July 2026 Longshore Maritime Update No. 326
Notes from your Updater:
On March 15, 2026, Judge Gayles of the United States District Court for the Southern District of Florida adopted the recommendation of Magistrate Judge Sanchez, declining to overturn the ruling letter from the Customs and Border Patrol that a round-trip sightseeing “voyage to nowhere” (“Sunset on the High Seas”) by a foreign-built vessel (FLORIDAZE) in which passengers embark and disembark at the same point in the United States (Key Largo) violates the Passenger Vessel Services Act unless the vessel travels into international waters. Demarest sought the ruling because the voyage ordinarily proceeds into international waters; however, in the event of high winds or rough conditions, the tour is rerouted closer to shore and remains entirely in domestic waters. The letter advised that the rerouting would be in violation of the statute. See Demarest v. United States, No. 4:25-cv-10001, 2026 U.S. Dist. LEXIS 52969 (S.D. Fla. Mar. 15, 2026), adopting 2026 U.S. Dist. LEXIS 53971 (S.D. Fla. Feb. 24, 2026) (Sanchez).
On March 31, 2026, Judge Guidry of the United States District Court for the Eastern District of Louisiana granted a motion to certify a collection action brought by a cook and a steward/rigger who worked on offshore vessels for Mako Catering and Mako Unlimited on claims that the companies failed to pay overtime under the Fair Labor Standards Act because the employer paid a day rate that it contended encompassed an hourly rate plus overtime. See Cook v. Maco Catering, LLC, No. 2:24-cv-2517, 2026 U.S. Dist. LEXIS 68812 (E.D. La. Mar. 31, 2026).
On March 31, 2026, the Court of Appeals of Ohio affirmed the denial of coverage for a theft of chicken based on the cargo theft exclusion in a commercial inland marine insurance policy when the truck driver encountered a winter storm and parked on a residential street in Monroe, Louisiana for four days during which someone cut the seal off the back door of the trailer and stole 15 to 20 pounds of chicken, resulting in the rejection of the shipment by the consignee. See BBI Logistics, LLC v. GRS Transport, Inc., No. 23AP-766, 2026 Ohio 1146, 2026 Ohio App. LEXIS 1175 (Ohio App., 10th Dist., Mar. 31, 2026) (Mentel).
On April 21, 2026, Chief Judge O’Connor of the United States District Court for the Northern District of Texas declined to dismiss most of the claims asserted by treasure salvor Daniel Porter against Carl Allen and Allen Exploration with respect to Porter’s share of the recovery of artifacts from the shipwreck of the Spanish galleon NUESTRA SENORA DE LA MARAVILLAS, which sank in The Bahamas in 1656 with an estimated $5 billion in gold and silver. See Porter v. Allen, No. 3:25-cv-744 (N.D. Tex. Apr. 21, 2026).
On May 9, 2026, the Fifth Circuit addressed the claims of over seven hundred landowners who filed suit in Texas federal court against the Sabine River Authority of Texas and the Sabine River Authority, State of Louisiana, alleging that the opening of nine of eleven spillways on the Toledo Bend Dam after 20 to 25 inches of rain fell in a 31-hour period (equivalent of a 500-year flood) resulted in flooding of downriver landowners. The landowners alleged that the Authorities violated the Fifth Amendment’s takings clause. Among other defenses, the Authorities argued that the opening of the spillways was not a compensable taking and that it was a necessary response to an emergency that was shielded from liability by the necessity doctrine. Judge Truncale granted summary judgment to the Authorities on both arguments, and the Fifth Circuit affirmed the dismissal on the ground that the plaintiffs failed to show that the flooding would have been less extensive without the Dam. See Bonin v. Sabine River Authority of Texas, No. 25-40410, 2026 U.S. App. LEXIS 13306 (5th Cir. May 7, 2026) (Southwick).
