July 2025 Longshore Maritime Update No. 314
Notes from your Updater:
In our November 2024 Update, we reported that Judge Evanson of the United States District Court for the Western District of Washington agreed with groups challenging the Nationwide Permit issued by the Army Corps of Engineers (authorizing installation of structures to be used in finfish aquaculture operations after a streamlined permitting process), concluding that the permit failed to comply with the obligations of the Corps under the Rivers and Harbors Act of 1899 and the National Environmental Policy Act for a more site-specific review. See Don’t Cage our Oceans v. U.S. Army Corps of Engineers, No. 22-cv-1627, 2024 U.S. Dist. LEXIS 177843 (W.D. Wash. Sept. 30, 2024). In our April 2025 Update, we reported that on March 17, 2025, Judge Evanson agreed to a prospective vacatur of the Permit, requiring that future permits be approved individually. See Don’t Cage our Oceans v. United States Army Corps of Engineers, No. 22-cv-1627, 2025 U.S. Dist. LEXIS 48209 (W.D. Wash. Mar. 17, 2025). The United States declined to appeal Judge Evanson’s decision.
On April 11, 2025, following a two-day bench trial, Judge Mendoza of the United States District Court for the Middle District of Texas agreed with Bear Warriors United (a nonprofit corporation that advocates for the protection of Florida wildlife, including the “iconic manatee”) that the regulations promulgated by the Florida Department of Environmental Regulation with respect to wastewater discharge “unlawfully take manatees in the North Indian River Lagoon . . . thereby violating the Endangered Species Act.” See Bear Warriors United, Inc. v. Lambert, No. 6:22-cv-2048, 2025 U.S. Dist. LEXIS 72771 (M.D. Fla. Apr. 11, 2025).
For an entertaining look at the machinations that may underlie the international manufacture and sale of luxury powerboats (in this case a 2023 Mystic 5200), see Budzinski v. Mystic Powerboats, Inc., No. 6:23-cv-1039, 2024 U.S. Dist. LEXIS 166713 (M.D. Fla. Sept. 16, 2024) and 2025 U.S. Dist. LEXIS 85736 (M.D. Fla. May 6, 2025) (Sneed).
Fane Lozman’s long-running disputes with the City of Riviera Beach, Florida continue after he twice defeated the City in the United States Supreme Court (including the 2013 decision that resulted in Justice Breyer’s definition for a vessel, “a reasonable observer, looking to the [structure’s] physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water”). Lozman’s latest challenge to the city’s development plan (as a taking of his property) resulted in dismissal of the suit for lack of subject matter jurisdiction as it was not ripe for judicial review. See Lozman v. City of Riviera Beach, Florida, No. 23-11119, 2024 U.S. App. LEXIS 26114 (11th Cir. Oct. 16, 2024) (Pryor). Lozman filed a petition for a writ of certiorari to the Supreme Court, challenging the restriction of his waterfront property to private “residential fishing or viewing platforms” and small “docks for non-motorized boats” as forbidding any economically beneficial use. In contrast to the prior grants of certiorari, on June 2, 2025, the Supreme Court declined to hear Lozman’s petition. See Lozman v. Riviera Beach, Florida, No. 24-908, 2025 U.S. LEXIS 2076 (U.S. June 2, 2025).
On June 5, 2025, in a non-maritime case (arising from a satellite-leasing agreement), the Supreme Court unanimously rejected the requirement imposed by the Ninth Circuit on suits brought under the Foreign Sovereign Immunities Act that the foreign state must have minimum contacts with the United States (International Shoe test), holding that personal jurisdiction exists under the FSIA when there is an immunity exception and service is proper. See CC/Devas (Mauritius) Ltd. v. Antrix Corp., Nos. 23-1201, 24-17, 2025 U.S. LEXIS 2195 (U.S. June 5, 2025) (Alito).
On June 5, 2025, Vice Chancellor David of the Delaware Court of Chancery agreed with Senior Magistrate in Chancery Molina that Vincent Murphy, a shareholder in Maritime Explorations, Inc., “failed to meet his low burden” to “establish a credible basis to investigate wrongdoing” by the corporation in connection with its efforts to salvage the wreck of the WHYDAH GALLY, which sank off the coast of Cape Cod in 1717 while being captained by pirate Sam Bellamy. Therefore, Murphy’s request for books and records with respect to the salvage efforts was denied. See Murphy v. Maritime Explorations, Inc., No. 2025-0031, 2025 Del. Ch. LEXIS 136 (Del. Ch. June 5, 2025).
On June 11, 2025, the United States Court of Appeals for the Fifth Circuit held that the Chapter 11 reorganization plan for oil and gas operator Fieldwood Energy, which discharged the operator’s liability for its debt to drilling contractor Atlantic Maritime with respect to wells drilled in the Gulf of America, offshore Louisiana, did not extinguish the drilling contractor’s right to assert a lien under Louisiana law against the ownership in the wells by third-party non-operators. See In re Dynamic Offshore Resources NS, L.L.C., No. 23-20218, 2025 U.S. App. LEXIS 14373 (5th Cir. June 11, 2025) (per curiam).
On June 18, 2025, the United States Court of Appeals for the Ninth Circuit addressed the jurisdictional dispute between the International Longshore and Warehouse Union (ILWU) and the International Association of Machinists and Aerospace Workers (IAM) with respect to maintenance work at SSA Terminals’ Terminal 5 at the Port of Seattle, Washington. The National Labor Relations Board assigned the work to IAM-represented mechanics, and the ILWU filed a grievance against SSA Terminals under its collective bargaining agreement, seeking the value of the work assigned to IAM, arguing that it failed to state its preference for the ILWU. An administrative law judge awarded the ILWU damages for the lost opportunity so that SSA Terminals would have to pay twice for the work, and SSA Terminals filed an unfair labor practice charge to which the ILWU claimed its conduct was immunized by the work-preservation defense. An administrative law judge rejected the defense, and the NLRB ordered the ILWU to cease and desist from pursuing the maintenance work at Terminal 5. The Ninth Circuit reversed, holding that its decision in Kinder Morgan allowed the ILWU to raise the work-preservation defense. Judge Miller, who wrote the decision for the Ninth Circuit, also concurred to suggest that the Ninth Circuit should reconsider Kinder Morgan en banc because it was wrongly decided. See International Longshore and Warehouse Union v. National Labor Relations Board, Nos. 23-632, 23-658, 23-780, and 23-793, 2025 U.S. App. LEXIS 15101 (9th Cir. June 18, 2025).
On June 24, 2025, the United States Court of Appeals for the D.C. Circuit denied the petitions for review of MSC Mediterranean Shipping Co. in connection with the claim of MCS Industries that Mediterranean discriminated against its cargo, in violation of the Shipping Act of 1984, for failing to carry MCS’s cargo from China to the United States during the COVID-19 pandemic. MCS filed a complaint with the Federal Maritime Commission, and an administrative law judge eventually issued a default judgment against Mediterranean for discovery violations. The judgment was affirmed by the FMC, and the D.C. Circuit held that the FMC had jurisdiction and did not abuse its discretion “in the context of Mediterranean’s repeated disregard for binding Commission orders.” See MSC Mediterranean Shipping Co. v. Federal Maritime Commission, Nos. 24-1007, 24-1262, 2025 U.S. App. LEXIS 15471 (D.C. Cir. June 24, 2025) (Edwards).
On the LHWCA Front . . .
From the United States Supreme Court
Supreme Court agreed to hear an appeal on the scope of the Boyle government contractor defense in the suit brought by an Army Specialist (injured by a suicide bomber at an airfield in Afghanistan) against a government contractor; Hencely v. Fluor Corp., No. 24-924, 2025 U.S. LEXIS 2082 (U.S. June 2, 2025), granting cert. to 120 F.4th 412 (4th Cir. Oct. 30, 2024) (Rushing).
This case presents the scope of the Boyle government contractor defense in the non-maritime setting of contractors supporting United States’ operations around the world. The question presented to the United States Supreme Court sets forth the background for the question:
Former U.S. Army Specialist Winston T. Hencely was critically and permanently injured by a suicide bomber inside Bagram Airfield in Afghanistan. The bomber, Ahmad Nayeb, worked on base for a government contractor. An Army investigation found that the attack’s primary contributing factor was the contractor’s actions in breach of its Army contract and in violation of the military’s instructions to supervise Nayeb. Hencely sued the government contractor for negligence under South Carolina law. He did not sue the military under the Federal Tort Claims Act.
Even so, the Fourth Circuit held that Hencely’s state claims are preempted by unspoken “federal interests” emanating from an FTCA exception. Invoking Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the court of appeals held that the FTCA’s exception immunizing the government for “[a]ny claim arising out of the combatant activities of the military or naval forces . . . during time of war,” 28 U.S.C. §2680(j), barred Hencely’s South Carolina claims against the contractor. The decision below reaffirmed a 3-1-1 split amount the Second, Third, Fourth, Ninth and D.C. Circuits over Boyle’s reach when contractors defend against state tort claims by invoking §2680(j).
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?
On June 2, 2025, the Supreme Court agreed to hear the case.
From the federal appellate courts
Third Circuit affirmed the decision of the ALJ that the claimant was injured while employed by employer, disbelieving the employer’s expert opinion that the accident could not have occurred as the claimant testified, and the court affirmed the ALJ’s finding of permanent and total disability despite a return-to work slip from one of the claimant’s physicians and the opinion of the employer’s examining doctor; Global Terminal & Container Services v. Director, OWCP (Mohamed A. Elghobashy), No. 24-1256, 2025 U.S. App. LEXIS 9760 (3d Cir. Apr. 24, 2025) (Chung).
Mohamed A. Elghobashy, who has a history of neck and back injuries, was employed by Global Terminal & Container Services in New Jersey as a hustler driver. He was injured when a spreader bar being lowered to remove a container from his hustler hit the container or hustler, jostling the hustler and causing pain to Elghobashy’s neck and back. Elghobashy sought benefits under the LHWCA, and Global Terminal and its carrier, Signal Mutual, contested the fact of injury and the extent of any disability from the incident. The case was tried to Administrative Law Judge Timlin, who found that the claimant aggravated his long-standing neck and back disability, discrediting the testimony of Global Terminal’s biomechanical expert (and not requiring that Elghobashy present rebuttal from a biomechanical expert). ALJ Timlin also found that Elghobashy was permanently and totally disabled, resolving the medical opinions in favor of Elghobashy (and despite a return-to-work note) in view of the failure of Global Terminal to take Elghobashy back to work and his suspension by the Waterfront Commission because of the conditions of his release to return to work. The Benefits Review Board affirmed the decision from ALJ Timlin, and Global Terminal filed a petition for review with the United States Court of Appeals for the Third Circuit. Global Terminal challenged Judge Timlin’s treatment of its biomechanical expert, Dr. Anastasios Tsoumanis, who opined that the incident could not have occurred as Elghobashy described it. Dr. Tsoumanis recreated the incident and stated that the forces involved in the incident would have been minor and insufficient to injure Elghobashy. ALJ Timlin noted that Elghobashy credibly testified that the incident involved a top-loader’s spreader bar striking his chassis or a container on his hustler, jostling the hustler. However, Dr. Tsoumanis’s report suggested that Elghobashy was in the hustler without wearing his seatbelt when a 40-foot container was dropped onto his trailer. ALJ Timlin did not find that Dr. Tsoumanis’s opinion was saved by the testimony of Dr. Richard Baratta, who testified in place of Dr. Tsoumanis for medical reasons. Dr. Baratta explained that there was inaccurate language in the report but that Dr. Tsoumanis accurately reconstructed the incident as reflected in the photograph of the test which showed the lowering of a spreader bar onto a container. ALJ Timlin described the photograph as inconclusive and insufficient to contradict the plain language of the opinion. Accordingly, writing for the Third Circuit, Judge Chung found no basis to overturn the decision of ALJ Timlin. The appellate court also found no reason to interfere with the decision of ALJ Timlin with respect to Elghobashy’s total disability, explaining that she had extensively analyzed the medical opinion and found that the opinion of Elghobashy’s orthopedic surgeon, Dr. Richard Rosa, was well reasoned and that the opinion of Global Terminal’s orthopedic surgeon, Dr. Robert Dennis, was unreasoned and entitled to little probative weight (relying on Dr. Tsoumanis’s discredited report). Therefore, there was substantial evidence of permanent and total disability. Lastly, Global Terminal argued that ALJ Timlin failed to adequately consider Elghobashy’s attempts to return to work and the fact that his treating physician, Dr. Cohen, had cleared him to return to work. Judge Chung answered that Dr. Cohen cleared Elghobashy because he requested it on account of his “miserable financial situation” and his inability to secure work. Accordingly, the Third Circuit denied the petition for review.
Second Circuit affirmed ALJ decisions that claimant who was injured in Afghanistan was able to return to work with respect to his orthopedic injury and his psychological injury; Dedic v. United States Department of Labor (Fluor Federal Global Projects), No. 24-1447, 2025 U.S. App. LEXIS 9882 (2d Cir. Apr. 25, 2025) (per curiam).
Rifat Dedic, a tow truck driver and mechanic employed by Fluor Federal Global Projects, injured his back while pulling a cable from a disabled vehicle in Afghanistan. After initial treatment and examination in Afghanistan and Dubai, Dedic returned to Bosnia where he was referred to a neuropsychiatrist for anxiety and depression. The compensability of Dedic’s claim for a psychological injury was tried to ALJ Davis, who denied the claim, finding that Dedic was not credible and giving less weight to his therapists because they relied heavily on his subjective complaints of psychiatric symptoms. ALJ Davis also found that, from an orthopedic perspective, Dedic could return to his usual work, denying disability and medical benefits. The Benefits Review Board vacated the decision on compensability for the psychological claim, holding that Fluor’s expert, Dr. John Tsanadis, had not rebutted the Section 20(a) presumption. Therefore, his depression and anxiety were work-related as a matter of law (the BRB affirmed the decision with respect to Dedic’s orthopedic claim). On remand, the case was reassigned to ALJ Berlin, who concluded that Dedic was not disabled, although, in accordance with the decision of the BRB, Dedic was entitled to past and future medical benefits for the psychological injury. Dedic again appealed to the BRB, arguing that he was entitled to temporary total disability benefits. The BRB noted that there was a disagreement about the severity of Dedic’s symptoms, with Dr. Mirsad Jarakovic considering Dedic’s condition to be “rather critical.” However, he only recommended continued psychotherapy with a check-up in a month to two months or sooner if necessary, and he said nothing about work limitations. In his deposition, Dr. Zihnet Selimbasic testified that Dedic suffered from a mixed anxiety depressive disorder and that he was not able to work because it was essential for him to be in therapy. ALJ Berlin found that opinion to be unpersuasive because Dr. Selimbasic relied on Dedic’s self-reporting, was unaware of Dedic’s rental property business and related dealings with the public, and had discounted Dedic’s high scores on the General Assessment of Functioning test. As the evidence did not limit Dedic’s work activities, the BRB affirmed ALJ Berlin’s finding that Dedic had not established that he was disabled because of his work-related psychological injury (the BRB did reverse ALJ Berlin’s denial of 2.5 months of outpatient treatment). On the final remand, Dedic failed to submit evidence of any expenses for the outpatient treatment, his claim for medical expenses was denied by ALJ Larsen, and the BRB affirmed that decision. As there was no remand, Dedic filed a petition for review with the United States Court of Appeals for the Second Circuit, challenging the decision of ALJ Davis with respect to his orthopedic injury and the decision of ALJ Berlin with respect to his psychological injury. Beginning with the orthopedic injury, the Second Circuit noted that Dedic argued that ALJ Davis did not credit the testimony of his treating physician, who determined that Dedic was unable to work. The court answered that ALJ Davis reasonably relied on the opinions of an examining doctor and a non-examining doctor, whose opinions were consistent with each other and with the results of Dedic’s tests. In contrast, the opinion of Dedic’s treating physician, Dr. Asmir Hrustic, was based, in part on a deficient EMG test that contradicted the results of the MRI scan (which he described as the “gold standard for objective identification of injury to the spine”). Therefore, the appellate court held that ALJ Davis had rationally exercised his discretion in choosing not to credit Dedic’s treating physician and holding that Dedic had failed to prove that he was unable to work. Turning to the psychological injury, the Second Circuit noted that Dedic relied primarily on Dr. Selimbasic’s testimony; however, the Second Circuit agreed with the BRB that ALJ Berlin’s assessment of Dr. Selimbasic’s opinion was reasonable, citing the evidence that undermined Dr. Selimbasic’s testimony. As no other physicians limited Dedic’s working activities, the appellate court denied the petition for review with respect to Dedic’s psychological injury.
Eleventh Circuit disagreed with the district court’s ruling that a longshore worker (who struck another longshore worker while driving at the port on his way to pick up the game plan for his work on the vessel) was not, as a matter of law, in the course of his employment; Hicks v. Middleton, No. 22-14324, 2025 U.S. App. LEXIS 15115 (11th Cir. June 18, 2025) (Abudu).
Richard Hicks was employed as a longshore worker by SSA Atlantic at the Container Berth 8 dock house in the Port of Savannah. Gregory Middleton was hired out of the ILA hall to work for Marine Terminals Corp—East (Ports America) and drove in his personal truck to the Port to pick up the game plan for his assigned work on the HYUNDAI LOYALTY, which was located at container berth 4. Middleton drove past berth 4 to berth 9 and turned around toward berth 8 and struck Hicks. “Tests conducted after the incident revealed that Middleton had been driving while impaired by fentanyl and other drugs. Because Middleton never reported to his assigned ship, Ports America did not pay him for any work performed that day.” Hicks brought this suit in the state court of Chatham County, Georgia against Middleton and Marine Terminals, and Marine Terminals removed the case to federal court based on diversity. Marine Terminals moved for summary judgment, contending that Middleton was not acting in the course of his employment at the time of the accident. Noting that Middleton had not obtained his game plan for the vessel, parked or exited his truck, donned his personal protective equipment, or attended the required safety meeting before the commencement of work, Judge Baker held that Middleton was still commuting to work and was not acting in the scope of his employment at the time of the accident. Accordingly, Judge Baker granted summary judgment to Marine Terminals. See October 2022 Update.
Hicks appealed to the Eleventh Circuit, and Hicks “largely” repeated the arguments he made in response to the motion for summary judgment. Applying Georgia law to this land-based accident, Judge Abudu, writing for the Eleventh Circuit, stated that the question of when mid-commute work-related activity rises to the level of scope and furtherance of employment is generally a question of fact for the jury. Judge Abudu reasoned that a jury could agree with Ports America that Middleton had not yet begun furthering his employer’s business when the incident occurred, but the evidence “also supports a reasonable conclusion that Middleton was ‘on the clock’ as soon as he set foot on the Port or, at the very least, when his intention was to get the game plan and he thought he was headed in the right direction.” Judge Abudu added that “it would not be unreasonable for a jury to infer that Middleton’s commute ended when he ceased driving on public roads, passed through the security gates at the Port, and entered an area where only individuals who were designated to work were allowed to be present.” Finally, Judge Abudu believed that the issue whether Middleton’s mistaken belief about the location of the game plans resulted in a deviation that was “so substantial as to constitute a departure from [his] employment” was a fact question for the jury. Accordingly, the court of appeals vacated the entry of summary judgment.
From the federal district courts
Contractor did not breach agreement to procure additional insurance by providing coverage that required the injury be caused in whole or in part by the acts or omissions of the contractor or those acting on its behalf; Sam v. Bayou Holdco, Inc., No. 6:22-cv-5208, 2025 U.S. Dist. LEXIS 82567 (W.D. La. Apr. 29, 2025) (Summerhays).
Asa Alexander Sam was employed by Global Industrial Solutions, a temporary staffing agency, and assigned to perform rigging work at a facility owned by Bayou Holdco. Sam fell from a stack of pipes that was loaded on a barge at the Port of New Iberia, Louisiana. Sam brought this suit against Bayou Holdco and others in state court in Iberia Parish, Louisiana, alleging claims for negligence and vessel negligence under Section 5(b) of the LHWCA. One of the defendants removed the case to Louisiana federal court based on federal jurisdiction from the Outer Continental Shelf Lands Act and original admiralty jurisdiction, arguing that the pipes were to be used for pipelines in the Alaminos Canyon area of the outer Continental Shelf of the Gulf of America. Bayou Holdco moved for summary judgment, arguing that it was the borrowing employer of Sam and that the exclusive remedy against it was pursuant to the LHWCA. Judge Summerhays considered the Ruiz factors to determine if Sam was a borrowed servant, and he found that Bayou Holdco had control over Sam and the work he was performing, it was Bayou Holdco’s work that was being performed, Sam acquiesced in the new work situation (he had worked for Bayou Holdco for a considerable length of time--with gaps--for more than four years), Global Industrial’s control over Sam was nominal at most, Bayou Holdco furnished the place for performance and some of his personal protective equipment, Bayou Holdco had the right to discharge Sam with respect to his work for Bayou Holdco, and the funds used to pay Sam originated with Bayou Holdco. Sam pointed to the provision in the Staffing Agreement that characterized temporary employees such as Sam as independent contractors. However, Bayou Holdco answered that the parties’ actions can modify that provision, and that modification was established by the testimony that Sam took instructions from and was supervised by Bayou Holdco personnel, which rendered that factor neutral. As the factors overwhelmingly established that Sam was a borrowed employee of Bayou Holdco, Judge Summerhays dismissed Sam’s claims against Bayou Holdco as barred by the LHWCA. See June 2025 Update.
