December 2025 Longshore Maritime Update No. 319
Notes from your Updater:
As the Defense Base Act applies the provisions of the LHWCA (except as modified in the DBA), the Update discusses claims brought against contractors by their employees under the DBA. The DBA does not cover injury claims of United States military personnel against contractors. Army Specialist Winston T. Hencely was injured at Bagram Airfield in Afghanistan by a suicide bomber who worked for a government contractor. Hencely sued the government contractor for negligence under state law, but the Fourth Circuit held that the state claims were preempted by federal interests emanating from the Boyle exception to liability under the Federal Tort Claims Act (immunizing the government for claims arising out of combatant activities during time of war). On November 3, 2025, the Supreme Court heard oral argument on this question: “Should Boyle be extended to allow federal interests emanating from the FTCA’s combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders?” See Hencely v. Fluor Corp., No. 24-924 (U.S.).
On November 6, 2025, Judge Ashe of the United States District Court for the Eastern District of Louisiana declined to grant summary judgment to Ports America on the claim that Keshaune Sutton, a member of the International Longshoremen’s Association Clerks and Checkers Union, Local 1497, suffered retaliation in response to her sexual harassment claim by the drastic reduction in her work assignments. Judge Ashe rejected the argument that the actions were “in keeping with” the terms of the applicable collective bargaining agreement and because the Union and not Ports America was responsible for dispatching Sutton to her daily assignments, citing Sutton’s assertion that Ports America stopped requesting that the Union dispatch her. Judge Ashe did dismiss her claims for sexual harassment, sex-based discrimination, and race-based discrimination. See Sutton v. Ports America Louisiana, L.L.C., No. 2:24-cv-2523, 2025 U.S. Dist. LEXIS 218704 (E.D. La. Nov. 6, 2025).
The Update frequently addresses the application of the derivative sovereign immunity defense that is asserted by government contractors, originating in the decision of the Supreme Court in Yearsley v. W.A. Ross Construction Co. On November 10, 2025, the Supreme Court heard oral argument on the question of “whether an order denying a government contractor’s claim of derivative sovereign immunity is immediately appealable under the collateral-order doctrine.” See The GEO Group, Inc. v. Menocal, No. 24-758 (U.S.) [the circuit courts are split 5-3, with the Tenth Circuit in this case agreeing with the majority of circuits that do not allow collateral-order review].
With the reopening of the Office of Administrative Law Judges of the U.S. Department of Labor after the conclusion of the lapse in funding, Chief Administrative Law Judge Henley issued the following Administrative Order on November 13, 2025:
On November 17, 2025, the Eleventh Circuit dismissed the appeal of the International Longshoremen’s Association, AFL-CIO, Union 1410, from the decision of Magistrate Judge Cassady of the United States District Court for the Southern District of Alabama, declining to compel arbitration in the suit brought by APM Terminals Mobile (asserting that the union breached a no-strike provision in its collective bargaining agreement) The Eleventh Circuit held that neither the Federal Arbitration Act nor the Labor Management Relations Act permitted an interlocutory appeal. See APM Terminals Mobile, LLC v. International Longshoremen’s Association, AFL-CIO, Local Union 1410, No. 24-11100, 2025 U.S. App. LEXIS 30045 (11th Cir. Nov. 17, 2025) (Pryor).
In the wake of the Supreme Court’s decision on the scope of the Clean Water Act in Sackett v. Environmental Protection Agency (see June 2023 Update), the Army Corps of Engineers and the Environmental Protection Agency issued a proposed updated definition of “Waters of the United States on November 17, 2025:
On November 18, 2025, the National Transportation Safety Board issued a synopsis from the report it is preparing on the Contact of Containership Dali with Francis Scott Key Bridge and Subsequent Bridge Collapse on March 26, 2024 (subject to review and editing and not containing the Board’s rationale for the findings, probable cause, and safety recommendations):
On November 18, 2025, the First Circuit held that a Maine Department of Marine Resources Rule that requires all Maine lobstermen who hold federal lobster fishing permits to install an electronic tracking device on their vessels and share their location data whenever those vessels are in the water did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. See Thompson v. Wilson, No. 25-1007, 2025 U.S. App. LEXIS 30135 (1st Cir. Nov. 18, 2025) (Thompson).
The Update has noted the dissatisfaction with application of the Feres doctrine, a judicially created exception to liability under the Federal Tort Claims Act for injuries incident to military service. For example, the June 2025 Update cited the decision of the Supreme Court to decline to hear the petition for a writ of certiorari from the owner of the commercial vessel ALNIC (in connection with the collision between the ALNIC and the destroyer U.S.S. JOHN S. MCCAIN). The petition challenged the decision of the Second Circuit to reject the contribution claim against the United States brought by the owner of the ALNIC (which was required to pay 100% of the damages for the injuries and death of sailors on the JOHN S. MCCAIN despite the assessment of 80% of the fault on the JOHN S. MCCAIN), based on application of the Feres doctrine to claims under the Public Vessels Act and Suits in Admiralty Act. On November 24, 2025, the Supreme Court declined to grant a writ of certiorari in a suit on behalf of an Air Force Staff Sergeant who was struck and killed by a civilian government employee driving a government vehicle. Justice Thomas dissented to assert that the Court should revisit Feres, but he added that the Court did not have to overrule Feres in order to grant relief to the family of the sergeant, reasoning that his death did not arise out of activities incident to his military service. See Beck v. United States, No. 24-1078, 2025 U.S. LEXIS 4480 (U.S. Nov. 24, 2025).
On the LHWCA Front . . .
From the federal appellate courts
ALJ lacks authority to grant a change of physicians but has authority to decide who the employee’s physician is; Sun Terminals, Inc. v. Polo, No. 24-14016, 2025 U.S. App. LEXIS 26826 (11th Cir. Oct. 15, 2025) (per curiam).
Maximo Polo was employed by Sun Terminals as a Top-Pick loader/operator, operating heavy machinery to lift and stack containers. He was required to sit for prolonged periods of time while operating the Top Pick. On March 16, 2019, Polo worked a 12-hour shift operating a faulty Top-Pick, requiring that he continuously press the accelerator and manually work the stabilization levers. When he completed his shift, Polo felt “extremely tight to the right side of his low back with severe pain radiating into the right lower extremity.” Polo went to the emergency room and was diagnosed with chronic back pain. He was treated over the next few weeks with epidermal injections and physical therapy, and Sun Terminals transitioned Polo to a light-duty job as a yard checker, paying him the same salary as he previously earned. On July 9, Sun Terminals provided Polo with a choice-of-physician form, and Polo identified Dr. Guillermo Pasarin, a neurosurgeon, as his choice, acknowledging that he had one choice of physician for the job-related injury and would not be permitted to change physicians without authorization. Dr. Pasarin noted that an MRI showed evidence of multilevel lumbar disc disease, that Polo was not yet a maximum medical improvement, and that he was at a crossroads whether to pursue spinal surgery or long-term pain management. Polo also underwent an independent medical examination with neurosurgeon Luis Pagan, who opined that Polo had exacerbated a pre-existing degenerative condition and that he did not require surgery. Sun Terminals then denied additional medical treatment. Polo continued to receive epidural injections with his pain management specialist, Dr. Lowell Davis, but Dr. Davis determined that the injections were not working and recommended that Polo receive another opinion on the viability of surgery. Polo requested and examination with orthopedic surgeon Jonathan Hyde, but Sun Terminals declined to authorize it (controverting additional treatment related to his back “per defense medical evaluation opinion on November 11, 2019), and Polo requested an informal conference with the Office of Workers’ Compensation Programs. An informal conference was scheduled for January 14, 2020, but there was no appearance for the employer, carrier, or their counsel. Polo requested authorization for treatment by Dr. Hyde, contending that the treatment with Dr. Pasarin had been unsuccessful and that the employer/carrier selected Dr. Pasarin. With no evidence to the contrary, the OWCP recommended that the employer/carrier authorize Polo’s choice of physician for treatment and surgery with Dr. Hyde. The OWCP also recommended that the employer/carrier pay temporary total disability until Polo returned to light-duty work and temporary partial disability thereafter. The employer/carrier rejected the recommendations, asserting that Polo had his choice of physician and that it had paid Polo wages in lieu of compensation. The claim was referred for a formal hearing, and Administrative Law Judge Applewhite ruled that Polo had not yet achieved maximum medical improvement (crediting the testimony of Dr. Davis and Dr. Hyde that Polo’s condition could be improved with surgery), agreeing that Polo was entitled to temporary total disability benefits until he began working as a yard checker and that he was entitled to temporary partial disability benefits thereafter. As to the choice of physician, ALJ Applewhite agreed with the OWCP that the employer/carrier did not demonstrate that the change in physician was unreasonable, explaining that when Polo signed the form selecting Dr. Pasarin, he was only given a couple of weeks to decide on surgery and that he felt more comfortable with Dr Hyde. ALJ Applewhite ordered the employer/carrier to pay for the past and future care with Dr. Hyde. The employer/carrier appealed to the Benefits Review Board, arguing that ALJ Applewhite misunderstood the issue regarding the identity of the treating physician. They asserted that the issue before the OWCP and ALJ was Polo’s request to grant his first choice of physician, not a change of physician to Dr. Hyde. As Polo did not properly request a change of physician, the OWCP could not grant a change of physician, and the ALJ lacked jurisdiction to do so. The employer/carrier also argued that ALJ Applewhite failed to afford due weight to the testimony of Dr. Pasarin and another physician that Polo had reached maximum medical improvement, requiring reversal of the disability award. The BRB rejected the arguments of the employer/carrier, noting that the disability award was supported by the testimony of Dr. Hyde and affirming the change of physicians, reasoning that the ALJ “had the authority to resolve factual matters pertaining to the identity and choice of [Polo’s] treating physician.” The employer/carrier filed a petition for review with the Eleventh Circuit, and the appellate court agreed with the legal principle with respect to the authority of the ALJ: “Sure enough, an ALJ does not have the authority to ‘grant’ a change in physicians.” The court cited the provisions of the LHWCA and regulation, explaining that the employee has the right to “‘choose an attending physician’ in the first instance,” and that “he many not thereafter change physicians without the prior written consent of the employer (or carrier) or the [OWCP] district director . . . upon a showing of good cause.” However, the appellate court added that the ALJ may not “sua sponte order that an employee be allowed to change physicians,” but “an ALJ nonetheless retains the authority to resolve—as a matter of fact—who the employee’s physician actually is.” ALJ Applewhite concluded that the OWCP had authorized a change in physician based on the fact that Polo had been selected as Polo’s physician. The OWCP was aware that Polo wanted a new physician and then recommended that the employer/carrier authorize treatment with the new physician. ALJ Applewhite’s characterization of the recommendation as authorizing a change in physicians was therefore supported by substantial evidence and did not constitute her taking it on herself to grant the request. Although the employer/carrier also challenged the findings with respect to medical expenses and disability, the Eleventh Circuit, like the BRB, found factual support for the findings and declined to disturb them. Therefore, the Eleventh Circuit denied the petition for review.
Admiralty jurisdiction and law applied to claims of welder’s helper injured on the dock by an appurtenance to a barge during the construction of a foot dock to allow boarding of vessels, including federal law for piercing the corporate veil of the vessel/employer defendants (for liability of the employer in its capacity as vessel owner under LHWCA Section 5(b)); ingestion of illegal drugs (even though they were taken for pain from the injury) was a superseding cause of the worker’s death; non-dependent parent of deceased harbor worker was not entitled to recover damages for loss of society; Bommarito v. Belle Chasse Marine Transportation, L.L.C., No. 22-30382, 2025 U.S. App. LEXIS 29727 (5th Cir. Nov. 13, 2025) (Richman).
Belle Chasse Marine Transportation provides launch services to transport people and goods to and from vessels on the Mississippi River. Belle Chasse Land Transportation builds launch sites for Belle Chasse Marine. Bosit Bommarito, III, was a welder who helped Belle Chasse Land Transportation construct walkways at the launch sites. He was injured while working as a welder’s helper, assisting in the movement of gangway segments in the construction of a foot dock to allow boarding of vessels. Bommarito was standing on the dock when he was struck in the head and eye by a hook that was attached to the sling of a crane on the crane barge OC 160, which was floating in the Mississippi River. He brought this action against Belle Chasse Marine and Belle Chasse Land as a seaman under the Jones Act and pursuant to Section 5(b) of the LHWCA, and his beneficiaries continued the action after he died from an overdose of a combination of street fentanyl and Xylazine, a drug not prescribed for human use. The defendants moved for summary judgment on the seaman claims, arguing that Bommarito’s work as a welder’s helper was mostly land-based and his role on the crane barge did not involve traditional crew member duties. Judge Fallon believed that there were ambiguities and fact questions whether Bommarito satisfied the duration requirement of the test for seaman status, but he held that Belle Chasse had established that the work was land-based and not sea-based and failed the nature element of the seaman status test. When Bommarito’s work took him onto the vessel, Bommarito simply stepped aboard the vessel while it was secured to the dock. His work on the vessel was largely limited to discrete tasks, and he overwhelmingly did not sail with the vessel from location to location. As in the Fifth Circuit’s en banc Sanchez case, Bommarito’s work on the barge was almost always while it was moored at the dock, and, accordingly, he failed the nature element of the test for seaman status. With respect to the vessel negligence claim under Section 5(b) of the LHWCA, Belle Chasse argued that claim against it was in the capacity as employer and not as vessel owner. However, Judge Fallon found that there were different views of the nature of Bommarito’s work, which specific piece of equipment caused his injuries, and even which entity was the vessel owner and which entity was his employer. Considering it premature to determine whether the case involved liability in the capacity as owner or employer, Judge Fallon declined to grant summary judgment on the claim under Section 5(b) of the LHWCA. See April 2022 Update.
Judge Fallon held a two-day bench trial and issued his findings and conclusions. He held that Bommarito was covered under the LHWCA because he was constructing a dock adjacent to the Mississippi River that was intended to allow access to vessels moored on the navigable waters of that river. The parties disagreed as to which company owned and operated the vessel and which company employed Bommarito. Judge Fallon found that the companies were “fused” and were “in reality the same company.” Therefore, he held that the fused entity was both the owner of the crane barge and the employer of Bommarito. The fusing of companies did not preclude a claim under Section 905(b), however, as Bommarito’s claim fell within the exception to the exclusive liability provision in the Act with respect to the liability of defendants as owner of the crane barge OC 160. Judge Fallon found that the defendants breached the active control duty under Section 5(b) of the LHWCA because the hook on the barge’s crane lacked a safety latch. Additionally, he found that the defendants breached the duty to intervene because the defendants’ project manager knew that the procedure being used by Bommarito and the crane operator for attaching hooks was unsafe and violated the defendants’ safety policies. Judge Fallon awarded $48,800 for Bommarito’s pain and suffering for the 122 days between the accident and his death, which Judge Fallon linked to the accident because the overdose was of pain medicine related to his injuries ($400 per day to reflect the multiple injuries he sustained and the severity of his pain), $450,000 for loss of society/consortium ($200,000 each for his two children and $50,000 for his mother, based on Bommarito’s remaining life expectancy of 25 years), $33,600 for loss of support, split between his children (for 50 months until the younger child reached the age of majority), funeral expenses of $7,815, and past medical expenses of $35,453.09 (total damages of $575,668.09) with prejudgment interest at 3.5%. Judge Fallon declined to award punitive damages (whether they are available in LHWCA cases is an open question in the Fifth Circuit) as there was insufficient evidence of gross negligence, and he declined to award bystander damages for Bommarito’s mother, who was present at his death, as she was not present at the scene of his injury. See July 2022 Update.
Belle Chasse appealed to the Fifth Circuit and presented several reasons to support the argument that there was no admiralty jurisdiction under the Admiralty Extension Act and that admiralty law did not apply to the injury. Judge Fallon concluded that Bommarito’s injury was caused by an inadequate and defective hook that was attached to the crane, and the crane was attached to the barge (whose purpose was to hold the crane). The hook was defective because it lacked a latch, which required Bommarito to stand close to the load being lifted to hold the hook secure. Belle Chasse argued that the hook was not an appurtenance of the vessel because it was not owned by Belle Chasse. Writing for the Fifth Circuit, Judge Richman disagreed, stating: “An item need not be owned by the vessel owner to be appurtenant to the vessel.” Belle Chasse also argued that, regardless of ownership, the hook was not an appurtenance of the vessel. Judge Richman answered that the hook was part of the rigging of the crane that was attached to the barge and was being used in a manner related to traditional maritime activity. Therefore, it was an appurtenance of the vessel. Belle Chasse next argued that there was no proximate causation related to the condition of the hook because it was incorrect performance of the employees’ jobs that caused the accident. Judge Richman cited ample evidence in the record that because the hooks lacked safety latches, Bommarito needed to stand near the lines to hold tension on them or the hooks would slip out. Therefore, there was evidence from which Judge Fallon could find proximate causation, and Judge Richman agreed that there was jurisdiction under the Admiralty Extension Act. As the case fell within the admiralty jurisdiction, Judge Richman applied federal common law to determine whether the corporate veil should be pierced with Belle Chasse Marine and its wholly owned subsidiary Belle Chasse Land. Aside from the typical sharing of officers, employees, and insurance, Bommarito was identified in some documents as an employee of Belle Chasse Land and in some as an employee of Belle Chasse Marine. Belle Chasse Land only provides services for Belle Chasse Marine and has no income. The OC 160 is owned by Belle Chasse Marine, but it is maintained and used by Belle Chasse Land without a written agreement. Under the circumstances, Judge Richman concluded that it was not clearly erroneous for Judge Fallon to determine that Belle Chasse Land and Belle Chasse Marine are, in substance, the same company. Judge Richman then considered the issue of causation for Bommarito’s death, noting that proximate cause and superseding cause doctrines apply in admiralty. She stated that it was an issue of first impression in the Fifth Circuit whether an overdose from illegal drugs may be a superseding cause, and she found persuasive the state cases that have concluded that ingesting illegal drugs can be a superseding cause. She cited the facts that Bommarito did not have an active prescription for fentanyl, that the fentanyl was purchased on the street, and that he ingested over six times what is considered a lethal dose of fentanyl. He was also taking Xylazine, a horse tranquilizer that is not available for human use. Thus, “the cause of Bommarito’s death was ingestion of the drugs found in his system.” Judge Richman did not find the ingestion “traceable to the liability of Belle Chasse Marine for the injuries he sustained while working, even if he continued to experience pain from his work-related injuries,” explaining: “It was not reasonably foreseeable to Belle Chasse, who caused Bommarito’s original injury, that he would ingest illegal drugs which proved to be lethal.” Therefore, the Fifth Circuit held that the ingestion of illegal drugs was a superseding cause of Bommarito’s death. Finally, Belle Chase challenged the award of damages for loss of consortium to Susan Bommarito, a non-dependent parent, resulting from the wrongful death of her son. Judge Richman noted that Susan was not entitled to damages for wrongful death based on the determination of superseding cause; however, Judge Richman added that, in any event, Susan would not be entitled to recover loss of consortium: “Non-dependent parents of a longshoreman who dies in territorial waters are not entitled to recover damages for loss of society stemming from that death.” Judge Haynes dissented from the decision on superseding cause. She noted that Judge Fallon did not find the ingestion of illegal drugs was a superseding cause but was a direct consequence of his injury and the pain that it caused him. Judge Haynes reasoned that Bommarito took the drugs “only to cope with the intractable pain from his injuries after he ran out of prescription opioid painkillers, which his doctors had prescribed only for a limited time.” Accordingly, she did not believe that there was clear error in the finding of Judge Fallon.
From the federal district courts
Magistrate Judge denied barge owner’s motion to join vessel charterer (employer of injured worker) as a necessary party in limitation action filed in connection with claim under LHWCA Section 9(b); In re Stewart Barge No. Twelve, LLC, No. 2:25-cv-1300, 2025 U.S. Dist. LEXIS 216815 (E.D. La. Nov. 4, 2025) (van Meerveld).
Stewart Construction chartered the SC 740 barge from Stewart Barge No. Twelve for a project to replace a mooring and breasting dolphin in the Mississippi River in the New Orleans area. Angel Guevara, an employee of Stewart Construction, was working on the barge when his foot became trapped in the spool of the winch on the rigger crane on the barge. Stewart Barge No. Twelve brought this suit seeking limitation of liability in Louisiana federal court, and Guevara filed a claim in the limitation action, asserting negligence of the vessel owner under Section 5(b) of the LHWCA, unseaworthiness and negligence under the general maritime law, and negligence under the Jones Act and Louisiana law. Stewart Construction and its LHWCA carrier, Signal Mutual Indemnity, filed a claim seeking recovery of the amounts paid to and on behalf of Guevara under the LHWCA. Guevara also filed a suit in Louisiana state court against Stewart Construction under the Jones Act, general maritime law, Section 5(b) of the LHWCA, and Louisiana law. Stewart Barge No. Twelve filed a motion for joinder of a necessary party, arguing that Stewart Construction must be joined to the federal action to avoid inconsistent results and the potential for double recovery, and because it would be necessary to interpret the charter party between Stewart Barge No. Twelve and Stewart Construction to address Guevara’s allegation that both companies were responsible for the condition of the winch. Guevara also noted that Stewart Construction was already a party to the federal action by means of its claim for LHWCA benefits. Magistrate Judge van Meerveld began by considering mandatory joinder under Rule 19. She noted that joint tortfeasors are not necessary parties, but that courts have held that parties to a contract are necessary when interpretation of the contract is at issue. Magistrate Judge van Meerveld reasoned that Stewart Barge did not explain why interpretation of the contract would make Stewart Construction a necessary party, explaining that there was no claim to rescind the charter and adding that no finding in this case would relieve Stewart Construction of its obligations. Magistrate Judge van Meerveld then addressed permissive joinder under Rule 20. She stated that Guevara’s claims against Stewart Barge No. Twelve and Stewart Construction arose out of the same occurrence and contained common issues of law and fact. However, Magistrate Judge van Meerveld then explained that “Rule 20 provides for permissive joinder, not compelled joinder. It might be available if Mr. Guevara voluntarily sought to join his claim against Stewart Construction. He has not chosen to do so.” Therefore, she denied the motion for joinder of a necessary party.
Beneficiaries of shipyard worker who died from mesothelioma could not establish intent for claims of intentional tort and fraud against the shipyard employer; defendants presented sufficient evidence of the worker’s exposure to asbestos from neighboring properties at his boyhood home to deny summary judgment on the beneficiaries’ claim that the defendants could not prove exposure from the neighboring properties; company that laminated a decorative cover for wallboards on a Marinite core containing asbestos was not strictly liable as a commercial supplier; Judge found sufficient evidence of exposure to deny summary judgment to the supplier of turbines allegedly containing insulation and gaskets containing asbestos; Constanza v. Sparta Insurance Co., No. 2:24-cv-871, 2025 U.S. Dist. LEXIS 220954, 221743, 221747, 221751 (E.D. La. Nov. 10, 2025) (Brown).
