025) (Ho), recommendation adopted, 2025 U.S. Dist. LEXIS (S.D. Tex. July 8, 2025) (Lake).
John Tauriac was recruited by Industrial Staffing Services (named in the suit as Staffing the Universe) and was working as part of a Schlumberger well-testing crew on the Q5000, a semisubmersible rig located at Mississippi Canyon, Block 948, on the outer Continental Shelf of the Gulf of America. Tauriac lost control of a sledgehammer that he was using to close a valve on the drill floor, resulting in an injury to his hand and wrist. Tauriac brought this suit in state court in Harris County, Texas against Helix Energy, Talos Energy, Schlumberger, and Staffing the Universe, asserting claims under the Jones Act and general maritime law as a seaman assigned to the Q5000. Industrial Staffing removed the case to Texas federal court based on jurisdiction under the Outer Continental Shelf Lands Act, averring that Tauriac was not a seaman and that his pleading of a Jones Act claim did not bar removal. Alternatively, in the event the court disagreed that Tauriac did not improperly plead a Jones Act case, Industrial Staffing asked the court to sever the Jones Act claim and remand it to state court, leaving the general maritime claims in federal court. Industrial Staffing also filed a motion to dismiss for lack of personal jurisdiction. Noting that a federal court may consider personal jurisdiction prior to a motion to remand when “‘federal intrusion into state courts’ authority is minimized,’” Magistrate Judge Ho found no indication that the allegations in the suit arose out Industrial Staffing’s business in Texas. Tauriac was not hired to perform work in Texas, received his training in Oklahoma, and worked offshore. Accordingly, Judge Ho recommended that Industrial Staffing be dismissed for lack of in personam jurisdiction. Turning to the motion to remand, Magistrate Judge Ho held that the OCSLA provided federal jurisdiction over the maritime claims for unseaworthiness and maintenance and cure as Tauriac’s work took place on the OCS and furthered its mineral development, even though Tauriac did not invoke the OCSLA. Magistrate Judge Ho found two reasons why the court should not retain jurisdiction over the Jones Act claims. Although the Fifth Circuit has approved a summary procedure to determine whether a Jones Act claim has been improperly pleaded, some courts have declined to apply the procedure in cases that are removed under the OCSLA because the rationale for piercing the pleadings (to prevent the plaintiff from frustrating federal pleadings by pleading a baseless Jones Act claim) is not present. When the case is removable under the OCSLA, the additional Jones Act claim “cannot frustrate federal jurisdiction, regardless of its validity” because OCSLA jurisdiction allows removal “notwithstanding the general non-removability of the companion Jones Act claim.” With respect to the validity of the Jones Act claim, the defendants challenged Tauriac’s allegiance to the vessel, the seagoing nature of his work, and his assignment to the vessel “for anything more than a discrete, limited task.” Tauriac argued that he took orders from senior members of the crew of the Q5000, who managed the vessel’s operations, and Magistrate Judge Ho concluded that the defendants could not show that Tauriac had no possibility of providing he had a sufficient allegiance to the vessel, as opposed to an onshore employer. Magistrate Judge Ho also noted that the work was performed while the vessel was deployed in navigable waters and that he worked, slept, and ate on the vessel. She concluded: “That suggests sea-based work.” Finally, Magistrate Judge Ho found that Tauriac’s declaration that his employment was not intended to be short-term or temporary was sufficient to establish a question whether his work was limited to a discrete task. Therefore, she recommended that the Jones Act claim should be severed and remanded. There were no objections to the recommendation, and Judge Lake adopted the recommendation, denying the motion to remand the maritime claims and severing and remanding the Jones Act claim.
Judge vacated attachment of ship, concluding that the owner of the ship that was attached was not an alter ego of the company against whom an arbitration award had been entered; the District Judge declined to stay the release of the vessel pending appeal, but the Fifth Circuit requested the District Judge to explicitly consider records listing the company against whom the arbitration award was entered as operator and guarantor for the vessel’s environmental obligations; Atlantic Oceanic LLC v. HF Offshore Services Mexico SAPI de CV, No. 2:25-cv-974, 2025 AMC 269, 2025 U.S. Dist. LEXIS 117279 (E.D. La. June 20, 2025) (Dossier), recommendation adopted, 2025 U.S. Dist. LEXIS 128633 (E.D. La. June 30, 2025 (Milazzo); 2025 U.S. Dist. LEXIS 126764 (E.D. La. July 3, 2025) (Milazzo); Atlantic Oceanic, L.L.C. v. HF Offshore Services Mexico SAPI de CV, No. 25-30379 (5th Cir. July 8, 2025( (per curiam).