Bayou Holdco brought a crossclaim against Global Industrial seeking defense and indemnity based on the provisions of the Staffing Agreement between Bayou Holdco and Advantage Human Resourcing, which contracted with Global Industrial by an Associate Supplier Master Services Agreement (effectively subcontracting to Global Industrial the obligation to provide staffing services to Bayou based on the Staffing Agreement). Global Industrial agreed to name Bayou Holdco and Advantage Human Resources as additional insureds on its commercial general liability policy in the amount of $1 million, and it also agreed to fulfill the obligations of Advantage Staffing, which agreed to defend and indemnify Bayou Holdco except for damages and expenses resulting from the negligence or willful misconduct of Bayou Holdco. Global did not specifically name Bayou Holdco as an additional insured, but it did add Bayou Holdco as an additional insured through a blanket endorsement that provided coverage to Bayou Holdco only to the extent that an injury was caused in whole or in part by the acts or omissions of Global Industrial or those acting on Global Industrial’s behalf in the performance of operations for Bayou Holdco. Bayou Holdco moved for summary judgment that Global Industrial breached the terms of the subcontract because it failed to specifically designate Bayou Holdco as an additional insured on its liability policy. Global Industrial responded that summary judgment was inappropriate because there was a dispute whether the blanket endorsement satisfied Global Industrial’s obligation to name Bayou Holdco. Judge Summerhays agreed with Bayou Holdco, stating that Global Industrial was not in breach of its obligation to name Bayou Holdco: ““The blanket endorsement provides exactly such coverage—it treats any organization (such as Bayou) whom Global is required to add as an additional insured under a written contract as an insured, and its coverage is ‘primary and noncontributory’ for any losses Bayou incurs for “‘bodily injury’ . . . caused, in whole, or in party by: . . . [Global’s] acts or omissions in the performance of [Global’s] ongoing operations, which is the subject of the written contract.” Nothing in the contracts between Bayou and Global defines Global’s responsibilities as indemnification of Bayou for Bayou’s own fault, as Bayou now argues.” Turning to the indemnity provision, Judge Summerhays held that the provision only required Global Industrial to defend and indemnify Bayou Holdco for fees and losses incurred due to Global Industrial’s negligence. Therefore, Bayou Holdco’s crossclaim was contingent upon the ultimate adjudication of the allocation of liability of Bayou Holdco and Global Industrial to Sam, and Judge Summerhays deferred ruling on the motion.
Injured longshore worker did not establish that the vessel owner assumed duties in excess of those set forth in Scindia based on the terminal’s tariff and the International Safety Management Code; worker did not establish a breach of the turnover duty but presented a fact question whether the vessel violated the active-control duty; Judge excluded all of the opinions of the longshore worker’s liability expert, Captain Campana, and several of the opinions of the vessel’s liability expert, Capt. Karanjikar; Trigleth v. Ocean Belt Maritime, Inc., No. 23-cv-65, 2025 U.S. Dist. LEXIS 82731, 83796 (E.D. La. Apr. 30, May 2, 2025) (Ashe).
Joseph Trigleth was employed as a ship superintendent by Cooper Consolidated, which was contracted to unload cargo from the M/V OCEAN BELT at Cooper’s terminal on the Mississippi River in LaPlace, Louisiana. Trigleth was injured when he tripped and fell over a dolly of safety rail pipes that were in his path as he crossed some steps on the deck of the vessel. Trigleth brought this suit against the owner of the vessel, Ocean Belt Maritime, in federal court in Louisiana, seeking to recover for negligence under Section 5(b) of the LHWCA. Ocean Belt moved for summary judgment, asserting that it did not violate the three Scindia duties, and Trigleth responded that the Scindia duties did not apply because of two issues of contract, positive law, or custom— Cooper’s Ship Mooring Terminal Tariff for Locations on the Lower Mississippi River and the International Safety Management Code. Alternatively, Trigleth argued that Ocean Belt breached the turnover and active-control duties from Scindia. The Tariff provides: “The vessel shall inspect and supervise, continuously, all Vessel movement and all cargo loading or unloading operations and shall be in charge thereof. The Vessel shall have sole responsibility for any damage, loss or injury to property or persons resulting therefrom, and the Vessel shall defend, indemnify and hold [Cooper] harmless from and against any and all such damage, loss or injury, regardless of the cause or causes thereof and even to the extent caused by the negligence or other fault of [Cooper].” Judge Ashe declined to consider the tariff, however, without evidence that Ocean Belt and Cooper mutually assented to its terms. He reasoned that the existence of a tariff is not enough without a berth application or some other contract incorporating the terms. Additionally, there was no evidence that the tariff was intended to benefit longshore workers as the tariff made no reference to the safety of the workers, and there was no evidence that compliance with a duty to inspect and supervise cargo operations would have prevented the accident. As for the ISM Code, Judge Ashe noted that the consensus among the federal courts is that the ISM Code does not impose duties on vessel owners in place of or in addition to the Scindia duties. Therefore, in the absence of sufficient evidence that the vessel owner contractually assumed duties in excess of those set forth in Scindia, Judge Ashe considered Ocean Belt’s liability in connection with the turnover duty and the active-control duty. Trigleth argued that Ocean Belt violated the turnover duty by failing to provide sufficient lighting in the area where he fell. Judge Ashe responded that the Fifth Circuit does not recognize a general duty to provide lighting to the longshore workers because that obligation is the responsibility of the stevedore. As Trigleth could cite no document by which the vessel owner agreed to provide lighting for the area where he fell, Judge Ashe held that the owner had no duty to light that area. Additionally, Judge Ashe reasoned that the lighting of the deck was an open and obvious condition that should have been anticipated by a reasonably competent stevedore. It was not a latent condition that was more apparent to the vessel crew than to the stevedore. Therefore, Judge Ashe granted summary judgment on the turnover duty. With respect to the active-control duty, each party alleged that the other was responsible for the placement of the pipe-laden dolly near the steps. The dolly and pipes were the vessel’s equipment and had not been relinquished to the stevedoring crew. The vessel could not explain how the dolly was moved to the location where Trigleth fell. Instead, the vessel cited the testimony of Trigleth that he did not see any vessel crew in the area for 2.5 hours before his accident. Judge Ashe held that the evidence created a fact question and was insufficient to support summary judgment. As “the critical factual issue of who had active control of the dolly and pipes is unresolved,” Judge Ashe declined to grant summary judgment with respect to the active-control theory.
Ocean Belt and Trigleth then moved to exclude the opinions of the liability experts. Ocean Belt objected to the opinions of Trigleth’s expert, Capt. Ronald L. Campana, arguing that his opinions have been excluded on multiple occasions for the same reasons raised by Ocean Belt, and specifically asserting that his opinions are objectively wrong, contradicted by other evidence, speculative, legally irrelevant, unhelpful to the jury, and do not apply any discernable methodology. Judge Ashe agreed, concluding that “none of Campana’s opinions and conclusions will ‘help the trier of fact to understand the evidence or to determine a fact in issue’ and none are ‘the product of reliable principles and methods.” Trigleth objected to the opinions of Ocean Belt’s expert, Capt. Gajanan Karanjikar, claiming that he is not qualified to give opinions on biomechanical engineering and accident reconstruction, he commented on issues of credibility and made factual determinations reserved for the jury, his measurements of the dolly were not identical to the one involved in the accident, and his conclusion about Trigleth’s path was based on speculation. Judge Ashe agreed that Capt. Karanjikar’s discussion of inconsistencies in Trigleth’s account impermissibly ventured into biomechanical engineering and accident reconstruction (evaluating how forces would have impacted Trigleth’s fall in various scenarios), which is beyond the qualification of a marine safety professional. As the dolly involved in the accident was not available, Judge Ashe declined to exclude the expert testimony based on the exemplar dolly, assuming Ocean Belt could lay a proper predicate for the similarity; however, he excluded opinions about crew operations and conduct of Trigleth that were unhelpful to the jury and that were based on speculation, and he excluded the comments on Trigleth’s credibility.
From the state courts
Testimony of longshore worker that he was exposed to asbestos while unloading ships that he claimed were owned by a stevedoring company was sufficient for the Judge to deny summary judgment to the stevedoring company in the suit brought by the longshore worker (and his beneficiaries after he died) against the stevedoring company for maritime negligence and strict liability; Feigner v. American President Lines, LLC, No. 20STCV45382, 2025 Cal. Super. LEXIS 14217 (Cal. Super. Ct. Los Angeles May 9, 2025).
Gerald Feigner claims that he developed mesothelioma from exposure to asbestos and asbestos-containing products while engaged in longshore work in Long Beach, California between 1955 and the 1990s as well as when he was performing automotive and home maintenance. Gerald and his wife brought this suit against various ocean shipping companies and asbestos suppliers in state court in Los Angeles County, California, asserting claims for maritime negligence and strict liability. After Gerald died, his beneficiaries brought another suit in state court. Their claims against defendant Cooper/T. Smith Stevedoring assert that Gerald was exposed to raw asbestos, asbestos-containing pipe, and asbestos-containing talc rubber products while unloading those products from Cooper’s ships. Cooper moved for summary judgment on the ground that the plaintiffs presented no evidence of his threshold exposure with respect to Cooper. Specifically, Cooper argued that Gerald never unloaded asbestos-containing products from Cooper ships because it is not a shipping line. Cooper added that it had limited operations in Long Beach, beginning in 1972, that it did not work with asbestos or asbestos-containing products, and that Gerald had not worked for Cooper. Judge Dillon did not believe that Cooper’s evidence was sufficient to negate Gerald’s allegations. In his deposition, Gerald identified Cooper as a shipping company that operated throughout his career, including the period from 1955 to 1965. Thus, Judge Dillon ruled that Cooper failed to show that Gerald was not exposed to asbestos while unloading products from Cooper’s ships. Judge Dillon also declined to grant summary judgment to Cooper on the beneficiaries’ claim for punitive damages. Cooper cited the plaintiffs’ discovery responses that did not provide evidence of malice, fraud or oppression, but Judge Dillon answered that the plaintiffs would have no reason to know whether officers or managing agents of Cooper acted with malice toward him.
And on the maritime front . . .
From the United States Supreme Court
Supreme Court agreed to decide whether there is federal removal jurisdiction over suits by Louisiana Parishes filed in state court against energy companies for damage allegedly resulting in the Coastal Zone of those Parishes from oil and gas exploration and transportation operations along the state coast; Chevron USA Inc. v. Plaquemines Parish, No. 24-813, 2025 U.S. LEXIS 2319 (U.S. June 16, 2025), granting cert. to Plaquemines Parish v. BP America Production Co., No. 23-30294 c/w No. 23-30422, 2024 U.S. App. LEXIS 12890 (5th Cir. May 29, 2024) (Davis).
The Update has frequently reported on the extensive litigation in Louisiana brought by Louisiana coastal Parishes against energy companies, seeking to recover restoration costs for loss of land along the Louisiana Gulf Coast allegedly resulting from production practices carried out by the energy companies going back to World War II. In our February 2025 Update, we reported on the decision of the Fifth Circuit in New Orleans City v. Aspect Energy, L.L.C., No. 24-30199, 2025 U.S. App. LEXIS 1481 (5th Cir. Jan. 23, 2025) (Stewart). That was not the first Coastal Zone case to reach the appellate courts.
In our March 2023 Update, we reported that the Supreme Court (in Chevron USA, Inc. v. Plaquemines Parish, No. 22-715) declined to grant a writ of certiorari to consider the affirmance of a remand to the state court by the Fifth Circuit in Plaquemines Parish v. Chevron USA, Inc., No. 22-30055, 2022 U.S. App. LEXIS 28733 (5th Cir. Oct. 17, 2022). That appeal involved cases filed in Louisiana state courts by Louisiana coastal Parishes against energy companies seeking to recover restoration costs for loss of land along the Louisiana Gulf Coast allegedly resulting from production practices carried out by the energy companies.
After the Supreme Court declined to hear the petition from the energy companies, Judge Zainey of the United States District Court for the Eastern District of Louisiana issued an order remanding to state court the suit brought by Plaquemines Parish and the State of Louisiana against a host of energy companies. The energy companies argued that they had threaded the needle to satisfy the “acting under” requirement for federal officer removal because that case involved a World War II-era refinery contract. Judge Zainey was unpersuaded, answering that the refinery contract satisfied neither the acting-under nor the related-to requirements (the energy company “may have acted under a federal officer when refining oil in Port Arthur, Texas but it did not act under a federal officer when producing that oil in Louisiana”). See Parish of Plaquemines v. Northcoast Oil Co., No. 18-cv-5228, 2023 U.S. Dist. LEXIS 67290 (E.D. La. Apr. 18, 2023). The energy companies appealed the order of remand to the Fifth Circuit (No. 23-30304), and Judge Zainey stayed the order of remand pending the appeal. Judge Morgan of the United States District Court for the Eastern District of Louisiana reached a similar result in Parish of Plaquemines v. Rozel Operating Co., No. 18-5189, 2023 U.S. Dist. LEXIS 81541 (E.D. La. May 10, 2023). The energy companies appealed the order of remand (No. 23-30336), and Judge Morgan stayed the order of remand pending the appeal. See June 2023 Update.
On June 13, 2023, Judge Summerhays of the United States District Court for the Western District of Louisiana declined to reconsider his decision remanding 42 lawsuits (removed under the Federal Officer Removal Statute) that were brought by several Louisiana parishes against energy companies based on violations of permits under the State and Local Coastal Resources Management Act of 1978 and associated regulations, rules, and ordinances in connection with the defendants’ oil exploration and production activities in coastal parishes. See Parish of Cameron v. Apache Corp. (of Delaware), No. 2:18-cv-688, 2023 U.S. Dist. LEXIS 103010 (W.D. La. June 13, 2023). Judge Summerhays granted a stay of the remand pending appeal, and the energy companies filed a notice of appeal to the Fifth Circuit (No. 23-30422). Judge Fallon also stayed remand orders pending appeal to the Fifth Circuit in Parish of Jefferson v. Destin Operating Co., No. 2:18-cv-5206 (appeal No. 23-30225); Plaquemines Parish v. Exchange Oil & Gas Co., No. 2:18-cv-5215 (appeal No. 23-30291); and Plaquemines Parish v. Great Southern Oil & Gas Co., No. 2:18-cv-5227 (appeal No. 23-30303). See August 2023 Update. On October 11, 2023, the Fifth Circuit granted the motion to lift and vacate the stay pending appeal in Plaquemines Parish v. Chevron USA, Inc., No. 23-30291, 2023 U.S. App. LEXIS 27249 (5th Cir. Oct. 11, 2023) (Higginson) in a published order, concluding that the balance of equities weighed against issuance of a stay.
Meanwhile, the energy companies requested that the Supreme Court issue a stay of the trial scheduled to begin in state court in Cameron Parish, Louisiana on November 27, 2023 (the energy companies argued that the case should be transferred to a venue where the jurors did not have a financial interest in the outcome). See No. 23A364, BP America Production Co. v. Parish of Cameron, Louisiana. On November 7, 2023, the Supreme Court declined to grant the stay. See December 2023 Update.
On May 29, 2024, the Fifth Circuit (with a dissent by Judge Oldham) held that the actions of the energy companies with respect to oil production did not have a sufficient connection with the governmental direction in their federal refinery contracts during World War II to permit removal of the cases under the Federal Officer Removal Statute. Accordingly, the Fifth Circuit affirmed the remand of the suits by Louisiana parishes against the energy companies. See Plaquemines Parish v. BP America Production Co., No. 23-30294 c/w No. 23-30422, 2024 U.S. App. LEXIS 12890 (5th Cir. May 29, 2024) (Davis). See June 2024 Update. The energy companies sought rehearing en banc, and, on October 31, 2024, the Fifth Circuit declined to grant rehearing en banc by a vote of 7-6, with 4 judges not participating in the consideration of the request for rehearing en banc. See Plaquemines Parish v. BP America Production Co., No. 23-30294 c/w No. 23-30422, 2024 U.S. App. LEXIS 27775 (5th Cir. Oct. 31, 2024).
In New Orleans City v. Aspect Energy, L.L.C., No. 24-30199, 2025 U.S. App. LEXIS 1481 (5th Cir. Jan. 23, 2025) (Stewart), the City of New Orleans claimed that pipeline operators and Entergy New Orleans allowed pipeline canals to widen and erode to a point that they now threaten the City’s storm buffer, in violation of Louisiana’s State and Local Coastal Resources Management Act of 1978. New Orleans brought suit in state court in Orleans Parish, Louisiana, and the operators removed the case to federal court based on diversity. All of the pipeline operators are citizens of other states, and Entergy New Orleans, which provides natural gas utility services to its customers in New Orleans owns three natural gas pipelines that were acquired or constructed prior to the effective date of the SLCRMA and were subject to the statute’s Historical-Use Exception. Therefore, the operators argued that Entergy New Orleans was improperly joined and there was complete diversity with the remaining defendants. Judge Guidry agreed that Entergy New Orleans was improperly joined, denied the motion to remand, and entered a final judgment dismissing Entergy. New Orleans appealed. Writing for the Fifth Circuit, Judge Stewart reasoned that the core of the City’s argument is that “Entergy should have acted to prevent widening and erosion of its canals. While it might be prudent policy to require coastal pipeline operators to monitor and maintain their decades-old canals, that policy is not found in SLCRMA.” Judge Stewart concluded: “Because Entergy constructed or purchased its pipeline canals before SLCRMA’s effective date in 1980, and because Entergy has done nothing since then that constitutes a ‘use’ under the statute, there is no reasonable basis to predict that the City can recover on its claims against Entergy.” Accordingly, as there was complete diversity (excluding Entergy), the Fifth Circuit affirmed the denial of the City’s motion to remand (also rejecting the argument that the State of Louisiana should be considered to be the real party in interest and defeat diversity jurisdiction, noting that the City was the master of its complaint and chose to file the suit on its own behalf).
Meanwhile, several energy companies sought a writ of certiorari from the United States Supreme Court with respect to the Fifth Circuit’s decision on May 29, 2024, in Plaquemines Parish v. BP America Production Co., discussed in the June 2024 Update as noted above. The questions presented to the Court are:
This petition arises from Louisiana parishes’ efforts to hold petitioners liable in state court for, inter alia, production of crude oil in the Louisiana coastal zone during World War II. Petitioners removed these cases from state court under 28 U.S.C. §1442(a)(1), which as amended in 2011 provides federal jurisdiction over civil actions against “any person acting under [an] officer” of the United States “for or relating to any act under color of such office.” The Fifth Circuit unanimously held that petitioners satisfy the statute’s “acting under” requirement by virtue of their WWII-era contracts to supply the federal government with high-octane aviation gasoline (“avgas”). But the panel divided on the “relating to” requirement, with the two-judge majority holding that petitioners’ wartime production of crude oil was “unrelated” to their contractually required refinement of that same crude into avgas because the contracts did not contain any explicit “directive pertaining to [petitioners’] oil production activities.” . . . Judge Oldham dissented, explaining that the majority’s approach reinstates a variant of the “causal nexus” requirement that multiple circuits (and the U.S. Congress) have expressly rejected. The Fifth Circuit denied rehearing en banc by a vote of 7 to 6.
The questions presented are:
- Whether a causal-nexus or contractual-direction test survives the 2011 amendment to the federal-officer removal statute.
- Whether a federal contractor can remove to federal court when sued for oil-production activities undertaken to fulfill a federal oil-refinement contract.
On June 16, 2025, the Supreme Court agreed to hear the petition.
From the federal appellate courts
Fourth Circuit affirmed dismissal of American vessel owner’s suit against Saudi shipyard based on forum non conveniens, concluding that the defendants established a suitable alternative forum in Saudi Arabia even though the litigation may have to proceed against the defendants in different tribunals; AdvanFort Co. v. Zamil Offshore Services Co., No. 24-1007, 134 F.4th 760, 2025 U.S. App. LEXIS 9541 (4th Cir. Apr. 22, 2025) (King).
Virginia-based AdvanFort deploys armed security vessels to protect oil tankers and other vulnerable ships against piracy. AdvanFort chartered a former British Navy vessel, the SEAMAN GUARD VIRGINIA, and sent it to the Red Sea. The vessel needed routine maintenance and minor repairs, and AdvanFort sought those services from the shipyard at Jeddah Islamic Port, owned by the Saudi Ports Authority and operated by Zamil Offshore. After the work began, the shipyard proposed that electrical work be performed, which AdvanFort approved. A fire broke out on the vessel, and the Director of Saudi Arabia’s Maritime Administration released a report attributing the cause of the fire to AdvanFort and the vessel’s electrical system. AdvanFort denied responsibility for the fire and brought a suit against Zamil in Saudi Arabia. Zamil filed a countersuit, and the Saudi court eventually issued a judgment dismissing the claims of AdvanFort and awarding Zamil $40,000 in damages plus berthing fees. The shipyard demanded that the vessel be removed due to fears that it would sink and become a hazard to navigation, and the shipyard removed the vessel from the water. An inspection revealed that the vessel was stripped of all items of value. AdvanFort then brought this suit against Zamil and the Saudi Ports Authority in federal court in Virginia, alleging that it had been denied the use of the vessel since the fire because of the deterioration of the vessel’s condition, bringing counts for conversion, breach of a bailment/contract, negligence, and gross negligence. Zamil moved to dismiss the complaint based on forum non conveniens and lack of personal jurisdiction. AdvanFort argued that the court should not dismiss the suit based on forum non conveniens because AdvanFort would have to sue the defendants in different Saudi tribunals (citing cases where motions to dismiss were denied when it would require plaintiffs to sue in different countries). Judge Brinkema was not persuaded, however, as AdvanFort would not have to litigate in different countries. AdvanFort, which previously brought an action in Saudi Arabia, now argued that the Saudi judicial system is corrupt and incapable of adjudicating disputes fairly, but Judge Brinkema noted that American courts have routinely found Saudi courts to be adequate and have held that anecdotal evidence of corruption provides an insufficient basis to conclude that a foreign forum is inadequate. Weighing the private and public interest factors (including the fact that the Virginia court would have to apply Saudi law), Judge Brinkema dismissed the suit based on forum non conveniens. See January 2024 Update.