Michael P. Dandry, Jr. was employed in the summer of 1971 in various positions by Avondale Shipyard (from June 1, 1971 to August 16, 1971). His beneficiaries (Constanza and Hallner) claim that he was exposed to asbestos-containing products on Avondale’s premises and that he was also exposed to asbestos carried home from his work at Avondale on his clothing, person, and other items. Dandry later died from mesothelioma, and his beneficiaries brought this suit in state court in Orleans Parish, Louisiana, against Avondale and others (parties who manufactured, fabricated, sold, or distributed products containing asbestos), asserting that his death resulted from his exposure to asbestos during his employment with Avondale. Avondale removed the case to Louisiana federal court pursuant to the Federal Officer Removal Statute and moved for summary judgment on the beneficiaries’ claims of an intentional tort, including fraud and concealment, arguing that its knowledge of the danger of asbestos was insufficient to prove that it consciously desired the result or knew with substantial certainty that the result would occur. Avondale emphasized that knowledge of the dangers of asbestos did not establish an intent that Dandry contract mesothelioma. Judge Brown reviewed the evidence that supported the suggestion that Avondale knew of the hazards of asbestos at the time of the exposure in 1971. However, she did not find evidence that Avondale consciously intended to harm Dandry or that his mesothelioma was inevitable. As for the claim of fraud and concealment, Judge Brown noted that fraud may result from the silence or inaction of a party, but intent is required for the finding of fraud. The same lack of intent with respect to the intentional tort doomed the fraud claim. Judge Brown concluded that the beneficiaries’ claim against Avondale “lies in the realm of negligence.”
The defendants advanced the theory that Dandry was exposed to asbestos from properties near his childhood home, contending that a driveway, parking lot, and courtyard area on the neighboring properties were made of scrap material containing asbestos (citing soil samples containing asbestos fibers greater than the 1% EPA threshold so as to be considered asbestos-containing material). The beneficiaries moved for partial summary judgment, asking the court to find that the defendants could not prove that Dandry sustained exposure to asbestos, arguing that there was a lack of evidence that Dandry was on the neighboring properties, that he disturbed any asbestos, and that walking on the material would release asbestos fibers. Noting that the issue was presented at the summary-judgment stage, Judge Brown found a sufficient fact dispute to deny summary judgment.
Avondale brought a third-party claim against Liberty Mutual, insurer of Wayne Manufacturing. Wayne Manufacturing manufactured wallboards by laminating a decorative cover on a Marinite core that was manufactured by Johns-Manville and that contained asbestos. Wayne shipped the wallboards to Avondale, where employees of Hopeman Brothers sawed them to size for installation, releasing asbestos dust. Liberty Mutual moved for summary judgment on the strict liability of Wayne Manufacturing as a commercial supplier. Judge Brown could not locate a case in which a supplier that did not have control over the manufacturing or altered the product was held strictly liable for supplying a product containing asbestos. Therefore, she dismissed the commercial-supplier strict liability claim.
The beneficiaries named Paramount Global as the manufacturer/supplier of marine turbines with insulation and gaskets containing asbestos. Paramount Global moved for summary judgment, arguing that there was no evidence that Dandry was exposed to asbestos-containing products manufactured/supplied by Paramount or that any exposure was a substantial contributing cause of his mesothelioma. Avondale presented the testimony of Billy Jambon, who was employed by Avondale in a similar role to that of Dandry, and Jambon stated that Dandry worked as an outside machinist helper in the engine rooms of destroyer escorts and LASH vessels that were under construction. He asserted that Dandry worked on turbines manufactured by Paramount, and that Dandry would have worked around insulators who were covering pipes so that dust would “fly all over the place.” Avondale also offered the opinions of experts that connected the Paramount turbines to Dandry’s asbestos exposure. Judge Brown found this to be sufficient to establish the exposure, and she then considered Paramount’s argument that it did not manufacture, supply, or install the asbestos-containing materials. Avondale produced evidence, however, that the turbines contained asbestos insulation and that asbestos-containing gaskets would sometimes come shipped with the turbines, noting that Paramount representatives called the gaskets, “asbestos gaskets.” Therefore, she denied Paramount’s motion for summary judgment.
And on the maritime front . . .
From the federal appellate courts
Second Circuit affirmed summary judgment that vessel was not unseaworthy and that employer of seaman was not negligent, when seaman fell through hatch cover that he had helped to open six minutes earlier; Mezzina v. Port Imperial Ferry Corp., No. 24-2985, 2025 U.S. App. LEXIS 26910 (2d Cir. Oct. 16, 2025) (per curiam).
Cosmo Mezzina was employed for nearly 20 years as a deckhand by Port Imperial Ferry Corp. (d/b/a New York Waterway), collecting tickets, checking the ferry’s engine, and tying up the ferry at the dock. He spent 10 to 15 three-month stints on the GARDEN STATE, the vessel on which he was injured. The ferry was servicing a route between Hoboken, New Jersey and Pier 11 in New York City with a crew of three. The vessel struck Pier 11 during its departure, and the captain completed the trip to Hoboken and docked the ferry at a work barge for repair. Mezzina and the captain opened a hatch cover to access the vessel’s lower deck to assess the damage to the vessel, and the captain asked Mezzina to retrieve barricades to serve as a warning. Mezzina put barricades on two sides of the hatch, and the captain asked Mezzina to get the vessel’s fourth line to tie the unsecured starboard stern of the ferry to the work barge. While running to throw the line to the captain who was standing on the work barge, Mezzina fell into the open hatch (less than six minutes after he and the captain had opened the hatch). Mezzina brought this suit against New York Waterway in federal court in New York, seeking to recover for negligence under the Jones Act and for unseaworthiness and maintenance and cure under the general maritime law. Mezzina and New York Waterway filed cross motions for summary judgment on the liability issues (negligence and unseaworthiness), and Mezzina argued that the defendant violated Coast Guard regulations by failing to protect the open hatch in a satisfactory manner, resulting in negligence per se and unseaworthiness as a matter of law. As the defendant pointed out, however, the Regulations do not apply to merchant vessels of less than 150 tons and do not apply to vessels engaged in coastwise trade. Accordingly, Judge Buchwald did not find any regulatory violations for a finding of negligence per se or unseaworthiness as a matter of law. Mezzina next sought a case-dispositive sanction that the defendant could not contest liability because it delayed production of the reverse side of an otherwise single-sided accident report that had three words on the reverse side (“Boat is secured”), failed to produce photographs beyond those of damage to the vessel’s exterior and of the hatch cover prior to its opening and placement of barricades, and failed to produce video footage of the a camera on the ferry. Judge Buchwald considered the motion to be “baseless,” finding the delay in producing the reverse side of the accident report to be immaterial, finding the accusation that there were additional photographs beyond those that were produced to be unsubstantiated, and finding that the video camera was not working on the day of the incident. Turning to the defendant’s motion for summary judgment, Judge Buchwald concluded that no reasonable jury could return a verdict for Mezzina on his Jones Act claim, as the undisputed facts reflected that he made a decision to run toward the open hatch after removing the hatch cover less than six minutes earlier and having placed barriers to warn of its open and obvious condition. She reasoned that Mezzina had failed to take even the slightest precaution to avoid the danger of which he was aware. As to unseaworthiness, Judge Buchwald did not believe that a reasonable jury could conclude that the ferry was insufficiently or defectively equipped “when a hatch temporarily opened for inspection of the vessel was guarded by barriers adequate to serve as a protective warning, particularly when plaintiff had himself removed the hatch cover minutes earlier.” Therefore, Judge Buchwald granted summary judgment on the claims for Jones Act negligence and for unseaworthiness. See April 2024 Update.
Mezzina appealed to the Second Circuit, arguing that Judge Buchwald incorrectly found that his recovery was barred by his own negligence in failing to avoid an open and obvious condition. The Second Circuit disagreed, explaining that the decision was based on a finding that New York Waterway did not act negligently, not on Mezzina’s fault. The appellate court recited the facts ending with Mezzina falling into the hatch approximately six minutes after helping the captain open it and compared the case to its Miller decision in which “an experienced seaman had reason to believe that there might be danger from an open hatch which was plainly visible to him and illuminated by daylight. The court added that Mezzina had helped to set up the barricades around the open hatch and that the barricades had not been removed. Thus, assuming that the defendant had a duty to set up barricades, it satisfied the obligation. The appellate court also agreed with the dismissal of the unseaworthiness claim, answering that no precedent supported the argument that the captain’s failure to close the hatch rendered the vessel “insufficiently or defectively equipped.” The court concluded that “the use of barricades to warn bystanders of the open hatch suggested that the vessel was ‘well equipped for [its] intended voyage.’” Finally, the Second Circuit held that Judge Buchwald correctly declined to sanction New York Waterway, noting that there was no indication that photographs of the exterior of the vessel were relevant to the existence of barricades around the hatch inside the ship, and there was no evidence that New York Waterway acted with willfulness or bad faith.
The fact that the defendants in a suit brought by the United States under OPA seeking to recover resource damage from a vessel grounding asserted third-party admiralty claims satisfied the requirement in Section 1292(a)(3) for an interlocutory decree determining the liability of parties “to admiralty cases” so that the defendants could appeal summary judgment to the United States on their liability under OPA; determination of FOSC that the grounding posed a substantial threat of a discharge of oil was not binding in the civil suit by the United States, and the case was remanded to the district court to determine whether there was a substantial threat of an oil spill and whether there was damage to resources belonging to, managed by, controlled by, or appertaining to the United States; United States v. Ernst Jacob GmbH & Co. KG, No. 23-1969, 2025 U.S. App. LEXIS 27773 (1st Cir. Oct. 23, 2025) (Barron).
In April 2006, the T/V MARGARA, owned by Ernst Jacob, carrying more than 300,000 barrels of oil, ran aground about three miles off the coast of Tallaboa, Puerto Rico. No oil was spilled, and the vessel only suffered cosmetic damage. However, the efforts to free the vessel and mitigate the risk of an oil spill resulted in damage to the coral reef. The National Oceanic and Atmospheric Administration and the Puerto Rico Department of Natural and Environmental Resources presented a claim for restoration costs to representatives of Ernst Jacob and its insurers and, when they did not pay, to the National Pollution Funds Center for payment under the Oil Pollution Act of 1990. Partial payments were made from the Oil Spill Liability Trust Fund and by Ernst Jacob, and litigation ensued in federal court in Puerto Rico between the United States/PRDNER and Ernst Jacob, its insurers, and others at interest for the vessel. The Government’s claim sought restoration costs under OPA, and third-party claims were asserted by the defendants in admiralty. The United States moved for summary judgment on the liability of the vessel interests and insurers under Section 2702(a) of OPA, which provides that a responsible party for a vessel “from which oil is discharged, or which poses the substantial threat of a discharge of oil” is liable for removal costs and damages specified in the section (damages include injury to or loss of use of natural resources). The recovery under OPA depended on whether there was a substantial threat of discharge. The United States presented a declaration from Captain James Turnstall, the federal on-scene coordinator (FOSC) designated by the Coast Guard, that he “completed a real-time risk assessment of the situation[] and determined that there was a substantial threat of an oil discharge from the” vessel. The defendants challenged the use of Captain Turnstall’s declaration to determine liability as a matter of law, but Judge Méndez-Miró disagreed, reasoning that the authority to make the determination of a substantial threat was delegated to the FOSC; that Captain Turnstall’s determination qualified as “an informal agency action;” that, reviewing the determination under the Administrative Procedure Act’s arbitrary-or-capricious standard, the decision was not arbitrary or capricious; and that the defendants were liable to the United States as a matter of law for natural resources damages under OPA. The defendants appealed, and the United States argued that there was no appellate jurisdiction over the interlocutory decree, noting that it brought the case under OPA and not in admiralty. The defendants argued that there was appellate jurisdiction pursuant to Section 1292(a)(3), which allows appeals for interlocutory decrees “determining the rights and liabilities of the parties to admiralty cases.” They reasoned that the suit involved an admiralty claim because the suit included the third-party claims invoking admiralty jurisdiction. Writing for the First Circuit, Chief Judge Barron declined to read into Section 1292(a)(3) a requirement that “the claim on appeal be ‘integrally linked’ to an admiralty claim in the case,” disagreeing with the Roco Carriers decision from the Second Circuit. Citing Rule 9(h), Chief Judge Barron concluded “that the United States has not persuasively argued that the third-party claims designated in admiralty here fail to make this a case a ‘case that includes an admiralty or maritime claim’ and, therefore, ‘an admiralty case within 28 U.S.C. § 1292(a)(3).’” The United States also argued that the language of Section 1292(a)(3) was not satisfied because the appeal did not determine the rights and liabilities of “all of the parties to the admiralty case, not just some.” Chief Judge Barron disagreed, explaining that the purpose of Section 1292(a)(3) is to allow parties to challenge a liability ruling prior to a costly determination of damages. As that “purpose accords with permitting an appeal of a liability determination even when the third-party claims have not ripened,” Chief Judge Barron held that the First Circuit had jurisdiction over the appeal. The defendants raised two substantive issues with respect to the grant of summary judgment on liability. First, the defendants argued that Judge Méndez-Miró erred in granting summary judgment to the United States because she did not address whether there was any damage to natural resources “belonging to, managed by, controlled by, or appertaining to” the United States, for which recovery is available under Section 2706 of OPA. The defendants argued that, pursuant to the Federal Relations Act, the natural resources in this case are exclusively Puerto Rico’s. Chief Judge Barron disagreed as to the scope of the statute, stating that the placing the water and submerged land under the control of the government of Puerto Rico did not preclude the resources from being managed and controlled by the United States. As it was not clear how the United States managed or controlled the natural resources in Puerto Rico, Chief Judge Barron believed it was prudent to vacate and remand Judge Méndez-Miró’s “implicit determination that these natural resources are ‘managed or controlled’ by the United States” and for Judge Méndez-Miró to make any factual findings that may be necessary to decide the question. As Judge Méndez-Miró might determine that the natural resources were managed or controlled by the United States, the First Circuit addressed the issue whether there was a substantial threat of discharge of oil. The United States argued that determination has been delegated to the Coast Guard and that the FOSC’s determination is binding as long as it is not arbitrary and capricious. Chief Judge Barron disagreed, accepting that OPA delegates the authority to the FOSC to make a substantial threat determination “to inform the United States’ own response actions” (the United States “shall” respond to a substantial threat). But the statute imposes liability on responsible third parties if there is a substantial threat of a discharge of oil, not if the government responds to a threat. Chief Judge Barron found nothing in the statute that would cause the court to deviate from “the ordinary rule in civil cases” that liability and damages must be proved by a preponderance of the evidence. Accordingly, Chief Judge Barron remanded the case to determine the disputed fact whether the grounding posed a substantial threat.
Ninth Circuit affirmed the denial of the motion to vacate the vacatur of a Rule B attachment, declining to set aside the ruling that the owner of the attached vessel was not an alter ego of the debtor; Sikousis Legacy, Inc. v. B-Gas Ltd., No. 24-5272, 2025 U.S. App. LEXIS 29474 (9th Cir. Nov. 10, 2025) (per curiam).
Sikousis chartered a vessel to B-Gas Ltd. (later Bepalo LPG), which breached the agreement, resulting in an arbitration award in favor of Sikousis for $7.5 million. Bepalo declared insolvency, and Sikousis brought this action in federal court in California seeking to attach the BERICA, a vessel owned by Aframax, a company related to Bepalo/B-Gas. Judge Breyer permitted discovery so that Sikousis could try to establish an alter ego claim against Aframax, but he ultimately held that Sikousis had not elicited sufficient evidence to pierce Aframax’s corporate veil and that Sikousis could not recover against Aframax for Bepalo’s debt. He therefore vacated the attachment. See February 2023 Update.
Sikousis appealed to the Ninth Circuit, which began by addressing the standard that applies to determine whether to continue pre-judgment attachments. Writing for the Ninth Circuit, Judge Bea noted that Supplemental Rule E(4)(f) does not provide the standard to measure the plaintiff’s burden, but that district courts in the Ninth Circuit and courts in other circuits have applied a “probable cause” standard requiring plaintiffs to demonstrate that the evidence “shows a fair or reasonable probability that Plaintiffs will prevail on their alter-ego claim.” Judge Bea reasoned that the plaintiff need not prove its case at the Rule E(4)(f) stage, which a higher standard, such as a preponderance of the evidence, would require. Therefore, the plaintiff meets his burden by establishing a reasonable probability of success as to each element of the claim (less than a preponderance but more than a mere possibility). Judge Bea then turned to Judge Breyer’s decision not to pierce the corporate veil of Bepalo, and he stated that federal courts apply federal common law when examining corporate identity. Judge Breyer applied that standard, and Judge Bea agreed that the evidence of control by minority shareholders supported the decision that Sikousis failed to carry its burden to demonstrate a reasonable probability of succeeding on its theory to pierce the corporate veil. Consequently, the Ninth Circuit affirmed the granting of the motion to vacate the attachment of the BERICA. See May 2024 Update.
Sikousis filed a petition for certiorari to the United States that presented this question:
Whether a court exercising jurisdiction in an admiralty attachment case, whereby it must decide the ownership of the property seized based on the equitable principles referred to in Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U.S. 684 (1950), may apply hard-and-fast rules that limit or curtail its inquiry without first holding a hearing on the merits that addresses this issue?
On November 25, 2024, the United States Supreme Court declined to grant a petition for a writ of certiorari. See Sikousis Legacy, Inc. v. B-Gas Ltd., No. 24-360, 2024 U.S. LEXIS 4804 (Nov. 25, 2024) (December 2024 Update).
In the meantime, Sikousis moved in the district court to vacate the vacatur order (pursuant to Rule 60(b)(5)) on the ground that a Norwegian court issued a decision on the dominion and control of the defendant parties so that it would be inequitable for the vacatur to stand. Judge Breyer was not convinced that Rule 60(b)(5) was the appropriate mechanism to challenge the vacatur order as the order did not have prospective application. Unlike an injunction (to which the Rule is normally applied), the order was final and permanent and did not look forward to or compel any future action. Therefore, Judge Breyer denied the motion, and Sikousis appealed to the Ninth Circuit. The appellate court first considered its jurisdiction over the appeal, noting that the BERICA was attached and that a letter of understanding was substituted for the vessel. Therefore, the case was not moot “because relief could still be provided through the substitute res.” Turning to the merits, the Ninth Circuit noted that the Norwegian decision that Sikousis cited as the basis for its motion had been reversed by an appellate court. As the basis for the motion was invalidated, the Ninth Circuit affirmed the denial of the motion.
From the federal district courts
Neither appointment of a guardian ad litem nor court approval was necessary for a mother to consummate a settlement with a cruise line on behalf of her son who was injured on a cruise ship as there was no conflict between the mother and son; Pryor v. Carnival Corp., No. 1:24-cv-24326, 2025 U.S. Dist. LEXIS 20339 (S.D. Fla. Oct. 13, 2025) (Elfenbein).
This case arises from an injury sustained by a 13-year-old passenger on the CARNIVAL PARADISE. Shiela Pryor, mother of the minor, brought this suit against the cruise line in federal court in Florida and negotiated a settlement with the cruise line. Arguing that there was no conflict of interest in this case between the mother and her son, Pryor filed an unopposed Motion to Permit the Parties to Consummate their Settlement Agreement (without requiring appointment of a guardian ad litem or court approval). Magistrate Judge Elfenbein requested briefing on whether Florida law or maritime law applies to the settlement of a minor plaintiff and on whether the applicable law requires court approval or appointment of a guardian? Magistrate Judge Elfenbein held that the appointment of a guardian is a procedural issue governed by Rule 17(c), which requires appointment of a guardian for those who are unrepresented. The Eleventh Circuit has explained that a guardian ad litem should not be appointed when a minor is represented unless a conflict exists between the representative and the minor, stating that “when a parent represents the minor as a party to a lawsuit and has the same interests as the minor, ‘no inherent conflict of interest’ will exist.” Finding no reason to believe that the interests of the mother and son were not aligned, Magistrate Judge Elfenbein concluded that there was no requirement to appoint a guardian ad litem in this case. Magistrate Judge Elfenbein then reasoned that “maritime law does not require court approval of settlements in actions brought on behalf of a ward.” As maritime law applied to the injury to a passenger on a cruise ship, Magistrate Judge Elfenbein recommended that no court approval was required and that the parties should be allowed to consummate their settlement without further court involvement.
Indemnity in purchase order between dredging company and contractor, providing that the contractor will indemnify the dredging company for injuries caused by the negligence of the contractor and adding that the indemnity applied even in the event of the negligence of the dredging company but not if the dredging company was solely negligent, only provided indemnity for the negligence of the contractor and did not extend to the concurrent negligence of the dredging contractor; Ruiz v. Weeks Marine, Inc., No. 2:23-cv-5428, 2025 U.S. Dist. LEXIS 202210 (E.D. La. Oct. 14, 2025), amended opinion (E.D. La. Oct. 23, 2025), rehearing denied, 2025 U.S. Dist. LEXIS 215712 (E.D. La. Nov. 3, 2025) (Guidry).
Shawn Ruiz was assigned by his employer, Weeks Marine, to work as a relief captain on its vessel, CR MCASKILL, which was in drydock at Weeks Marine’s facility in Houma, Louisiana. Weeks Marine’s contractor, E&E Machine, was on site at the facility to provide dredge pipe welding services. Weeks Marine moved the dredge pipes to the location for welding, and the pipe was chocked to keep it from rolling. Ruiz entered a pinch point to place a chock, and a piece of dredge pipe rolled and struck Ruiz. Ruiz brought this suit in federal court in Louisiana against Weeks Marine under the Jones Act and general maritime law, designating that the matter was an admiralty claim within the meaning of Rule 9(h), and Weeks Marine brought a third-party claim against E&E Machine pursuant to Rule 14(c), noting that the court had admiralty jurisdiction of the suit and the third-party action (and supplemental jurisdiction to the extent there was no admiralty jurisdiction). Weeks Marine moved for summary judgment that it was entitled to contractual indemnity from E&E Machine pursuant to the indemnity provision in the terms and conditions of the purchase order issued by Weeks Marine to E&E Machine. Weeks Marine also moved for summary judgment on Ruiz’ unseaworthiness claim and on his demand for non-pecuniary damages. Weeks Marine argued that New Jersey law applied to the indemnity agreement pursuant to the choice-of-law provision in the purchase order, and E&E Machine responded that Louisiana law should be applied. Although the suit and third-party claim were brought in admiralty, Judge Guidry stated: “A federal court sitting in diversity jurisdiction shall apply the choice of law principles of the state in which it sits.” Therefore, he applied Louisiana choice-of-law principles to determine which state’s substantive law to apply. He concluded that Louisiana law would otherwise apply and that Louisiana law invalidated the selection of New Jersey law because the work was performed in Louisiana by a Louisiana domiciliary. Consequently, he applied Louisiana substantive law and considered the Louisiana Anti-Indemnity Act. Judge Guidry did not have to decide if the purchase order qualified as a “construction contract” within the LAIA because the language of the indemnity clause in the purchase order did not violate the statute. Construing the indemnity provision to only require that E&E Machine indemnify Weeks Marine for E&E Machine’s own negligence or omissions, Judge Guidry granted summary judgment to Weeks Marine that it was entitled to contractual indemnity to the extent of the proportionate share of negligence attributable to E&E Machine (with the allocation of fault to be determined at trial). Turning to the unseaworthiness claim, Judge Guidry agreed with Weeks Marine that the injury occurred on land and that the vessel did not have anything to do with the incident. Therefore, he dismissed the unseaworthiness claim. Finally, Weeks Marine moved for summary judgment on the claims for mental anguish, emotional distress, scarring/disfigurement, and loss of enjoyment of life, arguing that they are non-pecuniary damages that are unavailable to seamen. Ruiz agreed that non-pecuniary damages are unavailable, but he responded that Weeks Marine’s definition of non-pecuniary was too broad and that he should be allowed to recover for emotional damages, mental anguish, physical discomfort, loss of enjoyment of life, permanent disability, and disfigurement as part of his damages for pain and suffering. After reviewing the decisions of the Fifth Circuit and Eastern District of Louisiana, Judge Guidry agreed that submitting separate claims beyond past, present, and future pain and suffering was inappropriate, but that “factors such as mental and emotional anguish and loss of enjoyment of life may still be considered when assessing damages for pain and suffering.”