On May 28, 2026, the Ninth Circuit agreed to award sanctions of attorneys’ fees against the law firm of a party that challenged the confirmation of an Italian arbitral award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, reasoning that the award of fees was appropriate to compensate for the time and resources expended defending the appeal and “to deter future attempts to invoke such spurious objections to the confirmation of an arbitral award.” Counsel argued only that “confirmation was improper due to an initial minor procedural violation, which was quickly cured and caused no prejudice, and a single, nonmaterial translation error.” The Ninth Circuit explained: “Sophisticated litigants should know better than to waste the court’s or opposing party’s resources on spurious arguments” with “hyperformalistic objections.” The appellate court granted the request of the attorneys, Akin Gump Strauss Hauer & Feld, that fees should only be awarded against it and not its client, because it selected the arguments. See Franz Haas GmbH SRL v. Winebow Inc., No. 25-4105, 2026 U.S. App. LEXIS 15398 (9th Cir. May 28, 2026).
The Update has reported on the saga of the civil asset forfeiture action brought by the United States against the M/Y AMADEA, a 348-foot luxury that the United States alleges is beneficially owned by a Russian national (Suleiman Kerimov), who is subject to economic sanctions. Claimants, Eduard Yurievich Khudainatov and his company, Millemarin Investments, challenged the forfeiture on the ground that they owned the AMADEA. Judge Ho of the United States District Court for the Southern District of New York declined to order an interlocutory sale of the superyacht, ruling that monthly expenses of at least $743,750 were not out of order for a yacht like the AMADEA. See United States v. THE M/Y AMADEA, No. 1:23-cv-9304, 2024 U.S. Dist. LEXIS 104690 (S.D.N.Y. June 11, 2024). After an evidentiary hearing, Judge Ho struck the claim on March 10, 2025, finding that the claimants held only bare title to the yacht and, as mere straw owners, lacked standing to contest the forfeiture. 770 F. Supp 3d 558, 2025 U.S. Dist. LEXIS 43030 (S.D.N.Y. Mar. 10, 2010). As there were no other claimants remaining in the proceeding, Judge Ho entered a default judgment for forfeiture of the superyacht with a final judgment on March 18, 2025. The claimants to the superyacht appealed several of Judge Ho’s orders, including the judgment of forfeiture, and they moved for a stay pending appeal. Judge Ho denied the claimants’ request, and the United States moved for a cost bond for the past and future taxable costs, stating that since arresting the vessel, it has spent approximately $32 million for transporting, maintaining, and storing the vessel (with approximately $25.6 million of that amount in taxable costs). The United States estimated that it would incur another $10 million in taxable costs during the appeal. Although Judge Ho did not believe that the claimants had conducted themselves well during the litigation, he acknowledged that they had the right to appeal, and he declined to exercise his discretion to require the bond. 2025 U.S. Dist. LEXIS 135863 (S.D.N.Y. July 16, 2025). On June 1, 2026, the Second Circuit issued its decision on the appeal of the rejected claimants, holding that the legal title to the vessel did not itself establish standing to contest the forfeiture. The court rejected the argument that the claimants had a facially colorable interest sufficient to confer standing because they offered no evidence that they made payments for insurance or other costs after entering into a Memorandum of Agreement in September 2021 in which the claimants committed to sell the yacht to a Cayman Islands entity. Therefore, the Second Circuit affirmed the judgment of forfeiture. See United States v. Khudainatov, No. 25-869, 2026 U.S. App. LEXIS 15581 (2d Cir. June 1, 2026) (Lohier).