AdvanFort appealed to the United States Court of Appeals for the Fourth Circuit, contending that Judge Brinkema abused her discretion in determining that the Saudi Arabian judicial system is a more convenient forum to litigate its claims than AdvanFort’s choice of the United States District Court for the Eastern District of Virginia. Before addressing that argument, the appellate court considered the issue whether defendant Saudi Ports Authority, which had not answered and was in default, was entitled to the benefit of Zamil’s assertion of the procedural defense of forum non conveniens. Writing for the Fourth Circuit, Judge King stated that “it would be ‘absurd’ and ‘unreasonable to hold’ that a district court is precluded from dismissing an action against a defaulting codefendant ‘where the court is satisfied from the proofs offered by the other’ that a more convenient forum exists.” He therefore concluded that it was proper for Judge Brinkema to apply the same forum-non-conveniens analysis to Saudi Ports Authority as she did to Zamil. On the merits, AdvanFort argued that it may be forced to bring its claims against Saudi Ports Authority and Zamil in different tribunals--the Board of Grievances for the claims against a governmental body like the Saudi Ports Authority and the Commercial Court for the claim against Zamil. The defendants argued that AdvanFort failed to identify a “single available alternative forum,” citing cases where courts denied motions that would split claims against domestic and foreign defendants, forcing plaintiffs to litigate in different countries. Judge King disagreed, answering that the two tribunals “together” have jurisdiction, so the Saudi “courts” provide an available alternative forum. Judge King then considered AdvanFort’s argument that Judge Brinkema erred in evaluating its evidence of judicial corruption and unfairness in the Saudi courts. Cautioning that the courts should be “hesitant ‘to pass value judgments on the adequacy of justice and the integrity’ of a foreign forum’s judicial system based only on ‘conclusory’ allegations or ‘sweeping generalizations,’” Judge King agreed with Judge Brinkema that AdvanFort’s allegations were “generalized or anecdotal, and therefore insufficient to sustain its claims that the Saudi courts are incapable of adjudicating its dispute.” AdvanFort also challenged the lack of sufficient deference given by Judge Brinkema to its choice of its home forum in Virginia for the litigation. Judge King answered that the courts have recognized “that in circumstances where ‘the plaintiff is a corporation doing business abroad,’ it ‘should expect to litigate in foreign courts’” and that the courts have “partially discounted” the American citizenship of the plaintiff. Judge King believed that Judge Brinkema properly weighed the factors with a partial discount of the deference owed to AdvanFort’s choice of forum. Accordingly, the court affirmed the dismissal of AdvanFort’s complaint on the basis of forum non conveniens. Judge Thacker dissented based on one point—stating that the dismissal based on forum non conveniens requires “the existence of one alternate, adequate, and available forum,” not two tribunals that would create piecemeal litigation and increase the possibility of overlapping and inconsistent judgments.
Minor passenger on cruise ship did not establish duty (notice) or proximate cause with respect to sexual assault by other passengers despite 102 prior fleetwide incidents of passenger assaults; J.F. v. Carnival Corp., No. 24-10259, 2025 U.S. App. LEXIS 14954 (11th Cir. June 17, 2025) (Newsom).
J.F., a passenger on the CARNIVAL HORIZON, brought this suit in federal court in Florida against the cruise line, asserting that she was sexually assaulted by two of three boys who were passengers on the vessel (Zion, Daniel, and Jesus, although the cruise line was never able to identify a passenger named Jesus matching the description of him given by J.F.). J.F. spent time with Daniel and Zion during the first three days of the cruise in Club o2 (an activity group for passengers aged 15 to 17). During the day in which J.F. was assaulted, Zion had been caught trying to smuggle alcohol onto the ship after a port excursion. Security personnel told Zion’s grandmother that they were justified in removing Zion from the ship, but they let him go with a warning. On that evening, J.F. spent the evening at the Club and later joined a group with Daniel, Zion, and Jesus. As it approached 1:00 a.m., J.F. said that she needed to check in with her parents, and the group offered to accompany J.F. to her room, except Zion asked to stop by his room first to get a phone charger. When they reached Zion’s room, J.F. followed Zion inside to get a tissue from his restroom, and Daniel locked the door with Zion and Jesus also in the room. Prior to being locked in the room, J.F. felt safe on the ship, and none of the assailants had tried to kiss or touch her in an inappropriate manner. When J.F. tried to leave the locked room, she asserts that Jesus picked her up and put her on the bed where she was sexually assaulted by Daniel and Zion. J.F. then grabbed her clothing and left the cabin with no one attempting to stop her from leaving. J.F. did not report a sexual assault to the cruise line during the cruise. J.F. brought two counts against the cruise line--direct liability for negligence and vicarious liability for negligence. The cruise line moved for summary judgment on the ground that the sexual assault on J.F. was not foreseeable, and J.F. responded with documentation of 102 prior incidents, the majority of which occurred in passenger staterooms. Judge Martinez began by noting that the foreseeability determination must have some connection to the events that gave rise to the negligence claim because the “cruise line’s duty is to protect passengers from a particular injury.” Judge Martinez held that J.F.’s reliance on the fleetwide incident reports was too high a level of generality to establish constructive notice of the risk to J.F., ignoring too many variables. As the passenger failed to produce evidence that the cruise line had knowledge of the specific dangers that caused J.F.’s assault, there was insufficient evidence to establish foreseeability for the specific attack. Therefore, Judge Martinez dismissed both the direct and vicarious liability claims. See February 2024 Update.
J.F. appealed to the Eleventh Circuit, and, writing for the Eleventh Circuit, Judge Newsom considered J.F.’s arguments on duty and causation. J.F. made three arguments for the carrier’s notice of the danger as, stated by Judge Newsom, “the question here is whether Carnival knew or should have known about the ‘menace’ to J.F.” She first claimed that a series of substantially similar incidents under substantially similar conditions may establish constructive notice. She cited the 102 reported incidents of passenger-on-passenger sexual misconduct on the cruise line’s ships, including 54 that occurred in cabins. She added that the former Vice-President of Security for the cruise line had asked for years for more security officers but was rebuffed for money constraints and “other priorities.” Judge Newsom agreed that evidence of substantially similar incidents can demonstrate constructive notice, but he emphasized that “a cruise line’s duty is to protect its passengers from a particular injury.” J.F.’s argument was pitched “at too high a level of generality.” She cited statistics that sexual assaults had occurred in the past, sometimes in state rooms, and that a security officer thought the cruise line should spend more money on security. However, Judge Newsome explained: “Neither her data about previous reports nor the testimony of Carnival’s security vice present signal any particular risk linked to J.F.’s circumstances.” He added that her argument was “akin to saying that Carnival is on notice of every puddle everywhere on every one of its ships.” J.F.’s second argument with respect to the notice required for the cruise line to owe a duty was that the corrective action taken by the cruise line established notice. She noted that Carnival, working with consultants, had developed policies aimed at preventing passenger-on-passenger sexual violence, including screening would-be passengers for known sexual predators. Judge Newsom agreed that corrective action can be a signal that the cruise line is on notice; however, he added that the court must define the purported risk at the right level of specificity. Judge Newsome explained that the efforts undertaken by the cruise line would be relevant if J.F. had been assaulted by a known sexual predator, but J.F. did not claim that Zion, Daniel, and Jesus were repeat offenders. Thus, the assault-prevention procedures did not show that the cruise line had notice of the risk to J.F. J.F.’s third argument suggested that Zion’s alcohol-smuggling incident provided notice of the later sexual assault. Judge Newsome answered: “One failed attempt to smuggle alcohol on board isn’t a sign that a passenger is poised to commit sexual assault.” As the cruise line was not on notice of the “particular type of risk faced by J.F.,” it had no relevant duty. Turning to causation, Judge Newsom reasoned that J.F. had to establish foreseeability, adding that “independent illegal acts of third persons are [generally] deemed unforeseeable and therefore the sole proximate cause of the injury, which excludes the negligence of another as a cause of injury.” Essentially, J.F. argued that the cruise line should have invested in a larger security force, with more officers deployed at night, who should have encountered the group to remind them that security was present and deterred them from the assault. Reasoning that the argument heaped speculation on top of speculation, Judge Newsome agreed with Judge Martinez that the assault was not a foreseeable result of the cruise line’s staffing levels. Judge Newsome concluded that the cruise line “--which oversees a vast fleet of ships, each the site of countless human interactions—couldn’t have known about or foreseen the attack.” Therefore, the Eleventh Circuit affirmed the summary judgment.
Eleventh Circuit affirmed rulings that a marina that performed services for the vessel could serve as the substitute custodian, that the vessel should be sold to mitigate continued charges, and that the marina had a lien on the vessel; Naval Logistics, Inc. v. M/V FAMILY TIME, No. 24-13172, 2025 U.S. App. LEXIS 15388 (11th Cir. June 23, 2025) (per curiam).
Naval Logistic (d/b/a Middle Point Marina) [the case was docketed in the Eleventh Circuit with the name “Naval Logistics” based on the notice of appeal filed by Vilenchik and the M/V FAMILY TIME] brought this action in federal court in Florida on June 27, 2023 to enforce a maritime lien for repairs to the vessel M/V FAMILY TIME, owned by Commercial Holdings Group, whose principal is Andrew Vilenchik. The dispute centered on whether the vessel’s condition was worse than what was disclosed, necessitating additional repairs. The vessel was arrested on September 7, 2023, and Middle Point Marina was appointed substitute custodian. Vilenchik appeared and sought reconsideration of the appointment of the marina as substitute custodian (and return of custody of the vessel to the U.S. Marshal), arguing that the marina had caused damage to the vessel and was not an appropriate custodian. Judge Scola noted that the courts routinely appoint substitute custodians on an ex parte basis based on allegations that the custodian had experience caring for vessels and acting as a substitute custodian. In this case the marina made the proper allegations and provided the required indemnification. Judge Scola was not persuaded that the owner’s concerns for the fate of its vessel in the marina’s hands were well-founded, as the marina had the incentive to preserve the vessel to protect its own recovery. Therefore, he declined to reconsider his order appointing the marina as substitute custodian. See December 2023 Update.
On January 9, 2024, Middle Point Marina filed a motion for an interlocutory sale of the vessel, arguing that the costs of storage and maintenance were disproportionate to the value of the vessel and that the owner had unreasonably delayed in securing the release of the vessel. The marina stated that the vessel was accruing storage charges of $135 per day, and the amount that had accrued by February 2, 2024 was $23,704.79, excluding the salvage claim for saving the vessel from a maritime peril. The marina argued that two of the three grounds for an interlocutory sale under Rule E(9) were satisfied because almost six months had passed since the arrest on September 7, 2023 (longer than the four months usually considered to be sufficient) and because the expenses were disproportionate to the value of the vessel (estimated to have a value between $50,000 and $99,000). The owner did not offer an explanation for the delay, and Judge Scola held that the sale was warranted by the unreasonable delay. Although one of the conditions in Rule E(9) was sufficient, Judge Scola also addressed the argument that the expenses were disproportionate. The owner disputed the marina’s evidence, but it did not argue that the vessel was worth more than $100,000. Weighing the cost of storage against the value of the vessel, even at the high range of the marina’s estimate, Judge Scola concluded that an interlocutory sale was justified. Finally, the owner argued that the interlocutory sale would prejudice the counterclaim that it recently sought to file. Judge Scola responded that the interlocutory sale was merely a substitution of the proceeds of sale for the vessel and would not prejudice the counterclaim. Therefore, Judge Scola ordered the interlocutory sale of the vessel. See April 2024 Update.
The parties then filed cross-motions for summary judgment. Middle Point Marina argued that it notified Vilenchik that he would have to remove the vessel after he refused to approve the revised estimates for the cost of additional repairs, and this was a breach of the Agreement for which storage charges were owed. Vilenchik argued that he created a fact question on Middle Point Marina’s contract claim because he submitted an affidavit in which he argued that Middle Point Marina had caused damage to the vessel. Judge Scola answered that the claims made by Vilenchik were not responsive to the claim that Middle Point Marina provided necessaries (storage) for the vessel and that Vilenchik breached the contract by failing to remove the vessel. Vilenchik also argued that Middle Point Marina had not refuted the affirmative defenses raised by Vilenchik in the answer, but Judge Scola responded that the defendant, not the plaintiff, has the burden of proof with respect to affirmative defenses. Therefore, Judge Scola granted Middle Point Marina’s motion for summary judgment, but he deferred ruling on the amount of damages, costs, and attorney fees until the conclusion of the case. Vilenchik moved for summary judgment that he was not individually liable as the principal of the vessel owner, Commercial Holdings Group. However, Judge Scola noted that Vilenchik had signed the Shipyard Agreement and placed his name on the line marked “Owner.” Additionally, Middle Point Marina disputed whether Vilenchik ever mentioned that Commercial Holdings Group was the owner. Therefore, Judge Scola denied Vilenchik’s motion. See September 2024 Update.
Vilenchik moved for reconsideration on the granting of summary judgment to Middle Point Marina, arguing that there was a fact issue whether Vilenchik represented himself as owner of the vessel so as to be a proper defendant. Judge Scola responded that the argument was arguably waived by the failure to raise it in opposition to the motion for summary judgment. However, Judge Scola reiterated that Vilenchik had signed the agreement and placed his name on the line marked “Owner,” which warranted granting of the motion for summary judgment. Although Vilenchik submitted an affidavit disputing ownership of the vessel, Judge Scola did not believe that the affidavit, standing alone, was probative evidence that would rebut the motion for summary judgment. Therefore, he declined to grant reconsideration. As the parties stipulated to the damages, Judge Scola granted a final judgment in favor of Middle Point Marina for pre-arrest storage fees, custodia legis expenses, arrest costs, and attorney fees and costs. See October 2024 Update.
The defendants filed a notice of appeal to the Eleventh Circuit on September 27, 2024, and the defendants moved for a stay pending appeal. The defendants argued that Middle Point Marina did not need a bond from the defendants because it had the vessel in its possession, having bought the vessel with a value between $50,000 and $99,000 for $100, and that value was more than the judgment for $40,437.30. Judge Scola, however, did not believe that the defendants’ argument provided a basis for dispensing with the ordinary requirement for the posting of a bond unless the defendant establishes his ability to satisfy the judgment and maintain that degree of solvency during the appeal. Therefore, he addressed the amount that should be required for the bond. Middle Point Marina argued that the bond should be at least $275,000, claiming that attorney fees and costs for the appeal would be at least $100,000, but Judge Scola noted the local rule that security to stay execution should be in the amount of 110% of the judgment to provide security for interest and costs. As the defendants offered a bond of 125%, Judge Scola agreed to stay execution of judgment (and post-judgment discovery) upon the posting of a bond of $50,535.38 (rejecting the addition of conditions, such as the requirement that the defendants not dissipate assets, as the bond was sufficient). Judge Scola also rejected, on December 17, 2024, Middle Point Marina’s motion for reconsideration, arguing that the bond should include the attorney fees it was seeking, claiming that $94,669.61 was uncontested and that the fees on appeal should also be included. As Judge Scola had previously declined to include attorney fees in the bond, he denied the request for rehearing. See February 2025 Update.
The Eleventh Circuit succinctly summarized the issues in the appeal. “When a marina furnishes services to a vessel—dockage, inspections, or repairs—and the vessel’s owner fails to pay or retrieve the vessel, the law affords a straightforward solution. The marina may assert a maritime lien, arrest the vessel, and, if necessary, seek judicial approval to sell it. This case follows that path.” In this case, the marina performed services for the vessel, received no payment, and “turned to the courts for recourse.” Judge Scola authorized the marina to serve as custodian, approved the sale so as to mitigate continued charges, and granted summary judgment to enforce the lien. The Eleventh Circuit affirmed all three rulings. The appellate court first held that the marina established that it had a maritime lien for dockage and inspection services, which are “clearly ‘necessaries.’” Although Vilenchik argued that the marina damaged his vessel, the Eleventh Circuit answered that this claim would not invalidate the lien and could be pursued as a counterclaim or in a separate action. The vessel’s request to file a counterclaim was denied by Judge Scola as untimely, and the appellate court found no abuse of discretion in that decision. The Eleventh Circuit also rejected Vilenchik’s argument that he was not the vessel’s true owner and did not authorize the services, reasoning that he delivered the vessel to the marina, signed the Shipyard Agreement identifying himself as the owner, and remained the sole point of contract throughout the dealings, which was sufficient to establish his apparent authority to create the lien. Vilenchik also objected to the appointment of the marina as substitute custodian. The appellate court noted that, in order to qualify, the “proposed custodian must accept full responsibility, carry appropriate insurance, and agree to hold the United States and the Marshal harmless from any liability arising during the custody.” The marina satisfied those conditions, and Vilenchik did not identify any specific risk, conflict, or inadequacy in the marina’s qualifications. Therefore, there was no error in the appointment of the marina as substitute custodian. Finally, the Eleventh Circuit addressed Judge Scola’s decision to order an interlocutory sale, agreeing that all of the factors set forth in Rule E(9) were satisfied. The marina had incurred over $25,000 in storage fees, and Vilenchik had not posted a bond or sought to recover the vessel. The appellate court explained: “Courts are not required to let storage costs accumulate indefinitely in the hope that the owner might eventually act.” The Eleventh Circuit concluded: “Federal maritime law provides a clear and orderly process for enforcing liens and resolving disputes involving vessels. The District Court followed that process.” As each decision of Judge Scola “was grounded in the record and consistent with established legal principles,” the court of appeals affirmed the decisions.
From the federal district courts
Owner of yacht that was not hauled out of the water and was damaged in a hurricane, sufficiently pleaded a claim against the vessel’s insurer, despite the haul-out provision in the policy, based on the Florida statute that requires the breach increase the hazard by a means within the control of the insured; Knight v. Markel American Insurance Co., No. 2:24-cv-592, 2025 U.S. Dist. LEXIS 71973 (M.D. Fla. Apr. 16, 2025) (Steele).
Markel American Insurance insured a 57-foot Carver Voyager motor yacht owned by the Knight Living Trust. The vessel, which was moored at The Marina at Edison Ford in Lee County, Florida, was a total loss after Hurricane Ian, and Markel denied the claim because of non-compliance with the haul-out provision in the policy. Scott P. Knight, trustee of the Trust, brought suit against Markel American Insurance in state court in Lee County, Florida. After conducting discovery to obtain jurisdictional facts, Markel American removed the case to federal court in Florida based on diversity jurisdiction and admiralty jurisdiction, and Knight moved to remand the case on the ground that it was not removed within 30 days. Judge Steele upheld the removal and noted that the case fell both within the court’s admiralty and diversity jurisdiction. As there were two viable bases for jurisdiction, Judge Steele addressed whether the case would proceed at law. As Knight’s pleadings in both state court and his amended complaint in federal court did not designate the case as arising in admiralty, and as there was jurisdiction based on diversity, Judge Steele agreed that the case would proceed at law. See September 2024 Update.
Markel moved to dismiss Knight’s amended claim, and Knight argued the denial (based on the haul-out provision) was improper because the failure to haul out the vessel did not increase the risk of loss by any means within the control of the insured (citing the Florida statute that provides that a breach of a policy warranty or condition does not void the policy unless the breach increased the hazard by a means within the control of the insured). As the parties disagreed whether the failure to haul the vessel out of the water increased the hazard to the vessel and whether an increased risk was within the control of the insured, Judge Steele held that Knight had stated a plausible cause of action under the Florida statute. Similarly, Judge Steele held that Knight had pleaded a plausible theory for liability with the allegation that the haul-out provision violates the public policy of Florida, allowing Knight to endeavor to establish such a public policy for marine insurance policies. Therefore, Judge Steele denied the motion to dismiss.
Linda McQueen, a passenger on the MSC SEASHORE, slipped and fell in a wet, sticky spot on the deck in the common area outside the spa on the vessel. McQueen brought this suit against the cruise line in federal court in Florida, pleading a single negligence count for direct liability based on multiple assertions of fault. For notice, McQueen asserted that the cruise line should have known of the dangerous condition that caused her fall and that the cruise line had notice of repeated safety issues giving rise to the propensity for falls in similar areas and class of vessel. The cruise line moved to dismiss the complaint for failure to sufficiently plead notice, and Judge Dimitrouleas agreed, stating that this was “exactly the kind of ‘threadbare recital[] of a cause of action’s elements’ that does not suffice to state a legal claim.” Judge Dimitrouleas added that the pleading did not allege facts with respect to the period of time to take corrective measures or in connection with substantially similar incidents. McQueen argued that she had given 18 different examples of the cruise line’s failure to inspect, maintain, warn, clean, or monitor the area, but Judge Dimitrouleas responded that those were just conclusory statements. Therefore, he dismissed the complaint with one opportunity to cure the deficiencies.
Salvor established that it was entitled to a salvage award as a matter of law, but the amount of the award would have to be determined at trial; Damark Marine Towing, LLC v. Molinaro, No. 23-cv-12293, 2025 U.S. Dist. LEXIS 72495 (E.D. Mich. Apr. 16, 2025) (Michelson).
Ralph Molinaro was sailing the HIGH TIDE WATERS in the Detroit River with five passengers when he struck a cement dock that impaled his vessel. The vessel was taking on water, and one of the passengers called the Coast Guard for help. The forward portion of the boat was firmly impaled, but the stern of the vessel, with the engines, generators, and fuel tanks, was in danger of partially sinking in the shallow water. One of the passengers called the Coast Guard for help, and the Coast Guard contacted Damark Marine Towing, a professional marine salvor. When Captain Jeffrey Pidcock, president of Damark arrived, Molinaro screamed, “[M]y boat is sinking. Don’t let it sink.” Pidcock’s crew put pumps on the vessel, installed a temporary patch and air pillows to block the holes, and maintained the pumps through the night until a hoist was available the next day. Divers then rigged air bags under the boat, and one tug pulled the vessel off the dock and another towed it to the hoist where it was lifted out of the water. The total operation lasted about 18 hours. The appraiser for Molinaro’s insurer, GEICO Marine, valued the boat at $76,304 and estimated that the cost of repair was $94,676. Therefore, GEICO Marine considered the boat to be a constructive total loss. GEICO Marine offered Molinaro $99,446.41 for which it would take title to the vessel. Molinaro wanted to keep the vessel, as it was “one of a kind,” and he agreed with GEICO Marine to accept GEICO’s payment, minus the post-casualty value of the vessel ($5,000), a total of $94,446.41. Molinaro then repaired the vessel himself, spending about 500 hours and $17,000. Damark Marine invoiced Molinaro for $33,250, and GEICO Marine asked for a time-and-materials invoice that broke down all the work that was performed. Damark’s breakdown was in the amount of $100,000. Molinaro repaired the vessel and continues to use it; however, GEICO Marine declined to pay Damark for the salvage. Damark brought this suit against Molinaro in federal court in Michigan, and Damark moved for summary judgment that it was entitled to a salvage award of not less than $33,250. GEICO Marine responded that the award should be no greater than $5,000. GEICO Marine and Damark Marine could not agree on the amount for the salvage, and Damark Marine brought this suit against Molinaro in federal court in Michigan, seeking an award for pure salvage. Judge Michelson agreed that Damark Marine had established the three elements for a salvage award, the vessel was in a marine peril, the service was voluntary, and the salvage was successful in whole or in part. Accordingly, Judge Michelson granted summary judgment to Damark as to liability for a salvage award. Judge Michelson then addressed the amount for an award, noting the six factors set forth in THE BLACKWALL. GEICO Marine disputed the equipment that was involved and the length of time that equipment was employed. The parties also sharply disputed the value of the salvaged vessel, with GEICO arguing that it was valued at $5,000, and Damark argued that it was worth $85,000. Accordingly, Judge Michelson held that the amount of the award would be determined at trial. [The parties settled before trial]
Negligent misrepresentation claims by purchasers of boat against manufacturer and dealer were not barred by the economic loss rule, although some were puffery; claims under the state consumer protection statute failed to satisfy the heightened pleading standard of Rule 9(b), but the purchasers stated a claim for rescission/revocation under the state’s codification of the UCC; purchasers could not assert implied warranty claims against the manufacturer as the dealer was the seller of the vessel, and a dispute over the contract documents with the dealer prevented the Judge from enforcing a provision disclaiming implied warranties; purchasers failed to state a warranty claim against the manufacturer of the vessel’s generator as they pleaded a design defect, not a defect in materials and workmanship and because they pleaded that the generator was improperly installed by the vessel manufacturer; maritime law applied to the claim against the installer of the bow and stern thrusters as they were installed to remedy defects with the vessel’s joystick system, and the purchasers stated a claim against the installer even though it was not a building contractor; Detrick v. KCS International Inc., No. 5:24-cv-1154, 2025 U.S. Dist. LEXIS 73048 (N.D. Ohio Apr. 17, 2025) (Barker).