HF Offshore Services Mexico SAPI (HF Mexico) time chartered a supply vessel, the M/V ATLANTIC TONJER, from Atlantic Oceanic, and Atlantic Oceanic claims that HF Mexico wrongfully terminated the charter. Atlantic Oceanic submitted its claims against HF Mexico to a London arbitration, and more than $10 million has been awarded. Atlantic Oceanic then filed this suit in federal court in Louisiana against HF Mexico, HF Hunter Shipping (owner of the vessel HF HUNTER), and HF Offshore Towing SAPI (HF Towing), arguing that the companies are alter egos of each other. Atlantic Oceanic argued that it was entitled to attach the HF HUNTER to enforce the arbitration award because HF Mexico formed HF Hunter to transfer ownership of the vessel to HF Hunter to shield the vessel from liability arising from HF Mexico’s breach of the charter with Atlantic Oceanic. The vessel was attached, and HF Hunter moved to vacate the attachment. Magistrate Judge Dossier held a post-attachment hearing and concluded that Atlantic Oceanic did not establish probable cause to support that theory. HF Towing purchased the vessel and transferred it to HF Hunter not to shield assets but because the shareholders of HF Hunter needed to move forward with the transaction as a business opportunity before they could form HF Hunter. Magistrate Judge Dossier also found that the parties were not alter egos and that HF Mexico did not directly or indirectly control decisions related to the HF HUNTER. Accordingly, she recommended that the attachment be vacated. Atlantic Oceanic filed a motion to alter or amend the judgment, but Magistrate Judge Dossier declined to reconsider the decision. Judge Milazzo conducted a de novo review and found the ruling and reasoning to be “complete and unimpeachable.” Therefore, she vacated the attachment. Hunter Shipping moved for release of the vessel, and Atlantic Oceanic moved for a stay of the release pending appeal. Atlantic Oceanic argued that it was entitled to an automatic stay under Rule 62(a), but Judge Milazzo stated that a motion to vacate a maritime attachment is governed by Supplemental Rule E(5)(c), which provides that a vessel “may be released forthwith” upon order of the court, suggesting that “the release of a vessel is incompatible with an automatic stay.” Judge Milazzo held that the appropriate standard is in Rule 62(c), which requires consideration of whether the applicant has made a strong showing of the likelihood of success on the merits, whether the applicant will be irreparably injured absent a stay, whether issuance of the stay will substantially injure the other parties interested in the proceeding, and where the public interest lies. Judge Milazzo did not believe that Atlantic Oceanic had made a strong showing of the likelihood of success. With respect to the second and third factors, Judge Milazzo found that both parties stood to suffer harm from an adverse outcome, and that Atlantic Oceanic failed to show that the balance of equities weighed heavily in favor of a stay. Finally, Atlantic Oceanic argued that leaving the attachment in place would result in “‘preserving the status quo’ of honoring internation arbitration,” but Judge Milazzo was unpersuaded as the only party involved in the arbitration was HF Mexico, not the party whose vessel was being attached. Therefore, Judge Milazzo ordered the vessel released to HF Hunter. Atlantic Oceanic sought a stay from the Fifth Circuit (pending appeal), and the Fifth Circuit remanded the case to the district court to explicitly address the effect of the ongoing listing of HF Mexico as the operator and guarantor of the vessel’s potential pollution liability in the Coast Guard’s Certificate of Financial Responsibility database and the ongoing listing of HF Mexico as owner/operator of the vessel in the NRC Covered Vessels Washington State Contingency Plan database. The Fifth Circuit advised the district court to consider requiring a bond from Atlantic Oceanic to maintain the attachment in the event the court concluded that the attachment was still unwarranted.