Weeks Marine moved for reconsideration, arguing that Judge Cain erred in the interpretation of the language of the indemnity agreement. The provision stated that E&E Machine will indemnify Weeks Marine for injuries caused in whole or in part by reason of any negligence of E&E Machine. The indemnity applied even in the event of the negligence Weeks Marine but did not apply in the event of the willful misconduct or sole negligence or Weeks Marine. Weeks Marine argued that by expressly excluding indemnity caused by its sole negligence, the indemnity applied to situations of concurrent negligence on the part of both Weeks Marine and E&E Machine. Therefore, Weeks Marine asserted that, in the event E&E Machine and Weeks Marine are both found negligent, E&E Machine would owe indemnity for the negligence of E&E Machine and Weeks Marine and not just for the negligence of E&E Machine. Judge Cain agreed with Weeks Marine that indemnity was available when both parties are found at fault. However, he disagreed that the indemnity extended beyond the amount of fault assessed against E&E Machine. Citing Louisiana law that indemnity for the negligent acts of the indemnitee must be expressed in unequivocal terms, Judge Cain reasoned that the provision lacked unequivocal terms, explaining that the clause was limited by the initial requirement that indemnity was owed for E&E Machine’s negligence. Concluding that the agreement did not unequivocally state that E&E Machine was required to indemnify Weeks Marine for the negligence of Weeks Marine, Judge Cain declined to reconsider his decision that E&E Machine was only required to indemnify Weeks Marine to the extent of the negligence of E&E Machine.
Failure to produce expert report on causation resulted in dismissal of clean-up worker’s BELO suit against BP, asserting that his eczema was caused by exposure from the Macondo/DEEPWATER HORIZON spill; Mitchell v. BP Exploration & Production, Inc., No. 2:23-cv-1614, 2025 U.S. Dist. LEXIS 203001 (E.D. La. Oct. 14, 2025) (Fallon).
Bo Mitchell served as a clean-up worker in response to the Macondo/DEEPWATER HORIZON oil spill, and he claimed that he was diagnosed with various conditions in 2018, including eczema of both hands, resulting from his exposure to oil and dispersants in 2010. He thus fell within the group of Back-End Litigation Option claimants and brought suit against BP in 2023 in federal court in Louisiana. In accordance with the settlement agreement with BP, Mitchell was required to prove that his “Later-Manifested Physical Condition was legally caused by his . . . exposure to oil, other hydrocarbons, and other substances released from the [well] and/or the Deepwater Horizon . . . and/or dispersants and/or decontaminants used in connection with the Response Activities.” Mitchell was required to provide an expert report on causation by March 26, 2025, and BP filed a motion for summary judgment when Mitchell failed to file a report. Mitchell’s attorney withdrew from the case, and BP withdrew its motion in exchange for Mitchell’s agreement to provide an expert report by August 29, 2025. When Mitchell failed to produce a report, BP re-urged its motion for summary judgment. In the absence of expert evidence of causation, Judge Fallon agreed that Mitchell could not prove causation, and he dismissed the suit with prejudice.
Seaman’s employer established McCorpen willful concealment defense with respect to his neck injury based on his prior complaints of neck pain and the CT scan of his neck; In re American Commercial Barge Line LLC, No. 3:23-cv-364 c/w No. 3:23-cv-407, 2025 U.S. Dist. LEXIS 204066 (M.D. La. Oct. 16, 2025) (Dick).
George Bates was employed by American Commercial Barge Line as a deckhand on the M/V SAFETY GOAL in a barge fleeting operation on the Lower Mississippi River. Bates claims that he was injured while aboard the barge MTC 640, and he brought suit against ACBL (and the owner of another tug, the M/V CRISTO SANTO) in state court in the Parish of East Baton Rouge, Louisiana. ACBL then brought this limitation action in federal court in Louisiana (the owner of the MTC 640 also brought a limitation action that was consolidated with the ACBL limitation action). Bates filed a claim in the ACBL limitation action seeking to recover for Jones Act negligence, unseaworthiness, maintenance and cure, and failure to pay maintenance and cure, and ACBL filed a motion for partial summary judgment, asserting a McCorpen willful concealment defense that Bates is not entitled to recover maintenance and cure for his alleged neck injury. Before his application to work for ACBL, Bates had a work-related injury in which he was reported to have neck tightness and cervical myofascial pain syndrome. A subsequent report stated that he had neck pain. Several months later he visited the emergency room after fainting and falling onto concrete, reporting neck pain and a history of neck pain. He underwent a CT scan of his cervical spine, which reflected moderately severe disc space narrowing and mild osteophytic change at C5-C6 and C6-C7. In his application, Bates answered “no” to neck pain and whether he had ever had a CT scan or MRI. Chief Judge Dick considered the three elements for a McCorpen defense, beginning with intentional concealment or misrepresentation. Bates argued that he filled out the application to the best of his knowledge, but Chief Judge Dick answered that subjective intent is not necessary, citing the Fifth Circuit’s ruling that the employer is only required to show that the seaman failed to disclose medical information in an interview or questionnaire that is obviously designed to elicit the information. As Bates failed to disclose his neck pain and CT scan (when he underwent a CT scan six months before his application), the first element was established. For the materiality element, Bates argued that he passed his physical and that he received an offer of employment prior to completing the questionnaire. Chief Judge Dick answered that the Fifth Circuit had rejected similar arguments and that ACBL had proven the materiality element with evidence that had Bates disclosed his prior treatment and condition, it would have inquired further to determine if he was employable. Finally, with respect to the connection between the injury and prior condition, ACBL only sought dismissal of the claim for maintenance and cure with respect to his alleged neck injury. As the withheld information involved his prior neck pain and CT scan, Chief Judge Dick held that the connection element was satisfied, and she dismissed Bates’ claim for maintenance and cure with respect to his alleged neck injury.
Judge adopted Magistrate Judge’s recommendation that contract requirement for the seaman to pay half of the initial filing fee for arbitration of his injury claims against the cruise line was not subject to the delegation clause in the arbitration provision and was unenforceable when the seaman could not afford to pay the fee; Judge also adopted recommendations that the payment requirement was severable and that the arbitration be compelled but that the cruise line pay the arbitration fee; Taylor v. Carnival Corp., No. 1:25-cv-20851, 2025 U.S. Dist. LEXIS 204104 (S.D. Fla. Oct. 16, 2025) (Bloom).
This case presents issues similar to those addressed by Judge Williams in Wilson v. Carnival Corp., discussed in the September 2025 Update. Jennifer Melissa Fredericks Taylor, a citizen of Nicaragua, was injured while serving as a crewmember on the CARNIVAL BREEZE. She submitted a demand for arbitration to National Arbitration and Mediation in accordance with the arbitration provision in her employment agreement, which contained a fee-splitting agreement requiring the cruise line and crewmember to each pay half ($1,500) of the fees required to initiate the arbitration ($3,000). Taylor asserted financial hardship and requested that NAM require the cruise line to pay the full initiation fee in accordance with its discretionary rules. The cruise line declined to pay Taylor’s half, and NAM closed the arbitration due to the nonpayment. Before the running of the statute of limitations, Taylor brought suit against the cruise line in Florida state court under the Jones Act and general maritime law, with her counsel paying the filing fee of $401, and the cruise line removed the case to federal court based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Taylor moved to remand the case, arguing that the cruise line waived its right to arbitrate by refusing to advance the full initiation fee, that the arbitration agreement had become null and void because the fee requirement limited the right of the claimant to trial by a court of competent jurisdiction, and that the issue with respect to the initial payment was not a gateway question of arbitrability to be decided by the arbitrator as the seaman could not access arbitration without resolving the payment issue. Taylor submitted an affidavit stating that she earned $1.60 per hour with a guaranteed monthly wage of $900, that she had no income after her injury and termination from employment, that she had to borrow the money for her surgery (using her only asset, her home in Nicaragua that she co-owns with her mother), that she lost her home after defaulting on the loan, and that she has no savings, no income, no credit, and no assets. The cruise line argued that the arbitration agreement contained a delegation clause stating that disputes regarding the existence, validity, termination, or enforceability of the agreement are subject to arbitration. However, Magistrate Judge Elfenbein did not believe that the language clearly delegated questions concerning access to the arbitration forum. As the challenge centered on “access to arbitration in the first instance,” Magistrate Judge Elfenbein determined that the court had jurisdiction to decide the availability of the arbitration forum. The ruling was different, however, with respect to the argument that the cruise line waived its right to arbitrate. Magistrate Judge Elfenbein reasoned that the assertion of waiver disputed “the merits of her claims or procedural rules within arbitration.” Therefore, waiver was an issue to be decided in the arbitration in accordance with the delegation clause. Magistrate Judge Elfenbein then considered the Effective Vindication Doctrine as a defense under the New York Convention—that requiring Taylor to pay half of the initiation fee rendered the arbitration agreement unenforceable because it precluded her from effectively vindicating her rights. Citing the decisions from the Eleventh Circuit, Magistrate Judge Elfenbein noted that Taylor had to present evidence of the amount of fees she is likely to incur and her inability to pay the fees. Taylor identified the precise cost she was required to pay ($1,500); she established that she was unable to pay the fee; and the failure to pay had caused NAM to close the arbitration. Magistrate Judge Elfenbein then addressed whether the payment requirement was severable. The cruise line argued that Panama law was applicable based on the law of the flag of the vessel, but Magistrate Judge Elfenbein found the cruise line’s “invocation of Panamanian law is wholly insufficient,” reasoning that its “failure to provide even minimal engagement with the go9verning code provisions warrants skepticism of its position and justifies applying the law of the forum instead.” Applying Florida law, Magistrate Judge Elfenbein was persuaded by Judge Williams’ reasoning in Wilson v. Carnival, removing the fee-splitting provision but leaving “intact the remaining arbitration obligations while providing a clear structure for assigning costs going forward.” By severing the requirement for Taylor to pay half of the initiation costs, the provision required that the cruise line pay the costs, and all impediments to Taylor’s right to pursue arbitration were eliminated. Accordingly, Magistrate Judge Elfenbein recommended that the parties be compelled to arbitrate the claims. See October 2025 Update.
The cruise line objected to the recommendation in part, arguing that the delegation clause contained “unmistakenly clear” language that the parties intended for an arbitrator to determine the enforceability of any provision in the agreement, including the fee-splitting provision. Judge Bloom agreed with Magistrate Judge Elfenbein that Taylor’s challenge did “not relate to the merits of claims or procedural matters within arbitration” and instead centered on “access to arbitration in the first instance.” Thus, Judge Bloom adopted the finding on application of the delegation clause. The cruise line also objected to the recommendation that the arbitration was incapable of being performed under the Effective Vindication Doctrine, arguing that Taylor did not provide evidence of how much the delegation proceeding would cost (as opposed to the cost of arbitration on the merits) and that effective vindication is a public policy defense based on unconscionability, which is foreclosed at this stage of the proceeding. Judge Bloom answered the first argument by noting that the fact that the arbitration on gateway issues may cost less than an arbitration on the merits had no bearing on this case because Taylor was “barred from arbitrating whatsoever—including the enforceability of the Delegation Clause—unless she paid $1,500.” Thus, Taylor proved the exact amount of fees that prohibited her from accessing the arbitration. Finally, Judge Bloom agreed that the Eleventh Circuit has never determined whether a cost-based effective vindication defense can be raised under the “incapable of being performed clause” of the New York Convention. However, as Taylor was “barred from even accessing the arbitral forum due to her inability to pay upfront,” Judge Bloom agreed that Taylor’s “financial circumstances and the Fee-Splitting Provision render the Arbitration Clause incapable of being performed under the effective vindication doctrine, making the clause unenforceable.” Accordingly, Judge Bloom severed the Fee-Splitting Provision, ordered the cruise line to pay all reasonable administrative costs of arbitration and fees of the arbitrator, compelled the arbitration, and denied the motion to remand the case to state court.
Notice in limitation action that was emailed to the attorney who sent a demand letter on behalf of an injured passenger was insufficient to support a default judgment against the passenger in the limitation action; In re M/V BUCCANEER, No. 3:25-cv-231, 2025 U.S. Dist. LEXIS 207247 (S.D. Tex. Oct. 16, 2025) (Edison), adopted, (S.D. Tex. Oct. 31, 2025) (Brown).
Shawn Roghair allegedly suffered an injury on December 28, 2024 while using the bathroom on Galveston Party Boats’ vessel, M/V NEW BUCCANEER. Galveston Party Boats received a demand letter on February 5, 2025 from Crystal D. Taylor of Alexander Shunnarah Injury Lawyers, purporting to represent Roghair, prompting Galveston Party Boats to file this limitation action in Texas federal court. Galveston Party Boats emailed notice of the limitation action, together with copies of all other pleadings and orders, to the attorney, but no claim was filed in the limitation action. The court entered a default against all parties who had not filed a claim, but Magistrate Judge Edison held that the default was entered in error. He reasoned that Rule F and the court’s order required Galveston Party Boats to mail the notice to every person known to have made a claim. Magistrate Judge Edison explained that the existence of an attorney-client relationship does not, in itself, convey authority to accept service, and there was no evidence that Crystal Taylor had the authority to accept service on Roghair’s behalf. Moreover, even if Taylor had authority to accept service, Rule F requires that the petitioner “mail” a copy of the notice, and Magistrate Judge Edison stated: “‘Mail’ means ‘letters conveyed under public authority,’ not electronic mail.” Therefore, Judge Edison recommended that the default be withdrawn. He extended the time for Roghair to file a claim, agreed to issue a new notice, and ordered Galveston Party Boats to mail a copy to Roghair. Galveston Party Boats did not object, and Judge Brown adopted the recommendation.
Judge granted leave to file a Rule 14(c) third-party complaint and tender in a case filed in state court under the Saving-to-Suitors Clause that was removed to federal court based on diversity; Wulfert v. Wilson, No. 1:25-cv-2847, 2025 U.S. Dist. LEXIS 207282 (W.D. Tenn. Oct. 16, 2025) (Anderson).
Chase Wulfert was a passenger in a 20-foot Baja Outlaw speedboat that was being operated by Cherie Denise Arnold on the Tennessee River near Bath Springs, Tennessee. The boat was involved in a collision with a tow of barges being pushed by the M/V ST. BARTHOLOMEW (piloted by John Asher Wilson, an employee of Marquette Transportation). Wulfert and Arnold were killed, and Wulfert’s mother, Jody Wulfert, brought this action against Wilson in state court in Decatur County, Tennessee. She sought to recover under the general maritime law, asserting that the state court had jurisdiction under the Saving-to-Suitors Clause (demanding a jury). Wilson removed the case to federal court in Tennessee based on diversity, and Wilson moved for leave to file a third-party complaint and tender under Rule 14(c) against Shonda Linton, the administratix of Arnold’s estate. Judge Anderson noted that Rule 14(c) permits a defendant against whom an admiralty or maritime claim is asserted under Rule 9(h) to bring a third-party claim and to demand judgment in the plaintiff’s favor against the third-party defendant. Judge Anderson ruled that Wilson had showed that the complaint (filed under the Saving-to-Suitors Clause) alleged a maritime claim within the meaning of Rule 9(h) [although it was removed based on diversity], and he granted leave to file the third-party action, stating that the proposed third-party complaint “meets the requirements of Rule 14.” The next day, the parties filed a joint motion to set aside the order, noting that there was “a misunderstanding in communication between the parties as to the Plaintiff’s desire to have the opportunity to oppose, if necessary, the Motion for Leave to File Third Party Complaint.” Judge Anderson vacated his order and gave Wulfert 14 days to file a response to the motion for leave. Wulfert then opposed the motion on the ground that the claim was not designated as an admiralty claim under Rule 9(h), and a Rule 14(c) tender was not available. In his reply, Wilson asked the court to grant leave under Rule 14(a), and Judge Anderson denied the motion for leave, without prejudice, advising that the better practice was for Wilson to refile the motion. Wilson then filed an unopposed motion for leave to file the third-party complaint under Rule 14(a).
Time charterer was not entitled to bring Ryan WWLP action against stevedore for injuries and property damage resulting from fire and explosion on ship for failing to disconnect batteries on used cars that were loaded on the vessel; Grimaldi Deep Sea S.p.A. v. SSA Atlantic, LLC, No. 3:24-cv-562, 2025 U.S. LEXIS 204703 (M.D. Fla. Oct. 17, 2025) (Howard).
Grimaldi Deep Sea, which chartered the vessel M/V HOEGH XIAMEN, engaged stevedore SSA Atlantic to load approximately 1,500 used vehicles onto the vessel at the Blount Island Marine Terminal in Jacksonville, Florida for international transport. Grimaldi provided instructions to SSA on how to complete the loading that included disconnecting batteries in the vehicles (to reduce the risk of fires caused by used vehicles). Shortly after the loading was completed, a fire broke out on the vessel. A team of firefighters from the Jacksonville Fire and Rescue Department arrived, and several firefighters were injured in an explosion. Ultimately, many of the vehicles were damaged, and the vessel was a total loss. The injured firefighters settled their claims with Grimaldi and SSA Atlantic, and Grimaldi settled the claims for damage to the vehicles and vessel. Grimaldi then brought this action in federal court in Florida against SSA Atlantic for breach of contract, seeking to recover indemnity for the expenses incurred in defending and settling the claims arising from the fire and explosion (contending that the fire and explosion were caused by the stevedore’s failure to load the cargo in a workmanlike manner and in accordance with the contract instructions). SSA Atlantic moved to dismiss the complaint, arguing that Grimaldi, as time charterer, is not entitled to recover under the Ryan warranty of workmanlike performance. Judge Howard agreed that SSA Atlantic had a duty to perform stevedoring services with reasonable care, skill, and safety and that it would breach the implied warranty of workmanlike performance if it failed to do so. However, breach of the warranty “does not automatically entitle Grimaldi to indemnification.” Reasoning that the time charterer does not have an obligation to provide a seaworthy vessel, Judge Howard held that “a time charterer, like Grimaldi, does not have an implied right to indemnity against a stevedore under the Warranty.” Judge Howard noted that the claims involved property damage and personal injury. She added that even if the warranty extended to the time charterer, it would not extend to property damage claims and that the warranty should not apply for the injury claims because the time charterer was not liable for unseaworthiness. Judge Howard did not believe that Grimaldi was without remedy. She explained that “application of comparative fault in these circumstances best advances the goals underpinning the Ryan doctrine.” As Grimaldi only sought damages for breach of contract based on indemnity under the implied warranty of workmanlike performance, Judge Howard dismissed the complaint.
Plastic wrap on stack of chairs on cruise ship was sufficient to establish notice to the cruise line of the danger of chairs falling and injuring passengers; Terry v. Carnival Corp., No. 1:24-cv-22067, 2025 U.S. Dist. LEXIS 205670 (S.D. Fla. Oct. 17, 2025) (Altman).
Michelle Terry, a passenger on the CARNIVAL ELATION, was injured while smoking a cigarette in the smoking area on Deck 11 of the vessel when she was struck by a chair that fell from a trolly used to transport chairs to that area. Terry brought this suit against the cruise line in Florida federal court, bringing claims for vicarious liability and direct liability, and the cruise line moved for summary judgment on the direct-liability counts for negligent maintenance and negligent failure to warn. The cruise line argued that Terry did not establish that the cruise line should have known that its process of unloading chairs from a trolley posed a risk to passengers. Terry responded that the chairs were secured by plastic that wrapped around the chairs, and Judge Altman agreed that the plastic wrap was a corrective action that, based on the testimony of a crewmember that the chairs were wrapped so that they would not fall, was sufficient to establish notice of a dangerous or defective condition. Therefore, he denied the motion for summary judgment.
Judge found fact questions of negligence, unseaworthiness, and causation for seaman’s unwitnessed fall from barge, but he limited damages to medical/funeral expenses and pre-death pain and suffering as the seaman had no spouse or dependents; rather than bifurcating the trial, the Judge agreed to empanel a jury to try the Jones Act and maritime claims while reserving the limitation issues for the court; In re Cooper Marine Inc., Nos. 2:24-cv-2778, 2:25-cv-730, 2025 U.S. Dist. LEXIS 205793, 213039, 215696 (E.D. La. Oct. 20, 29, 2025, Nov. 3, 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 a limitation action in Louisiana federal court. Claims were filed in the Cooper limitation action by the Estate of Garcia, Nucor Steel, and Ingram Barge, which owns the Barge IN176102. 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 limitation action. 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 in which it asserted 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). See August 2025 Update.
The Garcia Estate did not bring a claim against Ingram Barge, and Ingram Barge filed a motion for summary judgment, arguing that the IN176102 was a dumb barge with no propulsion and crew and that custody of the barge had been turned over to Nucor three days before the incident. A default was entered in the Ingram Barge limitation action that barred any claim by the Garcia Estate, and Ingram Barge argued that the judgment barred any contribution or indemnity claims of Nucor or Cooper Marine against Ingram Barge. Judge Fallon agreed that the default was comparable to a dismissal with prejudice, and he granted summary judgment to Ingram Barge that applied to the claims for contribution and indemnity.
The Estate did not file a motion seeking to lift the stay in the Cooper Marine limitation action and did not file any action in state court. Instead, the Estate asked the court to bifurcate the imminent trial (less than a month away) for separate trials on liability and damages (so that the Estate could try damages to a state-court jury). Reviewing the factors considered for bifurcation, Judge Fallon did not find that bifurcation would serve the convenience of the court or parties. There was only one personal-injury claimant, and the evidence on damages, causation, liability, and limitation overlapped. He believed that separating the trials would cause frustration, multiplication of proceedings, and would “deeply inconvenience the parties with respect to both their time and their money spent preparing for the November trial.” Judge Fallon found that the parties would be prejudiced because the bifurcation would require filing a new suit with a delay waiting for a trial date. He also concluded that bifurcation would not expedite nor economize the case for the same reason that there was a single injury claim with contribution/indemnity issues arising from that one injury. Judge Fallon adopted the compromise that he would empanel a jury to try the Jones Act and maritime claims while reserving the limitation issues for the court (with the jury serving in an advisory capacity on the limitation issues).
Nucor and Cooper Marine filed motions for summary judgment. Cooper Marine argued that there was no evidence of any unseaworthy condition on the HONEST BOB and no evidence that any negligence on the part of Cooper Marine caused Garcia’s death. The Estate argued that Cooper Marine failed to inspect the barge for debris before directing Garcia to cross over onto the barge, and that there was evidence that Garcia slipped on debris on the deck. The Estate also argued that the captain’s failure to follow Cooper Marine’s buddy system caused Garcia’s fall. Finally, the Estate claimed that the HONEST BOB was unseaworthy because it was not flush against the side of the barge. Judge Fallon believed that there was sufficient evidence of Jones Act negligence to survive summary judgment, and he then turned to the circumstantial evidence of causation. The Estate presented pictures of small pellet-looking items and a shoe-print mark in the pellets, and Judge Fallon agreed that the pictures provided sufficient evidence to deny summary judgment. With respect to unseaworthiness, the Estate argued that the HONEST BOB was unseaworthy because a gap between the HONEST BOB and the barge prevented safe ingress and egress with the HONEST BOB. Cooper Marine noted the testimony of the captain of the HONEST BOB that there was no gap at the time Garcia crossed over to the barge. The Estate responded that the coroner concluded that Garcia died as a result of being crushed between two vessels, which indicated that the captain failed to maintain the flush contact and allowed a water-gap to form. Judge Fallon agreed that the argument presented a fact question of unseaworthiness. Nucor’s summary judgment mirrored Cooper Marine’s motion with respect to causation, and Judge Fallon similarly held that there was a sufficient fact question to deny the motion. Finally, Cooper Marine and Nucor requested that the court limit damages as Garcia had no spouse or dependents. Judge Fallon agreed to limit the damages to medical and funeral expenses and pre-death pain and suffering.