Norm and Judy Detrick dreamed of traveling the “Great Loop,” a series of continuous waterways through the Great Lakes, the Erie Canal, the Hudson River, the Atlantic Coast of the United States, the Gulf of America, and the Mississippi River. They decided to purchase a new yacht that could fulfill that wish, considering hurdles related to timing, personal health, and business responsibilities. They wanted a manufacturer and seller that would act as a partner and advisor during the Great Loop and during the remainder of the ownership experience. Based on conversations with dealer SkipperBud’s and manufacturer Cruisers Yachts’ vice president Dan Zenz at the 2021 Fort Lauderdale International Boat Show and its president, Mark Pedersen, thereafter, the Detricks decided to buy the Cruisers Yachts’ 54 Cantius Flybridge model. After the vessel was delivered, the Detricks experienced defects, had warranty work under the Cruisers Yachts Limited Warranty, and experienced more defects. Eventually they concluded that “Cruisers Yachts and SkipperBud’s repeatedly promised the Detricks a vessel ‘standing tall and/or better than new,’ but failed to deliver on their promises, made numerous misrepresentations regarding the 54Fly, and failed to fulfill their warranty responsibilities.” The Detricks brought this suit in federal court in Ohio, pleading 17 counts against Cruisers Yachts, SkipperBud’s, Kohler, manufacturer of the vessel’s generator, Jet Thruster Marine, installer of the bow and stern thrusters on the vessel, Mark Pedersen, Dan Zenz, Todd Riepe (vice president of SkipperBud’s, and John Ferfecki, director of customer service for Cruisers Yachts. The defendants filed motions to dismiss most of the claims in the complaint, and Judge Barker began with the argument that the tort claims for negligent misrepresentation were barred by Ohio’s economic loss doctrine because the claims do not seek recovery for damage to other property. Judge Barker acknowledged that the doctrine generally prevents recovery in tort of damages for purely economic loss; however, she recognized an exception when the defendant breaches a separate duty in tort by virtue of a special or fiduciary relationship to a limited class of people. Considering the duty to avoid negligently providing false information for the guidance of others in their business transactions to be such a separate duty, Judge Barker held that the negligent misrepresentation claims were not barred by the economic loss rule. Judge Barker then considered whether the negligent misrepresentation claims were barred as “mere, unactionable sales puffery,” concluding that 10 paragraphs included puffery (such as best service and a direct line to the top executive), and 12 paragraphs included non-puffery (such as no defects on delivery, the speed of the vessel, and usability of the vessel). Judge Barker next addressed the claims under the Ohio Consumer Sales Practices Act. Concluding that the OCSPA claims sounded in fraud, she applied the heightened pleading standard of Rule 9(b) and held that the allegations against all of the defendants were insufficient, except for the claim against Zenz, which failed because it was non-actionable puffery. Accordingly, the OCSPA claims were dismissed with prejudice (Judge Barker did not have to address whether the claims were barred by a contractual merger clause). Judge Barker did find that the Detricks had sufficiently stated a claim for revocation/rescission pursuant to Ohio’s codification of the UCC, permitting a buyer to revoke acceptance of a nonconforming product whose nonconformity substantially impairs its value to him within a reasonable time after the buyer discovers or should have discovered the ground for revocation and before there is a substantial change in condition of the goods. As the Detricks purchased the vessel from SkipperBud’s, Judge Barker held that the Detricks were not entitled to assert a claim for breach of implied warranties against Cruisers Yachts. SkipperBud’s also sought to dismiss the claims for breach of implied warranties based on a contractual disclaimer of implied warranties. However, there was a dispute as to what documents constituted the contract between the parties, and Judge Barker declined to dismiss the implied warranty claims against SkipperBud’s. Kohler moved to dismiss the claim for breach of its limited warranty with respect to the generator, and Judge Barker agreed. Judge Barker reviewed the allegations pleaded by the Detricks and concluded that they asserted a claim for a design defect that was not covered by Kohler’s warranty against defects in materials and workmanship. Additionally, the Detricks pleaded that Cruisers Yachts improperly installed the generator, which was a defense to coverage under the warranty. Accordingly, Judge Barker dismissed the warranty claim against Kohler. Finally, Judge Barker addressed the argument of Jet Thruster Marine, which installed the bow and stern thrusters, that the Detricks failed to state a claim for breach of the implied warranty of workmanlike service under Ohio law, which only applies the warranty to a building contractor. The parties did not explain whether Ohio law or admiralty law applied, and Judge Barker reviewed the cases applying admiralty law to a contract to repair a vessel. In this case, the thrusters were installed to remedy defects in the vessel’s joystick system. Therefore, she applied maritime law that “requires that a contractor perform repairs in a workmanlike manner” and declined to dismiss the WWLP claim against Jet Thruster Marine as a contractor hired by the Detricks to repair the vessel.
Under New York law, policy on yacht was voided by breach of the warranty with respect to firefighting equipment, even though the equipment was in working order and the breach was unrelated to the accident, and for misrepresentation that the insured had complied with the recommendations in a survey report that the insured claims he did not receive; insurer did not have to return the policy premium in order to seek rescission and could wait until the court declared that the policy was void; Accelerant Specialty Insurance Co. v. Ballard, No. 23-cv-61652, 2025 U.S. Dist. LEXIS 73218 (S.D. Fla. Apr. 17, 2025) (Singhal).
Jason Ballard’s 40-foot Viking yacht was damaged when it grounded on a submerged rock in the Hillsboro Inlet near Pompano Beach, Florida. The vessel was insured with Accelerant Specialty Insurance Co. under a Private and Pleasure Yacht Insuring Agreement. Ballard made a claim under the policy, which Accelerant denied on the ground that (under New York law) Ballard’s breach of the fire suppression and survey compliance warranties rendered the policy void and on the ground that Ballard’s misrepresentation that all the survey recommendations had been completed violated the doctrine of uberrimae fidei. Accelerant brought this action against Ballard in federal court in Florida, seeking a declaratory judgment that the policy was void ab initio and that Ballard was not entitled to recover. Ballard brought a counterclaim for breach of contract, arguing that the breach of warranties and conditions did not breach the policy because the loss was not caused by fire and the firefighting equipment was in working order. He also argued that he could not have made misrepresentations about the survey because he was not provided a copy and because the alleged misrepresentations were not material to the risk. Finally, Ballard argued that Accelerant waived the right to rescind the policy because it did not refund the premium. Accelerant moved for summary judgment, and Judge Singhal first considered the applicable law, noting the choice-of-law provision for New York law in the absence of entrenched admiralty law. Ballard argued that application of New York law would be unreasonable and unjust, that New York had no connection with the parties or claim, and that Florida has a strong public policy of protecting insureds. Judge Singhal answered that the Judges in the Southern District of Florida routinely enforce choice-of-law provisions selecting New York law and that the Supreme Court in Raiders Retreat had rejected the argument that state-level public policy concerns could invalidate choice-of-law provisions in maritime contracts. In the absence of an entrenched maritime rule with respect to breach of warranties, Judge Singhal applied New York law. With respect to the fire extinguisher warranty, the policy required fire extinguishing equipment and that the tanks be weighed, tagged and certified annually or in accordance with the manufacturer’s recommendations, whichever is more frequent. The equipment on Ballard’s yacht was working and complied with Coast Guard regulations. However, the system had not been weighed, certified, and tagged for more than a year prior to the loss. Therefore, under New York law, Ballard breached the warranty, and the policy was void, regardless of causal connection. Ballard argued that he could not be bound by the warranty as he did not receive a copy of the policy, but Judge Singhal held that he was presumed to know and understand the terms of the contract and could not pick and choose the terms he wanted to enforce and the terms he wanted to ignore. The other warranty at issue was in a Letter of Survey Recommendations Compliance, signed by Ballard, in which he certified that all recommendations in the survey on the vessel had been complied with. Ballard argued that he did not receive the survey, but Judge Singhal held that the recommendations had not been completed and Ballard had unambiguously violated the warranty. Therefore, the breach of the survey compliance warranty also voided the policy. Similarly, the misrepresentation that all of the survey recommendations were completed was a violation of the uberrimae fidei doctrine. Finally, Ballard argued that Accelerant had waived its right to rescind the policy because it did not return the premium. Citing Judge Bloom’s decision in Clear Spring v. Big Toys (see September 2023 Update), Judge Singhal explained that the parties disputed whether the policy was void, and the carrier acted appropriately in filing the lawsuit seeking the declaration that the policy was void. Once the policy is declared void, the judge would order return of the premium. Accordingly, Judge Singhal ordered that the policy was void and Ballard would take nothing except the return of the premium.
Contribution and indemnity claims of claimant against the petitioner in a limitation action were allowed to proceed, but they were insufficiently pleaded and had to be repleaded; In re Mackey, No. 8:24-cv-309, 2025 U.S. Dist. LEXIS 73343 (M.D. Fla. Apr. 17, 2025) (Adams).
This litigation arises from a collision between a vessel owned and operated by Peter J. Mackey and a vessel owned by Freedom Marine Sales and Freedom Boat Club and operated by John Cornell, the M/V TIMELESS. Mackey filed a suit in federal court in Florida, seeking exoneration/limitation of liability, and Freedom filed an answer and claims against Mackey (seeking damages, contribution, and indemnity). Mackey filed an answer to the claims. Mackey later amended his complaint, seeking only exoneration of liability, and Freedom again filed an answer with the same claims as previously asserted. Mackey responded with a motion to dismiss under Rule 12(b)(6), arguing that Freedom’s allegations were insufficient to state a claim, that the indemnity claim was barred by Mackey’s allegation that Freedom was at fault, and that the contribution claim was premature. Freedom responded that Mackey waived his right to bring the motion by previously answering and not moving to dismiss the same claims, that the claims were sufficiently pleaded, and that the indemnity and contribution claims are permitted under admiralty law. Magistrate Judge Adams reasoned that an amended complaint does supersede the initial complaint; however, its filing does not automatically revive all defenses or objections that the defendant may have waived in response to the initial complaint. Magistrate Judge Adams concluded that because Mackey answered (instead of moving to dismiss) the identical claims, he could not now move to dismiss them under Rule 12(b)(6). Therefore, she recommended denial of the motion to dismiss. See January 2025 Update. Judge Merryday agreed and rejected Mackey’s objection that the earlier answer should not waive the right to seek dismissal of Freedom’s “woefully deficient second set of claims.”
Meanwhile, John and Brunna Cornell filed a suit in the same Florida federal court, seeking exoneration/limitation as owners pro hac vice of the M/V TIMELESS. Mackey moved to dismiss the action, arguing that the Limitation Act did not apply to a “covered small passenger vessel” and that the complaint did not state a claim for limitation of liability. As to the first claim, Magistrate Judge Adams noted that the complaint asserted that the vessel carried guests, but it did not address its tonnage, the number of passengers, or whether it was a wing-in-ground craft. Therefore, the pleading did not allege sufficient facts to determine whether the recent amendment to the Limitation Act removed the vessel from the protection of the statute. Magistrate Judge Adams then addressed the issue of whether the complaint sufficiently alleged dominion and control over the vessel that the Cornells could be considered to be owners pro hac vice over the vessel owned by Freedom Marine. She concluded that the allegation that the Cornells had “rental and dominion and control over the vessel” and that others had filed claims against them based on their claimed dominion and control was sufficient to establish the standing of the Cornells to bring the limitation action. Magistrate Judge Adams did agree that the complaint did not sufficiently state facts required by Rule F with respect to the voyage, whether the vessel was damaged, lost, or abandoned (and, if so, when and where), the value of the vessel at the end of the voyage, or specific facts (and not conclusory allegations) to demonstrate that the Cornells lacked privity or knowledge. Therefore, Magistrate Judge Adams recommended that the complaint be dismissed with leave to amend to correct the deficiencies. See February 2025 Update. There was no objection to the recommendation, and Judge Merryday adopted the recommendation on January 10, 2025.
Back in Mackey’s limitation action, Mackey filed a motion for judgment on the pleadings, arguing that the factual allegations for Freedom’s contribution and indemnity claims were insufficient and that the claims were premature (as no judgment had been entered against Freedom, and Freedom had not entered into any settlement). Freedom’s contribution claim simply alleged that Mackey’s vessel struck Freedom’s vessel (injuring its occupants), that the injuries were proximately caused by Mackey’s acts or omissions, and that, should Freedom be held liable for the injuries, Freedom was entitled to contribution. Magistrate Judge Adams noted that Freedom did not plead facts (or even assert conclusions) establishing that Mackey owed a duty to the injured parties so that he could be found jointly liable. Therefore, she recommended that the contribution claim be dismissed with leave to plead sufficient allegations. Turning to the indemnity claim, Magistrate Judge Adams noted the three bases for indemnity and answered that there was no contract for indemnity and no entrustment of the vessel for work that would invoke a warranty of workmanlike performance. That left the theory of vicarious liability by which a party may be held liable for the negligent acts of another (even though the actor did not commit a negligent act) because of a special relationship or law. As Freedom did not plead facts to support that special relationship, Magistrate Judge Adams recommended dismissal of the indemnity claim with leave to plead sufficient allegations. Finally, Magistrate Judge Adams addressed Mackey’s motion to dismiss the contribution and indemnity claims on the ground that they were not ripe before judgment. Freedom argued that it is allowed to bring contribution and indemnity claims before being found liable pursuant to Rule 14(c), but Magistrate Judge Adams rejected Freedom’s argument that the claims were allowed by Rule 14(c), answering that the impleader rule is designed to bring all relevant parties into a lawsuit so that the court can adjudicate all rights in a single proceeding. That purpose is not applicable in a limitation action in which a claimant is asserting a claim against the petitioner, who is not a new party. However, as Rule F provides for the filing of all claims in the limitation action, Magistrate Judge Adams held that the contribution and indemnity claims should be allowed to stand at this phase of the limitation proceeding.
Presence of crewmembers at the top and bottom of the waterslide on the cruise ship was sufficient to support pleading of direct and vicarious liability of cruise line in suit by passenger who was injured on the slide; Riffle v. Carnival Corp., No. 25-cv-20355, 2025 U.S. Dist. LEXIS 75124 (S.D. Fla. Apr. 17, 2025) (Bloom).
Michael Riffle, a passenger on the CARNIVAL DREAM, was injured on the waterslide at the amusement theme park on the vessel, allegedly because there was insufficient water at the bottom of the slide to stop him before he struck the end of the shutdown lane. Riffle brought this suit against the cruise line in federal court in Florida, alleging that the cruise line was directly and vicariously negligent for failing to ensure passenger safety and maintenance of the water levels for the slide. The cruise line moved to dismiss both the direct and vicarious liability counts for lack of sufficient notice to the cruise line, and Judge Bloom noted that notice to the cruise line was not necessary for the vicarious liability count. Instead, the passenger had to identify negligent conduct of specific employees within the course of their employment. Riffle alleged that employees stationed at the waterslide deliberately and recklessly instructed Riffle to use the waterslide despite the dangerously low water level and that the action was taken in furtherance of the ship’s business. Judge Bloom concluded that the pleading sufficiently articulated a vicarious liability claim (noting that the pleading was sufficient if it identified the employees by “roles or tasks” and adding that the conduct of directing Riffle to go down the slide was not an allegation of premises liability). As to the claim for direct liability, Judge Bloom explained that the employees at the slide were responsible for maintaining the water at a safe level, and the court could reasonably infer that their presence necessarily would have put the cruise line on notice of a dangerously low level. Therefore, she declined to dismiss the complaint.
Magistrate Judge recommended that Rule 14(c) tender was not available to the petitioner in a limitation action, even though the limitation action was brought under Rule 9(h), when the claims being tendered to the third party were Jones Act claims brought by seamen who sought a jury trial in the limitation action; however, the limitation petitioner’s claims for indemnity and contribution under Rule 14(a) were allowed; In re M/V AET EXCELLENCE, No. 3:23-cv-167, 2025 U.S. Dist. LEXIS 73997 (S.D. Tex. Apr. 18, 2025) (Edison), recommendation adopted, 2025 U.S. Dist. LEXIS 73997 (S.D. Tex. May 5, 2025) (Brown).
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 NORTHERN MAGNUM, 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.
Harbor construction worker presented sufficient evidence of the duration and nature elements of the substantial connection test to create a fact question of his seaman status in connection to his injury on a barge drilling and installing pipes as part of a project to construct and install finger piers; Carmack v. American Workboats, Inc., No. 23-cv-345, 2025 U.S. Dist. LEXIS 74131 (D. Hawaii Apr. 18, 2025) (Seabright).
Marshall Carmack claims that he was injured aboard the AWB 82, a special purpose barge outfitted with a Caterpillar 329 excavator used to drill and install pipes at Maalaea Harbor, Maui County, Hawaii, when his right hand and wrist were caught between the excavator’s bucket and the barge’s starboard bulkhead. Carmack brought this suit in federal court in Hawaii against his employer, American Marine Corp., as a seaman under the Jones Act and general maritime law, and American Marine moved to dismiss the claims on the ground that Carmack was a land-based construction worker and was not a seaman. Carmack began working for American Marine in 2003 as a laborer, focusing on construction work. He was assigned to a project, not a vessel. American Marine was awarded a contract to repair Maui’s Maalaea Harbor in 2022, which included demolition work, site preparation, concrete pile installation, fabrication, and installation of 17 aluminum framed finger piers. The work was performed on land and on the water. Carmack was assigned to the project to perform construction work. Carmack and American Marine disagreed, however, on how much time Carmack spent in the service of vessels. Carmack asserted that he spent more than 80% of his work on company vessels, and he claims that he repeatedly crewed tugs and barges on intra- and inter-island voyages. He claims that he performed sea-based work helping navigate vessels as they moved around worksites, that he handled lines, operated winches, set anchors, raised and lowered spuds, and helped make up barges, and that he helped “fleet or kedge” the AWB 82 when it was relocating. He had no Coast Guard certification, never slept on a vessel, returned home from work each day, but he made at least six inter-island voyages, 4,000 intra-island voyages, and over 13,000 on-site moves. Based on the disputed evidence and the claims made by Carmack, Judge Seabright held that there were fact issues as to whether Carmack satisfied the nature and duration elements of the substantial connection test for seaman status.
A seaman’s presence on a vessel at sea during hearings on his divorce action does not give a federal court authority to take admiralty jurisdiction over the divorce action; Hudspeth v. Hudspeth, No. 2:24-cv-1884, 2025 U.S. Dist. LEXIS 75221 (D. Nev. Apr. 18, 2025) (Gordon).
Robert Timothy Hudspeth, Chief Engineer of Matson’s container ship MAUNALEI, was at sea on foreign articles when two hearings were held in a divorce proceeding in Nevada state court between Tim and his wife, Lisa Marie Hudspeth. Tim brought this suit against Lisa in federal court in Nevada, asking the court to take jurisdiction of his divorce case, to overturn and modify orders entered in that case, and to order that no further court actions may occur while he is on a vessel or on his way to a vessel. He claimed the federal court had admiralty jurisdiction because the court actions occurred while he was on a vessel in international waters, and he added that the Nevada state court had “no jurisdiction to order the defendant to appear in court because of Maritime flavor.” Lisa moved to dismiss the federal suit for lack of jurisdiction, and Judge Gordon agreed that the torts alleged against Lisa, the orders, and her taking of his property in accordance with the orders, did not occur on navigable waters: “Even if Tim was on a ship during a Nevada court hearing related to that tort, the alleged events underlying the tort did not occur on navigable waters.” Accordingly, Judge Gordon dismissed the complaint. As Judge Gordon did not believe that the deficiencies in the complaint could be cured by amendment, he did not give Tim leave to amend. [Judge Gordon noted that Congress has given active-duty military personnel the ability to stay state-court civil cases while they are on active duty, but it has not extended that relief to merchant mariners].
Conclusory statements about the presence of crewmembers in the vicinity of the passenger’s slip and fall were insufficient to plead notice to the cruise line; Solano v. Carnival Corp., No. 1:25-cv-20535, 2025 U.S. Dist. LEXIS 75859 (S.D. Fla. Apr. 21, 2025) (Bloom).
Susanne Helen Lively Solano, a passenger on the CARNIVAL DREAM, was injured when she slipped and fell on a slippery tile floor while walking on the Lido Deck of the vessel from the outdoor pool area to the Gathering Lido Restaurant/Buffet, near the Swirls’ ice cream machine. Solano brought this suit against the cruise line in federal court in Florida, alleging that there were crewmembers in the immediate area of the fall who observed, or should have observed, the hazard and should have warned Solano about the hazard. The cruise line moved to dismiss the complaint for lack of sufficient pleading of notice, and Solano argued that it was sufficient that she identified a specific location on the vessel under the control of the cruise line, describing the circumstances leading to the incident. Judge Bloom acknowledged that Solano pleaded that there were crewmembers in the immediate area who should have observed the slippery substance and that other judges have held that the presence of crewmembers in the immediate vicinity of a visibly dangerous condition can establish constructive notice. However, Judge Bloom noted that Solano did not present details explaining where the employees were, what their job responsibilities were, or how long the employees or the hazardous condition had been present. Solano’s conclusory statements were too vague, and Judge Bloom dismissed the complaint for failure to state a claim, with leave to amend.