In our February 2025 Update, we reported that Judge Moore of the United States District Court for the Southern District of Florida dismissed without prejudice the consolidated class actions of used boat sellers (alleging a conspiracy to fix commissions and refusal to deal) against boating brokerages, yacht broker associations, and multiple listing services (imposing an anti-competitive rule that requires all brokers to make a non-negotiable offer of buyer-broker compensation when listing a vessel on a multiple listing service). Judge Moore reasoned that “this Court cannot infer an illegal agreement from Defendants’ mere participating in trade associations that contain similar, non-binding recommendations regarding brokers’ commission fees” and “this Court cannot conclude that Defendants’ actions amounted to anything more than their unilateral and reasonable decision to conduct business with licensed professionals, rather than individuals who may be unexperienced or unfamiliar with the process of selling a used yacht.” See Ya Mon Expeditions, LLC v. International Yacht Broker’s Association, Inc., No. 1:24-cv-20805 (S.D. Fla. Jan. 21, 2025). Before addressing the motion to dismiss, Judge Moore denied the motion to compel arbitration filed by Yatco, LLC, arguing that the claims against it must be arbitrated in accordance with the standard service agreement executed by the plaintiff brokers before they were permitted to list vessels for sale on Yatco’s websites. He reasoned that the agreement pertained to subscribers to Yatco’s services; however, the plaintiffs were asserting antitrust claims in connection with Yatco’s collection of fees. On June 10, 2026, the Eleventh Circuit affirmed the denial of arbitration, agreeing that the agreement related to the brokers’ use of Yatco’s MLS service and contained “no provisions concerning broker commissions or the requirement that only sellers represented by brokers can list used yachts for sale on its MLS website, which is the focus of the plaintiffs’ antitrust allegations against Yatco.” See Ya Mon Expeditions, LLC v. International Yacht Brokers Association, Inc., No. 25-10140, 2026 U.S. App. LEXIS 16708 (11th Cir. June 10, 2026) (per curiam).
On June 16, 2026, Judge Altman of the United States District Court for the Southern District of Florida dismissed the antitrust suit brought by Brill Maritime (which markets and sells recreational marine vessels and relies heavily on digital platforms to advertise its inventory) against Boats Group, LLC (which operates the three largest online platforms that connect buyers and sellers of recreational boats in the United States. Brill Maritime alleged that Boats Group monopolized the market for boat list services used by brokers and dealers to advertise recreational boats to consumers. Judge Altman concluded that Brill Maritime had successfully alleged that Boats Group “has a monopoly on online boat advertising,” but the complaint lacked “any factual allegations of anticompetitive conduct.” He stated that the complaint “plausibly alleges only that Boats Group’s ‘growth or development [is] a consequence of a superior product, business acumen, or historic accident.’ That’s just not enough.” Judge Altman gave Brill Maritime an opportunity to amend, cautioning that it “must do better in an amended complaint.” See Brill Maritime, Inc. v. Boats Group, LLC, No. 1:25-cv-23663, 2026 U.S. Dist. LEXIS 133711 (S.D. Fla June 16, 2026).
In our May 2026 Update we advised that Administrative Law Judge Panagiotis issued a Procedural Order in response to the statement in the Joint Pre-Hearing Statement in a case brought pursuant to the Defense Base Act, that the Claimant intended to present live testimony at the formal hearing from Baghdad, Iraq through an Iraqi-Arabic interpreter with the oath at the formal hearing being administered by the Administrative Law Judge. The Order issued by ALJ Panagiotis concluded that “Congress has not empowered an ALJ in the Department of Labor with the authority to administer a valid testimonial oath to a foreign claimant seeking to testify from a foreign country.” ALJ Panagiotis added that counsel had the obligation to provide the ALJ with a proper Foreign Evidence Certificate that “details the applicable foreign law pertaining to the proposed testimony of the Claimant and any foreign documents, the applicable U.S. laws, statutory and regulatory, which apply, and how those laws have been satisfied, along with a showing of compliance with the applicable federal and OALJ rules.” He explained that counsel “shall provide citations to statutory and/or jurisprudential authorities and include exhibits from the Ministry of Justice of Iraq or other