Judge dismissed Rule 14(c) tender against broker who arranged for transportation of vessel with respect to damage during misdelivery of the vessel as the complaint did not allege that the broker was engaged for more than facilitating the transportation; Selsaz Integrated Services Ltd. v. T&M Boat Rentals LLC, No. 6:24-cv-1769, 2025 U.S. Dist. LEXIS 207575 (W.D. La. Oct. 21, 2025) (Cain).
Selsaz Integrated purchased the 220-foot supply vessel M/V JUDY FRANCES, located at Bollinger Safe Harbor, and contracted (through broker Felterman) with T&M Boat Rentals to secure the transport of the vessel from Bollinger Safe Harbor to the Diamond Services Shipyard on Bayou Black, Louisiana. T&M Boat Rentals arranged for tugs owned and operated by Heritage Marine to tow the vessel to the Diamond Services Shipyard, but they moored the vessel alongside a barge at a salvage yard owned and operated by DHD on December 23, 2023. Selsaz Integrated was not notified of the misdelivery until an employee of Diamond Services returned from his holiday break on January 8, 2024 and discovered that the JUDY FRANCES was not at the Diamond Services Shipyard. When T&M retrieved the JUDY FRANCES from DHD on January 13, 2024, it discovered that the vessel had sustained extensive damages because DHD employees or contractors had “boarded the M/V JUDY FRANCES, cut off the padlock securing the interior of the vessel, entered and began removing and destroying equipment, windows, wiring, components, interior walls, paneling, floors, A/C, refrigeration units, furniture and other items.” Selsaz brought suit in federal court in Louisiana against T&M Boat Rentals, Heritage Marine, and DHD, and DHD brought a Rule 14(c) tender that added Felterman and Diamond Services. Felterman moved to dismiss the tender, arguing that there was no factual basis for its liability. DHD opposed the motion, arguing that Felterman was tasked with securing the transportation of the vessel and was liable for the misdelivery and resulting damage. Judge Cain stated that, under Louisiana law, “a marine broker is not liable for damage occurring to a vessel in transport when the broker had no operational control of the vessel and instead merely facilitated the transaction.” Although DHD argued that Felterman was hired to do more than merely facilitating the transportation, Judge Cain noted that the complaint did not support that argument. Accordingly, he dismissed the claim against Felterman without prejudice, allowing DHD 60 days to uncover a sufficient factual basis for liability against Felterman.
Insuring agreement in P&I policy that covers liability of the Assured as owner of the vessel named in the policy was held not to cover the vessel and its owner that were named as additional insureds; Barrios v. Centaur, LLC, No. 2:17-cv-585, 2025 U.S. Dist. LEXIS 208621 (E.D. La. Oct. 23, 2025) (Milazzo).
The insurance and contractual issues in this case are on their way to the Fifth Circuit for the fourth time. The litigation arises from the claims of Devin Barrios, an employee of Centaur, who was injured while offloading a generator from River Ventures’ vessel in connection with the construction of a concrete rail by Centaur on United Bulk Terminals’ dock in the Mississippi River. Barrios brought suit against River Ventures and Centaur, resulting in a judgment in favor of Barrios against River Ventures under Section 5(b) of the LHWCA. River Ventures sought indemnity and additional insurance (as a contractor of UBT) from Centaur pursuant to the Master Service Contract between Centaur and UBT that applied to the construction of the rail. The dispute raised the question whether the contract was maritime or subject to Louisiana law. In the wake of the decision of the Supreme Court in Kirby and the decision of the en banc Fifth Circuit in Doiron, Judge Milazzo applied a three-part test to determine if a non-oilfield contract is maritime: did the work performed under the contract involve maritime commerce, did it involve work from a vessel, and did the contract provide or did the parties expect that a vessel would play a substantial role in completing the contract. Applying the first prong of that test, Judge Milazzo held that the contract was a land-based contract so that Louisiana law applied, and the indemnity and additional insured provisions were invalid under the Louisiana Construction Anti-Indemnity Act. The Fifth Circuit disagreed with the three-prong test applied by Judge Milazzo and adopted the test proffered by River Ventures that, in order to determine if a mixed-services contract is maritime, the “contract (1) must be for services to facilitate activity on navigable waters and (2) must provide, or the parties must expect, that a vessel will play a substantial role in the completion of the contract.” Writing for the Fifth Circuit, Judge Smith rejected a separate initial test whether the contract involved maritime commerce as that is what the two prongs of Doiron, as extrapolated in Barrios, were designed to determine. Judge Smith then determined that the test was satisfied in this case as the dock was over the Mississippi River, and the vessels involved in the construction (and the accident) were on navigable waters. The contract also required substantial use of vessels as Centaur’s bid expressed that the price for the work was “significantly higher” because of the necessity of vessels in the project, and Centaur’s project manager admitted that the work could not have been done properly without a crane barge. The fact that Centaur’s workers, like Barrios, may have performed a majority of their work on the dock did not alter the conclusion that the parties expected a substantial role for vessels in the construction. See December 2019 Update.
On remand, River Ventures and its insurer, XL Specialty, and Centaur and its insurer, Travelers, disputed the insurance coverage for River Ventures under the Travelers P&I policy and whether Centaur breached the contract if the Travelers’ policy did not afford coverage to River Ventures. Travelers argued that the P&I policy excluded coverage for Barrios’ injury because it contained a crew/employee exclusion for “injury of any crew, seaman or other employee of the Assured regardless of whether they be employees of the Assured or any Additional Assured named in the Policy.” River Ventures argued that “the Assured” referred to the particular insured against whom a claim has been asserted and did not apply to Barrios’ claim against River Ventures. Travelers argued that “the Assured” referred to Centaur so that the provision excluded claims for injuries to Centaur employees against River Ventures. Judge Milazzo agreed with Travelers that the exclusion unambiguously excluded Barrios’ claim against River Ventures as he was an employee of Centaur. With that ruling, River Ventures argued that Centaur had breached the MSC because Centaur was required to obtain a P&I policy of “not less than the P&I SP-23 (revised 1/56) form of policy or its equivalent” and that form insures the crew and injuries to third parties without a crew/employee exclusion. Despite that language of the MSC, Centaur argued that there was no requirement to provide liability coverage for UBT or River Ventures for Barrios’ injury in the P&I policy because the MSC required Centaur to obtain a maritime employers liability endorsement to its workers’ compensation policy that would cover Centaur’s liability to its employees and crew. Considering the MSC provisions to be ambiguous, Judge Milazzo held that summary judgment was not proper on River Ventures’ claim for breach of contract against Centaur. See August 2021 Update.
River Ventures and XL appealed the ruling in favor of Travelers to the Fifth Circuit, arguing that the language of the exclusion in Travelers’ policy was ambiguous because it contained superfluous or redundant language, the interpretation suggested by Travelers conflicted with other provisions of the policy, and the interpretation conflicted with the requirements of the Master Service Agreement of which Travelers was aware because its additional insured provision incorporated the requirement from the Master Service Agreement. Substituting the names of the parties into the exclusion would provide that the policy excluded any crew, seaman, or other employee of Centaur, regardless of whether they be employees of Centaur or River Ventures. The Fifth Circuit recognized that the Exclusion “could have been written more efficiently” and that its use of “the Assured” was “certainly awkward.” However, the appellate court believed that the Exclusion unambiguously precluded coverage for all employee claims, regardless of whether the entity seeking coverage was the employer of the injured employee. As Barrios was an employee of Centaur, the court held that the Exclusion applied to preclude coverage for Barrios’ claim against River Ventures, even though Barrios was not an employee of River Ventures. To the extent that the Travelers policy did not afford the coverage required in the Master Service Contract, the court held that the policy controlled and remanded the case to the district court to address River Ventures’ claim against Centaur for breach of contract. See May 2022 Update.
On remand, Judge Milazzo held a bench trial on the claims of River Ventures and XL that Centaur breached its contract (to which River Ventures and XL were third-party beneficiaries) by failing to obtain a P&I policy that included crew/employee liability coverage that would extend to the claim of Barrios against River Ventures as an additional insured and member of the defined “UBT Group” [the MSC also required Centaur to provide excess/bumbershoot coverage following form to the primary policies]. Judge Milazzo previously found the requirement that Centaur obtain P&I coverage of “not less than the P&I SP-23” was ambiguous. Therefore, she allowed expert testimony on whether Centaur was required to obtain a P&I policy that included liability coverage for River Ventures (and its insurer XL) for injuries of employees or crew of Centaur. As there was crew coverage in the workers’ compensation/employers liability policy for Centaur (which did not extend to River Ventures), Judge Milazzo found that the parties could not have intended there to be duplicative crew coverage in the P&I and employers liability policies. Therefore, in order that there be no duplicative coverage for Centaur and UBT, she held that the parties intended there to be no coverage for the crew/employees on the P&I policy that afforded additional insurance protection to River Ventures and XL. She added that the requirement of the equivalent of the coverage in the SP-23 form, whose first coverage grant is for injury to any person, is subject to modification, and does not mandate coverage for injuries to any person if that person is a crew member. Judge Milazzo’s decision with respect to coverage on the P&I policy was likewise fatal to the claims of River Ventures and XL to coverage on the following-form excess/bumbershoot policy. See December 2023 Update.
River Ventures and XL appealed to the Fifth Circuit, which held that Judge Milazzo’s dismissal of their breach of contract claim was erroneous “because the plain meaning of the MSC supports River Ventures/XL’s interpretation.” The court reasoned that the language of the MSC, when afforded its ordinary meaning, obligated Centaur to obtain a P&I policy that included coverage for injuries to the crew/employees; however, the P&I policy procured by Centaur excluded that coverage. Judge Milazzo found that the requirement in the MSC was ambiguous as it also required Centaur to procure a worker’s compensation policy with a maritime employers’ liability endorsement that provided employer liability coverage for vessel-related injuries to Centaur employees, such as Barrios. Judge Milazzo reasoned that it was absurd to require double coverage for the same liability because the MEL and P&I policies have escape clauses that would nullify coverage under either policy. The Fifth Circuit noted that this reasoning was contrary to the decisions of the Fifth Circuit (applying Louisiana law under Wilburn Boat) that escape clauses are mutually repugnant so that both policies are liable for the claim. As the appellate court concluded that the MSC unambiguously obligated Centaur to procure a P&I policy that covered employee injuries, the court reversed Judge Milazzo’s ruling to the contrary. In light of Judge Milazzo’s finding that there was no breach of contract with respect to the primary policy, she found no coverage under the follow-form excess/bumbershoot policy that was also required under the MSC. Therefore, the Fifth Circuit reversed Judge Milazzo’s decision that there was no breach of contract with respect to the failure to procure additional insurance on the excess/bumbershoot policy. See December 2024 Update.
Back in the district court, it was now undisputed that Centaur breached the MSC by failing to procure P&I insurance with crew coverage. However, Centaur argued that the breach did not cause damages because River Ventures would not be covered under the P&I policy that Centaur was required to procure. Centaur argued that it was not enough that the P&I policy named as additional insureds all vessels owned by UBT’s contractor, River Ventures because the M/V TROOPER was not listed as a scheduled vessel. River Ventures responded that the TROOPER satisfied the language of the insuring agreement (“The Assurer hereby undertakes to make good to the Assured . . . all such loss and/or damage and/or expense as the Assured shall as owners of the vessel named herein have become liable to pay and shall pay on account of the liabilities, risks, events, and/or happenings set forth . . . .”). Judge Milazzo disagreed, stating that the policy was intended only to cover the vessels on the schedule, and the TROOPER was not scheduled. Therefore, even though it was undisputed that River Ventures and the vessel were named as Assureds and the policy afforded coverage for expenses the Assured was liable to pay as owners of “the vessel named herein,” Judge Milazzo held that the Policy did not afford coverage for River Ventures for the liability incurred as owner of the TROOPER. As Centaur complied with the contractual requirement that it name River Ventures and the TROOPER as additional insureds but there was no coverage under her interpretation of the policy, Judge Milazzo held that Centaur had not breached the requirements of the MSC with the policy it procured. River Ventures and XL Specialty filed a notice of appeal to the Fifth Circuit on November 14, 2025.
Notify party that accepted cargo that it owned throughout the voyage under CIF/CFR terms was not responsible for payment of freight and other charges as a third-party beneficiary of the charter party and was not subject to the English choice-of-law provision in the charter; Milos Product Tanker Corp. v. Valero Marketing & Supply Co., No. 2:22-cv-1545, 2025 U.S. Dist. LEXIS 214234 (C.D. Cal. Oct. 27, 2025) (Snyder).
This case involves payment for the shipment of a cargo of aviation jet fuel from Singapore to California that Valero purchased from Koch Refining. Milos, the owner of the SEAWAYS MILOS, entered into a voyage charter party with GP Global on a SHELLVOY 6 form. The charter provided that freight and other charges were due on completion of discharge and that, if original bills of lading were not available at the discharging port, the owner would release the cargo in line with the charterers’ instructions against a letter of indemnity. Valero requested documentation regarding the charter from GP Global, and it was provided information that included the provisions on discharge and freight, including wiring instructions from Milos. Valero agreed to purchase the cargo from Koch on CIF/CFR terms (so that the seller would pay the costs and freight for the shipment). The negotiable bills of lading issued for the shipment listed GP Global as the shipper and Valero as the notify party. Milos released the cargo at the Vopak Terminal in Wilmington, California in accordance with GP Global’s letter of indemnity, directing that delivery be made to Valero, and Valero paid Koch more than $15 million for the fuel (including the cost of transportation). In lieu of the original bills of lading, Koch issued a letter of indemnity certifying that it transferred title to the cargo to Valero in accordance with the agreement for sale of the cargo. Milos was not paid the freight, demurrage, or speed-up charges (a total of $1,054,456.74), and GP Global had financial difficulties and commenced a debt restructuring process in which Milos submitted a proof of claim. Milos brought this suit against Valero in federal court in California, seeking to recover on the grounds that Valero agreed to be bound by the bills of lading (incorporating the terms of the charter party), that Valero is bound by the charter party under applicable English law, and that Valero assumed an implied obligation to pay the freight when it accepted the cargo. With respect to the claim that Valero had an express contractual obligation to pay freight because it was bound by the bills of lading and the incorporated charter party, Valero argued that its listing as the notify party on the bills of lading at most established that it was a third-party beneficiary of the bills of lading (and that the bills of lading did not impose obligations on it). There was no course of conduct by which Valero could be said to have consented to be bound by the obligations of the bills of lading, and Valero had not brought a suit under the bills of lading by which it could be said to have adopted their terms. The issue was therefore whether Valero consented to be bound by the bills of lading by its acceptance of the cargo. Judge Snyder noted that judges have held that a non-party to the bill of lading became bound by its terms when it presented the original bill of lading and took possession of the cargo. However, she found sufficient evidence that Valero consented to be bound by the bills of lading because it organized the discharge operations and provided the discharge orders to the vessel, received and accepted the cargo pursuant to a letter of indemnity because the charter party instructed that delivery should be made by letter of indemnity in the event the original bills of lading were not available, and because the original bills of lading were endorsed to Valero. Judge Snyder then noted that the charter party did not expressly identify the party that was responsible for paying the freight, stating that the freight must be paid immediately upon completion of discharge as per owner’s telexed/emailed invoice. In this case, Milos sent an email to Valero, Koch, and others stating that freight was due and instructed that payment was to be made directly to Milos as the owner. Judge Snyder considered this email to demonstrate that Milos looked to Valero, among others, for payment of the freight charges as set forth in the email. In view of this holding, Judge Snyder did not address the argument that Valero was bound to pay the charges under English law, but she did address the argument that Valero assumed an implied obligation to pay freight by its acceptance of the cargo on discharge as the owner of the cargo. Judge Snyder agreed with that contention, holding that, by accepting and taking possession of the cargo that it owned throughout the voyage, Valero benefitted from the carriage and was subject to an implied obligation to pay the freight. Consequently, Judge Snyder granted summary judgment to Milos and entered judgment in its favor against Valero in the amount of $1,054,456.74. See August 2023 Update.
Valero appealed to the Ninth Circuit, arguing that it paid once for the cost of the carriage, and it should not have to Milos for the freight charge that it had already paid. Valero argued that it was not a party to the charter party that required GP Global to pay the freight and that Valero did not consent, directly or indirectly, to be bound by the bills of lading. Writing for the Ninth Circuit, Judge Hinderaker of the United States District Court for the District of Arizona, sitting by designation, began with the general principle of maritime freight liability that the party who sends the goods, the shipper, is primarily liable to the carrier for the freight charges, even when the bill of lading purports to impose liability on the party receiving the goods, the consignee. Judge Hinderaker did note that the parties may modify the general rule by contract, but the nonparty must consent to be bound under the contract. For example, the consignee may demonstrate consent to be bound by presenting the bill of lading and accepting the goods or by suing on the bill of lading (the context shows that the consignee was aware of the terms in the bill of lading). Judge Hinderaker added that courts may find an implied promise to pay in the situation of common carriage where there are publicly posted rates subject to default terms of a uniform bill of lading that binds the parties. In the district court, Judge Snyder relied on the Ninth Circuit’s States Marine decision for the proposition that a party’s acceptance of the goods or assertion of control over the goods may give rise to an implied obligation to pay for the shipping costs, even in the context of private carriage. Judge Hinderaker recognized that States Marine is susceptible to different readings and that it has caused confusion in the lower courts. The Ninth Circuit had to “clarify” its decision and did so “by adopting a narrow reading of it,” holding that “States Marine applied rules established in railroad cases to ocean carriers only to the extent that both are common carriers.” He reasoned that the narrow reading was in harmony with the basic principle that private carriage (primarily in charter parties) is governed by freedom of contract. With common carriage, the published rate forms an offer that is accepted by receipt of the goods under a bill of lading, charter party, or default rules obligating a consignee. In contrast, private-carriage consignees are not presumed to know key terms simply because they received and accepted the goods, and “they are certainly not expected to know they are liable for freight when an express contract says they are not.” Judge Hinderaker then considered whether there was an express contract between Milos and Valero that would rebut the presumption that the shipper pays the freight. The charter party provided that GP Global would pay the freight and demurrage, and the contract between Valero and Koch provided that freight was included in the purchase price. Judge Hinderaker concluded: “Perhaps Valero’s payment of freight to Koch was expected to pass through GP Global to Milos. We need not wonder. The Charter Party provides that GP Global and GP Global alone will pay freight. That is the end of it.” Milos also argued that Valero’s conduct reflected consent to be bound by the bills of lading. In the first place, the bills of lading stated: “freight payable as per Charter Party.” As the charter party made the freight payable by GP Global, it did not matter if Valero was bound by the bills of lading or not. Additionally, Valero did not sue under the bills of lading, and it did not present the bills of lading to receive the fuel. Milos released the fuel under a letter of indemnity from GP Global. Although Milos characterized the presentment of the bills of lading as a formality, Judge Hinderaker termed that “an odd way of putting it,” reasoning: “Presenting a bill of lading before accepting goods is customary because that ensures notice of the bill’s terms. If a party does not agree to the terms, they can choose not to exchange the bill for goods. Requiring presentation to precede acceptance is thus a formality for a good reason.” Finally, Judge Hinderaker rejected the argument that it was inequitable for Valero to benefit from the carriage of the fuel, explaining that Valero did not benefit unjustly because it paid the freight charge when it purchased the cargo. Therefore, the appellate court reversed the order granting summary judgment to Milos. Milos asserted, in the alternative, that Valero was obligated to pay freight under the English choice-of-law provision in the charter party. Judge Hinderaker declined to decide that question as it had not been addressed by Judge Snyder. See October 2025 Update.
Milos filed a petition for a writ of certiorari with the United States Supreme Court, presenting the question:
Under maritime law, a receiver of cargo who has not paid freight, and who (before exercising dominion over the cargo) is given notice to pay freight to the carrier, and with such knowledge then exercises dominion thereof by taking delivery, accepts an implied obligation to pay freight to the carrier. Besides ensuring that a carrier is paid for its services—and that vessels are freed for subsequent shipments and that ports are not filled with vessels awaiting payment—that rule is consistent with the vast majority of other maritime jurisdictions worldwide, including English law, which serves as a global standard for the law of maritime commerce. The effect of this consistency allows for a well-functioning global trade and shipping system, unhindered by significant deviations in local practice.
Yet the Ninth Circuit disrupted a previously uniform practice (observed around the country) by creating a private-versus-common carrier distinction, and holding for the first time that the obligation to pay freight to the carrier in these circumstances does not exist in the private carriage context. That distinction does not exist in prior Ninth Circuit precedent and—as the Ninth Circuit admitted—directly conflicts with caselaw from other Circuits. Further, the Ninth Circuit engaged in improper fact-finding by reversing the District Court’s finding that the receiver of cargo here exercised dominion over that cargo.
This case presents two related questions.
- Whether maritime law recognizes a private-versus-common carrier exception to the general rule that a receiver of cargo who exercises dominion thereof accepts an implied obligation to pay freight; and
- Whether the maritime law of the United States should be nationally uniform and, as a matter of preference, similar to the maritime law rule in England, that a receiver of cargo who exercises dominion over that cargo is obliged to pay freight and charges thereon.
On April 7, 2025, the Supreme Court denied the writ of certiorari, and the case returned to the district court where Milos filed a renewed motion for summary judgment on the claim for breach of contract (Valero filed a cross-motion for summary judgment). Milos argued that choice-of-law rules require the application of English law, and that English law requires Valero to pay freight charges to Milos. Milos argued that Valero was a third-party beneficiary under its charter party with Koch that was governed by English law. It asserted that when Valero demanded release of the cargo under the letter of indemnity, it implicitly accepted to be bound by the choice of law in the charter. Judge Snyder did not agree that Valero had become a party to the charter party and, even it were a third-party beneficiary, it was not bound by the choice-of-law provision because Valero did not seek to enforce any rights under the charter that it would have as a third-party beneficiary. Therefore, Judge Snyder decided the applicable law under maritime choice-of-law principles using the Lauritzen factors and concluded that U.S. law was most appropriate for the argument that Valero failed to pay the freight and related charges for the delivery of the cargo. Alternatively, Milos argued that it should be allowed to establish that the parties, through their conduct and communications, bound themselves to an implied-in-fact contract under United States law. Judge Snyder rejected the argument, answering that the Ninth Circuit conclusively resolved the issue of whether Valero was expressly or impliedly obligated to pay freight and related charges under U.S. law (only leaving open the question of liability under English law). As Judge Snyder held that English law did not apply, she granted summary judgment to Valero.