Court awarded attorney fees in suit for breach of contract to transport goods pursuant to maritime law, not state law, as the contract provided for an award of attorney fees; Ocean Network Express PTE Ltd. v. By Rodocker LLC, No. 24-cv-1470, 2025 U.S. Dist. LEXIS 76089 (D. Ariz. Apr. 22, 2025) (Lanham).
Ocean Network Express assumed common carrier responsibility to transport goods for By Rodocker, LLC via ocean and intermodal carriage. Rodocker did not pay the freight, and Ocean Network Express brought this suit against Rodocker in federal court in Arizona. Rodocker defaulted, and Ocean Network Express sought attorney fees, citing Arizona law. Judge Lanham noted that the contract between the parties provided for the application of United States law, and, as the contract provided for an award of attorney fees, she awarded fees under maritime law. Ocean Network Express sought reimbursement for counsel at $275 per hour and for two paralegals at $100 per hour and $75 per hour. As these rates were below the rates found reasonable in other cases, she accepted the rates and awarded a total amount of $1,432.50.
Judge dismissed attachment action after the ship turned around before docking in the jurisdiction of the court; Atlantic Oceanic LLC v. HF Offshore Services Mexico Sapi De CV, No. 1:25-cv-77, 2025 U.S. Dist. LEXIS 76160 (S.D. Miss. Apr. 22, 2025) (Ozerden).
Atlantic Oceanic asserts that it time chartered its offshore supply vessel M/V ATLANTIC TONJER to HF Offshore Services Mexico (HF Mexico) and that HF Mexico terminated the charter and did not pay Atlantic Oceanic. Atlantic Oceanic was issued partial awards against HF Mexico in a London arbitration ($12,335,327.52), and Atlantic Oceanic brought this suit against HF Mexico in the United States District Court for the Southern District of Mississippi, seeking a Rule B attachment of the M/V HF HUNTER, owned by HF Hunter Shipping (HF Hunter). Atlantic Oceanic claimed that HF Mexico created HF Hunter for the purpose of shielding assets from the London arbitration awards and that HF Mexico transferred ownership of the ATLANTIC TONJER (renamed HF HUNTER) after receiving notice of the London arbitration. The HF HUNTER was scheduled to dock in Pascagoula, Mississippi, and Magistrate Judge Myers issued Process of Attachment of the vessel. However, after the suit was filed, the vessel turned around and did not enter the Southern District of Mississippi. HF Hunter then moved to vacate the attachment, arguing that the court lacked personal jurisdiction over HF Hunter, a Singapore company with its principal place of business in Mexico as it did not have property in the district to attach to obtain jurisdiction. HF Hunter also argued that the attachment should fail because Atlantic Oceanic had not shown that HF Hunter was an alter ego of HF Mexico so that it could attach HF Hunter’s property and that the dismissal should be with prejudice because Atlantic Oceanic had previously dismissed similar claims in a suit in federal court in Texas. Chief Judge Ozerden agreed that the court did not have personal jurisdiction as the vessel never entered the district. Therefore, he vacated the Process of Attachment and dismissed the case for lack of personal jurisdiction. Chief Judge Ozerden declined to rule on the other arguments and stated that the order would not operate as an adjudication on the merits of the dispute, stating that when the district court lacks jurisdiction, “it is emphatically powerless to reach the merits.” Accordingly, the dismissal was without prejudice.
Fishing schooner constructed in 1942 that serves as a moving maritime museum is a vessel that may seek limitation of liability; In re Crew Ventures, LLC, No. 24-cv-6941, 2025 U.S. Dist. LEXIS 76528 (S.D.N.Y. Apr. 22, 2025) (Ramos).
Crew Ventures, LLC, GBSZ, LLC, d/b/a Grand Banks, and FV Sherman Zwicker LLC own the SHERMAN ZWICKER, a 1942 timber-constructed Grand Banks auxiliary fishing schooner that was originally used as a fishing schooner and later became a moving maritime museum. The SHERMAN ZWICKER is docked at Battery Park in New York City where it serves as the location of the Grand Banks Restaurant. It has taken 13 voyages to Brooklyn, Connecticut, and Maine since 2014, and it travels to Connecticut each winter for repairs. This litigation does not involve a collision or attack by corsairs. On July 29, 2023, Adam Phillips was struck by an unsecured umbrella while visiting the restaurant, and Phillips filed a suit against the vessel owners in the Supreme Court of New York County, New York. The owners then filed this limitation action in federal court in New York and moved the court for an order approving the stipulation in value in the amount of $200,000 and enjoining proceedings against the owners. Phillips argued that the federal court lacked jurisdiction because the SHERMAN ZWICKER is no longer a vessel, citing the appraisal report that the schooner did not have propulsive capability as the propeller and rudder were removed. An addendum, however, stated that the propeller and rudder were undergoing repairs and would be reinstalled, which would allow the structure to have the capacity for self-propulsion (the schooner still had its original auxiliary propulsion engine, which was rebuilt in 2010). Judge Ramos noted that the schooner had not been permanently converted for non-transportation purposes, maintaining its original engine. Judge Ramos added that self-propulsion was not dispositive under Lozman and that the issue was whether the structure was no longer practically capable of being used as a means of transportation. He concluded that “a reasonable observer would conclude that, given its overall maintained physical structure and continued transportation activities, it is designed to transport people or cargo.” Consequently, the SHERMAN ZWICKER is a vessel for admiralty jurisdiction, and Judge Ramos approved the ad interim stipulation and stayed claims against the owners.
Judge declined to grant the pleasure boat owner’s motion for summary judgment in the suit brought by an injured passenger arising from the vessel’s striking an unknown object; Bishop v. Zillen, No. 2:23-cv-935, 2025 U.S. Dist. LEXIS 76593 (W.D. Wash. Apr. 22, 2025) (Lasnik).
On July 4, 2020, Joseph Zillen was operating his 30-foot power/sailing vessel HALE KAIL in the vicinity of Lopez Island, Washington when the vessel struck something in the water, resulting in an injury to Julie Bishop, a passenger on the vessel. Bishop brought this action against Zillen in the Superior Court of San Juan County, Washington, and Zillen removed the case to federal court in Washington based on the federal court’s original admiralty jurisdiction (tort on navigable waters). Bishop asserted causes of action for negligence for failing to maintain a proper lookout and failure to provide medical care to Bishop when she was injured on the vessel (Bishop later withdrew the claim for failure to provide medical care). Zillen moved for summary judgment, and Bishop responded with an export report from Captain Charles A. Jacobsen stating that it was Zillen’s responsibility to accurately track the vessel’s position and observe the path of travel for impediments that may endanger the vessel. Captain Jacobsen concluded that by his lack of observation and recognition of impending navigational hazards, Zillen failed to exercise prudent and safe seamanship, causing Bishop to be injured. Captain Jacobsen acknowledged: “It is unknown if the vessel struck submerged shoreline or rock reefs, or if a log or floating object was impacted in the course of travel.” However, Zillen knew that the area was shallow, that there were rocks in the area, and that the vessel’s keel was only six inches above the low mean tide. Zillen also admitted that he was going too fast and was not watching out for rocks as he should have been. Therefore, Judge Lasnik found a factual dispute as to the failure to maintain a proper lookout that could not be resolved with a motion for summary judgment. He did, however, dismiss the claim for failure to provide medical care.
Bank’s in rem action against the vessel to foreclose on a ship mortgage does not allow the bank to obtain a deficiency judgment after the vessels have been sold; Century Bank v. M/V SUMMER 69, No. 0:23-cv-61616, 2023 U.S. Dist. LEXIS 77303 (S.D. Fla. Apr. 23, 2025) (McCabe)
Century Bank brought this action, in rem, to foreclose on preferred ship mortgages on the M/V SUMMER 69 (a 130-foot luxury yacht) and the M/V 689 (a 42-foot center-console sportfishing boat). The complaint, filed in federal court in Florida, only named the vessel and did not name the mortgagor, Biology Research, LLC. Judge Singhal granted summary judgment against the vessels in the amount of $6,438,103.31, and the vessels were sold at auction, receiving $5,600,000 for the SUMMER and $295,000 for the 689, with a payment of $5,837,498.34 after deducting the Marshal’s commissions and costs. Later, the Bank sought to modify the prior judgment with additions for the deficiency between the judgment and sale price, the Marshal’s cost/commissions, costs, and attorney fees (a total of $2,039,191.90). Magistrate Judge McCabe denied the motion, explaining that the bank had the option to sue the vessels, in rem, and the mortgagor, in personam. However, it only chose to name the vessels. He schooled the bank with this reasoning: “By choosing to limit the Complaint solely to in rem claims, however, Plaintiff limited its relief solely to the value of the in rem vessels. Given that the vessels have already been sold at auction, no further relief can be granted. Stated differently, the Court cannot enter a deficiency judgment because there are no more defendants left in the case.” Magistrate Judge McCabe did not express an opinion whether the bank could obtain a deficiency judgment in a separate proceeding against the mortgagor or whether the bank could, at this late date, add the mortgagor to this suit. Therefore, Magistrate Judge McCabe recommended that the bank’s motion be denied as moot.
Promise to pay without security and insufficient evidence of the value of the vessel resulted in Judge declining to issue the monition in a limitation action; In re Aramark Sports & Entertainment Services, LLC, No. 2:25-cv-1112, 2025 U.S. Dist. LEXIS 78425 (E.D. Cal. Apr. 23, 2025) (Calabretta).
Aramark Sports & Entertainment Services, owner of a 2017 Sea Ray SDX, filed this limitation action in federal court in California in connection with an accident at El Dorado, California on Emerald Bay in South Lake Tahoe in which Mohamedessam Attiaham Mossa, renter of the vessel, put the vessel in reverse gear while Mohey Mersal, was behind the boat, resulting in a laceration of Mohey’s foot. Aramark filed a motion for issuance of monition and injunction and approval of its ad interim stipulation and promised that “upon demand” it would file a bond or letter of undertaking with the court. Judge Calabretta rejected that promise as insufficient security as it lacked the backing of insurance/surety to cover the potential liability.” Judge Calabretta also noted that the assertion of the value of the vessel ($31,432) lacked any meaningful support. Aramark submitted a declaration of its Marina Supervisor stating that he and his colleagues searched publicly available databases for a fair market value for the boat, and the number he provided was his estimate for the value at the end of the voyage. Judge Calabretta explained that the declaration lacked any information about the experience and knowledge of the declarant and did not identify his colleagues or their qualifications. Finally, Judge Calabretta expressed concern that the ad interim stipulation stated that it would be void with the filing of a letter of undertaking, stating that the stipulation provides the security with the backing of the letter of undertaking. Accordingly, Judge Calabretta declined to issue the Monition and Injunction, without prejudice. Aramark filed a renewed application that corrected the deficiencies, including a letter of undertaking from Indemnity Insurance Co. of North America, and on May 21, 2025, Judge Calabretta approved the security and issued the monition.
Passenger’s complaint against cruise line was insufficient for combining theories into a single negligence count and for failing to plead notice (rejecting the argument that notice was not necessary for a condition created by the cruise line as the pleading complained of failure to design); Francis v. NCL (Bahamas) Ltd., No. 1:25-cv-20664, 2025 U.S. Dist. LEXIS 78152 (S.D. Fla. Apr. 24, 2025) (Moore).
Linda Francis, a passenger on the BREAKAWAY, had an appointment with the crew to assist her in getting into the pool on the vessel. While walking to the pool for her appointment, Francis tripped and fell due to an elevated portion of the pool deck that was not open and obvious to her. Francis brought this suit against the cruise line in federal court in Florida, asserting a single negligence count that the cruise line breached its duty to her in five separate ways (including failing to design, failing to inspect and warn, failing to keep the deck reasonably safe, and failing to assist her in getting to the pool in light of her condition). As it was unclear what facts were connected to a cause of action and whether she was bringing one action or multiple actions, Judge Moore held that the pleading was insufficient. The cruise line also objected that Francis failed to plead notice, and she responded that she did not have to allege notice because the cruise line created the dangerous condition. Judge Moore answered that the complaint did not allege that the cruise line created the unsafe condition, but that it failed to properly design the pool deck. Therefore, he held that the pleading was insufficient for failing to plead notice. As Francis had already filed an amended complaint, Judge Moore granted her one more opportunity to file an amended complaint.
Judge enforced forum-selection clause from charter parties in dispute between the owner and charterer over repair to the vessel at the end of the charters; ATB Marine, Inc. v. AES Puerto Rico, L.P., No. 24-cv-922, 2025 U.S. Dist. LEXIS 78625 (D. Del. Apr. 24, 2025) (Williams).
ATB Marine, a Delaware company, owns and operates tugs and barges used to transport bulk cargoes. AES Puerto Rico is a Delaware limited partnership that owns and operates a coal-burning electric generating station in Guayama, Puerto Rico. ATB Marine and AES Puerto Rico entered into three time charters for an articulated tug-barge unit by which ATB Marine agreed to transport coal ash from Puerto Rico to Jacksonville, Florida for disposal. The charters provided that AES Puerto Rico was responsible for loading and discharge and for any damage to the vessel from the loading and discharge. At the end of the charters, ATB Marine identified damage to the hold of the barge, requiring repair in the amount of $2,664,380. AES Puerto Rico declined to pay for the repair, and ATB Marine brought this suit against AES Puerto Rico in federal court in Delaware. AES Puerto Rico moved to transfer the case to the federal court in Jacksonville, Florida based on the convenience of the parties and witnesses, and ATB Marine responded by citing the Delaware forum-selection clauses in the charter parties. AES Puerto Marine argued that the forum-selection clauses were not applicable because the charters were entered into with Express Marine. Judge Williams easily rejected that argument as the contracts were entered into with Express Marine “as Managing Agent for ATB Marine” and because ATB Marine was explicitly denoted in the charter parties as “Owner.” As the charter parties contained valid forum-selection clauses, Judge Williams did not consider the private interest factors and addressed the public interest factors. Those factors weighed against transfer, but, more importantly, Judge Williams held that AES Puerto did not meet its burden to show why the court would transfer the case from the district that was agreed by the parties. Therefore, he denied the motion to transfer.
Rain ending an hour before a passenger’s slip-and-fall on the gangway to a cruise ship did not provide notice to the cruise line of a dangerous condition; Pollard v. Carnival Corp., No. 24-cv-20497, 2025 U.S. Dist. LEXIS 79298 (S.D. Fla. Apr. 25, 2025) (Martinez).
Lariana Pollard, a passenger on the CARNIVAL CONQUEST, fell on a slippery substance on the gangway while departing the vessel. She brought this suit against the cruise line in federal court in Florida, asserting claims for negligent inspection and maintenance of the gangway, negligent failure to warn her of the slipping hazard, and negligent failure to offer assistance. The cruise line moved to dismiss the complaint for failure to adequately allege notice, and Pollard responded that she sufficiently pleaded notice based on four prior slip-and-fall cases, based on policies and procedures to ensure safe ingress and egress in the event of rain, and based on rain during the morning of her fall that ended about an hour prior to the incident. Judge Martinez rejected each basis claimed by Pollard. Although she alleged that she fell on a slippery substance, and that it rained earlier in the day, she did not plead that she slipped and fell on rainwater. Pollard claimed that it was a reasonable inference that the gangway would still be wet after the rain and that rainwater is slippery. However, Judge Martinez did not believe that was an accurate representation of the “inferential leap” that Pollard asked the court to make. It was possible that she slipped and fell on rainwater, but she had to push the line to plausible, and the allegations did not cross the line. The court would have to assume that it rained enough to create puddles and that the puddles had not dried up before the disembarkation. The court would also have to assume that the slippery substance was not spilled soda, sunblock, or another substance. Therefore, Judge Martinez dismissed the complaint.
Judge held that it was premature to decide whether maritime law or Louisiana law applied to defense and indemnity obligations in contract to supply operators to check offshore wells and whether the defense and indemnity provisions were valid as there had not been a finding of fault on the part of the indemnitee; In re Whitney Oil & Gas Co., No. 22-cv-3015, 2025 U.S. Dist. LEXIS 79767 (E.D. La. Apr. 28, 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 Anti-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 Product 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.
Delaware federal judge transferred the claim of a Florida resident claiming exposure to oil and dispersants in Florida from the Macondo/DEEPWATER HORIZON blowout to the federal court in Florida; Whitty v. BP Exploration & Production Inc., No. 25-cv-254, 2025 U.S. Dist. LEXIS 79966 (D. Del. Apr. 28, 2025) (Connolly).
Dawn Whitty, a resident of Walton County, Florida, claims that she was exposed to toxic chemicals and dispersants from the Macondo/DEEPWATER HORIZON blowout in and around Santa Rosa Beach, Grayton Beach, Seaside Beach, Ed Walline Beach, Seagrove Beach, and Choctawhatchee Bay in Florida. She particularly alleged exposure at her residence, work, and in recreational activities. She brought this suit against BP and others in federal court in Delaware, and the case was consolidated with the Macondo/DEEPWATER HORIZON litigation in federal court in Louisiana with Judge Barbier. After the completion of the multi-district proceedings, the case was remanded to the federal court in Delaware, and BP moved to transfer the case to federal court in Florida. Chief Judge Connolly weighed the factors for transfer and concluded that seven weighed in favor of transfer, one (the plaintiff’s choice of forum) weighed against transfer, and four were neutral. Considered in totality, Chief Judge Connolly believed the factors weighed strongly in favor of transfer, and he transferred the case to the United States District Court for the Northern District of Florida.
Salvor was permitted to plead fraud claim under state law against state official for false statement made to stop the salvor from completing salvage work on vessels; James v. Taylor, No. 3:24-cv-2012, 2025 U.S. Dist. LEXIS 79995 (D. Ore. Apr. 28, 2025) (Simon).
John F. James, Jr. claims that he provided salvage work on two vessels that sank in the Columbia River. He asserts that, after reaching a level of success, James Taylor, an employee of the Oregon Department of State Lands, instructed the River Patrol to stop James’ operations so that James could obtain a permit that was not required. James stopped and unsuccessfully tried to obtain the permit; another company took over the salvage operation; and his equipment was stolen. James brought this action in Florida federal court against Taylor, seeking to recover for the value of his equipment and for the lost business opportunity. Magistrate Judge You recommended that the court sua sponte dismiss the case for failure to state a claim, reasoning that James did not state a claim for salvage or “a claim under an admiralty rule of the United Kingdom,” but Judge Simon believed that James sufficiently stated a claim for common-law fraud under Oregon law. Judge Simon reasoned that James had pleaded the elements that the defendant made a material misrepresentation that was false, with knowledge that the representation was false, intending the plaintiff to rely on the misrepresentation with resulting damage. Judge Simon summarized: “Plaintiff’s allegations that Defendant stated that Plaintiff needed to get a short-term permit ‘knowing’ it was false and done for personal gain and to stop Plaintiff from getting the salvage work, and that Plaintiff reasonably relied on that statement, attempted to get the permit, and then suffered damages, suffices to allege a common law claim of fraud.”
Judge struck cruise line’s affirmative defense of estoppel based on the passenger’s comparative fault, the defenses seeking to reduce the cruise line’s liability for the fault of third parties who are not party to the suit, and the defenses to liability from the contract of passage; Edelman v. MSC Cruises, S.A., No. 24-cv-23060, 2025 U.S. Dist. LEXIS 80003 (S.D. Fla. Apr. 28, 2025) (Bloom).
Gerald Edelman, a passenger on the MERAVIGLIA, slipped on a clear liquid while walking out of the buffet area of the vessel through the means of egress available near the elevators closest to the pool. Edelman brought this suit in federal court in Florida against the cruise line for negligence and failure to warn, asserting that the area was slippery from passengers in wet bathing suits walking through the area. The cruise line moved to dismiss the complaint for insufficient pleading of notice, but Edelman claimed that he established both actual and constructive notice based on his assertions that he complained to the crew of the dangerous condition earlier in the cruise, that there were crew members in the area who should have observed the dangerous condition, that the cruise line had a policy to place warning signs for hidden dangerous conditions and failed to place signs, that the cruise line had a policy to have employees look for and remove slipping hazards, and that there had been prior similar slipping accidents on other ships operated by the cruise line. The cruise line responded that Edelman’s alleged complaint was insufficient to provide notice of the specific danger where he fell, but Judge Bloom disagreed, noting that the complaint asserted that he had complained of the dangerous condition that caused his fall. She also rejected the argument that Edelman had to identify the specific crewmembers who received notice at the motion-to-dismiss stage of the litigation. Consequently, Edelman’s pleading of actual notice was sufficient for Judge Bloom to decline to dismiss the case (she did reject Edelman’s “serial listing of purportedly substantially similar events without any factual support explaining how and why these prior incidents would have put defendant on constructive notice”). See April 2025 Update.