Letter of undertaking without an ad interim stipulation is insufficient in a limitation action; In re Drenth, No. 8:25-cv-858, 2025 AMC 246, 2025 U.S. Dist. LEXIS 136864 (M.D. Fla. June 20, 2025) (Flynn).
Stephen Drenth is owner of the M/V MY GIRLS ADVENTURE, LLC, a 2001 25-foot Bluewater Boats Runabout. He was operating the boat on a 6-hour fishing charter with four guests near St. Petersburg, Florida, when a large sea turtle unexpectedly surfaced in front of the vessel. Drenth made a sharp left turn to avoid the turtle, but passenger Douglas Brown slipped off his seat, lost his balance, and rolled overboard. Brown was recovered from the water, and Drenth brought this limitation action in Florida federal court. Drenth alleged in the complaint that his interest in the vessel did not exceed $50,000 and that there was no pending freight. He attached a letter of undertaking from GEICO Marine Insurance Co. in the sum of $50,000, stating that it was security for the benefit of claimants. GEICO agreed in the letter of undertaking to pay any final judgment plus interest and costs, not exceeding $50,000. However, Drenth did not file an ad interim stipulation for value. Instead, Drenth filed a motion asking the court to approve the letter of undertaking and issue an order restraining prosecution of suits. Magistrate Judge Flynn declined to approve the letter of undertaking or issue the monition. He explained that without the ad interim stipulation, “the Court does not have ‘a substitute for the vessel itself.’”
From the state courts
Louisiana appellate court held that the state statute providing for a no-wake zone in the vicinity of a public launch could be enforced for a surging incident in the Intracoastal Waterway; Babin v. Turn Services, L.L.C., No. 25-C-63, 2025 La. App. 887 (La. App. 5 Cir. May 19, 2025) (per curiam).
Plaintiffs, Debra Babin, Patricia Gaudet, Candi Babin, Chastity Babin, and Courtney Babin, claim that they were loading their 19-foot Carolinas skiff at a public boat launch on the Intracoastal Waterway near Larose, Louisiana, when the M/V SECRETARIAT, owned and operated by Turn Services, passed them at an excessive rate of speed, creating a wake that caused their skiff to rock backward into the dock. The plaintiffs brought this suit against Turn Services in state court in St. James Parish, Louisiana, and they argued that Turn Services was liable based on the provisions of a Louisiana statute creating “no-wake” zones (within 300 feet of a public boat launch) in which vessels must operate at bare steerage speed. Turn Services argued that the Louisiana statute was inapplicable, and Judge Turner declined to grant summary judgment to Turn Services. Turn Services sought a supervisory writ from the Louisiana Court of Appeal for the Fifth Circuit. The appellate court noted that federal regulations for waterways, including the Intracoastal Waterway, provide that vessels in narrow sections must reduce speed sufficiently to prevent damage when passing other vessels or structures. The Court of Appeal added that the state statute prohibits local governing authorities from establishing a speed limit in the Intracoastal Waterway. However, nothing in the federal regulation or in the state statute prohibits the State of Louisiana from establishing a speed limitation such as the no-wake provision in the state statute. Therefore, the Court of Appeal held that the state statute could be applied to the suit. Turn Services argued that the plaintiffs failed to show that the area where the incident occurred was a no-wake zone (no one remembered a posted no-wake zone sign). However, there was sufficient evidence from the description of the area that the appellate court agreed that summary judgment was inappropriate.
Louisiana Port’s attempt to expropriate private property so it could be leased to a private company in connection with the construction of a liquefied natural gas facility was declared unconstitutional under the Louisiana Constitution; Plaquemines Port, Harbor & Terminal District v. Nguyen, No. 2024-CA-0614, 2025 La. App. LEXIS 1003 (La. App. 4 Cir. May 29, 2025) (Morial).