Judge found sufficient evidence of notice to the cruise line of a dangerous condition on a cruise ship from the large size of the puddle in which the passenger fell and the source being dripping from passenger clothing, but the large size resulted in dismissal of the failure-to-warn claims because the danger was open and obvious; passenger sufficiently alleged the specific training programs and the deficiencies in their implementation for a negligent training claim; Pimentel v. Carnival Corp., No. 1:25-cv-22706, 2025 U.S. Dist. LEXIS 212216 (S.D. Fla. Oct. 28, 2025) (Bloom).
Maria Pimentel, a passenger on the CARNIVAL DREAM, slipped and fell on a large wet area on the stone flooring on the Promenade Deck of the vessel. Pimentel brought this suit against the cruise line in Florida federal court, alleging that the flooring is in an area where passengers and crew track in water from the spas on the deck, spill drinks, and drip water and suntan lotion. She claims that she saw a crewmember standing in the immediate vicinity who was in a position to see the wet area, and that there was a caution sign near the spot, stating “slippery when wet” but that a passenger approaching from her direction would not see the sign until it was too late. The cruise line moved to dismiss the complaint asserting that the claims for negligent failure to maintain, negligent failure to warn (direct liability), and negligent design/construction did not sufficiently allege notice; that the claims for negligent failure to warn (direct and vicarious liability) should be dismissed because the condition was open and obvious; and that the claim for negligent training did not sufficiently specify a policy or program that was negligently implemented and caused her injury. With respect to notice, Pimentel asserted that the liquid was present on the deck for approximately an hour based on the size of the puddle and its source being passengers tracking in water and water dripping from the passengers. The cruise line argued that Pimental’s assertion was too vague and that she “could not reasonably infer the length of time the puddle had been present based on the size of the puddle.” Judge Bloom disagreed, answering: “Plaintiff’s inference that the large amount of water on the floor would have taken approximately an hour to pull together if it were dripping from passengers’ clothing is a reasonable one.” Judge Bloom also found the evidence that the cruise line participated in the design of the stone floor to be sufficient to establish constructive notice for the negligent design count. The cruise line next argued that such a large puddle of water was open and obvious. Pimental responded that passengers are not reasonably aware of how slippery water is on a polished stone floor. However, her general assertion was not responsive to the issue of whether the condition was open and obvious to her when she had notice of a wet puddle on the polished stone floor just moments before her accident. Therefore, Judge Bloom dismissed the counts for failure to warn. Finally, the cruise line argued that the negligent training count should be dismissed because maritime law does not recognize a claim for negligent training based on alleged deficiencies in a company’s general policies, staffing levels, or operational decisions. Judge Bloom disagreed, holding that negligent training is a recognized maritime duty and that Pimental had sufficiently pleaded the claim by identifying specific training programs, the purported deficiencies in implementing the programs, and how the negligent implementation caused her injuries. Therefore, Judge Bloom declined to dismiss the negligent training count.
Judge dismissed pro se boat owner’s federal suit against the insurer of his boat, which cancelled the policy on the grounds of unseaworthiness of the vessel, for lack of sufficient pleading of diversity jurisdiction; Zoccoli v. Progressive Insurance, No. 3:25-3323, 2025 U.S. Dist. LEXIS 212713 (D.N.J. Oct. 28, 2023) (Kirsch).
James C. Zoccoli, a resident of New York City, stays on his 36-foot boat “in order to help ease [his] asthma condition” resulting from his “repeated presence at the World Trade Center disaster site during the aftermath of the 9/11 attack.” He obtained insurance on his boat with Progressive, but when the policy was set to expire, he secured coverage with Boater’s Choice, which suddenly transferred the policy to Progressive. Zoccoli alleges that Progressive cancelled the policy with the “frivolous side comment” that the boat was not seaworthy. Zoccoli tried to find out from Progressive why the vessel was deemed to be unseaworthy, but Progressive declined to answer. Zoccoli asserts that this “caginess . . . is due to the insurer and its underwriters ‘literally covering[] up the involvement of Organized Crime.’” Zoccoli then brought this suit, pro se, against Progressive (and others) in federal court in New York, asserting a claim for breach of contract for the cancellation of the insurance on his boat, although most of his complaint is a “narrative history on the Five Crime Families of New York” along with a description of the “crime-and-corruption that has stalked the Plaintiff for more than two decades.” Judge Swain transferred the case to the District of New Jersey, and Judge Kirsch screened Zoccoli’s complaint for subject matter jurisdiction. Judge Kirsch noted that Zoccoli did not plead any federal question, apparently alleging a claim under state contract law. Therefore, Judge Kirsch looked for allegations of diversity. As he failed to sufficiently plead diversity or that his state claims satisfied the amount-in controversy required for diversity (he only discussed repairs in the amount of $2,900 after a series of mishaps), Judge Kirsch ordered that the case be dismissed without prejudice, although he stated that Zoccoli may file an amended complaint within 30 days to properly plead diversity [what about admiralty?].
Although the Judge held that the Louisiana Oilfield Indemnity Act voided the indemnity provision, she held that the statute did not bar an award of attorney fees, based on the contract, for defending against the indemnity claim; In re Whitney Oil & Gas Co., No. 2:22-cv-3015, 2025 U.S. Dist. LEXIS 213059 (E.D. La. Oct. 29, 2025) (Milazzo).
Whitney Oil & Gas deployed contract operators from Quality Production Services to check its wells located in the Gulf of America off the coast of Louisiana. One of the contract operators, Kerri Espadron, departed in the field boat M/V LIL RED to check wells along with contract operator Wyatt Boone. Boone drove the boat into a well jacket, resulting in an injury to Espadron. Espadron brought suit against Whitney Oil & Gas in state court in Plaquemines Parish, Louisiana, and Whitney Oil & Gas filed this action in federal court in Louisiana, seeking to limit its liability to the value of the LIL RED. Espadron filed a claim in the limitation action, and Whitney Oil & Gas brought a third-party claim against Quality Production. Quality Production then filed a claim in the limitation action, seeking defense and indemnity for Espadron’s claims pursuant to the terms of the Master Service Agreement between Quality Production and Whitney Oil & Gas. Whitney Oil & Gas moved for summary judgment on the claim for defense and indemnity, arguing that maritime law did not apply to the contract and that the Louisiana Oilfield Indemnity Act voided the contractual obligation. Quality Production and Espadron opposed the motion, arguing that the contract was subject to maritime law and that the defense and indemnity provisions are enforceable. As a threshold matter, however, Quality Production argued that Whitney Oil & Gas’s motion was premature because there was no finding of Quality Production’s fault or liability. Judge Milazzo noted that in the Meloy case, the Louisiana Supreme Court held that the Louisiana statute only prohibits indemnity for cost of defense where there is negligence or fault on the part of the indemnitee. As there had not been a determination of whether Quality Production was liable for Espadron’s injuries, it was premature to decide whether the provisions of the contract were enforceable. Therefore, Judge Milazzo declined to decide whether maritime law or Louisiana law applied and whether the defense and indemnity obligations were valid. See July 2025 Update.
Espadron settled his injury claim, and Judge Milazzo held a bench trial to determine whether the contract between Quality Production and Whitney Oil & Gas was maritime. Quality Production expected that the production operators would be operating vessels and working in an area that could only be accessed by vessel. Whitney Oil & Gas’ corporate representative also expected that the production operators would use vessels as transportation between wells so that the workers could perform their duties on the wells. The tools needed for the work were carried by the vessels, but the tasks (changing valves, checking that wells are flowing, blowing out fueled pods, checking the blow cases for fluid, and changing charts) could not be performed from the vessel and were undertaken after the worker climbed onto a platform or well jacket. On rare occasions, the vessels were used as work platforms, and the operators looked for oil sheens on the water while traveling between well locations. The parties did not provide sufficient evidence for Judge Milazzo to determine whether the OCSLA applied, but she explained that the conclusion would be the same regardless of whether the OCSLA applied—the issue was whether the contract was maritime using the Doiron test enunciated by the en banc Fifth Circuit. Judge Milazzo focused on whether there was “a direct and substantial link between the contract and the operation of the ship, its navigation, or its management afloat, taking into account the needs of the shipping industry.” She added that the Fifth Circuit had “clarified that the role of a vessel as transportation to and from the job site is irrelevant in this analysis;” that the location of the injury on the vessel is not dispositive; and that the vessel’s role in transporting tools and equipment that are transferred to a platform is insubstantial (Judge Milazzo quoted the Fifth Circuit’s Crescent Energy decision: “A vessel’s being indispensable may not equate to its role being ‘substantial.’”). Judge Milazzo added that even assuming the expectations of the parties were unclear, the use of the vessels was primarily for transportation and other work that was incidental to the job contemplated by the contract. Therefore, she held that the agreement was not a maritime contract and that the LOIA precluded Quality Production from enforcing the defense, indemnity and insurance provisions. See November 2025 Update.
Quality Production filed a notice of appeal to the Fifth Circuit, and Whitney Oil & Gas filed a motion seeking attorney fees. The contract provided for an award of attorney fees for the prevailing party in any suit to enforce or interpret the terms of the contract. Quality Production did not dispute that the contract provided for attorney fees in this case; however, it argued that fees were prohibited by the LOIA. Quality Production asserted that the LOIA nullifies any provision that requires indemnity where there is any negligence on the part of the indemnitee and that there was no finding that the indemnitee was free from fault because the parties settled the case. Judge Milazzo answered that the argument “misses the mark.” She explained that Whitney Oil & Gas was not seeking costs of defense of Espadron’s claims and instead was seeking to recover its fees in defending against the separate claim of Quality Production for defense and indemnity. As Quality Production cited no authority holding that the LOIA precludes an award of attorney fees to the prevailing party in a contractual dispute, Judge Milazzo held that the LOIA did not bar an award of fees to Whitney for successfully defending against Quality Production’s claim seeking indemnity. Quality Production also argued that Whitney Oil & Gas’s motion was defective under Rule 54(d)(2) because it did not state the amount sought or a fair estimate of the amount. As the motion was timely and set forth the grounds on which Whitney Oil & Gas sought fees, Judge Milazzo held that the motion was proper and that the amount of fees would be determined subsequently. However, Judge Milazzo did defer ruling on the amount of fees until after resolution of the appeal (and Quality Production filed an amended notice of appeal after the decision on attorney fees).
Evidence of deteriorated condition under the teak walkway around a hot tub that collapsed and injured a passenger on a cruise ship did not establish that the cruise line was on notice of the dangerous condition; Wampole v. Carnival Corp., No. 1:24-cv-24361, 2025 U.S. Dist. LEXIS 213372 (S.D. Fla. Oct. 29, 2025) (Moore).
Darlene Wampole, a passenger on the CARNIVAL CONQUEST, was walking on the elevated teak wood deck surrounding a hot tub on the vessel when the floor beneath her (with a closed hatch used to allow maintenance access to the hot tub) collapsed. Wampole brought suit against the cruise line in federal court in Florida with counts for negligent failure to remedy, negligent failure to warn, negligent design and installation, and vicarious liability. The cruise line moved for summary judgment on all of the counts. It argued that the direct liability claims should be dismissed for lack of notice of the dangerous condition. Wampole cited two work orders involving “whirlpool leaking from pump and rust casing” and “whirlpool varnishing to be done.” Both work orders were closed. Judge Moore agreed that work orders can provide evidence of notice of a dangerous condition, but the work orders in this case did not provide any notice of any issues with the hatch or the structural integrity of the teak wood deck adjacent to the whirlpool. Wampole also argued that the cruise line had notice based on photographs after the accident reflecting that the area underneath the hatch was rusted and degraded (indicating that the area had not been maintained for a long time). Judge Moore explained that the photographs were evidence of the length of time that the condition had existed, but they did not establish that the condition was reasonably detectable so as to invite corrective measures. Finally, Wampole relied on the opinion of her expert that the hatch should have had a support beam based on industry standards. Judge Moore rejected that claim as it failed to connect the noncompliance with a showing that the cruise line should have known about the noncompliance. Accordingly, Judge Moore granted summary judgment on the claims for direct liability. Turning to the claims for vicarious liability, Judge Moore agreed that Wampole did not have to establish notice on the part of the cruise line; however, she still had to identify a specific employee whose negligence caused her injury. Judge Moore granted the motion for summary judgment, and Wampole filed a notice of appeal the same day.
Owner pro hac vice was not insured on an umbrella policy that covered vessels owned by the named insured; Noren v. USAA Casualty Insurance Co., No. 9:24-cv-81471, 2025 U.S. Dist. LEXIS 214150 (S.D. Fla. Oct. 30, 2025) (Matthewman).
Matthew Noren was killed while performing repairs on a 2016 Jeanneau sailboat owned by BL Adventures, LLC, near Palm Beach County, Florida when the mast suddenly fell on him. BL Adventures, LLC is the named insured under a $1 million insurance policy issued by GEICO Marine Insurance Co. (with William Crawford, a member of BL Adventures, listed as the contact person for BL Adventures). USAA Casualty issued a $1 million personal umbrella policy to William Crawford. GEICO filed a limitation of liability suit in federal court in Florida on behalf of BL Adventures, as owner, and William Crawford, as owner pro hac vice, of the vessel, and Tina Noren, as personal representative of the Estate of Matthew Noren, filed a claim in the limitation action. USAA Casualty denied coverage on the excess policy on the ground that BL Adventures did not qualify as an insured and the vessel was not listed as a known exposure under the policy. GEICO tendered its policy limit of $1 million, and Crawford and BL Adventures agreed to a consent judgment against them in the amount of $4,158,772.53, with Crawford and BL Adventures agreeing not to execute on the judgment in exchange for the assignment of the rights of Crawford and BL Adventures against USAA Casualty. Noren then brought this suit in Florida federal court, as assignee of Crawford and BL Adventures, against USAA Casualty, seeking a declaratory judgment that BL Adventures qualified as an insured under the umbrella policy (and bringing claims for breach of contract and bad faith). USAA moved for judgment on the pleadings, arguing that the sailboat is owned by BL Adventures and that the umbrella policy, only listing Mr. Crawford as a named insured, does not apply to BL Adventures or its vessel. Noren responded that BL Adventures was covered under the umbrella policy because, as reflected in the limitation action, Crawford was the owner pro hac vice of the boat owned by BL Adventures, invoking coverage on the definition of insured: “Any person or organization legally responsible for animals, watercraft or personal watercraft: (1) To which this policy applies; And (2) Which are owned by” Crawford, a family member, or a resident of his household. Chief Magistrate Judge Matthewman noted that the vessel had to be owned by Crawford, presenting the question whether his status as owner pro hac vice satisfied the requirement for ownership of the vessel. Chief Magistrate Judge Matthewman cited Florida and Ohio statutes in the insurance context that the owner is the person with the legal title. He added that the policy is a personal umbrella policy and that maritime law would not apply. However, even if maritime law applied, he would reach the same conclusion that the policy uses the term “owned,” and not owner pro hac vice. Chief Magistrate Judge Matthewman concluded that BL Adventures had no rights under the umbrella policy and had nothing it could assign to Noren. Therefore, he recommended that the motion for judgment on the pleadings be granted.
Judge dismissed passenger’s injury suit against cruise line (her motorized wheelchair toppled over on a steep gangway) for lack of notice and dismissed her suit against the parent company as an improper claim for a negligent mode of operation; Haddad v. Celebrity Cruises Inc., No. 1:25-cv-20330, 2025 U.S. Dist. LEXIS 215093 (S.D. Fla. Oct. 31, 2025) (Moore).
Samia Haddad was boarding the CELEBRITY ECLIPSE in San Diego, California using her motorized wheelchair, when the wheelchair toppled backward due to the steep slope of the gangway, causing her to sustain injuries. Haddad brought this suit against the cruise line and its parent company in federal court in California, and the court transferred the case to federal court in Florida. Haddad’s first complaint was dismissed as a shotgun pleading and for failure to state a claim, and the defendants moved to dismiss the amended complaint. The cruise line argued that the complaint failed to plausibly allege that the cruise line had notice of the dangerous condition—that the gangway was too steep and that passengers needed assistance to safely board the vessel. Judge Moore agreed that the allegation that the cruise line was aware of similar incidents involving wheelchair-bound or mobility-impaired passengers was too general because it did not identify prior incidents on this gangway or substantially similar ones. The allegations that the ramp does not comply with industry standards and that the cruise line’s policies and training manuals acknowledge the risks of boarding on inclined gangways were also too conclusory to sufficiently plead notice. To the extent the complaint attempted to state a claim for negligent training, Judge Moore added that Haddad failed to allege that a certain training program exists. Therefore, he dismissed the count against the cruise line. The parent company moved to dismiss the count that it was liable because it controlled accessibility policies, boarding procedures, and crew training. The parent argued that Haddad was alleging an improper claim for negligent mode of operation that is not recognized under the general maritime law. Judge Moore noted that Haddad argued that the parent failed to implement and enforce adequate policies to ensure safe boarding, failed to require inspections or modifications to prevent the dangerous conditions posed by steep ramps, and failed to provide adequate training and staffing to assist disabled passengers. Judge Moore explained: “Each of these alleged breaches pertains to [the parent’s] policy decisions and how it conducts business, so Plaintiff’s allegations are under a negligent mode of operation theory.” Holding that Haddad claims for negligent mode of operation failed to state a claim under maritime law, Judge Moore dismissed the count against the parent. As this was the second pleading, he dismissed the complaint with prejudice.
Judge dismissed passenger’s injury claim for a slip and fall on a liquid substance for lack of a sufficient pleading of notice and for commingling 16 acts of negligence into one count; Vazquez v. Carnival Corp., No. 1:25-cv-24294, 2025 U.S. Dist. LEXIS 215145 (S.D. Fla. Oct. 31, 2025) (Moore).
Marta Maria Valdes Vazquez, a passenger on the CARNIVAL CONQUEST, slipped on a liquid substance in the buffet area near the pool on the vessel. Vazquez brought this suit against the cruise line in Florida federal court, asserting a single count for negligence (with sixteen subsections containing different particulars as to how the cruise line was negligent). The cruise line moved to dismiss the complaint for failing to sufficiently allege notice and for comingling the negligence theories, and Judge Moore granted the motion. He explained that the allegation that the cruise line had notice of the spilled liquid because it knew or should have known that the floor was not properly clear of any substances contained no factual allegations supporting the contention. With respect to the commingling of allegations, Judge Moore cautioned that “if Plaintiff hopes to survive dismissal in the future, she must separate each cause of action into a separate count, and only plead facts specifically underlying that cause of action in the corresponding count.” He gave Haddad leave to file an amended complaint to address the deficiencies.
Judge enforced arbitration agreement in Haul and Service Agreement for engine repair on vessel that was entered into by broker for the vessel owner with respect to the claims of the individual claims of the vessel owner against the ship repairer in the class action brought by the owner complaining of the scheme to lure vessels to agree to repairs and then pay additional amounts with a “cash for splash” policy; Miami Yacht Charter, LLC v. Safe Harbor Marinas, LLC, No. 2:25-cv-5014, 2025 U.S. Dist. LEXIS 216506 (D.S.C. Oct. 31, 2025) (Gergel).
Miami Yacht Charter’s vessel, M/Y VASILIKI, experienced engine problems near Charleston, South Carolina on its say to its home base in Florida. The technical superintendent (Timothy Claus) for the company that provides brokerage services for the vessel (Fraser Yachts Florida) contacted SHM Charleston Boatyard to discuss repair. Claus completed a Haul and Service Agreement (HSA) for the vessel, listing the customer name as M/Y Vasiliki c/o Fraser Yachts Florida. The captain of the vessel, Kevin Orwig, executed a credit card authorization for the HSA, indicating the customer was Gregory Palivos (manager for Miami Yacht Charter). The HSA contains an arbitration clause for “Any and all disputes of any type whatsoever relating to or arising out of this Contract.” The Boatyard issued a work order in the amount of $218,505.35, which was agreed to by Miami Yacht Charter, but then the Boatyard submitted additional charges before it would allow the vessel to sail in what Miami Yacht Charter called a “cash for splash” policy. The final total was $312,976.76. Miami Yacht Charter paid the amount under protest and filed suit against Safe Harbor Marinas and SHM Charleston Boatyard in federal court in South Carolina as a class action, complaining of a scheme “designed to unfairly create hidden profit centers and lure vessel owners to do business with SAFE HARBOR MARINAS for the sole benefit of the Defendants.” The defendants moved to compel arbitration, and Judge Gergel noted that Safe Harbor Marinas was not an explicit party to the HSA. Miami Yacht Charter opposed the arbitration on the ground that there was no enforceable agreement related to either party. As Judge Gergel rejected that argument, he considered the Miami Yacht abandoned opposition to Safe harbor Marinas’ argument that it was entitled to arbitration on equitable principles. Miami Yacht Charter argued that it was not a party to the HSA; however, Judge Gergel held that Fraser Yachts had apparent authority to bind Miami Yacht Charter, noting the joint communications with Palivos and the credit card authorization from Palivos at the request of Fraser Yachts (reflecting that Miami Yacht Charter “directly and openly approved” of Fraser Yachts’ actions). Miami Yachts asserted that the arbitration provision was unconscionable, but Judge Gergen was unpersuaded. He noted that Miami Yacht Charter had the business judgment necessary to understand the agreement and that it was not under duress (procedural unconscionability). For substantive unconscionability, Miami Yacht Charter complained of provisions on limitation of liability, limitations on warranties, collection, and indemnification, but it did not explain why the provisions are unconscionable. Finally, Judge Gergen held that the agreement did not mention class arbitration, focusing on all disputes arising out of the contract. However, the individual claims of Miami Yacht Charter were subject to arbitration, and Judge Gergel granted the motion to compel arbitration and stayed the suit.
Judge deferred issuing a writ of garnishment based on allegations that the defendant maintains accounts with the bank in Maryland which are accessible and capable of being withdrawn in the district; McAllister Towing of Baltimore, Inc. v. Safesea Transport, Inc., No. 1:25-cv-3581, 2025 U.S. Dist. LEXIS 215610 (D. Md. Nov. 3, 2025) (Hurson).
McAllister Towing provided tug services in the Port of Baltimore to the M/Y YASH, owned by Safesea Transport, but Safesea did not pay the full amount owed. McAllister Towing then brought this suit against Safesea in federal court in Maryland and sought attachment of the funds in an account held by Safesea with M&T Bank. The attachment was based on a UCC-1 filing listing M&T Bank as an active secured party to Safesea. Judge Hurson cited a Maryland case in which the judge quashed an attachment, stating that “it appears that Maryland treats its bank branches as separate entities and would not find service on a branch bank in Maryland sufficient to attach an account maintained in Virginia.” McAllister towing did not allege where Safesea maintains its accounts or which accounts are located in the District of Maryland. It merely alleged that M&T bank maintains multiple branches in the District. Thus, the logic of the Maryland case “may apply here where Safesea Transport presumably maintains any M&T account in New Jersey, where its principal place of business is located.” Thus, Judge Hurson deferred ruling on the issuance of the writ of attachment and requested that McAllister explain why the allegation that Safesea “maintains accounts with M&T Bank which are accessible – and capable of being withdrawn – in this District” is sufficient to justify the attachment funds in the alleged M&T account.
Fact dispute about whether the on-hire and off-hire surveys were of the same “method” resulted in denial of cross-motions for summary judgment on the issue of whether the barge was redelivered in the same condition, but the on-hire survey was conclusive on the claims for unseaworthiness and misrepresentation at the time of delivery; charterer’s motion to add the company that performed the deck-strength assessment on the barge was denied because it was too late and not based on newly discovered evidence; United States ex rel. Curtin Maritime Corp. v. Trade West Construction, Inc., No. 6:24-cv-810, 2025 U.S. Dist. LEXIS 217345, 217360 (D. Ore. Nov. 3, 2025) (McShane).