Edelman then turned the tables on the cruise line and moved to strike several of the affirmative defenses pleaded by the cruise line. Edelman argued that the cruise line’s second and third affirmative defenses were redundant. The second defense alleged that Edelman’s failure to exercise ordinary care was the proximate cause of his injuries, and the third defense alleged that his negligence was the sole proximate cause of his injuries. Judge Bloom answered that the defenses were not redundant as one is an affirmative defense and the other is a specific denial, noting that comparative fault and sole proximate cause are distinct legal theories—comparative fault is a valid affirmative defense, and sole proximate cause denies an essential requirement of the plaintiff’s case. Judge Bloom also denied Edelman’s challenge to the affirmative defenses of superseding or intervening cause, failure to mitigate, a pre-existing condition, and failure to timely seek appropriate medical treatment, reasoning that they are valid defenses under maritime law. Edelman objected to the defense that, as a result of Edelman’s failure to exercise ordinary care (in the second defense), he was estopped from claiming damages. The cruise line argued that estoppel is a well-established equitable defense that prevents a party from contradicting prior conduct to gain an unfair advantage, and Edelman countered that the defense was asserting an impermissible claim of assumption of risk. Judge Bloom explained that assumption of risk is cognizable under maritime law, but it must be applied in conjunction with comparative fault to mitigate damages instead of acting as a complete bar to recovery. As the cruise line did not plead for mitigation, the defense was impermissible, and Judge Bloom agreed that it should be stricken. Edelman moved to strike the defenses that his damages were caused by the actions of third parties for whom the cruise line had no responsibility and that the cruise line’s liability should be reduced for the proportionate fault of third parties. The cruise line argued that the defenses were simply challenges to proximate cause and were allowed under the recognized superseding cause doctrine. Judge Bloom disagreed, agreeing with Edelman that the defenses were assertions of the Florida Fabre defense to allow the cruise line to attribute liability to a third party that is not named in the suit, which is not recognized under the maritime joint-and-several liability rule. Edelman objected to the defense that the action was governed by the terms of the contract for passage, but Judge Bloom responded that the action was based on a maritime tort and that any waiver or limitation on the negligence of the cruise line was void (there was no issue as to the forum or timeliness of the suit). Therefore, she struck the defense. Finally, Edelman moved to strike the defense that, as set forth in the contract, the claims were governed by admiralty law and subject to the court’s admiralty jurisdiction. Therefore, the case must be tried without a jury. The cruise line argued that the pleading was simply to put Edelman of notice of the claim that he was not entitled to a jury trial, and Judge Bloom declined to strike the defense.
Ship repairer had to replead its complaint to describe the vessel with particularity in order for the court to issue a warrant of arrest; vessel owner’s plea that it needed the use of the vessel to pay for the repairs was not a basis for the court to decline to issue the warrant; Leo’s Welding & Fabrication LLC v. P/V HANNAH, No. 2:25-cv-625, 2025 U.S. Dist. LEXIS 80295, 82345 (W.D. Wash. Apr. 28, 30, 2025) (King).
Leo’s Welding claims that it contracted with Sayak Logistics, owner of the P/V HANNAH, to provide repair work on the vessel to prepare it for the 2024 Bristol Bay salmon season (at a cost of $852,748). After Leo’s Welding completed the work, Sayak Logistics requested additional work, which Leo’s Welding invoiced on a time-and-materials basis for $1,969,622. Sayak Logistics only paid part of that amount, and Leo’s Welding brought this suit in federal court in Washington against the vessel and Sayak Logistics. Leo’s Welding filed motions for the issuance of a warrant of arrest and to appoint a substitute custodian. Judge King declined to grant relief to Leo’s Welding, however, noting that the pleadings failed to describe with reasonable particularity the property that is subject of the action. The complaint simply described the vessel as the “P/V HANNAH, Official Number 1067457, . . . a vessel documented under the laws of the United States and owned by in personam defendant Sayak Logistics, LLC.” Leo’s Welding then amended its motion to issue the warrant for arrest with this description: “According to the USCG Certificate of Documentation, the Vessel is steel construction and has no mechanical propulsion. The Vessel is 379.8 feet in length, 100 feet in breadth, and 21.5 feet in depth. The Vessel has a gross tonnage of 14,128 (ITC) and a net tonnage of 5,119 (ITC). The primary operational endorsements listed on the Certificate of Documentation are Fishery, Registry, and Coastwise. The Vessel’s International Maritime Organization (IMO) is 294 and Official No. 1067457. The Vessel’s hailing port is Dillingham, Alaska.” Finding that this language described the HANNAH with reasonable particularity, Judge King held that the conditions set forth in Rule C to issue the warrant of arrest were satisfied. Sayak Logistics argued that arrest of the vessel would imperil the vessel’s insurance coverage and its ability to participate in this year’s Bristol Bay salmon season, “thereby potentially eliminating Sayak Logistics’ ability to earn money to repay Leo’s Welding.” As the requirements for the arrest were satisfied, Judge King held that the issuance of the warrant was required, and he lacked discretion to refuse to issue the warrant. Therefore, he ordered the issuance of the warrant and ordered the parties to meet and confer in good faith to try to reach agreement.
Injured passenger was bound by one-year provision in the Ticket Contract that was accepted by her husband, despite her argument that she never agreed to the terms of the Ticket; Robinson v. Carnival Corp., No. 24-cv-24606, 2025 U.S. Dist. LEXIS 81995 (S.D. Fla. Apr. 30, 2025) (Altman).
Jessie Robinson claims that, on November 10, 2022, she was injured when she fell backwards while using a ramp to disembark from the CARNIVAL DREAM in Nassau, The Bahamas, due to the steepness of the ramp. She brought this suit against the cruise line just over two years later, on November 22, 2024, in federal court in Florida. The cruise line filed a motion to dismiss the complaint based on the provision in her Ticket Contract requiring that a suit be filed within a year of her injury, and Judge Altman converted the motion to dismiss into a motion for summary judgment. Judge Altman began by holding that the Ticket unambiguously created a one-year limitation period and that that the physical characteristics of the Ticket were sufficient to reasonably communicate the limitation provision. Thus, the application of the limitation turned on whether Robinson read or had the chance to read the Ticket before she boarded the vessel. The cruise line presented evidence of the “usual” process by which a passenger purchases a ticket and is required to accept the Ticket as part of the check-in process for the cruise. The cruise line did not contest that Jessie Robinson did not receive or personally agree to the terms of the Ticket. Instead, it submitted evidence that her husband, Kenneth, accepted the Ticket on October 22, 2022 on her behalf. Judge Altman agreed with the cruise line that the requirement that the passengers view the entire Ticket and certify that they had read it before purchasing a ticket was “more than sufficient to give those passengers an opportunity to become familiar with the limitations provision.” He added that whether Jessie actually read the Ticket was “not relevant to the reasonable communicativeness inquiry.” The issue was whether she had the opportunity to do so. Therefore, the cruise line had to produce unrebutted evidence that Kenneth accepted the Ticket on behalf of Jessie and that his acceptance was sufficient to reasonably put Jessie on notice of the Ticket’s limitation. The evidence showed that Kenneth accepted the terms on behalf of himself and his wife and that they would not have been allowed to board the cruise without that acceptance. Judge Altman concluded that Jessie “is bound by the Ticket Contract, which her husband accepted for her and which she had a reasonable opportunity to review.” Accordingly, her claim was time-barred by the terms of the Ticket. As an aside, Judge Altman noted that Jessie’s argument that she should not be bound by the terms of the Ticket would come with serious consequences. As she would not have been onboard the vessel legally, she would not have been owed the duty of reasonable care and would only have been owed the duty of humane treatment that is owed to a stowaway. Jessie filed a notice of appeal to the Eleventh Circuit.
Court agreed with hourly rates for attorneys for work on intervention in vessel arrest by bank to foreclose preferred ship mortgage, but the hours were reduced by 20%; RMK Merrill Stevens, LLC v. M/Y OCEAN DRIVE, No. 1:24-cv-21441, 2025 U.S. Dist. LEXIS 82186 (S.D. Fla. Apr. 30, 2025) (Goodman), recommendation adopted, 2025 U.S. Dist. LEXIS 100865 (S.D. Fla. May 28, 2025) (Williams).
RMK Merrill Stevens brought this action in federal court in Florida to foreclose on a maritime lien on the M/Y OCEAN DRIVE for dockage, electricity, dockside services, and other necessaries. The vessel was arrested, Ocean Drive Marine Ventures filed a claim of owner, and Grasshopper Bank filed a verified intervening complaint, in rem, seeking to recover on a first preferred ship mortgage. The owner did not post a bond or other substitute security, and the court ordered an interlocutory sale. The vessel was sold for $1,170,000, and substitute custodian RMK Merrill Stevens was awarded $339,000 for custodia legis expenses. Grasshopper Bank moved for summary judgment, and Judge Williams agreed that it could foreclose on the mortgage and awarded judgment to the Bank. The Bank then sought to recover its attorney fees in the amount of $65,606 based on the work of three lawyers at rates of $450 per hour, $400 per hour, and $365 per hour. Chief Magistrate Judge Goodman found the rates to be reasonable for attorneys admitted to the bar in 1969, 2003, and 2021 with respect to a maritime foreclosure action. Chief Magistrate Judge Goodman found that reductions were warranted in the 154.40 hours that were billed. He noted that the timekeepers “sometimes engaged in the practice of separately billing 0.10 hours for emails or telephone calls in related exchanges” and cited another decision stating that “creating multiple, separate billing entries for exchanging emails, telephone calls, or text messages on the same day with the same person resulted in excessive time billed.” Chief Magistrate Judge Goodman found examples of pleadings for which the time charged was excessive for the experience of the attorney and for review of documents that was excessive. He also found examples of secretarial or clerical tasks that should not have been charged by an attorney of 56 years. Finally, he pointed to examples of block billing. Rather than making line-by-line reductions, Chief Magistrate Judge Goodman recommended an across-the-board reduction of 20%, recommending an award of $52,484.80 in attorney fees. There was no objection to the recommendation, and Judge Williams adopted it.
Judge held that amended extracontractual claims of vessel owner against its hull insurer were sufficient based on the pleading that the insurer made up a nonexistent life raft warranty that is not in the policy; however, the Judge again struck the vessel owner’s jury demand on its counterclaim with a warning not to violate the court’s orders; Accelerant Specialty Insurance Co. v. Buzbee Robertson, LLC, No. 8:24-cv-2643, 2025 U.S. Dist. LEXIS 82679 (M.D. Fla. May 1, 2025) (Covington).
This litigation arises out of the sinking of Buzbee Robertson’s 54-foot Azimut yacht, PATRIOT, when Hurricane Beryl passed through Galveston, Texas. The vessel’s insurer, Accelerant Specialty, denied the claim on the ground that Buzbee Robertson breached the policy’s fire and windstorm plan warranties and made misrepresentations in its renewal questionnaire, and it brought this action in federal court in Florida seeking a declaration that the policy was void. Buzbee Robertson filed a counterclaim, asserting claims under New York law for breach of contract, breach of the implied covenant of good faith and fair dealing, deceptive business practices, fraud, and unjust enrichment (alleging that Accelerant systematically accepts premiums with no intent of paying claims by citing immaterial defects that are unrelated to the loss). Accelerant moved to dismiss all of the counterclaims except the claim for breach of contract, and Judge Covington noted that Buzbee Robertson’s claim for breach of the implied covenant of good faith was based on the same conduct as the claim for breach of contract (wrongly delaying and denying the claim). Therefore, she dismissed the implied covenant claim as duplicative, but she gave Buzbee Robertson one opportunity to amend. As for the claim for violation of the deceptive business practices statute, Accelerant argued that the conduct complained of was fully disclosed in the policy, which contained the express warranties relied on by Accelerant as well as the doctrine of uberrimae fidei. Judge Covington agreed to dismiss the claim, reasoning that where the conduct complained of is specifically provided in the policy, it is not a deceptive practice to rely on the disclosed provisions. However, Judge Covington gave Buzbee Robertson an opportunity to amend the claim. With respect to fraud, Judge Covington held that the allegations were conclusory and insufficiently pleaded. However, she gave Buzbee Robertson leave to amend the allegations. Judge Covington declined to dismiss the claim for unjust enrichment (arguing that it was unjust for the insurer to retain the premiums in the event the policy is declared void). Finally, Judge Covington struck the jury demand in Buzbee Robertson’s counterclaim as the suit was brought by Accelerant in admiralty, and Accelerant’s Rule 9(h) designation trumped the demand for a jury in the counterclaim. See May 2025 Update.
Buzbee Robertson filed an amended counterclaim, asserting claims for breach of contract, breach of the implied covenant of good faith, deceptive business practices under New York law, fraud, and unjust enrichment, and again including a demand for a jury trial. Accelerant moved to dismiss the claims for breach of the implied covenant of good faith, deceptive business practices, and fraud, and to strike the jury demand. Judge Covington began by reiterating her prior ruling that Accelerant’s Rule 9(h) designation trumped the demand for a jury trial on the counterclaim. She also noted that she had not granted leave for Buzbee Robertson to amend the demand for a jury trial. Judge Covington struck the jury demand, warning: “It was thus inappropriate for Buzbee to include a jury trial demand, pled in greater length, in its amended counterclaim. The Court again strikes the jury trial demand from the amended counterclaim and advises Buzbee that it will not tolerate any future violations of its orders.” Judge Covington then addressed the pleading of breach of the covenant of good faith. She previously dismissed the claim as duplicative of the claim for breach of contract, but the amended claim now asserted that the insurer “made up a nonexistent life raft warranty that is not in the policy.” As the claim was no longer duplicative of the claim for breach of contract, Judge Covington declined to dismiss it. Similarly, the count for deceptive business practices now asserted a pattern of deceptive conduct that included misrepresenting warranties (including the alleged non-existent life raft warranty) in order to deny claims. As that was a plausibly deceptive business practice, Judge Covington declined to dismiss the deceptive business practices count. And, as Buzbee Robertson identified specific statements that it claimed were misrepresentations, Judge Covington held that Buzbee Robertson had sufficiently complied with the requirements of Rule 9(b) for the fraud claim.
Indemnity clause in charter party did not provide for the vessel owner to recover attorney fees in action against the charterer for failure to pay charter hire; Seacor Marine LLC v. White Marlin Operating Co., No. 1:23-cv-8081, 2025 U.S. Dist. LEXIS 83101 (S.D.N.Y. May 1, 2025) (Ricardo).
Seacor Marine owns and operates vessels that are chartered by energy companies to support their offshore oil and gas operations. White Marlin Operating Co. chartered the LB PAUL from Seacor but only paid half of the charter hire. Seacor brought this suit in state court in New York County, New York seeking to recover damages for the failure to pay the charter hire, and White Marlin removed the case to federal court in New York based on diversity and original admiralty jurisdiction over the claim for breach of a maritime contract. Counsel for White Marlin withdrew from the case, and Seacor requested the court enter a default judgment. The charter party contained a choice-of-law provision that the charter would be construed in accordance with admiralty and maritime law and New York law to the extent admiralty and maritime law is inapplicable. Citing this provision, Magistrate Judge Ricardo applied New York law to determine the damages to be awarded. Seacor sought to recover attorney fees of $32,873.75, and Magistrate Judge Ricardo noted that the prevailing litigant is not ordinarily entitled to recover attorney fees under the American Rule. He added that New York law permits an award when authorized by agreement, but the court may not infer a promise to pay attorney fees unless the intent is “unmistakably clear from the language of the promise.” Seacor claimed that the charter allowed recovery of attorney fees in the section providing that Seacor and White Marlin agreed to release and waive and to defend and indemnify each other from claims for damages regardless of how they were incurred, including negligence, unseaworthiness, breach of warranty, and breach of contract. Magistrate Judge Ricardo reasoned that the provision did not mention attorney fees and did not state that the parties were providing indemnity for first-party claims (between Seacor and White Marlin) as opposed to third-party claims. Thus, it was not unmistakably clear from the charter party that Seacor was entitled to recover attorney fees, and Magistrate Judge Ricardo recommended that Seacor should not recover attorney fees.
Pleading of negligence and trespass claims to oyster beds from the vessels of two defendants was sufficient for the court to deny the defendants’ motion to dismiss; Jurisich v. Sunland Construction, Inc., No. 3:24-cv-316, 2025 U.S. Dist. LEXIS 83847 (S.D. Tex. May 2, 2025) (Edison), recommendation adopted, 2025 U.S. Dist. LEXIS 95643 (S.D. Tex., May 20, 2025) (Brown).
Tony Jurisich and others own oyster leases in Galveston Bay. Florida Gas owns a pipeline that runs across the Bay in an easement that allows it to maintain, operate, inspect, and repair the pipeline. Florida Gas and Sunland Construction operated vessels in the vicinity of the oyster leases, and the lease owners alleged that the wheel wash of the vessels caused damage to the oyster beds. The lease owners brought this suit in federal court in Texas against Sunland and Florida Gas based on negligence and trespass, claiming admiralty jurisdiction, and the defendants moved to dismiss the case, citing the recent decision in Shelley v. Hilcorp (see August 2023 Update) in which Judge Fallon in Louisiana dismissed the complaint of oyster growers because they did not provide the “when, where, what, or why, or how” any specific defendant “individually caused damage to the plaintiffs’ oyster beds.” The Fifth Circuit agreed in that case that the oyster growers were unable to allege “which of the approximately eighteen Defendants were negligent” (see In re Settoon in the August 2024 Update). Magistrate Judge Edison considered that case to be “readily distinguishable” because the plaintiffs in that case failed to plead particularized facts about the defendants and only alleged that the defendants collectively caused the oyster mortality. This case only involved two defendants and gave fair notice to both of conduct that was sufficient to state a claim. Accordingly, Magistrate Judge Edison recommended that the motion to dismiss be denied. The defendants objected to the recommendation, but Judge Brown agreed with Judge Edison and denied the motion to dismiss.
Judge dismissed NVOCC’s third-party complaint against the VOCC in cargo-damage suit based on the forum-selection clause in the VOCC’s bills of lading, and the dismissal included the Rule 14(c) tender of the VOCC to the plaintiff/shipper; Judge dismissed NVOCC’s third-party complaint against the interests of the vessels that carried the cargo based on the clause in the VOCC’s bills of lading insulating subcontractors from liability; XL Specialty Insurance Co. v. Fracht FWO Inc., No. 1:24-cv-1987, 2025 U.S. Dist. LEXIS 84209 (S.D.N.Y. May 2, 2025) (Rakoff).
Leprino Foods Dairy Products Co., which sells dairy products, sought to ship string cheese from Chicago, Illinois to Busan, South Korea. Leprino Foods contracted with Fracht FWO, a non-vessel operating common carrier and freight forwarder to arrange the shipments, and Fracht FWO engaged vessel operating common carrier CMA CGM, which contracted with the owners and operators of the vessels that carried the cheese, the M/V EVER LAUREL and the M/V EVER LASTING. The cheese spoiled during the transit, and Leprino Foods’ cargo insurer, XL Specialty Insurance, brought suit against NVOCC Fracht FWO in state court in New York pursuant to a forum-selection clause in the bills of lading issued by Fracht FWO. Fracht FWO removed the case to federal court in New York based on the court’s original admiralty jurisdiction, and it filed a third-party complaint against the VOCC and vessel interests that included a Rule 14(c) tender to the plaintiff. CMA CGM moved to dismiss the third-party complaint based on forum selection clauses in its bills of lading providing for exclusive venue of a dispute between the Carrier and Merchant before the Tribunal de Commerce de Marseille. As the bills of lading referred to CMA CGM as the Carrier and the Merchant as Fracht FWO, Judge Rakoff held that Fracht FWO was bound by the Marseille venue. Fracht argued that the Rule 14(c) tender was not subject to the forum-selection clause as Leprino Foods was not a party to the bills of lading issued by CMA CGM, but Judge Rakoff noted that the courts “routinely hold that exporters (like Leprino) are bound by forum selection clauses found in bills of lading that NVOCCs (like Fracht) negotiate with VOCCs (like CMA) on their behalf.” Judge Rakoff added that the terms of the bills of lading made it clear that Leprino Foods was bound by them. Therefore, he dismissed Fracht FWO’s third-party claim against CMA CGM. The vessel interests moved to dismiss the third-party complaint, including the Rule 14(c) tender, based on the provisions of CMA CGM’s bills of lading that insulated subcontractors from any liability for claims arising out of the bills of lading. Judge Rakoff agreed that the vessel defendants were entitled to judgment on the pleadings, and he dismissed them from the suit (adding that he could have dismissed them based on the forum-selection clause because the Himalaya Clause extended the defenses in the bills of lading to them). Judge Rakoff concluded that the case would proceed between XL Specialty and Fracht FWO.
Judge denied premature cross-motions for sanctions with respect to the propriety of bringing a limitation action; In re Bextermueller, No. 2:24-cv-688, 2025 U.S. Dist. LEXIS 84609 (M.D. Fla. May 5, 2025) (Chappell).
This litigation arises from damage to Alexander Eaton’s boat lift and other property near Fort Myers, Florida during Hurricane Ian, caused by a Sea Ray Bow Rider 280 owned by Kenneth and Debra Bextermueller. Eaton filed a suit against the Bextermuellers in Florida state court, and the Bextermuellers filed this limitation action in federal court in Florida. The Bextermuellers stated that the value of their vessel was $21,392.50, and they identified Florida Farm Bureau General Insurance, the vessel’s insurer, as surety. They promised that Florida Farm would pay the vessel’s value as the court orders. Magistrate Judge Mizell declined to approve the security and issue the stay, reasoning that the promise of the petitioners did not satisfy the requirements of Rule F. The Magistrate Judge denied the request to approve the ad interim stipulation without prejudice. See September 2024 Update.
After the Bextermuellers satisfied the requirements of Rule F with a letter of undertaking from Farm Bureau Mutual Insurance Co., they filed a motion for sanctions and to strike the request for relief asserted by Eaton in his answer and affirmative defenses in which he sought attorney fees from the Bextermuellers. The Bextermuellers argued that the litigation involved a tort claim subject to the American Rule and that Eaton had not cited any basis for recovery of attorney fees. Eaton responded that the act of bringing the limitation action was bad faith that entitled him to attorney fees. Although Judge Chappell stated that she “doubts that the mere act of bringing this limitation action constitutes bad faith,” she added that it was “far too early” to make such a determination (she noted that the discovery deadline did not expire for nearly six months). Judge Chappell then addressed Eaton’s motion for sanctions, arguing that the limitation action was brought in bad faith because the Bextermuellers were “presumptively negligent for unreasonably leaving their boat at his dock during Hurricane Ian.” The Bextermuellers responded that Eaton’s motion was akin to a premature motion for summary judgment to resolve material issues of law and fact. Judge Chappell stated that she “could not agree with Petitioners more. It is almost unfathomable how Claimant thinks the Court could grant his motion at this early state of the litigation, particularly when the negligence presumption is rebuttable.” Therefore, she denied Eaton’s motion as premature.
Marine technician hired to work on yacht sufficiently alleged a claim for overtime under the FLSA; Theodore v. Expoships, LLLP, No. 0:25-cv-60326, 2025 U.S. Dist. LEXIS 86059 (S.D. Fla. May 6, 2025) (Leibowitz).