Iraqi governmental agency documenting the administration of a legally binding testimonial oath in that country.” See Jbur v. CSMI Technology Services v. Director, OWCP, Case No. 2024-LDA-02957 (OALJ, Covington Dist., Apr. 6, 2026). On June 17, 2026, Administrative Law Judge Panagiotis issued a Procedural Order in response to a statement in the Joint Pre-Hearing Statement in a case brought pursuant to the Defense Base Act that the Claimant intends to voluntarily testify from South Africa and a brief filed by the claimant arguing that he did not need to comply with South African law with respect to the administration of a valid testimonial oath. In response, ALJ Panagiotis schooled the Claimant’s attorney with a lengthy treatise that dismantled each of his arguments and explained: “Counsel, while continuing to argue that his client is being ‘prohibited’ from testifying admits the contrary: his client can testify, it is just that it is a ‘lengthy and expensive process.’ Rather than put in the hard work needed to ensure his client can validly testify, counsel would rather moan and complain that the procedures are not convenient or expedient. The platitude that Claimant is being ‘prohibited’ from testifying is thus patently false. The plaintive cry that this Court declining to administer an illegal oath ‘rewrites part of the APA’ is equally nonsensical.” See Cooney v. Falcon Group v. Director, OWCP, Case No. 2024-LDA-05895 (OALJ, Covington Dist., June 17, 2026). Everyone involved with DBA claims involving testimony of persons located outside the territorial jurisdiction of the United States should read the Cooney opinion and the Jbur opinion, both of which are linked below:
On June 23, 2026, the United States Supreme Court held that the Alien Tort Statute grants courts jurisdiction to hear cases involving violations of the law of nations, but courts may not create new causes of action for violations of international norms under the Statute (the Court also held that the Torture Victim Protection Act of 1991, which does contain an express cause of action, does not provide for aiding-and-abetting liability). The plaintiffs in the case are practitioners of Falun Gong, a religious movement that originated in China, who argued that the Chinese Government persecuted them because of their religious beliefs and that Cisco Systems enabled that persecution by developing surveillance technology that allowed China to identify and apprehend them, aiding and abetting violations of international law (torture; cruel, inhumane, or degrading treatment; forced labor, prolonged and arbitrary detention, crimes against humanity; extrajudicial killing; and forced disappearance). See Cisco Systems, Inc. v. Doe I, No. 24-856, 2026 U.S. LEXIS 2714 (U.S. June 23, 2026) (Barrett).
The May 2026 Update noted that the Endangered Species Committee (colloquially described by Justice Stevens as the “God Squad” or “God Committee” because “it has the authority to approve the extinction of an endangered species), comprising the Secretary of the Interior, Secretary of the Army, Administrator of the Environmental Protection Agency, Secretary of Agriculture, Acting Chairman of the Council of Economic Advisors, and Under Secretary of Commerce for Oceans and Atmosphere and National Oceanic Atmospheric Administration Administrator, held a public meeting to address the finding of the Secretary of War that is necessary for reasons of national security to exempt oil and gas activities in the Gulf of America from the requirements of the Endangered Species Act. The Committee granted the exemption, effective immediately, noting: “Here, the agency action is being carried out in the federal waters of the Gulf of America and state waters and lands, including coastal areas, ports, airspaces, and waterways, which means that a person may obtain judicial review exclusively in the U.S. Courts of Appeals for the Fifth or Eleventh Circuits.” On June 24, 2026, Judge Boardman of the United States District Court for the District of Maryland ruled that the court lacked subject matter jurisdiction in the suit brought by environmental groups challenging the 2025 Biological Opinion from the National Marine Fisheries Services regarding oil and gas activities in the Gulf of America as violating the Endangered Species Act by failing to adequately protect endangered species from the impact of oil and gas operations. Judge Boardman explained that the exemption from the God Squad mooted the suit because the requested relief, vacating the Biological Opinion, would have no practical effect. See Sierra Club v. National Marine Fisheries Service, No. 8:25-cv-1627 (D. Md. June 24, 2026).
On the LHWCA Front . . .