Trade West Construction contracted with the Army Corps of Engineers to repair the Coos Bay North Jetty in Coos County, Oregon, and the Miller Act required Trade West to provide a payment bond to secure the project’s contracts. Trade West obtained a performance bond and a payment bond through Endurance Assurance. Trade West entered into a Standard Bareboat Charter and a Standard Towage Agreement with Curtin Maritime for the use of the freight barge LOST PT. and tug DEBRA C with an addendum to the towage agreement to give Trade West access to Curtin Maritime’s loading yard and dock. During the project, the LOST PT. suffered damage, and Curtin Maritime alleges that Trade West breached the agreements by returning the barge in a damaged condition and by failing to pay outstanding invoices for the services of the tug and barge. Curtin Maritime brought this suit in federal court in Oregon against Trade West for breach of contract and against Endurance, as surety, for liability under the Miller Act (seeking outstanding costs of labor and materials furnished to Trade West for use in the repair). Endurance moved to dismiss the suit against it on the ground that the costs sought by Curtin Maritime were incurred after the breach of contract and were not in furtherance of the federal project. Judge McShane began by holding that Curtin Maritime had alleged a Miller Act claim against Endurance with its allegations that the services of the tug, barge, and loading yard were labor and materials for the project, that Trade West failed to make full payment for the labor and materials, and the claim arose under the Miller Act. Judge McShane then addressed the amounts that Curtin Maritime could recover and noted that costs for labor and materials actually expended on a project are recoverable from the surety, but lost profits are not. This distinction requires the court to determine what is recoverable under the contract and under the Act. Trade West argued that Curtin Maritime was not entitled to recover costs assessed after Trade West stopped using the services of Curtin Maritime and that Curtin Maritime was not entitled to recover for damage to the barge because Curtin maritime breached the charter by failing to provide a barge fit for the purpose contemplated in the charter and by failing to accept redelivery of the barge. Endurance argued that the cost of repair was not recoverable because the barge is a capital asset and not a “material” under the Miller Act and because the repairs were for the benefit of Curtin Maritime on future projects. Judge McShane reviewed the cases and held that Curtin Maritime could recover costs to repair the barge if the damage occurred during the project as the charter provided for liability for the repair, and that provision was consistent with the Miller Act’s intent to protect those whose labor and materials go into public projects. As there was a dispute about the cause of the damage, Judge McShane held that the claim for the cost of repair could proceed. Judge McShane did agree that the damages incurred after Trade West stopped using the barge on redelivery were not recoverable as they represented a combination of costs for services not rendered and lost profits. However, Curtin Maritime could seek to recover damages from Endurance for the labor and materials actually expended on the project (that does not mean that Curtin Maritime may not recover damages from Trade West for breach of contract for the amounts that are not recoverable from Endurance). The same result was reached for the post-breach ongoing charter hire while the barge was being restored to its prior condition. See December 2024 Update.
Curtin Maritime and Trade West then exchanged motions for summary judgment. Curtin Maritime alleged that Trade West breached the charter and towage agreement, and Trade West denied that the LOST PT. suffered damage beyond normal wear and tear, citing a survey performed at Trade West’s request showing that the LOST PT. was damaged at the time Trade West Took possession. The charter provided for on-hire and off-hire surveys and stated that the surveys “shall be conclusive between the parties with respect to the condition of the Vessel” at the time of delivery and redelivery. However, the surveys must be conducted upon the same “method.” Redelivery does not occur until the vessel has been restored to the original condition less ordinary wear and tear. Trade West argued that Curtin Maritime could not establish that the barge was returned in worse condition because the surveys were not performed using the same method. There was one difference in the surveys. LiDAR scans were used in the off-hire survey but not in the on-hire survey. Whether that made a difference in the results was a fact question that resulted in denial of the motions of both Curtin Maritime and Trade West with respect to the claim for breach of the charter. Judge McShane did dismiss Trade West’s claims of failure of consideration for delivering an unseaworthy barge and misrepresentation of the condition of the barge, citing the provisions in the charter that the barge was delivered “AS-IS” and that the on-hire survey was conclusive as to the condition of the barge at the time of delivery.
After the exchange of the motions for summary judgment, Trade West moved for leave to add new counterclaims and to add a third-party complaint against Nordholm Companies, which contracted to perform the deck strength assessment on the barge. As the newly proposed counterclaims simply clarified the breach of contract theories, Judge McShane agreed to allow them. However, Judge McShane declined to allow the complaint against Nordholm, reasoning that it was untimely. Judge McShane explained that Trade West knew of the allegations of Nordholm when the barge first sustained damage, and the facts were not newly obtained in discovery. He added that the parties would incur increased costs and delay of resolution of the dispute for additional discovery and dispositive motions (he also noted that they could “be separately given fair judgment”).
Judge found Corps of Engineers and one deckhand negligent and awarded damages for injury to two deckhands during passage of tug and barges through a lock on the Arkansas River; deckhand that was assessed no fault could only recover against the United States for the percentage of fault assessed against the United States--his award was reduced by the percentage of fault assessed against the other deckhand; Deaton v. United States, No. 2:23-cv-120, 2025 U.S. Dist. LEXIS 218132 (E.D. Ark. Nov. 3, 2025) (Miller).
Bradley Deaton and Raymond Hatten, who were serving as deckhands on the JOHN T. JANOUSH while it navigated through the lock at dam number four on the Arkansas River, were injured when they were struck by a line. The size of the tow (12 barges) was too large for the lock chamber, which required two trips through the lock (6 barges apiece). The first cut of barges was departing the chamber when the lock operator, employed by the Corps of Engineers, began flushing the chamber without notice to the crew of the tug, putting great tension on the line securing the barges to the mule that was pulling the barges out of the lock. Hatten became tangled in the line, and Deaton ran to Hatten’s assistance and pulled him from the entanglement; however, the line snapped, injuring Hatten and Deaton. Deaton and Hatton brought suits against the United States in Arkansas federal court that were consolidated and tried in a bench trial before Judge Miller. Judge Miller found Staton’s actions contributed 45% to the accident, and Hatten’s actions contributed 55%. Judge Miller apportioned no liability to Deaton and commended him for saving Hatten’s life. Judge Miller awarded Deaton past lost wages of $85,937 and Hatten past lost wages of $146,933. He found that both workers would be able to return to work on the river or be able to be retrained to earn as much as they were earning in work on the river. Therefore, he awarded future lost wages for five years (to allow them to obtain training to mitigate damages). That resulted in an award to Deaton of $234,339 and to Hatten of $216,380. Judge Miller awarded each plaintiff $100,000 for pain and suffering. Noting that maritime law applies the principle of pure comparative fault, he reduced the awards to Hatten and Deaton by the 55% fault of Hatten (net recovery of $193,826 for Deaton and $208,491 for Hatten). Deaton filed a motion to alter the judgment for several reasons, including the argument that the negligence of Hatten should not reduce his award of damages as Deaton was not found negligent. Judge Miller denied the motion on November 21, 2025, stating: “Deaton may not recover from the government for Hatten’s negligence.”
Vessel owner that issued check for the amount it agreed to pay vessel repairer in order to release the vessel and then dishonored the check was required to pay the amount of the dishonored check; however, the repairer was required to pay damages for breach of warranty to repair defective work (limited to the contract cap of $100,000); Platypus (incorrectly named Platyhpus) Marine, Inc. v. Glacier Guides, Inc., No. 1:22-cv-6, 2025 U.S. Dist. LEXIS 217799 (D. Alaska Nov. 4, 2025) (Gordon).
Platypus Marine performed maintenance and repair on the yacht ALASKAN GRANDEUR, owned by Alaska Legacy and operated by Glacier Guides, for more than 15 years before the dispute that resulted in this litigation. After Glacier Guides declined to pay what Platypus Marine charged for repairs conducted on the vessel during the winter of 2022, Platypus Marine brought this suit against the yacht, in rem, and its owner and operator, in personam. Alaska Legacy posted security of $178,091.85 for the release of the vessel and filed a counterclaim, alleging that Platypus Marine performed work that was unauthorized and that was defective. Alaska Legacy then sought countersecurity pursuant to Supplemental Rule E(7), and Platypus Marine objected, arguing that the counterclaim did not plead an amount in damages and was frivolous. Judge Holland rejected the arguments, stating that the court was “unpersuaded that it should read Rule E(7) out of existence if a counterclaim does not state a damages amount.” Alaska Legacy submitted a value for its counterclaim through its expert witness ($224,810), and Judge Holland ordered countersecurity in that amount. See August 2023 Update.
Platypus Marine and Glacier Guides each moved for summary judgment. Platypus Marine argued that the parties had entered into a contract on a time-and-materials basis, and the parties agreed to a resolution of the dispute in which Platypus Marine discounted the amount it claimed by $15,000, leaving a balance of $272,253.74. Glacier Guides issued checks for that amount in order to obtain the release of the vessel and then immediately stopped payment on one of the checks (in the amount of $168,011.18). It defended the claim with evidence that the work performed was defective and incomplete and that a substantial amount had been performed without approved work orders or change orders. Platypus Marine argued that Glacier Guides was now prevented from disputing the amount owed under the doctrine of satisfaction and accord because Glacier Guides had issued checks in the full amount allegedly owed without protesting the amount. Glacier Guides responded that there was a bona fide dispute over the amount owed and that Glacier Guides had to make the payments so that it would not default on its contracts for the use of the vessel. Reasoning that there was a factual dispute whether there was an agreement to settle the amount owed and that there were disputes as to whether Platypus Marine overcharged for its work, Judge Holland declined to grant summary judgment to Platypus Marine. Glacier Guides moved for summary judgment on its counterclaim, contending that the limited warranty in Platypus Marine’s terms and conditions (limiting contract and tort liability to $100,000, regardless of negligence) was invalid and unconscionable under the general maritime law. Platypus Marine argued that if it was successful on its claim of accord and satisfaction, the counterclaim would fail. As Judge Holland declined to grant summary judgment to Platypus Marine, he addressed Glacier Guides’ motion. Citing the decisions of the Ninth Circuit, Judge Holland noted that the parties to a repair contract can validly stipulate that the shipowner assumed all liability for damage to the vessel, even when occasioned by the negligence of the shipyard, as long as there was no evidence of overreaching. Although Glacier Guides argued that there was overreaching because the contract terms were presented on a “take it or leave it" basis, Judge Holland answered that the Ninth Circuit had refused to invalidate an exculpatory provision in a ship repair contract where the ship owner assented to the agreement without complaint. As Glacier Guides did not object, there was no fact question on overreaching. Glacier Guides also argued that the limitation on the warranty failed on its essential purpose under UCC principles (indicative of general maritime law). Judge Holland did not consider that there was a failure of the essential purpose of the limited warranty because Glacier Guides could still recover $100,000 in damages if there was defective work and Platypus Marine did not repair the defective work. Consequently, Judge Holland declined to grant summary judgment to Glacier Guides. See January 2024 Update.
The parties engaged in settlement discussions, and Glacier Guides did not seek to compel Platypus Marine to deposit the required countersecurity. When Glacier Guides did eventually move for the deposit of countersecurity, Platypus Marine responded that it would proceed solely in personam against Glacier Guides, and it proposed a stipulation to release the security posted by Glacier Guides so that Platypus Marine would not have to post countersecurity. However, Platypus Marine had not voluntarily dismissed its in rem claim or otherwise relinquished it. As its in rem claim remained, Judge Kindred ordered the deposit of the countersecurity in the amount of $224,810. See August 2024 Update.
After the case was reassigned from Judge Kindred to Judge Gleason, Platypus filed a motion for reconsideration, noting that it had dismissed its in rem claim without prejudice. Judge Gleason did not believe that was sufficient, stating that Platypus Marine must dismiss its in rem claim with prejudice. She reasoned that if it prevailed on its in personam claim, it could again bring its in rem claim, and she explained: “Platypus Marine’s attempt to avoid posting countersecurity while seeking to retain the ability to later arrest the vessel post-judgment does not comport with the spirit of the rule.” She held that Platypus Marine must dismiss its in rem claims with prejudice or deposit countersecurity within 14 days. She added that she would order that the security posted by Glacier Guides would be released upon dismissal with prejudice of Platypus Marine’s in rem claims. See January 2025 Update.
This case was reassigned to Chief Judge Gordon of the District of Nevada, who conducted a bench trial and issued his findings of fact and conclusions of law. With respect to the claim of Platypus that Glacier dishonored the check, Glacier argued that defective work and overcharges justified its cancellation of the check. Chief Judge Gordon rejected Glacier’s argument, explaining that the parties had reached an accord and satisfaction with the reduction in the invoices of $15,000 and the issuance of checks in the reduced amount. He held that “Glacier’s secret intent to cancel the check is irrelevant,” and he held that Glacier was obligated to pay the full amount of the dishonored check ($168,011.18) “in satisfaction of that accord.” The fact that there was an accord and satisfaction did not automatically preclude Glacier’s counterclaim against Platypus. Chief Judge Gordon found that Platypus intended to honor its warranty and to repair deficient work if Glacier had not dishonored the check. As full payment was due (and ordered) under the accord and satisfaction, Chief Judge Gordon held that Glacier’s counterclaim was viable. Chief Judge Gordon found that the cost of repairs for deficient work was $105,440 and that the contract limited Platypus’s liability to $100,000. Glacier argued that the limitation could not be enforced because Platypus acted in bad faith, but Chief Judge Gordon did not find evidence of bad faith, gross negligence, or intentional misconduct. Therefore, he awarded $100,000 to Glacier for breach of warranty (leaving issues of attorney fees and prejudgment interest to be decided).
Vessel owner was allowed to file an amended complaint to set forth the facts to support his claim that the policy on his vessel, which did not list hull coverage on the declarations page, was ambiguous; King v. Markel American Insurance Co., No. 2:25-cv-115, 2025 U.S. Dist. LEXIS 217728 (M.D. Fla. Nov. 5, 2025) (Dudek).
Trevor King’s 44-foot boat sank in a storm, and he made a claim for loss of the boat pursuant to the Helmsman Yacht Policy issued by Markel American Insurance Co. Markel denied the claim, asserting that the policy did not afford hull coverage and that King violated the Windstorm Haulout endorsement that required the boat to be on land when a windstorm warning was issued. King brought suit against Markel in state court in Charlotte County, Florida, alleging breach of contract and seeking a declaratory judgment of coverage. Markel removed the case to federal court based on original admiralty jurisdiction and diversity. The declarations page of the policy lists coverage for protection and indemnity, uninsured watercraft, medical payments, oil pollution liability, and Longshore and Harbor Workers’ Compensation. It does not list hull/property damage. The Insuring Agreement affirms that Markel agrees to provide the insurance coverages shown on the Declarations Page; however, the Insuring Agreement contains sections setting forth coverage for Physical Damage, Protection and Indemnity, Oil Pollution Liability, Longshore and Harbor Workers’ Compensation, Medical Payments, and Uninsured and Underinsured Watercraft (it also contained a windstorm haulout condition). Markel moved for judgment on the pleadings that coverage was not available when it is “not shown on the declarations page” of an insurance agreement. King did not dispute that physical damage was not listed on the declarations page. However, he argued that the policy was ambiguous and that coverage for physical damage was “expected based on the parties’ course of dealing, premium, structure, policy endorsements and representations made during the policy’s procurement and conduct of the parties.” Judge Dudek noted that outside evidence cannot be used to change, contradict, or create ambiguity in the terms of a maritime contract that are not already ambiguous. However, in view of King’s argument that he was led to believe the policy afforded hull protection, Judge Dudek allowed King to amend his complaint to set forth facts to support his ambiguity theory. Judge Dudek explained: “So if King believes that the policy structure, premium payments, prior course of conduct, and representations led him to believe that physical damage was covered, then the Court needs to know, for example, what the premium payments were, what prior course of conduct is at issue, and the surrounding circumstances that misled him (noting Rule 11).
Passenger sufficiently alleged counts of direct liability for slip and fall on cruise ship by identifying the crewmember standing near the Tiki Bar holding a mop; however, the passenger failed to identify procedures or training for her negligent training count; Lorello v. Carnival Corp., No. 1:25-cv-23914, 2025 U.S. Dist. LEXIS 217966 (S.D. Fla. Nov. 5, 2025) (Bloom).
Linda Lorello, a passenger on the CARNIVAL VISTA, was leaving the Lido Deck elevator bank and heading outside to get an ice cream from the station near Guy’s Burgers when she slipped and fell in a puddle of water or slippery substance on the deck. Lorello brought this suit in Florida federal court against the cruise line with two counts of direct liability (for failure to warn and failure to maintain), three counts of vicarious liability (for failure to warn, failure to inspect, and failure to maintain), and a count for negligent training of crew members. The cruise line moved to dismiss the vicarious liability claims because they failed to identify a specific crewmember who committed a negligent act that proximately caused Lorello’s injury, and it moved to dismiss the negligent training claim on the ground that Lorello did not identify a specific training program or policy that the cruise line failed to implement. With respect to the claims for vicarious liability, Judge Bloom noted that Lorello alleged that there was a crewmember on the Lido Deck twenty feet from where she was injured who was assigned to monitor and oversee operations on the Lido Deck, who failed to inspect the area and ensure that it was safe (failing to clean the deck), and who failed to warn passengers. She provided details that the crewmember was standing near the Tiki Bar and was holding a mop. Judge Bloom concluded that Lorello had sufficiently established that a specific employee engaged in negligent acts that proximately caused her injury. Turning to the claim for negligent training, Lorello argued that the crew were inadequately trained on how to properly recognize, monitor, maintain, and inspect high traffic areas where the cruise line could reasonably expect hazardous conditions to exist. However, Judge Bloom responded that there were no allegations identifying any procedures or training or how they were improperly implemented. The conclusory allegation that the cruise line failed to train the crew was insufficient, and Judge Bloom dismissed the count for negligent training.
Utah judge transferred suit by seller of Italian marble against Utah buyer to recover the purchase price that was not paid (because the marble was damaged during shipment) based on the motion of the third-party defendant ocean carrier, which invoked the New York forum-selection clause in its bill of lading; TD srl v. Italia Granite Supply, LLC, No. 2:25-cv-480, 2025 U.S. Dist. LEXIS 219066 (D. Utah Nov. 5, 2025) (Barlow).
Italian company TD srl sold 61 slabs of marble stone to Italia Granite Supply, a Utah company. The marble slabs were shipped from Volargne, Italy to Salt Lake City, Utah through the ports of La Spezia, Italy and Long Beach, California under Mediterranean Shipping Company’s sea waybill. The marble slabs arrived in a damaged condition, and Italia Granite declined to pay the invoice to TD srl. TD srl brought this suit against Italia Granite in state court in Salt Lake County, Utah for breach of contract, and Italia Granite brought a third-party complaint against Mediterranean Shipping Company and others, alleging negligence, gross negligence, bailment, and liability under the Carmack Amendment and the Carriage of Goods by Sea Act. Mediterranean Shipping removed the case to Utah federal court, basing jurisdiction on diversity in the original action and federal question and admiralty for the third-party complaint, and it then filed a motion to dismiss the third-party complaint as time-barred and, alternatively, to transfer the case to the United States District Court for the Southern District of New York in accordance with the forum-selection clause in the sea waybill. As a transfer would avoid the Utah court’s having to rule on the merits, Judge Barlow first considered the transfer argument. Italia Granite argued that enforcement of the clause was unconscionable. Judge Barlow noted that Italia Granite would have to allege unconscionability as to the clause itself, but its motion addressed the incorporation of terms in the waybill and not the clause itself, with respect to procedural unconscionability, and the statute of limitations and package limit with respect to substantive unconscionability. Therefore, the unconscionability argument failed. Finally, Italia Granite argued that interests of public policy, fairness, and judicial economy weighed against enforcing the clause. Judge Barlow noted that Italia Granite would have to show that the transfer would make the litigation so gravely difficult and inconvenient that it would effectively deny Italia Granite its day in court. As Italia Granite could not satisfy that standard, Judge Barlow transferred the case to the federal court in New York and stated that Mediterranean Shipping could file its motion to dismiss in the transferee court.
Magistrate Judge declined to decide contribution and indemnity claims before addressing liability to the plaintiffs; captain’s alleged knowledge of unsafe condition and failure to intervene did not render the ship unseaworthy; Magistrate Judge declined to grant bifurcation in limitation action when the injured claimants allowed their state action to be dismissed and there was no lawfully filed state action to which they could return; In re M/V AET EXCELLENCE, No. 3:23-cv-167, 2025 U.S. Dist. LEXIS 219605 (S.D. Tex. November 7, 2025) (Edison).
This litigation arises from three limitation actions filed in connection with the collision between the M/V HUNTER T. and the M/V NORTHERN MAGNUM in which two seamen assigned to the AET EXCELLENCE were injured while riding on the HUNTER T. and a separate action in which one of the seamen was also injured while transferring from the M/V EXCALIBUR to the AET INNOVATOR. Limitation actions were filed in federal court in Texas on behalf of the HUNTER T., the EXCALIBUR, and the AET vessels after suit was filed by seamen Gerald Arukwe and Jose Uresti against the owners/operators of the HUNTER T. and the AET vessels. T&T Offshore, owner of the HUNTER T., filed a third-party complaint and Rule 14(c) tender against the NORTHERN MAGNUM interests in the HUNTER T. limitation action. The pleading sought contribution and indemnity, but it also sought judgment for Arukwe and Uresti directly against the NORTHERN MAGNUM interests. The NORTHERN MAGNUM interests objected, arguing that Rule 14(c) is only applicable when the plaintiffs have asserted an admiralty claim under Rule 9(h), and Arukwe and Uresti brought their claims against T&T Offshore under the Jones Act, demanding a jury trial. Magistrate Judge Edison cited the language of Rule 14(c) that the scope of the Rule applies to a plaintiff who “asserts an admiralty or maritime claim under Rule 9(h).” Although Arukwe and Uresti brought a claim in the T&T limitation action for the HUNTER T. (the limitation action can only be brought pursuant to Rule 9(h)), Magistrate Judge Edison reasoned that the seamen/claimants had not designated their claims as brought pursuant to Rule 9(h), had brought Jones Act claims, and had demanded a jury. Therefore, he held that T&T Offshore could not avail itself of Rule 14(c) to make the NORTHERN MAGNUM interests directly liable to the seamen. The NORTHERN MAGNUM interests also asked that T&T Offshore’s claims under Rule 14(a) for contribution and indemnity should be dismissed. Finding no support for dismissal of the third-party claims that were asserted under Rule 14(a), Magistrate Judge Edison declined to recommend dismissal of those claims. There was no objection to the recommendations, and Judge Brown adopted them. See July 2025 Update.