Expoships operates private yachts for commercial and private events. Expoships hired Sherwin Ramont Theodore as a marine technician for the M/V GRAND LUXE under a contract stating that he was a marine employee who is exempt from the provisions of the Fair Labor Standards Act. According to the vessel’s captain, Theodore was hired as a wiper (an uncredentialed member of the engineering department), who was responsible for structural fire protection and HVAC insulation, keeping the vessel in compliance with fire control boundaries, pipe and duct insulation, and performing deck duties when the vessel was under operation. He was not involved in housekeeping, bartending, or passenger-service duties. Theodore brought this suit in federal court in Florida against Expoships, seeking to recover overtime under the FLSA. Expoships moved to dismiss the complaint on the ground that Theodore was a seaman who is excluded from the FLSA. Judge Leibowitz first noted that the statement in Theodore’s contract did not support the motion to dismiss because workers cannot contract out of their rights under the FLSA. Judge Leibowitz then noted that evidence from the captain with respect to the amount of time spent by Theodore doing seaman’s work was not relevant to a motion to dismiss, which is governed by the allegations in the complaint. Finally, Judge Leibowitz disagreed for two reasons with the argument that Theodore was a seaman under the Jones Act, and he must, therefore, fall within the seaman exclusion in the FLSA. First, the allegations in the complaint did not establish that Theodore was a seaman. Second, the tests for seaman status under the Jones Act and FLSA are different, so Theodore could be covered under the Jones Act and not be excluded from the FLSA. Therefore, the motion to dismiss was denied.
Judge awarded pre-judgment interest in suit against insurer for damage to vessel from the date of notification of the insurer of the loss (six years ago) and not the date of the denial of the claim (three years later); vessel owner was not entitled to attorney fees for successful prosecution of the insurance claim under maritime law or state law applicable to the policy; Judge declined to reinstate extra-contractual claims (that had previously been dismissed) after the jury found against the insurer on the contract claim; Stokes v. Markel American Insurance Co., No. 1:19-cv-2014, 2025 U.S. Dist. LEXIS 87047 (D. Del. May 7, 2025) (Bibas).
James Stokes’ vessel, MIDNIGHT EXPRESS, sank while moored in Ocean View, Delaware during heavy rain from Hurricane Michael in October 2018. He brought this suit against the hull insurer for the vessel, Markel, in Florida state court, and Markel removed the case to federal court based on diversity. Chief Judge Altonaga transferred the case to the federal court in Delaware, and the parties filed motions with respect to experts, choice of law, and summary judgment. Stokes argued that the court should strike the reports of Markel’s experts, Robert K. Taylor and Matthew Schmahl. Taylor, Markel’s expert engineer and naval architect, conducted a float test and leak test, but Stokes’ expert testified that the tests were not conducted in accordance with industry standards and did not provide reliable support for Taylor’s opinions. The assertions from Stokes’ expert did not, however, persuade Judge Stark that Taylor had employed improper methodology, and Judge Stark declined to strike Taylor’s opinions. Stokes objected to the opinions of Schmahl, a marine surveyor with nearly 40 years of experience, and Judge Stark considered him to be qualified to discuss whether damage to component parts was caused by submersion and that his opinions were not duplicative of Taylor’s more general opinions on causation. Before considering the merits, Judge Stark had to decide the applicable law. As the suit was originally removed to federal court as a diversity case, Judge Stark applied Florida conflicts principles, including giving effect to the policy’s choice-of-law provision that maritime law would apply to the policy except that state law would apply when no substantive maritime principle or precedent was applicable. This left a decision to be made when there was established maritime law. Regardless of whether maritime or state choice-of-law applied to determine what state law to apply to the contract, Judge Stark held that Florida law did not apply. Florida applies lex loci contractus, and the contract was not executed in Florida. Stokes purchased the insurance and executed the policy in the District of Columbia, although he used the boat for most of the year in Florida and was in Florida when he negotiated and accepted the terms of an endorsement that extended the contractual period. Thus, Judge Stark held that the law of the District of Columbia would apply to the contract claims in the absence of an established maritime principle. There was a conflict in the legal principles that would apply to the tort claims, so Judge Stark applied the Florida significant relationships test and held that the law of the District of Columbia would apply with respect to representations made by Markel during the purchase of the policy by Stokes in the District of Columbia. Turning to the merits, Markel argued that the loss was not fortuitous or accidental, that a design defect was the proximate cause of the loss, and that the vessel was unseaworthy, in violation of the policy’s seaworthiness warranty. The policy included a sudden accidental damage clause, which the parties agreed was synonymous with the fortuity doctrine. Judge Stark considered the fortuity doctrine to be an entrenched principle of admiralty law, applying when a loss is unforeseen, unexpected, unintended, unavoidable, or caused by the insured’s own negligence, but not when it results from intentional misconduct of the insured or an inherent defect or normal wear and tear. Although heavy rainfall can be considered to be a fortuitous event, there were disputes about the severity of the rain, whether design defects caused the loss, and whether the vessel was seaworthy. Judge Stark held that, under maritime law, courts consider the predominant or determining cause, and that, when two causes appear to exist, the court should consider the cause that rendered the loss inevitable (rejecting application of the concurrent causation doctrine under state law as it did not apply under admiralty law). As the parties presented different views of what caused the loss, the determination of coverage would depend on which party was found to be correct on causation. The fact dispute precluded summary judgment on the contract claim. Applying D.C. law to the tort claims, Judge Stark held that tort claims may be sustained concurrently with a contract claim only if they are based on conduct distinct from the conduct underlying the contract claim. The claims for negligent misrepresentation and fraud did not satisfy that requirement and were dismissed (as they were not independent of the contract); however, the claim for fraudulent inducement leading up to the procurement of the policy was independent and survived the motion for summary judgment. See May 2022 Update.
Stokes filed a new complaint that alleged breach of contract and six other claims, and Markel moved for summary judgment on all of the claims other than the claim for breach of contract. Judge Bibas of the Third Circuit, sitting by designation, dismissed all of the other claims. He dismissed the claim for a declaratory judgment as it sought the same relief as the claim for breach of contract. Stokes’ claim for conversion (because Markel kept the boat after determining that it was not a total loss) did not state a tort claim independent of the contract, and Stokes will be able to address this alleged wrongdoing in his contract claim. Judge Bibas dismissed the claim for breach of an implied covenant of good faith and fair dealing under D.C. law on the ground that there is no such claim under D.C. law and the covenant is a theory about which contractual duties were breached. Judge Bibas did not find a private right of action under D.C. law for unfair claim settlement practices and dismissed that claim, and he found that Stokes did not adequately plead a claim for breach of the D.C. Consumer Protection Procedures Act. Finally, although his fraud claim was previously dismissed, Stokes repleaded it under D.C. law, claiming that it was distinct from his prior pleading under the laws of the Eleventh Circuit. Finding that it was, again, insufficiently pleaded, Judge Bibas dismissed it. See April 2023 Update.
The case was tried to a jury, which found in favor of Stokes that the cause of the sinking was a fortuitous loss, that the cause of the sinking was not a design defect, and that the vessel was not unseaworthy at the commencement of the policy coverage. Judge Bibas entered a judgment in favor of Stokes in the stipulated amount of $646,000, and Stokes sought post-trial relief of pre- and post-judgment interest, attorney fees and costs, and reinstatement of claims that the court previously dismissed. Judge Bibas agreed that Stokes should recover pre-judgment interest, but Markel argued that the interest should accrue from the date that it denied the claim, three years after the vessel sank in 2018. Reasoning that a good-faith dispute over liability does not justify denying pre-judgment interest, Judge Bibas agreed to award interest from the date that Stokes notified Markel of the sinking of the vessel in 2018. Judge Bibas declined to award pre-judgment interest at the rate set by Delaware law (5%), which exceeded the average risk-free rate for short-term Treasury bonds for the pre-judgment period (2.54%), reasoning that it would be “lavishing a premium on Stokes far above the riskfree return that he would have earned if he had been paid when his boat sank.” Judge Bibas agreed to award costs and post-judgment interest, but he declined to award attorney fees to Stokes, answering that maritime law, not Florida law applies to this case. Judge Bibas stated that maritime law generally requires the parties to pay their own fees; however, it does let parties recover attorney fees for breach of a marine insurance contract when the applicable state law allows it. However, the applicable law is that of the District of Columbia, which does not allow attorney fees absent bad faith. Accordingly, as Stokes only prevailed on his “run-of-the-mill claim for breach of contract,” Judge Bibas held that he was not entitled to attorney fees. Finally, Stokes argued that because the jury found that Markel breached the insurance contract the court should reinstate the extra-contractual claims that had previously been dismissed. It was not clear to Judge Bibas “why he thinks that is proper; as best I can tell, he seems to think that because Markel breached a contract, he now gets a second crack at arguing that Markel acted in bad faith.” However, Stokes offered nothing “beyond this bald and specious syllogism,” and Judge Bibas noted that this was “not the first time that Stokes’s counsel has tried to use an unrelated motion to relitigate positions that he already lost.” In denying Stokes’ motion to reinstate the dismissed claims, Judge Bibas concluded: “Now counsel is at it again. I once again deny the request to relitigate issues that have already been resolved and I once again do not look kindly on counsel’s obstinacy. Such conduct risks sanctions, including an award of attorney’s fees to opposing counsel.”
Stokes filed a notice of appeal to the Third Circuit (on which Judge Bibas sits) from the denial of his request for post-trial relief (including the denial of his requests for attorney fees and to reopen the case) as well as the prior order dismissing his extra-contractual claims.
Incorporating a 20-foot by 1-foot section from the bulwark of a 70-year-old, 141-foot scallop boat, into a new fishing boat results in a new boat that requires documentation as a new vessel; Gemini Fishing Inc. v. United States Department of Homeland Security, No. 1:24-cv-12536, 2025 U.S. Dist. LEXIS 89708 (D. Mass. May 8, 2025) (Young).
This case is succinctly summarized by Judge Young in two sentences: ““A fifth grader would say [the VELARIS] is a ‘new boat.’” . . . Nothing more, really, need be said, but because this is a legal opinion issued pursuant to Fed. R. Civ. P. 52, a great deal must be.” In 2020, Gregory Kulpinski, president and owner of Gemini Fishing, purchased the F/V MICHIGAN, a 114-foot scallop fishing boat that was built in 1947, and used it until 2021 when he deemed that it was no longer safe for commercial fishing. He hired Norton Naval Architects to develop a plan for the rebuild of the vessel, and Norton recommended that a 20-foot (by 1-foot) section of the MICHIGAN be extracted with the rest of the vessel being constructed around that section. He advised that the vessel (with a new name, the VELARIS) could retain its original documentation, original Official Number, and its permits (based on guidance he received from the Coast Guard from an almost identical project in 2017). Kulpinski agreed because he did not want to construct a new vessel that would be subject to expensive construction and classification standards. Gemini Fishing hired Duckworth Steel Boats of Tarpon Springs, Florida for the rebuild and shipped the 20-foot section of the MICHIGAN’s bulwark to Duckworth. The MICHIGAN’s engine was destroyed, and the rest of the vessel was scrapped. Duckworth was unable to finish the rebuild after COVID-related delay, and the rebuild was completed by Fairhaven Shipyard. Gemini submitted documentation to the Coast Guard National Vessel Documentation Center for the MICHIGAN, certifying that the vessel’s name, tonnage, dimensions, and propulsion remained “absolutely the same,” and the Coast Guard updated and later renewed the certificate of documentation for the MICHIGAN. Gemini then applied for a new certificate of documentation in the name of the VELARIS, certifying that it had not been rebuilt or substantially altered, and the Coast Guard issued a new certificate. The VELARIS then commenced fishing. A routine safety examination by a third-party examiner led the Coast Guard to question inconsistencies in the paperwork for the VELARIS, and the Coast Guard ultimately cancelled the vessel’s certificate, stating that it determined the VELARIS was a new vessel, explaining that the material from the MICHIGAN that was incorporated into the VELARIS was extraneous to the VELARIS’s keel structure and did not contribute to the structural integrity of the vessel. Gemini brought this suit against the Department of Homeland Security, arguing that the decision of the Coast Guard was arbitrary and capricious, which presented the equivalent of Theseus’s paradox (whether an object that had all of its components replaced remains fundamentally the same object). Gemini argued that a 20-foot by one-foot section of the MICHIGAN’s bulwark, welded above the keel of the VELARIS, in several cut-up parts, was enough to maintain the identity of the MICHIGAN under its new name, VELARIS. Judge Young believed that Gemini’s strongest argument was whether it had received fair notice of the Coast Guard’s interpretation of its regulations in light of prior inconsistent interpretation and informal advice. “Gemini depicts itself as having been led down the primrose path to ruin, encouraged to go ahead with an expensive project now frustrated due to an unprecedented application of a regulation that was never before clearly defined.” Judge Young disagreed, noting that the history and communications reflected that “Gemini, or at least Norton, knew or at least feared that the regulations would be interpreted to mean what they say.” Concluding that “the Coast Guard’s interpretation of ‘new vessel’ was based on its expertise, thorough, validly reasoned, and not inconsistent with prior rulings,” Judge Young held that the Coast Guard had not acted arbitrarily and capriciously and declined to overturn the cancelling of the certificate of documentation for the VELARIS.
Towing company that provided tugs to tow barges under a contract with the charterer of the barges was entitled to a lien on the barges for the towage (but not for fuel provided to the tugs); Trailer Bridge, Inc. v. Louisiana International Marine, LLC, No. 22-cv-5358, 2025 U.S. Dist. LEXIS 88692 (E.D. La. May 9, 2025) (Brown).
Trailer Bridge, owner of the deck barges, ATLANTA BRIDGE and MEMPHIS BRIDGE, time chartered the barges to Work Cat Florida using a BIMCO Standard Barge Charter Party Agreement with a no-lien and indemnity provision. Work Cat Florida entered into two BIMCO Supplytime 2005 time charters with Louisiana International Marine for the use of the LA COMMANDER and the LA INVADER to tow the ATLANTA BRIDGE and the MEMPHIS BRIDGE. Work Cat did not pay for the towage and filed for bankruptcy. Louisiana International Marine filed a claim for $1,364,214.17 in the bankruptcy, and it also filed lien claims with the National Vessel Documentation Center against the ATLANTA BRIDGE and the MEMPHIS BRIDGE, for necessaries for towage. When Trailer Bridge sought to sell the work barges, Louisiana International Marine sent a demand to the purchaser, which sought defense and indemnity from Trailer Bridge. Trailer Bridge then brought this action in federal court in Louisiana, seeking a declaratory judgment that the liens asserted by Louisiana International Marine were invalid, and Louisiana International Marine filed a counterclaim seeking recognition of the liens. Before addressing the arguments on the merits, Chief Judge Brown initially declined to hold that Trailer Bridge was collaterally estopped (issue preclusion) from contesting the validity of the liens because it had repeatedly acknowledged the validity of the liens in the Work Cat Florida bankruptcy proceeding. She cited the documents from the bankruptcy proceeding reflecting that the liens were referenced, but their validity was not litigated. Turning to the validity of the lien under the Commercial Instruments and Maritime Liens Act, Chief Judge Brown easily concluded that towage services are necessaries, but Trailer Bridge argued that the towage services were not provided “for” the barges and that the barges did not benefit from the towage services, adding that “it was not necessary for the barges to be towed to effectuate their function – to stay afloat.” Chief Judge Brown disagreed, reasoning that the barges could not have provided their services without the towage provided by the tugs. Chief Judge Brown declined to extend the lien to the fuel that was provided to the tugs for the towage. The fuel was necessary to keep the tugs going, but it was not furnished to the barges, which do not require fuel. Therefore, Louisiana International Marine did not have a lien for the fuel costs. As Chief Judge Brown found that Louisiana International Marine furnished towage services to the barges that were necessaries, there was a presumption that it relied on the credit of the barges. However, Trailer Bridge presented the testimony of the corporate representative for Louisiana International Marine that it did not extend credit to the barges and that the invoices were addressed to Work Cat Florida. Chief Judge Brown did not find the invoicing to be dispositive as it only showed that Louisiana International Marine relied first on the charterer, not that it did not intend to rely on the credit of the barges. Although the Fifth Circuit considers corporate testimony on the reliance issue to be almost conclusive, Chief Judge Brown noted that it was unclear from the testimony whether the corporate representative understood the question about working on the credit of the barges and that he intended to forego the lien. Therefore, Chief Judge Brown found fact issues remained that needed to be resolved. See July 2024 Update.
Chief Judge Brown then conducted a bench trial, and she found that Trailer Bridge had not established that Louisiana International Marine relied solely on the credit of Work Cat Florida, accepting the testimony of the representative for Louisiana International Marine. Therefore, she held that Louisiana International Marine was entitled to a maritime lien against the ATLANTA BRIDGE and the MEMPHIS BRIDGE, and she awarded damages to Louisiana International Marine for the towage services (but she declined to award damages for the fuel oil/lube necessary for the tugs). Chief Judge Brown then considered whether the lien would extend to the stand-by time for the tugs, and she reasoned that during the stand-by time, the barges were kept out of danger and that the tugs could not have performed other work. Accordingly, she held that Louisiana International Marine was entitled to judgment for the stand-by time. Trailer Bridge, on behalf of the ATLANTA BRIDGE and the MEMPHIS BRIDGE, filed a notice of appeal to the Fifth Circuit on May 28, 2025.
Vessel owner owed shipyard subcontractor the limited amount agreed by the owner for stain work on a new pilothouse, but the subcontractor owed the owner damages for the defective fairing and painting job on the pilothouse; MB Marine LLC v. Wiehle Industries Inc., No. 2:23-cv-513, 2025 U.S. Dist. LEXIS 89071 (W.D. Wash. May 9, 2025) (Whitehead).
MB Marine, which operates charter vessels taking guests on multi-day cruises and hunting trips in Southeast Alaska, brought its 98-foot yacht GOLDEN EAGLE to Stabbert Marine, a shipyard in Seattle, Washington, to have a new pilothouse constructed and installed on the vessel. Stabbert Marine contacted Wiehle Industries to perform trim and stain work on the inside of the pilothouse. A Stabbert Marine employee and two Wiehle employees visited the vessel and met with MB Marine’s owner, Keegan McCarthy, to discuss the work. McCarthy believed that he was meeting with Stabbert Marine employees, and he stated that he did not want the work to go forward if it cost more than $4,000. Stabbert Marine agreed with Wiehl to perform the stain work as a subcontractor, and Wiehl’s owner, Gabe Wiehl, agreed that he did not have a contract with MB Marine. McCarthy did not agree that Wiehle had authority to perform the work, but Wiehl billed MB Marine $21,105.74 for the stain work. MB Marine did orally contract with Wiehle to fair and paint the pilothouse to match the rest of the vessel, including a smooth, glossy finish, on a time-and-materials basis. Wiehle painted the pilothouse, but the paint was not glossy, had thousands of small uneven bubbles, did not match the rest of the vessel, and chipped off easily. Wiehle billed MB Marine $25,347.50 for the painting and fairing. As the paint could not simply be painted over, MB Marine had to pay $53,785 to remove the peeling paint and to repaint the pilothouse. MB Marine tried to pay $4,000 to Wiehle (by check) for the stain work, but Wiehle refused payment and filed a maritime lien on the GOLDEN EAGLE in the amount of $46,453.24. MB Marine brought this action against Wiehle in federal court in Washington, asserting that it was prepared to post a bond to stay foreclosure of the lien, seeking a declaratory judgment that the lien was not valid, seeking recovery for the defective work, and seeking a judgment that its obligation for the stain work was limited to $4,000. Wiehle filed a counterclaim, seeking to recover the $46,453.24 based on breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel, and quantum meruit. Judge Whitehead tried the case and concluded that there was no time-and-materials agreement between MB Marine and Wiehle for the stain work. Reasoning that Wiehle did not establish the reasonable value of the stain work and considering that MB Marine conceded that it should pay $4,000 for the work, Judge Whitehead awarded Wiehle $4,000 based on a quantum meruit theory. Turning to the fairing and painting, Judge Whitehead found that Wiehle and MB Marine had an oral contract and that Wiehle breached the contract by failing to perform the work in a workmanlike manner. As the work had to be completely redone, Judge Whitehead awarded the loss in value of a workmanlike job, including the removal of the paint so that the work could be redone. As MB Marine did not pay Wiehle for the fairing and painting, Judge Whitehead deducted $25,347.50 from the $53,785 that it paid and awarded MB Marine $28,437.50. He offset the $4,000 owed by MB Marine for the stain work and granted judgment to MB Marine in the amount of $24,437.50 (the parties did not argue for attorney fees, so Judge Whitehead allowed the parties to file motions on the issue). Finally, Judge Whitehead held that Wiehl’s lien claim in the amount of $46,453.24 was not valid because the stain work significantly exceeded the agreed-upon price limitation of $4,000. Therefore, he granted a judgment that the GOLDEN EAGLE is not subject to the maritime lien that Wiehl asserted against the vessel.
Judge enforced forum-selection clause in referring attorney’s Representation Contract with a seaman in a suit by the seaman against associated counsel alleging breach of legal duties when the seaman only received 3% of the settlement and the lawyers retained 97% of the settlement for fees, expenses, and interest; Guidry v. Buzbee, No. 2:24-cv-2873, 2025 U.S. Dist. LEXIS 89509 (E.D. La. May 9, 2025) (Milazzo).