From the federal appellate courts
The container ship M/V MSC ADONIS called at the port of Houston on September 15, 2022. After the crew conducted a stevedore-safety inspection, the vessel was turned over to stevedore Ceres Gulf. Two days later, longshore worker Peter Quansah boarded the vessel. Quansah was working on an elevated walkway while using lashing rods provided by the shipowner to load containers onto the deck. He took a step back and tripped over a lashing rod in the walkway. He fell into a loose rope railing that failed to catch him and onto the deck below. Quansah left the vessel, drove home, and went to the hospital, where he was treated for a fracture of his wrist. Quansah brought this suit against shipowner MSC Mediterranean in Texas federal court based on Section 5(b) of the LHWCA, and MSC Mediterranean moved for summary judgment on the ground that it did not violate any of the Scindia duties. Judge Brown granted summary judgment, and Quansah appealed to the Fifth Circuit, which found none of his arguments persuasive. Quansah argued that MSC Mediterranean breached the turnover duty because it should have known that the walkway’s rope railing was loose. The court noted, as a preliminary matter, that Quansah presented scant evidence that the railing was defective. He only offered his deposition testimony that the rope felt loose, unsupported by witness accounts, photos, or inspection reports. However, even if the rope railing was defective, Quansah presented no evidence that MSC Mediterranean was aware of the defect, failing to establish how long the condition existed or how the railing came to be defective after the initial safety inspection of the vessel: “This lack of evidence on the timing or origin of the purported defect is fatal to the knowledge element of the turnover duty.” Quansah argued that MSC Mediterranean breached the active-control duty because the lashing rod over which he tripped was improperly left in the walkway, and the hazard was under MSC Mediterranean’s active control. However, the safety inspection reported that the lashing material was securely stowed and not scattered in walkways. Quansah did not know who left the rod in the walkway and conceded that it could have been another longshore worker. He saw the rod in the walkway earlier in his shift. Quansah argued that the captain testified that the crew made frequent rounds to check on the progress of the work, and the Vessel Procedure Manual instructs the crew to supervise the stevedoring. The Fifth Circuit did not believe that Quansah’s argument was sufficient, noting that the owner does not trigger a duty by checking on the progress of the work. Similarly, the court rejected the argument that an instruction from the crew to use cross rigging on a container instead of straight rigging constituted operational control over the details of the work, answering that the duty extends to mitigating hazards in areas or from equipment under the active control of the vessel. The work area had been turned over to the stevedore, and instruction on the lashing “constitutes oversight of the cargo plan rather than true operational control over the stevedores’ activity.” Quansah also argued that the crew retained active control of the operation based on the Vessel Procedure Manual provision that the crew should ensure that no fallen lashing should be left in the cargo hold and that lashing platforms and cross deck walkways are in safe working condition. The Fifth Circuit answered that the heading for this provision was “Preparation for Cargo Operations” and did not indicate that the duty extended throughout the cargo operation. The court added that the cases did not support the argument that vessel documents could establish liability absent active control. Finally, Quansah argued that the vessel violated the duty to intervene because there was lashing material everywhere in the walkway, the captain and crew monitored the work, and the Vessel Procedure Manual recognized that lashing rods can be tripping hazards. The court held that the argument fell short of demonstrating actual knowledge of a dangerous condition for “this narrow duty.” Accordingly, the court affirmed the summary judgment that MSC Mediterranean did not breach any of the Scindia duties.
From the federal district courts
Ashley Wood, a Black woman, worked as a systems administrator for Jacobs Technology at the Camp Sullivan base in Kabul, Afghanistan pursuant to Jacobs’ contract with the United States Special Operations Command to provide IT support. Wood alleges that she was subjected to discrimination because of her race throughout her employment, and she submitted her letter of resignation, effective July 20, 2020, but it made no mention of discrimination or harassment. She complained to a supervisor that a co-worker had been sexually inappropriate with her, and the employment of the co-worker was terminated. Human Resources asked Wood if she resigned due to the incident with the co-worker, and she confirmed that she did. She was informed that she could apply for an open position in Qatar, and she agreed to apply. However, Wood was informed that she was not offered the position in Qatar because there was an indefinite hold on issuing work visas for Qatar due to COVID-19. She was allowed to remain in her position to seek employment in another position, but she did not apply, and her employment ended in accordance with her resignation. During the period in which she remained employed, Wood was involved in a work-related motor vehicle accident at Camp Alpha in Bagram, Afghanistan in which she injured her right side, right ankle, and low back. A week later, she brought a claim against Jacobs under the Defense Base Act. After her employment ended, Wood filed a discrimination claim with the EEOC, and she then brought this suit against Jacobs in federal court in Florida based on race discrimination in violation of federal and state law, gender discrimination, retaliation, and hostile work environment in violation of state law, and workers’ compensation retaliation in violation of the Florida workers’ compensation law. Jacobs moved for summary judgment, and Judge Badalamenti agreed that Wood had not established her claim for racial discrimination (the gender discrimination claims were previously dismissed). He then addressed the claim that Jacobs retaliated against Wood by withdrawing its offer to transfer her to Qatar after she filed a workers’ compensation claim under the Defense Base Act. Judge Badalamenti rejected the claim for two reasons. First, the DBA claim was brought after Wood was not offered the position in Qatar. Second, Wood could not bring a claim under the Florida workers’ compensation act for retaliation because she never made a claim for compensation under the Florida statute. Judge Badalamenti noted that the DBA incorporates the LHWCA prohibition on retaliation, and that remedy is her exclusive remedy for retaliation for filing a DBA claim. Therefore, he granted summary judgment to Jacobs and dismissed the discrimination claim.