The AET interests sought to depose the seamen’s treating physicians, Dr. Victoria Do and Dr. Rubin Bashir, and a dispute arose over the compensation that AET must pay to the doctors for the time spent in their depositions. Dr. Do, a family medicine doctor who has been practicing since 2004, sought an hourly rate of $2,500. Dr. Bashir, an orthopedist who has been practicing since 2008, sought an hourly rate of $3,500. Both sought deposits ($5,000 and $3,500). The AET interests argued that the requested rates were excessive and that a reasonable rate was $500 per hour. Magistrate Judge Edison noted that Rule 26 provides that the party seeking discovery must pay the expert a reasonable fee for time spent responding to discovery, and he added that it is in the court’s discretion to set the amount that it deems reasonable. Although the doctors argued that the requested fees were a reasonable approximation of the revenue the doctors would forego if they were being deposed instead of seeing patients, Magistrate Judge Edison stated that he had “no intention of forcing these doctors to choose between seeing patients and attending a deposition.” He explained that the lawyers could “arrange their schedules to conduct the depositions early in the morning, late in the afternoon, or on the weekend.” Magistrate Judge Edison added that the depositions could be continued over multiple days in order to allow the doctors to treat their patients during normal business hours. [Counsel for the AET interests stated that he would be happy to schedule the depositions, if convenient to the doctors, “at midnight, on a full moon, in a graveyard,” but Magistrate Judge Edison thought that “might be a tad much”]. As for the reasonable hourly rate, Magistrate Judge Edison held that $750 was a reasonable rate for time spent in the depositions, using his experience as a practicing lawyer and judge. Magistrate Judge Edison declined to order the AET interests to pay a deposit, citing authorities stating that “requiring up-front payments without reference to time actually spent in responding to discovery is contrary to the law.” Thus, the amount owed under Rule 26 becomes due only after the expert sits for the deposition. See September 2025 Update.
Magistrate Judge Edison then considered three motions for summary judgment and a motion to bifurcate. Harbor Offshore Marine, petitioner for the EXCALIBUR, moved for summary judgment as to the claims of AET for contribution and indemnity, arguing that there was no evidence that it was negligent in the operation of the EXCALIBUR. AET also moved for summary judgment as to the plaintiffs and AET’s claims against T&T, arguing that there was no evidence that it was negligent. AET also sought judgment on the plaintiffs’ claims for unseaworthiness in connection with the collision. With respect to the contribution and indemnity claims, Magistrate Judge Edison answered: “if ever a case were not suitable for summary judgment, it is this case.” He explained that the liability claims of the plaintiffs were not currently before the court and added that “there is simply no need for the court to decide questions it may never need to reach.” Magistrate Judge Edison was particularly perplexed by the claim of AET for contribution and indemnity against T&T. AET argued that T&T owed AET for the maintenance and cure payments it has made to the plaintiffs. Yet, AET asserted that it intended to prove that Uresti was not a Jones Act seaman. Magistrate Judge Edison stated: “I struggle to understand why I should wade into whether T&T owes AET contribution and indemnity for maintenance and cure when AET says that Uresti is not even entitled to maintenance and cure because he is not a Jones Act seaman.” Magistrate Judge Edison also declined to grant summary judgment to AET on the seaman’s claims because it admitted that Uresti was a seaman in its answer to the plaintiffs’ counterclaim. Magistrate Judge Edison did agree with AET that there was no unseaworthiness of its vessel. The plaintiffs cited the negligence of the captain in not safely navigating and failing to intervene. However, Magistrate Judge Edison considered that to be insufficient, concluding: “Assuming Captain Han knew about an unsafe condition and had a duty to intervene, his failure to do so is nothing more than an ‘isolated, personal negligent act.’” Finally, Magistrate Judge Edison denied the plaintiff motion to bifurcate the federal proceeding into two phases with the first phase limited to negligence/unseaworthiness, privity and knowledge, and apportionment of fault. In the first place, Magistrate Judge Edison noted that the suit brought by the plaintiffs in state court had been dismissed for want of prosecution, and the plaintiffs had brought a second suit after the limitation actions were filed. Thus, the plaintiffs had “no lawfully filed state court action to which they could return. Moreover, as the consolidated limitation actions involved two injury plaintiffs and six defendants in connection with two separate incidents that are inextricably intertwined, Magistrate Judge Edison did not believe this is “the type of case in which bifurcation makes sense.”
Judge ordered sampling and testing of coal that exploded on vessel, a survey of the vessel, and depositions of officers of the vessel before offloading of the coal and the departure of the crew; In re Olam Maritime Freight, Pte. Ltd., Nos. 1:25-cv-3195, 1:25-cv-3207, 2025 U.S. Dist. LEXIS 220863 (D. Md. Nov. 10, 2025) (Maddox).
This litigation involves a shipment of coal on the W-SAPPHIRE, a Liberian bulk carrier owned by Linville LP. The vessel operated under a series of back-to-back charters, a time charter with Olam Maritime Freight, a trip charter with Mercuria Shipping Sarl, and a voyage charter with Javelin Global Commodities, the shipper of the coal. The vessel loaded coal at CSX Transportation’s Curtis Bay coal pier and terminal facility in the Port of Baltimore, and title transferred from Javelin to Ultratech Cement Limited, an Indian cement company. Shortly after the vessel departed, there was an explosion in cargo hold number 2, resulting in damage to the vessel and cargo, disruption of port operations, safety and environmental hazards, and temporary closure of the port. After the incident the vessel remained in the District of Maryland, and the crew and cargo remained onboard. Olam filed an emergency petition to preserve testimony and evidence, asking the court to order immediate sampling and testing of coal samples relevant to the explosion, depositions and documentary evidence related to the loading of the vessel and another vessel that loaded coal from the same stockpile, and gas monitoring information and video from the loading facility. Olam argued that the order was necessary because it believed cargo was going to be offloaded from the vessel the next day, which risked loss of evidence for the expected litigation. Mercuria, Javelin, and Ultratech also filed a suit seeking to preserve testimony and evidence. They sought documents as well as depositions of the master, chief officer, chief engineer, and relevant ventilation/electrical personnel who are foreign nationals who will be beyond the reach of compulsory process once they depart the United States. Judge Maddox authorized Olam Maritime to retain an independent third party (or third parties) to sample and inspect multiple layers of the coal stored in each hold of the W-SAPPHIRE, with the top layer sampling before cargo offloading and the other layers during offloading. He ordered the test results to be produced exclusively to the Court, to be held in camera until after a judicial or arbitral proceeding is instituted. Judge Maddox authorized the depositions of the master, chief officer, and chief engineer, and authorized the retention of an independent marine surveyor to inspect and survey the vessel. The report, photographs, and test results are to be submitted to the Court in camera.
Vessel owner sufficiently pleaded claims of negligence and negligent misrepresentation against a marina for recommending a contractor and permitting the contractor to work at the marina when the contractor was not licensed, insured, or qualified; Seneschal v. East Bay Marine Services, LLC, No. 8:25-cv-2253, 2025 U.S. Dist. LEXIS 221437 (M.D. Fla. Nov. 10, 2025) (Moody).
Robert Seneschal is the owner of the M/Y REMEDY, a 1981 42-foot Sea Ray Motor Yacht that was docked at Inter-Bay Moorings’ marina in Hillsborough County, Florida, Under the storage contract, Inter-Bay required all outside contractors working at the marina to provide proof of insurance and licensing before performing any work (and imposed a surcharge on outside work). Seneschal requested that Inter-Bay Moorings inspect the vessel’s engines for overheating, and Inter-Bay recommended that Seneschal hire Jack R. Cruey d/b/a Master Marine Mobile to perform the work. Seneschal asserts that he retained Master Marine Mobile in reliance on the representation that Master Marine Mobile was licensed, insured, and qualified. The engines were removed and replaced, but they failed during the sea trial, costing Seneschal damages for repairs, storage fees, depreciation, and loss of use. Seneschal brought this suit against East Bay Marine Services (d/b/a Inter-Bay Moorings) and Jack R. Cruey (d/b/a Master Marine Mobile) in Florida federal court, and a default was entered against Cruey when he failed to appear. Inter-Bay Moorings moved to dismiss the counts alleged against it for negligence and negligent misrepresentation. Judge Moody declined to dismiss the counts, answering that they were plausibly pleaded. He explained that the complaint alleged that Inter-Bay represented that Master Marine Mobile was licensed and insured, permitted the company to perform work at the marina, and failed to verify that the representations were accurate. Thus, it could be found to have breached the duty it voluntarily assumed when it failed to exercise reasonable care in granting access and recommending Master Marine Mobile. Inter-Bay argued that the alleged negligence could not have been a proximate cause of the damages and that marine insurance policies do not cover the type of damages alleged in the case. However, Judge Moody considered those arguments to invite factual and legal determinations that go beyond the four corners of the complaint in a motion to dismiss.
Settlement agreement between insured vessel owner and its insurer (after coverage litigation) that the policy was void ab initio prevented an injured passenger from seeking coverage on the policy; Great Lakes Insurance SE v. Williams, No. 1:23-cv-23556, 2025 U.S. Dist. LEXIS 222431 (S.D. Fla. Nov. 10, 2025) (Becerra).
Lilly Williams was injured on a chartered boat operated by Baywatch Boat Rentals Tours & Charters, d/b/a Captain Joe’s Boat Rentals Tours and Charters. Captain Joe’s was insured under a policy issued by Great Lakes Insurance. Williams brought a suit in Florida state court against Captain Joe’s, seeking to recover for her injuries, and Great Lakes brought an action in federal court in Florida against Captain Joe’s, seeking a declaration that it did not have a duty to defend or indemnify Captain Joe’s in connection with Williams’ injury. Great Lakes and Captain Joe’s entered into a settlement in which Great Lakes paid Captain Joe’s $150,000, and Captain Joe’s released Great Lakes from all liability under the policy (including bad faith), agreed that the policy would be void from its inception, agreed that the policy would not respond to the Williams claim, agreed that Captain Joe’s would not assign any rights against Great Lakes to anyone, and agreed that Captain Joe’s would defend and indemnify Great Lakes from any claims by Williams. Williams and Captain Joe’s settled the injury suit by entering into a $800,000 consent judgment, and Williams agreed not to execute against the assets of Captain Joe’s and to seek satisfaction of the judgment from the legal action against Great Lakes. Williams demanded that Great Lakes satisfy the consent judgment and filed a civil remedy notice accusing Great Lakes of acting in bad faith. Great Lakes brought this action against Williams and Captain Joe’s, seeking a declaratory judgment that the policy was void ab initio and that Great Lakes did not commit bad faith. Williams moved to dismiss the complaint and argued that the settlement agreement, pursuant to which Captain Joe’s agreed that the policy was void, was not binding on her. Magistrate Judge Reid responded that the argument was not suitable for disposition on a motion to dismiss. The only relevant inquiry was whether the plaintiff is entitled to a declaration of rights, but Williams was asking the court to reach the merits. Magistrate Judge Reid found a viable case or controversy based on the consent judgment and Williams’ seeking to collect on the judgment from Great Lakes (together with her allegations of bad faith). Williams also argued that Great Lakes’ collection of premiums after it was on notice of the claim demonstrated that Great Lakes forfeited its right to rescind/void the policy. Noting that the allegations were beyond the four corners of the complaint, Magistrate Judge Reid held that the argument was improper for a motion to dismiss. Williams next argued that the retroactive attempt to cancel the policy violated the cancellation provisions of the policy, but Great Lakes replied that the parties did not agree to cancel the policy; they agreed that it was void ab initio. Reasoning that contract interpretation is typically inappropriate for a motion to dismiss, Magistrate Judge Reid declined to resolve the issue on a motion to dismiss. Finally, Williams argued that the counts seeking a declaratory judgment on the bad faith claims were premature, but Magistrate Judge Reid answered: “It is unclear how Williams can assert that there is no justiciable controversy regarding good faith while simultaneously initiating a [civil remedy notice], which is the prerequisite to filing a bad faith claim.” Therefore, Magistrate Judge Reid recommended denial of Williams’ motion to dismiss. See December 2024 Update.
The parties then brought their arguments in motions for summary judgment. Great Lakes asserted that, based on the settlement with Captain Joe’s, the policy was void ab initio, there was no policy on which Williams could collect, and Williams had no standing to challenge the settlement agreement. With respect to Williams’ standing, Great Lakes noted that in the suit between Great Lakes and Captain Joe’s, Captain Joe’s moved to dismiss the suit on the ground that it failed to join Williams as an indispensable party. Judge King denied the motion on the grounds that Williams was not a party to the policy and that she had not secured a judgment against Captain Joe’s. Magistrate Judge Reid did not believe that Judge King’s ruling with respect to whether Williams was indispensable at that time “has any weight on her standing to challenge the Policy now that she has a judgment.” Magistrate Judge Reid then disagreed with Great Lakes that the voiding of the policy in the initial coverage litigation precluded Williams’ standing to challenge her rights under the policy, answering that the consent judgment “itself gives Williams a right to seek legal action.” Therefore, Magistrate Judge Reid granted summary judgment to Williams that she had standing to contest her rights under the policy. Magistrate Judge Reid then addressed the defenses to the policy asserted by Great Lakes. The policy required notice within 30 days, and Captain Joe’s was late in reporting the claim by 20 days. As applicable New York law allows the insured to offer a valid excuse for the delay, Magistrate Judge Reid held that there was a fact question whether Captain Joe’s had a reasonable belief that there was no liability. Great Lakes also argued that the policy was void, based on uberrimae fidei, for material misrepresentations on the violations/suspensions of the named operators and the intended use and operation of the vessels. Williams contested the materiality of the violations, and Magistrate Judge Reid held that there were fact questions to be resolved that prevented summary judgment. Magistrate Judge Reid did grant summary judgment to Great Lakes on the extracontractual claims, however, because the consent judgment of $800,000 was within the policy limit of $1 million. Magistrate Judge Reid also agreed with Great Lakes that Captain Joe’s breached the non-assignment clause of its settlement agreement with Great Lakes by assigning its claims against Great Lakes to Williams. However, she noted that Williams’ damages against Great Lakes flowed from the consent judgment and that the issue of whether Williams was entitled to coverage under the policy had not been decided. Finally, Magistrate Judge Reid recommended that Great Lakes was entitled to indemnity from Captain Joe’s based on the indemnity provision in the settlement agreement with Great Lakes. See May 2025 Update.
Great Lakes, Williams, and Captain Joe’s all filed objections to the recommendations of Magistrate Judge Reid. Judge Becerra distilled the threshold question was “whether an insurer and its insured can enter into a settlement agreement that voids a policy from its inception if there is notice of an existing claim against the insured at the time the settlement agreement was entered.” There were two parts to that question before Magistrate Judge Reid, but Judge Becerra stated that the issue of Williams’ standing had been resolved as she now has a judgment in her favor, which gave her standing to assert her rights under the policy. Thus, the issue was “whether there is any Policy for her to challenge, given that the Settlement between the insurer, Great Lakes, and insured, Captain Joe’s, resulted in the Policy being void from inception.” Judge Becerra reasoned that the settlement would have to be set aside for Williams to have a cause of action against Great Lakes. Judge Becerra rejected Williams’ public policy arguments but, in the absence of a case adopting Williams’ argument in a case of this kind, Judge Becerra declined to set aside the settlement between Great Lakes and Captain Joe’s. Therefore, she granted summary judgment in favor of Great Lakes (but adopted the remainder of the recommendations from Magistrate Judge Reid).
Judge dismissed cargo shipper’s claim against customs broker hired by the purchaser of cargo for breach of contract as a third-party beneficiary (failure to plead the contract terms) and negligence (economic loss rule) but declined to dismiss the claim for trespass to chattels; Judge dismissed cargo shipper’s claim against freight forwarder based on Hong Kong forum-selection clause in the bills of lading; Judge dismissed abuse of process claims of downstream purchasers against the cargo shipper and its lawyers but allowed their claims of tortious interference with contractual relations to proceed against the shipper (although the Judge dismissed the tortious interference claims against the shipper’s attorneys); Corex, S.p.A. v. Cargo Compass S.p.A, No. 1:24-cv-3221, 2025 U.S. Dist. LEXIS 221985 (E.D.N.Y. Nov. 11, 2025) (Gonzalez).
Corex contracted to sell canned tomatoes and pasta to Good Gusto Food Group with the goods to be shipped from Italy to Elizabeth, New Jersey and Miami, Florida. The cargo was sold “ex works” (Good Gusto was responsible for the transportation). Good Gusto sold the goods to M&M International Imports before the delivery, and the shipping instructions provided that the goods were to be delivered to M&M after clearing customs. M&M contracted with Cargo Compass, a freight forwarder, and Reliable Shipping Services, a customs broker to arrange for the shipment of the goods. Corex, Good Gusto, and Cargo Compass agreed that Corex would retain title to the goods and that no bill of lading would be released until Corex was paid in full. As Good Gusto did not pay Corex, Corex instructed Cargo Compass and Reliable to hold the goods and not to release the bills of lading. Therefore, the containers with the cargo remained at the ports in Elizabeth and Miami until Corex authorized delivery of the containers to M&M. Corex brought this suit in federal court in New York against Cargo Compass, Reliable, M&M, and M&M’s customer, Orlando Food Sales (it originally named Mediterranean Shipping but later dismissed it). M&M and Orlando brought counterclaims against Corex, third-party claims against the attorneys for Corex (for abuse of process and tortious interference with contractual relations), cross claims against Cargo Compass and Reliable (for contribution, indemnity, and breach of contract), and third-party claims against Good Gusto and its principals (for breach of contract, fraud, fraudulent inducement, and misrepresentation). Three sets of parties filed motions to dismiss. Reliable moved to dismiss Corex’s claims for failure to state a claim, and Judge Gonzalez agreed that Corex could not state a claim against Reliable for breach of contract (as a third-party beneficiary) with respect to a contract between Good Gusto and/or M&M on the one hand and Reliable on the other for the shipment and clearance of the goods through customs because Corex did not allege the terms of the contract or the details surrounding its formation. Judge Gonzalez also dismissed Corex’s negligence claim against Reliable based on the economic loss rule. Corex argued that the rule should not apply because it lacked a contract remedy against Reliable. Judge Gonzalez rejected that argument, stating: “here, where Plaintiff alleges that a contract exists, the economic loss doctrine requires that it ‘seek its remedy through a breach-of-contract action . . . rather than against parties with whom [Corex] did not enter into contract.’” Judge Gonzalez did agree that Corex sufficiently alleged a claim for trespass to chattels based on the allegation that Reliable intentionally dispossessed Corex of its use of the goods for a substantial time. Cargo Compass moved to dismiss Corex’s claims based on the forum-selection clause (for Hong Kong) in the bills of lading. Corex argued that it was not a party to the bills of lading, but it was listed as the shipper on the bills of lading at its request in order to protect its title to the goods. Therefore, Judge Gonzalez held that it was bound by the forum-selection clause. Corex also argued that the suit did not relate to the bills of lading, but the clause applied to “any claim or dispute arising hereunder or in connection herewith,” and Judge Gonzalez considered that language to be broad enough to encompass claims arising from the improper release of the bills of lading. Judge Gonzalez rejected Corex’s other arguments against enforcement of the clause and dismissed Corex’s claims against Cargo Compass based on forum non conveniens. Corex and its attorneys moved to dismiss the claims of M&M and Orlando for abuse of process and tortious interference with contractual relations. Judge Gonzalez dismissed the claims for abuse of process because the “institution of a civil action by summons and complaint is not legally considered process capable of being abused.” As for the claim of tortious interference, Corex did not dispute that M&M and Orlando sufficiently alleged that contracts existed between Cargo Compass and M&M (to release the containers to M&M), between M&M and Orlando (for delivery to Orlando), and between Orlando and downstream customers (to distribute the tomatoes). Corex also sufficiently alleged that Corex intentionally caused Cargo Compass and M&M to breach the contracts and that M&M and Orlando were damaged. The issue was whether Corex was “permitted to protect its own interest” in the containers by interfering with the downstream contracts. Although Judge Gonzalez agreed that Corex plausibly established it was entitled to the economic interest defense, the procedural posture was a motion to dismiss, and he had to accept the assertion in the counterclaim that Corex had no legal interest in the goods as it had relinquished its title to the containers once they were shipped based on the “ex works” contract. Therefore, he declined to dismiss the tortious interference claim against Corex. However, he dismissed the tortious interference claim against the attorneys for Corex as the attorneys acted within the scope of their authority as Corex’s attorneys.
BranyonJudge denied cruise line’s motion for summary judgment on direct liability counts for passenger’s injury tripping over a cable cover, but he granted summary judgment on the vicarious liability counts for failure to introduce evidence that any crewmember moved the cable from its prior placement; Branyon v. Carnival Corp., No. 1:24-cv-20576, 2025 U.S. Dist. LEXIS 222991 (S.D. Fla. Nov. 11, 2025) (Altman).
Angela Branyon, a passenger on the CARNIVAL FREEDOM, tripped over a cable cover while walking through the ship’s Habana Lounge on her way to a family photo session. Branyon brought this suit in Florida federal court against the cruise line, arguing that the cable cover was not flush with the surrounding floor and was out of place. She asserted two counts of direct liability and two counts of vicarious liability, and the cruise line moved for summary judgment on all four counts. It argued that the counts asserting failure to warn should be dismissed because the cable cover was open and obvious, noting that the area was well-lighted and that there was no one in the area to obstruct her view. Branyon responded that the cover was black and it was on top of a black and red carpet, so it blended in with the carpet. After reviewing the photographs, Judge Altman agreed that the hazard was not necessarily open and obvious because a reasonable fact finder might conclude that the cover blended in with the carpet. The cruise line also moved to dismiss the counts asserting direct liability on the ground that there was no notice of the dangerous condition. Branyon argued that there were four crewmembers in the vicinity of the cable cover, a bartender, a photographer’s assistant, and two housekeepers, and that she met the photographer’s assistant in the Lounge and he led her to the atrium for the photo session, walking ahead of her as they passed through the Lounge. The cruise line denied that the cable was out of place, but Judge Altman believed that Branyon had done “just enough” to survive summary judgment, explaining that the assistant photographer and the bartender in the Habana Lounge should have noticed that the cable was out of place (Judge Altman granted summary judgment that there was no actual notice). With respect to the vicarious liability claims, Branyon argued that it was reasonable to conclude that crewmembers created the hazardous condition. However, the only argument she could make against the crew was that the covered cable must have been placed incorrectly. As that was contradicted by the testimony from the technician that the cable cover was inspected and found to be correctly positioned on the morning of the accident, and there was no evidence that a crewmember moved the cable, Judge Altman granted summary judgment on the vicarious liability counts.
Judge ruled that contract (that provided for exclusive venue in federal court for maritime claims and exclusive venue in state court for claims that are not maritime and which contained a choice-of-law provision that maritime law would be applicable to the maximum extent permitted by law with state law applicable when maritime law is held inapplicable) required venue in state court for a dispute over computer services provided on land that did not involve a vessel; Grand Isle Shipyard L.L.C. v. Siroco, LLC, No. 2:25-cv-1806, 2025 U.S. Dist. LEXIS 222268 (E.D. La. Nov. 12, 2025) (Barbier).