Adam Guidry, a Louisiana resident and licensed ship captain who was injured on the job, retained the Hodge Law Firm to represent him in his claim against the owner of the vessel on which he was injured. The Hodge Law Firm associated Anthony Buzbee, a Texas attorney, and the Buzbee Law Firm [this month’s Update previously discussed the case involving damage to the yacht PATRIOT owned by Buzbee Robertson], and Guidry brought this suit in federal court in Louisiana against Buzbee and the Law Firm, alleging that the “Defendants coerced him into settling his claim for less than one-third of the amount at which they initially valued it and retained 97% of the settlement amount for fees, expenses, and interest.” Guidry was “stunned to receive only $5,123.19” after the Defendants deducted $53,000 in fees and $266,876.81 in “expenses,” including $90,920.33 for expert witness fees, $5,935.01 for postage and copies, $9,763.20 for more copies, $9,493.05 for attorney travel expenses, and $150 for “closing fees.” Guidry asserts that the Defendants also deducted $25,723.52 in fees and expenses for the referring attorney (including $4,523.42 in expenses), and he added: “Worst of all, perhaps, the Buzbee Defendants charged Guidry $23,571.51 in ‘interest’ on $85,450 in ‘loans.’” The Buzbee Defendants objected to the Louisiana suit based on a Texas forum-selection clause in the Representation Contract that Guidry signed with the Hodge Law Firm. That Contract provided that the Hodge Law Firm may associate additional attorneys to assist in the representation, and Guidry signed a Consent to Association of Additional Counsel in which he agreed to the association of the Buzbee Defendants. The Buzbee defendants moved to dismiss the Louisiana suit based on forum non conveniens, and Guidry objected that the Buzbee Defendants could not enforce the forum-selection clause as they were not parties to the Representation Contract that contained the clause. Judge Milazzo noted that “the Fifth Circuit has adopted the ‘closely related’ doctrine to permit non-signatories to an agreement to enforce a forum selection clause where they enjoy ‘a sufficiently close nexus to the dispute or to another signatory such that it was foreseeable that they would be bound.’” Judge Milazzo reasoned that it was “more than foreseeable” that additional counsel might seek to enforce the forum-selection clause in this case in light of the terms of the original contract and the subsequent consent for the engagement of the Buzbee Defendants. Therefore, she held that the Buzbee Defendants could enforce the clause “because they enjoy ‘a sufficiently close nexus to the dispute.’” Guidry next argued that his claims for “fraudulent and tortious conduct” were outside the scope of the clause, but Judge Milazzo rejected that argument on the ground that the claims arose out of the Representation Contract and were, therefore, within the scope of the clause: “This Contract shall be governed by the laws of the State of Texas and any action shall be brought in the District Courts of Galveston County, Texas.” Judge Milazzo then balanced the public interest factors and held that this was not one of the “truly extraordinary cases” in which the public interest factors outweigh the forum-selection clause. Accordingly, she dismissed the case without prejudice.
Court had admiralty jurisdiction over a cruise line for a passenger’s injury on the land, but it lacked admiralty jurisdiction over the transportation company on whose motorcoach the passenger was injured; however the court had pendent jurisdiction over the transportation company; passenger failed to plead sufficient facts to establish personal jurisdiction over Spanish company that provided the inland transportation, but the passenger was allowed to conduct limited discovery on the issue whether the company consented to jurisdiction in California based on the transportation company being bound by the contract between the passenger and cruise line; Flores v. Princess Cruise Lines, Ltd., No. 2:24-cv-3023, 2025 U.S. Dist. LEXIS 90141 (C.D. Cal. May 9, 2025) (Frimpong).
Martha A. Flores, a citizen of California and a passenger on Princess Cruise Lines’ ENCHANTED PRINCESS, was injured on a motorcoach owned by Transcoma Cruises, which offers port logistics and travel services in Barcelona, Spain, during an airport-to-vessel transfer recommended by the cruise line. Flores brought this suit in federal court in California against the cruise line and Transcoma, based on the court’s admiralty jurisdiction, and Transcoma specially appeared and moved to dismiss the complaint for lack of personal jurisdiction and lack of subject matter jurisdiction. Transcoma argued that the court lacked admiralty jurisdiction against it because the tort did not occur on navigable waters and was not caused by a vessel, and the contract it performed involved transportation on land. Judge Frimpong agreed that there was no admiralty jurisdiction over Flores’ tort claim against Transcoma as she was injured inside the motorcoach on Spanish land, and it was too attenuated to conclude that Flores’ contract claim “somehow physically affected the cruise ship.” Judge Frimpong next addressed whether there was pendent jurisdiction over the claim against Transcoma based on Flores’ admiralty claim against the cruise line. She first concluded that there was admiralty jurisdiction against the cruise line based on Flores’ contract claim against the cruise line as a fare-paying vessel passenger [Flores’ contract claim was actually based on the service agreement between the cruise line and Transcoma]. Judge Frimpong also believed that the court had admiralty jurisdiction over Flores’ negligence claim against the cruise line, citing the Supreme Court’s contract decision in Kirby that “the shore is now an artificial place to draw a line. Maritime commerce has evolved . . . and is often inseparable from some land-based obligations.” Judge Frimpong concluded that “insofar as Flores alleges that the acts of Princess’s agent on land caused her harm, admiralty jurisdiction extends to that conduct.” It was an easy step for Judge Frimpong to hold that there was pendent jurisdiction over Transcoma, reasoning: “Because the broad language of 28 U.S.C. § 1333 permits subject matter jurisdiction over non-admiralty claims, the Court finds that it has ‘pendent party jurisdiction’ over Flores’s claims against Transcoma.” With respect to personal jurisdiction, Flores argued that Transcoma consented to jurisdiction in California because it agreed to a California choice-of-law/forum-selection provision in its service agreement with the cruise line, the cruise line was an agent for Transcoma, and Transcoma was a third-party beneficiary of the Passage Contract between the cruise line and Flores. Judge Frimpong rejected the argument based on the service agreement’s provisions because it was based on counsel’s experience in prior litigation and not based on the actual contract. She rejected the argument that the cruise line was an agent for Transcoma for lack of allegations that supported that theory. And she rejected the argument that Transcoma was a third-party beneficiary of the Passage Contract as a misconstruction of the contract, reasoning that the contract extended the cruise line’s rights and exemptions from liability to its agents and not that it extended its liabilities to third parties. Judge Frimpong did note that some courts had found a sufficiently close relationship between the parties to allow a non-signatory to be bound by the contractual relationship. Flores did not plead that relationship sufficiently, and Judge Frimpong allowed Flores to conduct jurisdictional discovery on this one issue. On the question whether Flores satisfied the purposeful availment test for specific jurisdiction, Judge Frimpong found only one allegation—that Transcoma reached out to the cruise line, a California-based co-defendant, to establish a long-term business partnership. Judge Frimpong concluded that this act was not one causing harm that Transcoma knew was likely to be suffered in California, stating: “After all, the harm that Flores suffered occurred in Spain, not California.” Judge Frimpong allowed Flores to amend her complaint to replead the issue of third-party beneficiary/consent.
Provide security for the value of the vessel when you file the limitation action if you want the court to enter the monition, even if the court staff says it is not necessary; In re Estate of Michael H. Polaski, No. 2:24-cv-1670, 2025 U.S. Dist. LEXIS 90583 (E.D. Wis. May 13, 2025) (Pepper).
Michael H. Polaski was the owner of a 20.8-foot 2019 Alumacraft Trophy 205 BRS vessel. After he died, the vessel was involved in an accident with another boat on Lake Michigan near Racine, Wisconsin, and several passengers on the other vessel filed a claim against Polaski’s Estate seeking to recover for injuries they sustained in the collision. Polaski’s Estate then brought this action in federal court in Wisconsin seeking to limit liability to the value of the vessel. The Estate filed an Ad Interim Stipulation of Value in which it asserted that the vessel was valued at $84,772.70, and it requested issuance of the Monition, stating that the Estate “will pay into the registry of the Court said value of Petitioner’s interest as thus ascertained, or file or cause to be filed in this action a further Letter of Undertaking, bond or stipulation for value.” Chief Judge Pepper declined to approve the stipulation or enter the monition until it was supported by the necessary security, denying the request without prejudice. Counsel for the Estate then tendered a check to the court in the amount of $84,772.70 in accordance with Chief Judge Pepper’s order, explaining that the funds had not been submitted based on guidance from the court’s staff: “We would like to respectfully note that, when the initiating documents were filed in this case, my office had at least two telephone calls with court staff between December 26, 2024 and December 31, 2024 to discuss logistics of the deposit, and I was advised that a check was not required at the time. Based on that guidance, we refrained from issuing a check, and instead followed the instructions provided and held the funds in trust. Unfortunately, the motion filed by our office on December 31, 2024 was denied on the basis that the funds had not been deposited with the Court.” He explained that “we raise this matter only to ensure there is an accurate record reflecting that our actions were based on guidance received from the court staff at that time.”
From the state courts
Court of Appeal affirmed finding that seaman failed to establish causation in his Jones Act and unseaworthiness claims in which he asserted that his Hodgkin’s Lymphoma was caused by exposure to benzene while working as a tankerman; Costanza v. Florida Marine Transporters, LLC, No. 2024 CA 0913, 2025 La. App. LEXIS 726 (La. App. 1 Cir. Apr. 17, 2025), rehearing denied, May 1, 2025) (Theriot).
Calvin M. Costanza worked for Florida Marine Transporters from February 2011 until March 2012 as a deckhand, tankerman-in-training, and then tankerman. He claims that, while loading and unloading barges as a tankerman and tankerman-in-training, he was exposed to benzene. After leaving Florida Marine, Costanza went to work for AccuTRANS as a shore tankerman. In January 2015, Costanza was diagnosed with Hodgkin’s Lymphoma, and he brought this suit in state court in St. Tammany Parish, Louisiana against Florida Marine, seeking to recover for negligence under the Jones Act and unseaworthiness under the general maritime law (he added a claim for fear of cancer in his Fourth Supplemental and Amending Petition, which was dismissed as untimely). Judge Childress held a bench trial and found that Costanza failed to meet his burden on causation and dismissed his Jones Act and unseaworthiness claims, explaining that he found the opinions of Florida Marine’s experts (Dr. Allison Stock and Dr. Thomas Cosgriff) that there is no causal relationship between benzene exposure and Hodgkin’s Lymphoma to be more convincing than the opinions of Costanza’s expert (Dr. Patricia Williams), that benzene exposure can cause Hodgkin’s Lymphoma. Costanza appealed, challenging the dismissal of his claims based on his failure to meet his burden of proof on both general and specific causation. Writing for the Louisiana Court of Appeal, First District, Judge Theriot rejected Costanza’s argument that Judge Childress erred in his finding that Dr. Stock’s methodology was superior to that of Dr. Williams and in giving greater weight to the testimony of Dr. Cosgriff than to that of Costanza’s treating physician, Dr. Burke Brooks, Jr., explaining that the factfinder was free to accept or reject any opinion expressed by an expert. Judge Theriot added that the testimony of the treating physician “is not irrefutable, as the trier of fact is required to weigh the testimony of all medical witnesses.” Costanza also argued that Judge Childress erred in failing to apply the “featherweight” standard for causation for the Jones Act claim. However, Judge Theriot responded that Costanza still had to prove general and specific causal connection and, as Judge Childress rejected the opinion of Dr. Williams on causal connection, there was no evidence that benzene exposure can cause Hodgkin’s Lymphoma, regardless of whether a featherweight standard was applied (as Costanza failed to establish causation under the more favorable causation standard for the Jones Act claim, Judge Theriot similarly rejected Costanza’s unseaworthiness appeal under a proximate cause test). Finally, Judge Theriot rejected Costanza’s late addition of the claim for fear of cancer as untimely as it introduced a different theory that did not relate back to the date of the filing of the suit.
Judge resolved dispute between vessel owner and ship repairer over the extent and cost of repairs on the vessel by terminating the repair contract and awarding damages to the ship repairer in accordance with the termination provision of the contract; Spiro Spero, LLC v. Bridgeport Boatworks, LLC, No. FBT-cv-23-5052945-S, 2025 Conn. Super. LEXIS 732 (Conn. Super. [Bridgeport] April 17, 2025) (Clark).
Spiro Spero hired Bridgeport Boatworks to replace the deck on its 80-foot cruiser sailboat, GOLCONDA. Spiro Spero was formed by Ranjit Pandit to own the vessel and has owned it for 18 years; however, the vessel has been out of service for 16 years. Spiro Spero signed Bridgeport’s estimate, and Bridgeport began work on the project. Bridgeport discovered additional work that needed to be performed, and the parties disagreed about the scope of the additional work and whether some of the work was already included in the original estimate. The deck was not replaced, and the vessel remained at Bridgeport’s facility, with Bridgeport charging storage fees. Spiro Spero brought this suit against Bridgeport in state court in Bridgeport, Connecticut, asserting claims for breach of contract, conversion, and violations of the Connecticut Unfair Trade Practices Act. Bridgeport asserted defenses and a counterclaim for breach of contract and tortious interference with its business operations. The suit was tried to Judge Clark, who noted that the original estimate was for $300,855.60, and Spiro Spero paid $200,000. The balance was due upon completion of the work. The evidence demonstrated that Spiro Spero understood that there may be additional work, but Bridgeport discovered that the state of disrepair for the vessel was greater than anticipated once the deck was removed. The issue presented to Judge Clark was whether the additional work was contemplated under the original estimate or was in addition to it. Judge Clark found that the additional work was not clearly defined or understood to the point that there was a meeting of the minds and that the original estimate could not be enforced “as an open-ended contract subject to unilateral additions” by Bridgeport. Accordingly, there was no agreement as to the additional work, and, in the absence of an agreement, Judge Clark returned to the original estimate to determine whether either party was entitled to damages. The balance of the original estimate ($100,855.60) was due upon completion. As the work was not completed, Spiro Spero owed no additional amount based on the first estimate. The next question was whether Spiro Spero was entitled to receive the $200,000 installment payment and to have the vessel returned. As the original work could not be completed without the additional work, and as there was no meeting of the minds as to the additional work, Judge Parker concluded that the contract could not be completed and must be terminated. The termination then invoked the termination clause of the contract (in the event of termination for any reason prior to completion of the work). That clause entitled Bridgeport to the balance of the amount of the estimate, “representing payment for demobilization costs, opportunity costs and anticipated lost profit.” Although Bridgeport claimed damages in excess of the balance due for storage and other costs, Judge Clark held that the contract term limited the damages recoverable by Bridgeport to the balance of $100,855.60. Judge Clark noted that Bridgeport had not paid the balance due for teak decking ($73,935) that remained in the possession of the vendor. As neither party had possession of the teak decking, Judge Clark exercised his equitable powers and reduced the amount due to Bridgeport ($100,855.60) by the balance due for the teak deck. As the contract was terminated, Judge Clark ordered Bridgeport to return the vessel to Spiro Spero.
Claims against products liability defendants arising from the fire on the CONCEPTION could proceed in state court despite the limitation action filed by the owners of the vessel in federal court, but the plaintiffs’ market share causation claims were not valid under state law or maritime law and were stricken; Fiedler v. Truth Aquatics, Inc., No. 21STCV08121, 2025 Cal. Super. LEXIS 10979 (Cal. Super. [Los Angeles] Apr. 22, 2025) (Kuhl).
The Update has discussed cases involving limitation of the owner’s liability and the criminal liability of the captain in connection with the fire on the CONCEPTION (moored off Santa Cruz Island) in 2019 that resulted in the deaths of 34 people (see August 2021, December 2023, and May 2024 Updates). The Update has also discussed the application of the discretionary function exception to the liability of the United States in the September 2024 Update in a related suit, Fiedler v. United States, in which the personal representatives of the decedents brought an action in federal court in California against the United States, pursuant to the Suits in Admiralty Act, alleging that the Coast Guard was negligent in inspecting and certifying the CONCEPTION. The United States pleaded the discretionary function defense in its motion to dismiss, arguing that the court lacked jurisdiction over the claims. The plaintiffs alleged that, seven months before the fire, the CONCEPTION underwent an annual inspection and hull inspection while the vessel was in dry dock. The Coast Guard allowed the vessel to continue operating without requiring the vessel to repair or replace wiring that the plaintiffs believe contributed to the fire and without identifying plastic trash cans and furnishings as safety hazards. The plaintiffs argued that the applicable regulations imposed mandatory obligations on inspectors; however, Judge Anderson disagreed, answering that the regulations “actually impose obligations on vessel owners and grant to the Coast Guard and its inspectors considerable discretion when conducting vessel inspections.” Judge Anderson concluded that the statutes, regulations, and policies governing the Coast Guard’s inspection of passenger vessels vest the Coast Guard with the type of discretion that satisfies the test enunciated by the Supreme Court for application of the discretionary function exception. Therefore, Judge Anderson dismissed the suit for lack of subject matter jurisdiction.
The plaintiffs filed suit in state court in Los Angeles County, California, asserting that the fire on the CONCEPTION was a “lithium-fueled fire . . . that had been sparked and/or critically accelerated by thermal runaway involving rechargeable lithium-ion batteries, non-rechargeable lithium batteries, and/or defective electronic devices powered by lithium-ion batteries.” The amended complaint asserted claims against Doe defendants, alleging that they “designed, manufactured, assembled, tested, described, packaged, consigned, distributed, rented, retailed, and sold” the “defective battery powered equipment, lithium batteries, and/or lithium-ion batteries” that were involved in the fire. Due to the fungible nature of the equipment and the state of the evidence, the plaintiffs alleged a “market share” claim to prove that the Doe defendants’ products were a cause of the harm. The plaintiffs argued that if they were unable to prove that a specific defendant’s product was a proximate cause of the loss, then the defendant may still be held liable as a party holding a share of the appropriate product market, specifically the market for lithium-ion batteries. The Doe defendants moved to dismiss the market share allegations as not being sufficient to satisfy the requirements for imposition of market share liability under California law and as inapplicable under federal maritime law. Judge Kuhl agreed that the allegations did fall within the limited cases in which the California courts have allowed recovery based on market share, and she added: “There certainly is no indication that federal maritime law would provide for market share liability under the facts alleged or under facts that Plaintiffs have suggested in briefing they could allege.” Consequently, Judge Kuhl struck the market share allegations. Judge Kuhl disagreed, however, with the Doe defendants that the federal limitation action filed by the owners of the vessel resulted in the state court having no jurisdiction to proceed against the Doe defendants. Judge Kuhl noted that the injunction in the limitation action prohibited the plaintiffs from prosecuting suits as to the owners who filed the limitation action. She added that the plaintiffs had the right to pursue their maritime remedies against the Doe defendants in the California state court pursuant to the Saving-to-Suitors Clause. As there was no order in the federal limitation action that prohibited the suit in state court against the Doe defendants, Judge Kuhl held that the claims could proceed in the state court.
New York state court dismissed an insurance claim against a pollution insurer with respect to a decommissioned naval vessel based on the forum-selection clause for federal court in New York; Buffalo Naval Park Committee, Inc. v. Water Quality Insurance Syndicate, No. 113 CA 23-02030, 2025 NY Slip Op 02674, 2025 N.Y. App. Div. LEXIS 2788 (N.Y. Sup. Ct. A.D. 4th Dept. May 2, 2025) (per curiam).
Buffalo Naval Park Committee operates a naval and historical park in Buffalo, New York. One of the vessels at the park, a decommissioned World War II vessel, released petroleum products into the Buffalo River, and the Committee sought coverage from its insurer, Water Quality Insurance Syndicate. The Committee brought this suit against WQIS in state court in Erie County, New York, and WQIS moved to dismiss the complaint based on a forum-selection clause in the policy requiring that suit be filed in the United States District Court for the Southern District of New York. Judge Greenan agreed with WQIS and dismissed the complaint. The Appellate Division affirmed, noting that forum-selection clauses are prima facie valid and enforceable under maritime law and New York law. The Committee argued that enforcement of the clause would deprive it of its day in court because the federal court lacked subject matter jurisdiction over the dispute. The Appellate Division deferred to the federal court to decide whether it had jurisdiction, but that decision did not affect the outcome of the appeal. The Appellate Division noted that Judge Greenan dismissed the complaint without prejudice, stating that the matter may be renewed if the federal court declined to exercise jurisdiction. Therefore, the appellate court concluded that the Committee failed to establish a basis to decline to enforce the forum-selection clause.
Louisiana state court had jurisdiction over foreign seaman’s suit against foreign vessel operator arising from an accident in international waters when the seaman alleged he did not receive medical care in Louisiana and when the forum-selection clause in his employment contract referred to claims against the vessel owner; Refaey v. Liquimar Tankers Management Services, Inc., No. 2024-CA-0839, 2025 La. App. LEXIS 855 (La. App. 4 Cir. May 13, 2025) (Chase).
Hassan Refaey, a resident of Egypt, was employed as a marine engineer on the Liberian oil tanker, M/T EVRIDIKI, owned by Evridiki Navigation and operated by Liquimar Tankers, which are Liberian companies with their principal place of business in Athens, Greece. Refaey was injured in the engine room of the vessel, and he claims that he was denied medical treatment “[o]nce the vessel berthed in Louisiana.” Refaey brought this suit against Liquimar Tankers in state court in Orleans Parish, Louisiana, and Liquimar asserted exceptions of improper venue and lack of personal jurisdiction. The basis for the claim of improper venue was the forum-selection clause for the courts of Nicosia, Cyprus in Refaey’s employment agreement. Judge Hazeur dismissed the suit for improper venue, and Refaey filed an appeal to the Louisiana Court of Appeals for the Fourth Circuit. Refaey argued that the forum-selection clause applied to claims against the “shipowner” and that it did not apply to the operator/manager, Liquimar Tankers. Writing for the appellate court, Judge Chase reasoned that the employment agreement differentiated the rights and responsibilities of “Managers,” “Shipowners,” and “Masters.” The court concluded that “the general, ordinary and plain language of the forum selection clause best defines ‘Shipowner’ as the owner of the ship.” Thus, the forum-selection clause did not apply to Refaey’s claims against Liquimar Tankers, the operator/manager. Judge Chase then considered whether venue was proper in Louisiana in the absence of the forum-selection clause based on Liquimar Tankers’ contention that the injury occurred in international waters. Although Refaey’s petition alleged that there was misconduct for failure to give medical treatment once the vessel was berthed in Louisiana, the petition did not state that the misconduct occurred in Orleans Parish. As Refaey later identified facts that would establish the misconduct occurred in Orleans Parish, the court of appeals remanded the case to allow Rafaey to file an amended petition.
Kenneth G. Engerrand
President, Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1110 Cowan Road Suite B #214 Gulfport, MS 39507 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
Quote:
This quote is from Judge Ho of the United States Court of Appeals for the Fifth Circuit in United States v. Davis, No. 23-20475, 2025 U.S. App. LEXIS 11946 (5th Cir. May 16, 2025), affirming the denial of a claim brought by Gravity Funding in the amount of $360,000 because of a drafting error by counsel for the proper claimant, Gravity Capital:
Lawyers’ work is careful work. Attention to detail is critical. A mistake that might be immaterial in other professions can be devastating for attorneys and their clients.
***
“There but for the grace of God go I.” That’s what amici observed in urging the Supreme Court to excuse the missed deadline in Northwest Airlines. That same sentiment applies here. But it also leads to the same result. We affirm.
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© Kenneth G. Engerrand, June 30, 2025; redistribution permitted with proper attribution.