Plaquemines Port, Harbor & Terminal District filed a Petition for Expropriation in state court in Plaquemines Parish, Louisiana, seeking to expropriate the vacant, immovable property of Tuan Nguyen for Port expansion through the Delta LNG Project (to increase shipment of liquified natural gas on vessels calling at the Port). Nguyen objected that the action was premature because the Port had not engaged in any good faith negotiations to purchase the property, and he added that the Port lacked the constitutional authority to expropriate property solely for the purpose of leasing it to a private entity, Venture Global, to conduct for-profit business. Judge Conner conducted a hearing and found that the sole use of Nguyen’s property was for the Port to lease it to Venture Global for its use as a pre-treatment facility. Judge Conner dismissed the petition as violative of the Louisiana Constitution, and the Port appealed to the Fourth Circuit Court of Appeal. Writing for the court, Judge Morial cited the constitutional provision that allows the government to expropriate property for public ports “to facilitate the transport of goods or persons in domestic or international commerce.” The Louisiana Supreme Court has held that a public port may lease the property to another entity that physically handles the operations; however, the operations “must nevertheless be those of a public port ‘to facilitate the transport of goods.’” As the evidence supported Judge Conner’s finding that the appropriation was for the operation as a private port facility for the exclusive use of that private entity, Judge Morial affirmed the dismissal of the expropriation suit.
Kenneth G. Engerrand
President, 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
Quote/Admonition on Courtroom Behavior:
Judge T. Kent Wetherell of the United States District Court for the Northern District of Florida set forth this background before issuing his order:
I have served as a judge for over 23 years. I have never had to write an order like this, and I never dreamed that I would have to do so. But, unfortunately, I do.
Yesterday morning, I held a hearing on Defendant's motion to stay. The hearing was uneventful and concluded around 12:45 p.m. Then, at 1:00 p.m., I had a criminal sentencing hearing in the same courtroom. That hearing too was uneventful—or so I thought.
After the sentencing hearing, I was informed that the Assistant United States Attorney (AUSA) who was sitting in the chair in which Plaintiff sat during the morning hearing got gum on her skirt when she brushed her leg against the underside of counsel's table. It was at that point that court staff determined that chewed gum had been stuck under the table.
The fact that there was chewed gum stuck under the table was absolutely disgusting. It also reflected a contempt/disrespect for the Court and court facilities that could not simply be ignored.
The gum that was not stuck to the AUSA's skirt was still stuck to and hanging down from the table after the incident. The court custodial staff then had the unenviable task of removing the remainder of the gum from the table, which they dutifully did.
Court staff and I inferred that the gum had to have been stuck under the table at some point during the morning hearing because there had been no hearings in that courtroom since Tuesday, and the gum was still fresh and stringy. Thus, to get to the bottom of the incident, I ordered Plaintiff to "file a notice identifying who stuck the chewed gum under the table and show cause why the Court should not impose appropriate sanctions on the person who did so."
In response, Plaintiff submitted a letter admitting that she placed the gum under the table and "sincerely apologiz[ing]" for her actions. She also offered to pay for any damages caused by her actions.
I appreciate Plaintiff's candor in admitting to what she did and her contrition for her actions. Her letter will be forwarded to the affected AUSA so she can decide whether she wants a personal apology from Plaintiff and/or reimbursement for having to have her skirt drycleaned.
I accept the assurance provided by Plaintiff's counsel on behalf of himself and Plaintiff that "nothing like this will happen again," and based on that assurance, I see no need to impose additional sanctions. A simple admonishment will suffice.
Accordingly, Judge Weatherell ordered that:
The Order to Show Cause is DISCHARGED with the admonishment that what Plaintiff did by sticking her chewed gum under a courtroom table was inappropriate and unacceptable and had better not happen again.
Judge Wetherell added two footnotes:
Things would have been considerably worse for Plaintiff had she not admitted it because the courtroom security video clearly shows her placing the gum under the table.
That said, if anything like this happens again, I will come up with sanctions that are commensurate with the schoolchild-nature of the violation—maybe sitting in the courtroom under the supervision of a court security officer handwriting "I will not stick my gum under a courtroom table again" 100 times on notebook paper; an afternoon of helping the court custodial staff clean the courtroom and adjacent public areas; and/or a couple hours of scraping gum off the sidewalk in front of the courthouse.
Padavan v. Naugle, No. 3:25-cv-34, 2025 U.S. Dist. LEXIS 121031 (N.D. Fla. June 13, 2025) (record cites omitted).
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© Kenneth G. Engerrand, July 31, 2025; redistribution permitted with proper attribution.