Grand Isle Shipyard, a Louisiana entity, entered into a contract for computer services with Siroco, a Texas company. Asserting deficiencies, overcharging, and untimely performance, Grand Isle brought this suit against Siroco in state court in the 17th Judicial District Court for Lafourche Parish, Louisiana. Siroco removed the case to Louisiana federal court based on diversity, and Grand Isle moved to remand the case based on the exclusive venue clause in the parties’ contract. The contract provided that the contract “shall be governed by the general maritime laws of the United States to the maximum extent permitted by law. If the general maritime law is held inapplicable, the Contract Documents shall be governed by the laws of the State of Louisiana regardless of any conflict of law provisions.” The contract then provided for the sole and exclusive venue for any claim or controversy arising from the contract in the United States District Court for the Eastern District of Louisiana “regarding general maritime claims and the Louisiana Seventeenth Judicial District Court located in Thibodaux, Louisiana, regarding any claim not governed by the general maritime laws of the United States.” Siroco argued that the venue provision did not clearly and unequivocally provide for exclusive venue in Louisiana state court as it specified more than one venue. Judge Barbier disagreed, stating that the parties expressed their intent “to make jurisdiction exclusive in one of two courts, depending on the type of claim at issue.” Thus, “the parties waived their right to remove claims that are not governed by the general maritime laws of the United States, which claims must be litigated in the 17th Judicial District Court located in Thibodaux, Louisiana.” The next question was whether the claims were governed by the general maritime laws of the United States. Siroco argued that, at the time of removal, maritime law governed the contract so that removal was proper. Siroco emphasized the word “held” in the clause dictating choice of law: “The Contract Documents shall be governed by the general maritime laws of the United States to the maximum extent permitted by law. If the general maritime law is held inapplicable, the Contract Documents shall be governed by the laws of the State of Louisiana regardless of any conflict of law provisions.” Siroco argued that there was no holding that maritime law was inapplicable, so maritime law governed and the case was removable. Judge Barbier answered that the contract provided that maritime law applied to the maximum extent permitted by law, but maritime law did not apply to the contract to provide services related to a computer system which is entirely on land in which a vessel did not play a role in the contract’s completion. Accordingly, as maritime law did not apply, the exclusive venue was in the state court, and Judge Barbier remanded the case.
Judge certified for interlocutory appeal the denial of the cruise line’s motion for summary judgment on the open and obvious nature of the danger and whether the cruise line had notice of the danger with respect to the crash of a floatplane into a mountain during a tour of the Misty Fjords in Alaska based on the issue of first impression whether the cruise line owes a duty to warn for risks associated with a non-sponsored third-party excursion past the point of disembarkation; McArthur v. Holland America Line, No. 2:22-cv-1071, 2025 U.S. Dist. LEXIS 223679 (W.D. Wash. Nov. 13, 2025) (Jones).
Andrea McArthur, Jacquelyn Komplin, and Janet Kroll were passengers on an Alaskan cruise on Holland America’s vessel MS NIEUW AMSTERDAM. The passengers took a shore excursion, Experience Misty Fjords by Floatplane, operated by Southeast Aviation, and the floatplane crashed into a mountain twelve miles northeast of Ketchikan, Alaska, near the Misty Fjords National Monument. All of the passengers on the plane were killed, and the representatives of the passengers brought this suit in federal court in Washington against the cruise line and excursion operator. The cruise line moved for summary judgment, arguing that the risk of seaplane flights associated with clouds and rainy weather was open and obvious to a reasonable person. Magistrate Judge Fricke agreed that a reasonable person knows that there is some risk in airplane travel; however, she believed that there was a fact question on the open and obvious issue because a reasonable person could believe that pilots in this area would be able to successfully navigate in all types of weather. The cruise line also argued that the plaintiffs failed to show that the cruise line had constructive knowledge of a risk presented by the excursion involving Southeast Aviation. The plaintiffs produced evidence of previous crashes in the Ketchikan area, but none of the accidents involved Southeast Aviation. Magistrate Judge Fricke disagreed with the cruise line, noting that it was aware of the increased risk of collision in the area and that its knowledge of the risk presented by seaplane tours in the Misty Fjords area was sufficient to establish notice. Finally, Magistrate Judge Fricke rejected the argument that there was no non-speculative evidence to establish that the passengers would not have gone on the excursion had they received a warning. She answered that questions of foreseeability and causation particularly lend themselves to resolution by a jury. See April 2025 Update.
The cruise line objected to the recommendation, and Judge Jones adopted the recommendation in all material respects. The cruise line then moved to certify the denial of the cruise line’s motion for summary judgment for an interlocutory appeal. The cruise line challenged the decision on three grounds. The cruise line argued that it did not have a duty to warn of the risks associated with the non-sponsored third-party excursion past the point of disembarkation. Judge Jones believed that this question was appropriate for an interlocutory appeal because it involves a question of law that presents an issue of first impression in the Ninth Circuit. Judge Jones did not believe that the other issues, whether the risk was open and obvious and whether there was notice to the cruise line of the dangerous condition, were appropriate for an interlocutory appeal. However, based on the legal question with respect to the duty, Judge Jones certified Magistrate Judge Fricke’s recommendation, adopted by Judge Jones, for an interlocutory appeal to the Ninth Circuit.
From the state courts
Conviction in state court for filing a false lien, which was dispositive of salvor’s claim for voluntary salvage, was affirmed on appeal while the appeal of the denial of the salvage claim is pending; Tennessee v. Curran, No. W2023-01775-CCA-R3-CD, 2025 Tenn. Crim. App. LEXIS 514 (Tenn. Crim App. Oct. 28, 2025) (Hixson).
John F. Curran III considered purchasing the Saltillo Marina located on the Tennessee River, but he discovered that the seller, Carl Fronabarger, had abandoned it and the marina had broken free from its moorings and drifted downriver. Curran allegedly salvaged the fuel tanks to avoid spillage of fuel, and he sought a salvage award from Fronabarger. Fronabarger refused to pay, and Curran filed a lien against the marina’s anchorage and moorings and refused to honor a check that he had issued to a crew member (Dustin Scott) who helped him with the alleged salvage. The State of Tennessee indicted Curran for filing a false lien for his salvage services (and for passing a worthless check), and Curran filed this suit in federal court in Tennessee against the State of Tennessee, Fronabarger, the presiding judge, and the prosecuting attorney, asserting that the State lacked subject matter jurisdiction to prosecute him for actions taken in connection with securing compensation for salvage services (arguing that his services in navigable waters fell squarely with the federal courts’ exclusive admiralty jurisdiction). He sought an injunction to halt the criminal proceedings, and Magistrate Judge York recommended denial of his request. Judge Anderson agreed with the recommendation for denial of the request for a preliminary injunction because the Younger abstention doctrine prevented the federal court from interfering with the state criminal prosecution. Curran filed an interlocutory appeal to the Sixth Circuit, citing the exception to abstention when the plaintiff challenges a statute that is flagrantly violative of express constitutional prohibitions. Curran argued that “Tennessee lacks jurisdiction to prosecute him for actions taken in connection with securing compensation for ‘a salvage operation [that] took place on federal property’—i.e., the Tennessee River—because such conduct falls squarely within the federal court’s exclusive admiralty jurisdiction.” The Sixth Circuit disagreed, responding that Curran could not show that Tennessee’s fraudulent lien law flagrantly violated express constitutional prohibitions and that the extension of admiralty jurisdiction did “not necessarily preclude a state from exercising concurrent jurisdiction with the federal government over criminal acts committed within its territorial waters.” Concluding that Curran did not show a likelihood of success on the merits, the Sixth Circuit affirmed the denial of an injunction. See October 2024 Update.
With the side issues in the background, Fronabarger moved for judgment on the pleadings, arguing that Curran could not establish his claim for voluntary salvage services (that gave rise to the lien that Curran filed on Fronabarger’s property). Magistrate Judge York noted that, in order to establish a salvage claim, Curran would have to establish a maritime peril, voluntary service, and success. Fronabarger argued that there was no basis for the salvage claim because Curran was convicted on the charge of filing a lien for his salvage efforts with no reasonable or legal basis. Reasoning that the conviction for violating the false lien statute prevented Curran from arguing that he had a reasonable basis or legal cause for the salvage claim, Magistrate Judge York recommended that the case be dismissed on the pleadings. Magistrate Judge York also recommended that Curran’s motion for an extension of time to respond (on the ground that he was being detained by the Tennessee Department of Corrections and did not have a law library with modules for maritime law) be denied because the materials would not cure the “fatal issue in this case—that Defendant had been convicted for violating Tennessee’s false-lien statute, and with no reasonable basis for filing the lien.” Curran objected to the recommendations, but Judge Anderson agreed that Magistrate Judge York correctly found that Curran’s conviction prevented him from arguing that he had a reasonable basis or legal cause for the salvage claim. Curran argued that Magistrate Judge York failed to correctly apply “over 100 years of federal maritime law,” but Curran did not address the finding that that his conviction precluded a finding of a reasonable basis for the salvage claim (Curran denied being convicted of a crime, but Judge Anderson pointed out that “public records show that he is a convicted felon and is on parole until 2028”). Judge Anderson added that Curran’s “complaints about the proof in his criminal trial in Hardin County are irrelevant.” Judge Anderson also agreed with the denial of the motion for an extension, noting that Curran did, in fact, file a response, and, anticipating an appeal, Judge Anderson stated that an appeal would not be taken in good faith if Curran requested that he be allowed to appeal in forma pauperis. Curran did file a notice of appeal on August 12, 2025. See October 2025 Update.
During the pendency of the appeal of the salvage case, the Tennessee Court of Criminal Appeals heard the appeal of Curran’s convictions for passing a worthless check and filing a false lien. Curran raised several arguments in support of his appeal, including that the State failed to establish territorial jurisdiction because the offenses took place on federal property and the circuit court erred by denying the motion of defense counsel to withdraw when the attorney explained that he lacked knowledge and experience in maritime law and admiralty jurisdiction. For the first issue, Curran argued the alleged criminal offenses took place on the Tennessee River and its flowage easements, which are the exclusive property of the TVA (and under the exclusive jurisdiction of the Coast Guard). The appellate court rejected the argument. Writing for the Court of Criminal Appeals, Judge Hixson explained that the deed linked to the UCC financing statements concerned property located in Hardin County, Tennessee and specifically excluded any TVA land. The deed and the lien filed by Curran were recorded with the Hardin County Register of Deeds. The check was passed by Curran in Hardin County. Therefore, Judge Hixon concluded that the offenses occurred in Hardin County beyond a reasonable doubt. As to the motion to withdraw, the appellate court considered the argument waived because Curran’s motion for new trial was withdrawn before a ruling was issued. Rejecting all of Curran’s other arguments, the appellate court affirmed the convictions. Stay tuned for the appeal of the civil case to the Sixth Circuit (No. 25-5728).
Court of appeals held that vessel owner was not subject to jurisdiction in Texas for seaman’s injury on the outer Continental Shelf of the Gulf of Mexico off the Texas coast through contacts of its sister company, rejecting the seaman’s “one big, happy corporate family” theory; Odyssea Phoenix, LLC v. Wilcox-Carleton, No. 14-24-00622-CV, 2025 Tex. App. LEXIS 8481 (Tex. App.—Houston [14th Dist.] Nov. 4, 2025) (Antú).
Odyssea Marine, LLC and Anadarko Petroleum entered into a Master Time Charter agreement by which Anadarko chartered vessels from Odyssea to support Anadarko’s oil and gas operations in the Gulf of America. Anadarko chartered the M/V ODYSSEA PHOENIX, owned by Odyssea Phoenix, LLC to deliver supplies to the DS-16, a drill ship owned and operated by Ensco and located on the outer Continental Shelf of the Gulf of America off the coast of Texas. Odyssea Marine, LLC and Odyssea Phoenix, LLC, are sister companies that are owned by Odyssea Marine Holdings. Howard Wilcox-Carleton, an Alabama resident, was employed by Odyssea Marine, LLC and assigned to the ODYSSEA PHOENIX. Wilcox-Carleton was injured when an Ensco crane operator on the DS-16 struck him with an equipment basket and pinned him under the load. Wilcox-Carleton brought suit in state court in Harris County, Texas against three Odyssea entities (later amended to add Odyssea Phoenix), and Odyssea Phoenix filed a special appearance to contest in personam jurisdiction in Texas. Odyssea Phoenix asserted that it is a Delaware corporation with its principal place of business in Louisiana, that it has no offices, employees, or property in Texas, and that the accident did not occur in Texas. Wilcox-Carleton responded that Odyssea Phoenix was not separate from Odyssea Marine, LLC for jurisdictional purposes and that Odyssea Marine LLC’s Texas ties should be imputed to Odyssea Phoenix (citing the common directorship, CEO, and shared headquarters). Judge Manor denied the special appearance, and Odyssea Phoenix appealed to the Texas Court of Appeals for the Fourteenth District. Writing for the appellate court, Justice Antú rejected Wilcox-Carleton’s “one big, happy corporate family” theory, noting that Texas law presumes that separate companies are distinct. She listed the relevant factors for jurisdictional veil-piercing, including the amount of stock owned by the parent company, the existence of separate headquarters, the observance of corporate formalities, and the degree of control over general policy and administration. She explained that the degree of control exercised “must be greater than that normally associated with common ownership and directorship,” and that “a shared headquarters may suggest an abnormal or atypical degree of control,” but “it alone is insufficient to overcome the presumption that the companies are distinct.” Justice Antú rejected Wilcox-Carleton’s argument that Odyssea Phoenix failed to disprove its independence, stating that “it was incumbent upon him—not Odyssea Phoenix—to ensure that the record contained evidence that the two companies should be treated as one.” Accordingly, the court of appeals reversed the denial of the special appearance and rendered judgment dismissing Wilcox-Carleton’s claims against Odyssea Phoenix for lack of personal jurisdiction.
Seaman was allowed to dismiss his claims without prejudice after a summary judgment hearing on vessel status in which the judge allegedly indicated he was going to grant summary judgment but before he ruled; Dargin v. Noble Drilling Services, Inc., No. 14-24-00300-CV, 2025 Tex. App. LEXIS 8486 (Tex. App.—Houston [14th Dist.] Nov. 4, 2025) (Wilson).
Gerald Dargin claims that he was injured while serving as a crewmember of the GLOBETROTTER II. He brought suit under the Jones Act and general maritime law against his employer, Noble Drilling Services, in state court in Fort Bend County, Texas. Noble Drilling filed a motion for summary judgment on Dargin’s claims, arguing that the GLOBETROTTER II was not a vessel in navigation because it was secured to the dock in Pascagoula, Mississippi, undergoing extensive repairs for damage caused by Hurricane Ida, with a cofferdam in place, thrusters removed, Coast Guard and flag state certificates revoked, and incapable of transportation on water. Noble Drilling also filed a no-evidence motion for summary judgment on the medical negligence claims. The motions were set for an oral hearing on February 5, 2024, but there was no transcript from the hearing. Noble Drilling contends that Judge Rogers stated at the hearing that he “was going to grant summary judgment,” but he did not sign any order. Dargin disputed that Judge Rogers stated that he was going to grant summary judgment. Shortly after the hearing ended, Dargin filed a notice of nonsuit in which he nonsuited all of his claims against Noble Drilling without prejudice. Judge Rogers initially signed an order of nonsuit without prejudice, but Noble filed a motion to declare the nonsuit to be a dismissal with prejudice, arguing that it was clear that Dargin improperly filed the nonsuit without prejudice to avoid an adverse ruling by the court—the imminent granting of the motion for summary judgment. The motion was set for an emergency hearing on February 19, 2024, and the hearing was held before an associate judge. The associate judge advised that she would talk to Judge Rogers about what happened at the summary judgment hearing, and Judge Rogers then signed an order that the nonsuit was converted to a dismissal with prejudice. Rogers appealed the dismissal with prejudice, and Justice Wilson, writing for the court of appeals, noted that plaintiffs in Texas have the right to take a nonsuit without prejudice at any time before they introduce all their evidence (other than rebuttal evidence). However, the nonsuit may not vitiate a prior venue decision or a decision on the merits, such as the granting of summary judgment. Thus, an exception can be satisfied “either by spoken word or signed memorandum;” however, Justice Wilson stated: “If the judge’s words only indicate an intention to render judgment in the future or to provide guidelines for drafting a judgment, the pronouncement cannot be considered a present rendition of judgment.” As Noble Drilling did not argue that Judge Rogers announced that he was granting the motion for summary judgment, Dargin had the option to take a nonsuit without prejudice. Therefore, the court of appeals rendered judgment dismissing the claims without prejudice.
Bank that was named as a loss payee on the boat owner’s insurance policy had no right to sue the insurer to recover on the policy for theft of equipment from the vessel; CLB The Community Bank v. Gagnard, No. 25-199, 2025 La. App. LEXIS 2086 (La. App. 3 Cir. Nov. 5, 2025) (Perry).
Brenda Pennington and her grandson, Zachary Gagnard, purchased a 2015 21-f00t Phoenix bass boat and trailer, signing a promissory note and security agreement with the predecessor of CLB the Community Bank (lienholder on the certificate of title). The Bank required property and casualty insurance in an amount equal to or greater than the loan amount, listing the bank as a loss payee. Pennington and Gagnard obtained a marine insurance policy with GEICO Marine Insurance Co., providing liability and hull coverage, and the Declaration Page specified CLB as the loss payee. Pennington reported that equipment was stolen from the boat, and CLB made a claim on the policy, but GEICO denied the claim based on material misrepresentations in the insurance application, declaring the policy to be void ab initio. Pennington and Gagnard stopped making payments on their loan, and CLB brought this suit against Pennington and Gagnard in the City Court of Pineville, Parish of Rapides, Louisiana, seeking to recover on the note and a sequestration of the boat. CLB also named GEICO, seeking damages under the policy plus penalties and attorney fees for arbitrary and capricious failure to pay the claim. GEICO moved for summary judgment, arguing that CLB, as a simple loss payee, had no standing to assert any independent rights under the Policy, and CLB responded that it was entitled to enforce its rights under the security agreement, against any person obligated on collateral to make a payment and that it was also an assignee of Pennington and Gagnard. Judge Hays granted GEICO’s motion and dismissed CLB’s claims against GEICO, and CLB appealed to the Louisiana Court of Appeal, Third Circuit. The appellate court first addressed the proper procedure under Louisiana law to raise the peremptory exception of no right of action, stating that summary judgment was improper. Therefore, the appellate court reversed the summary judgment and considered whether to grant a peremptory exception of no right of action. Writing for the Third Circuit, Judge Perry reasoned that the bank was a simple payee on the policy, which remained “one exclusively between the insurer and the property owner.” The loss payable clause did not change the nature of the policy, and the property owner was the proper party to institute suit under the policy. Judge Perry also rejected the argument that the bank could sue as an assignee, noting the provision in the policy that the rights may not be assigned without the written consent of the insurer, which did not occur. Accordingly, the court of appeal granted GEICO’s peremptory exception of no right of action and dismissed CLB’s petition against GEICO with prejudice.
Ohio appellate court found fact questions on causation, failure to warn, and defective design in suit against manufacturer of jet boat in connection with death of passenger from drowning in light of the carbon monoxide in her blood; Sidloski v. Fischer, No. C-240570, 2025 Ohio App. LEXIS 3798 (Ohio App. 1st Dist. Nov. 7, 2025) (Nestor).
Ally Sidloski, a junior at the University of Cincinnati, and a group of friends went boating on a Yamaha jet boat on Harsha Lake in Bethel, Ohio. Ally sat on a swim platform at the stern of the vessel for about 30 minutes and some of her companions said she complained about smelling exhaust, but she did not mention it to the boat operator, John Fischer. One of Ally’s companions fell off her board while wakeboarding, and Ally left the boat to rescue her (Ally was not wearing a life jacket). She was above the water for 30 seconds to a minute and then vanished into the lake. She was later found near the bottom of the lake, and the cause of her death was drowning with a contributory cause as carbon monoxide intoxication (carboxyhemoglobin level in her blood at 34%). Ally’s estate brought this suit against Fischer in state court in Hamilton County, Ohio and later added Yamaha with claims of defective design and failure to warn (about the risk of carbon monoxide poisoning for those seated on the upper swim platform). Yamaha moved for summary judgment, and the trial court granted the motion. The estate appealed, raising three challenges to the summary judgment. Writing for the appellate court, Judge Nestor agreed with all three arguments and reversed the grant of summary judgment. Yamaha argued that the estate failed to show that Ally was exposed to carbon monoxide when she sat on the swim platform, but the expert toxicologist for the estate opined that there were elevated levels of carbon monoxide on the swim platform, and that it would have been impossible for Ally to have been poisoned to the degree of carbon monoxide in her blood during the short period she was in the water behind the boat. Judge Perry next addressed the warnings with respect to carbon monoxide poisoning on the boat, but he responded that none of the labels mentioned the risk of poisoning for those sitting on the swim platform, and the labels were not placed in an area where a person seated on the platform would be expected to see them. Yamaha argued that the operator’s manual warned that passengers should stay away from the swim platform area while the engine was running as one could inhale carbon monoxide and experience brain damage or death, but Judge Perry stated that the warnings were intended to be read by the boat operator, not passengers. Although the manual stated that the operator should inform the passengers, Fischer did not communicate that warning to Ally. Finally, Judge Perry found that there was a fact issue on the issue of design defect as to whether there was a technical and economically feasible alternative design.
English companies that hired a Texas company, which recruited a Louisiana resident, who was injured on a vessel off the coast of Trinidad and Tobago, were not subject to personal jurisdiction in Texas; 6Cats International Ltd. v. Hartley, No. 01-24-00048-CV, 2025 Tex. App. LEXIS 8714 (Tex. App.—Houston [1st Dist.] Nov. 13, 2025) (Guerra).
William Hartley, a Louisiana resident, claims that he was injured while working on the PetroSaudi drillship SATURN off the coast of Trinidad and Tobago. Hartley brought suit against CXC Global (Europe) Ltd., a company incorporated in England and Wales with a registered office in London, and 6CATS, a company whose principal place of business is in London, in state court in Harris County, Texas. He asserted claims under the Jones Act and general maritime law, alleging that CXC was his employer and that 6CATS is an alter ego of CXC. CXC and 6CATS specially appeared, and Judge Thornton denied the special appearance. The defendants appealed to the Texas Court of Appeals for the First District, and Hartley argued that the defendants were subject to jurisdiction in Texas because they recruited Hartley to work pursuant to a contract with Texas company Spencer Ogden. Spencer Ogden recruited Hartley to work on the SATURN, performing its work in Texas. However, Justice Guerra, writing for the court of appeals, noted that contracting with a resident of the forum state does not, on its own, establish the requisite minimum contacts. That contract, which provided for English venue and law, did not require that either CXC or Hartley perform any acts in Texas. Hartley also argued that CXC agreed to provide maintenance and cure benefits to Hartley in Texas, but Justice Guerra noted that the contract only provided that CXC would observe and comply with all applicable laws and regulations. Assuming, however, that the contract required CXC to provide maintenance and cure, the alleged Texas connection was Hartley, a Louisiana resident, obtaining medical treatment in Texas, and there was no allegation that CXC was involved in the decision that Hartley would treat in Texas. Finally, Hartley argued that CXC sent Hartley to work on a drillship that was operated by a Texas subsidiary of the company contracting with CXC. Justice Guerra answered that Hartley had not shown that “a non-resident that contracts for another nonresident to provide services outside Texas to an entity over which Texas courts have general jurisdiction, on a vessel operated outside Texas by that entity and its Texas-based subsidiary, has engaged in any jurisdictionally relevant conduct under applicable law.” Therefore, she concluded that Judge Thornton erred in denying the special appearance of 6CATS and CXC and ordered dismissal of the claims against them for lack of personal jurisdiction.
Kenneth G. Engerrand
President, Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
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First-year law students might want to take note: this dispute may resemble a question on an upcoming contracts exam.
Sweet Additions Ingredient Processors, LLC v. Meelunie America, Inc., 139 F.4th 1217, 1221 (11th Cir. 2025) (per curiam).
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© Kenneth G. Engerrand, November 25, 2025; redistribution permitted with proper attribution.