In November 2022, the liftboat L/B ROBERT, operated by Seacor Marine, which was jacked up in the Gulf of America, was damaged during heavy weather. Pressure from the sea pushed one of the liftboat’s legs into a “can hole” more than thirty feet away, causing the liftboat to collapse and list heavily to port. After extrication, the liftboat was towed to the Bollinger shipyard in Amelia, Louisiana, arriving on December 6, 2022. A small crew employed by Seacor remained on the vessel. After repairs were performed in Amelia for over five months (including a month in drydock), the vessel was towed to Pascagoula, Mississippi at the end of May 2023. Seacor crane operator Travis Franklin accompanied the liftboat from Amelia to Pascagoula, and he performed maintenance while the liftboat underwent repairs. On July 30, 2023, he suffered a stroke after being exposed to excessive heat during his shift on the vessel. At the time of Franklin’s stroke, the liftboat continued to use shore power, the legs had not been repaired, and the stern thruster was still not operational. The liftboat was under a “no-sail” order from the Coast Guard and was not ready for inspection until at least October. The repairs cost more than $30 million, which is over half of the value of the vessel of $55 million. Franklin brought suit against Seacor in Louisiana federal court as a seaman under the Jones Act (with general maritime remedies of unseaworthiness and maintenance and cure). Alternatively, he brought claims under general maritime law, Section 5(b) of the LHWCA, and Louisiana law. Seacor moved for summary judgment on all of the claims, and Judge Van Hook began by considering whether Franklin was a seaman. He cited Chandris for the requirement that the worker must have a connection to a vessel “in navigation.” He considered five factors enunciated by the courts. First, he considered the nature of the repairs to be “sufficiently significant” to remove the liftboat from navigation (extensive damage to the major systems and engine and the legs being visibly bent and needing huge portions removed). Second, being out of service for one year was sufficient duration. Third, the cost of repairs at 55% of the value of the vessel indicated that the liftboat left navigation. Fourth, the control of repair was released to a shore-based third party. Finally, the liftboat was “laid up” for most of the year. Franklin argued that the vessel had undergone sufficient work before his injury that the liftboat was capable of navigation at the time of his stroke. Judge Van Hook was not convinced that the capability of navigation was the appropriate test based on reasoning that it would allow a worker to oscillate in and out of Jones Act coverage. He believed that the better test was whether the ship had been placed in commerce for its intended use (because it drew a bright line). Regardless, Judge Van Hook believed that neither test was satisfied because the liftboat had not reentered navigation and was not useful for its intended purpose (it could not legally operate, repairs were ongoing, and the no-sail order was not lifted for several more months).Therefore, Judge Van Hook held that the liftboat was not a vessel in navigation at the time of Franklin’s stroke, and Franklin did not qualify as a seaman for his Jones Act, unseaworthiness, and maintenance and cure claims. Judge Van Hook then turned to the claims under the general maritime law, state law, and Section 5(b) of the LHWCA. Concluding that Franklin was covered under the LHWCA, Judge Van Hook ruled that his exclusive remedy was compensation under the LHWCA, barring claims under state law and the general maritime law for negligence and unseaworthiness. Judge Van Hook cited the exception to exclusivity in Section 5(b) for negligence against the owner of the vessel, but he held that exception was inapplicable because Seacor was operator of the vessel and not owner [note that the LHWCA defines “vessel” in Section 902(21) as including the operator]. Therefore, he dismissed all claims with prejudice.
Adrian Gonzalez Avila, an employee of CP Contractors, was killed in a flash fire while he was torch-cutting on the M/V SMITH TIDE, which was being scrapped at Louisiana Scrap Metals Recycling’s facility in Lake Charles, Louisiana. His parents brought this suit in Louisiana federal court against CP Contractors and Louisiana Scrap Metals Recycling and subsequently added insurers for the defendants. Louisiana Scrap Metals Recycling filed a motion for summary judgment, arguing that it did not have liability because it did not exercise operational control over the work performed by Avila on the vessel. Before the motion could be heard, Avila’s parents settled their claims with CP Contractors and Louisiana Scrap Metals Recycling to the extent of their uninsured exposure, but they reserved the right to pursue claims against insurers that may provide coverage to Louisiana Scrap Metals Recycling. Judge Cain then considered the motion for summary judgment. The parties disputed the applicable law. Louisiana Scrap Metals Recycling argued that Louisiana law applied, and Avila’s parents argued that maritime law applied. However, Judge Cain determined that the general rule under both maritime law and state law was the same—that a principal is not liable for the acts of an independent contractor unless the principal retains or exercises operational control over the actions of the independent contractor. Judge Cain noted that retention of operational control in the contract between the parties “weighs heavier” than actual exercise of operational control and that the parents did not argue that the contract provided for a right to control on the part of Louisiana Scrap Metals Recycling. Instead, they argued that Louisiana Scrap Metals Recycling supervised CP Contractors’ work on the vessel. Louisiana Scrap Metals Recycling employees inspected the vessel when it arrived and made recommendations for the work that would be performed. They advised that lines should only be saw-cut as opposed to hot-cut, and they advised where to cut each day. An employee of Louisiana Scrap Metals Recycling advised the workers what to do on the day of the accident when the crew was having trouble pulling a cable off the winch (indicating that the workers should cut the walls with hot work). The safety manual for Louisiana Scrap Metals Recycling provided that Louisiana Scrap Metals Recycling supervisors were responsible for ensuring that all hot work was authorized and permitted, regardless of the party performing the hot work. As the accident resulted when Avila applied a cutting torch to an intact hydraulic line without visually inspecting the material to verify that it was safe to cut, Judge Cain believed there was sufficient evidence that Louisiana Scrap Metals Recycling had operational control, and he denied the motion for summary judgment. See March 2026 Update.
Everest Insurance Co., which provided an excess insurance policy over the general liability policy issued to Louisiana Scrap Metals, moved for summary judgment based on the Marine Liability Exclusion in its policy that excluded any liability arising out of marine liability, including ship repairers’ legal liability, terminal operation liability, wharfingers liability, liability arising from the Jones Act, ship builders liability, LHWCA coverage, and any liability arising out of maintenance, fueling, loading or unloading of any watercraft. Judge Cain noted that the plaintiffs brought claims against Louisiana Scrap Metals under the Jones Act, general maritime law, and LHWCA with respect to its ownership, operation, and control of a vessel in navigation. In response to the prior motion for summary judgment, Judge Cain did not have to decide whether maritime law or Louisiana law applied, reasoning that the same principles applied under both. Therefore, he did not have to decide the status of the vessel. Based on that fact dispute, Judge Cain denied summary judgment with respect to the Maritime Liability Exclusion, stating: “If scrapping had progressed to the point where the vessel was no longer practically capable of transportation over water, then the Jones Act and LHWCA do not apply and there is no issue with the excess policy’s marine exclusion. Plaintiffs are permitted to argue in the alternative on this point.”
Aries Marine owned the liftboat RAM XVIII, which was sent to house workers who were working on a platform in the West Delta region of the outer Continental Shelf of the Gulf of America off the coast of Louisiana (the workers were employed by Fluid Crane and United Fire). The vessel jacked up, and a construction crew worked until the next day when the vessel began to list and sank. Aries filed a limitation action in federal court in Louisiana, and seven workers on the rig filed claims against Aries under Section 5(b) of the LHWCA. Aries moved for summary judgment that it was entitled to exoneration of liability or, alternatively, limitation of liability. Judge Africk found a fact dispute whether the captain of the liftboat performed a preload before jacking up to ensure that the leg pads for the vessel were on stable ground and would not punch through the seabed. If the preload was not performed, Judge Africk concluded that the failure would constitute negligence under the vessel’s active control, in violation of the duty enunciated by the Supreme Court in the Scindia case. Turning to the limitation issue, Judge Africk noted that with respect to seagoing vessels, the privity or knowledge of the master at or before the beginning of the voyage is imputed to the owner. Aries did not dispute that the liftboat was a seagoing vessel (the accident did occur on the outer Continental Shelf more than 12 nautical miles from the coast). Thus, to the extent there was negligence of the captain before the voyage, it would be imputed to the owner. Judge Africk also cited evidence that the owner allegedly provided an unqualified captain whom it had failed to adequately train, and he declined to grant summary judgment as to limitation of liability. The vessel owner also moved to dismiss the punitive damage claims brought against it under Section 5(b) of the LHWCA on the ground that punitive damages are only recoverable against a third-party tortfeasor by a longshore worker who is injured in state territorial waters (and for lack of evidence of willful and wanton conduct). Judge Africk noted that the Fifth Circuit has not decided the question of whether punitive damages may be recoverable under Section 5(b), and he declined to grant summary judgment on the punitive damage claim. See February 2023 Update.
Fugro USA was hired to assist in positioning the liftboat by providing GPS positioning and performing a sonar scan for debris or obstructions on the sea floor. It provided plats that showed where prior vessels had been placed in the area, but the images Fugro provided only showed the impressions left by vessels that Fugro had helped to position. Therefore, it was possible that there were holes and impressions in the area that were not reflected in the data provided by Fugro to Aries. Fugro moved for summary judgment on the negligence claims asserted against it, noting that the claimants had placed the blame for the listing of the liftboat on Aries’ captain’s failure to conduct a preload (or on the conducting of an improper preload). In response to Fugro’s motion for summary judgment, the claimants argued that Fugro owed them a duty to advise the captain that there could be additional can holes in the area, that there were dark spots on the sonar images that might be additional can holes, and to exercise stop work authority when one leg of the liftboat penetrated deeper than had been expected. Judge Africk assumed for the motion that Fugro had a duty, but he could not find causation for any of the alleged failures, reasoning that, ultimately, the accident occurred because, as the claimants alleged, the captain failed to properly preload the vessel. The claimants’ expert confirmed that when the failure of the vessel occurs after the preloading, the preload was not adequate. As the preloading was not the responsibility of Fugro, Judge Africk dismissed the claims against Fugro.
Fieldwood, the owner of the platform, chartered the liftboat to provide worker housing in support of operations taking place on its platform. Fieldwood moved for summary judgment on the injury claims on the ground that, as the time charterer, it had no control over the vessel and assumed no liability for the negligence of the crew. Judge Africk noted that time charterers owe a “hybrid duty” arising from contract and tort to avoid negligent actions within the sphere of activity over which they exercise at least partial control. He added that a time charterer may be liable for directing the vessel to encounter natural hazards, such as dangerous weather or sea conditions. The claimants argued that Fieldwood was negligent by directing the liftboat to be positioned on the east side of the platform when it knew the conditions were hazardous and by limiting the scope of the marine surveyor (Fugro) to not include geo-technical data. As the claimants’ expert opined that it was likely that either soil samples existed for the location or that penetrations were known by Fieldwood, which, if credited, would permit a finding that Fieldwood had notice of the hazardous conditions and contributed to the failure, Judge Africk denied summary judgment to Fieldwood.
Judge Africk then considered the contracts between the parties for their indemnity obligations. Fieldwood entered into Master Service Contracts with both Fluid Crane and United Fire (employers of the claimants) by which Fluid Crane and United Fire agreed to indemnify Fieldwood for injuries to employees of Fluid Crane and United Fire. The indemnity extended to Fieldwood’s contractors (such as Fugro and Aries) if they entered into contracts with Fieldwood to extend indemnity (for injuries to their employees) to subcontractors of Fieldwood (such as Fluid Crane and United Fire). Fieldwood and Fugro entered into a Master Service Contract by which Fugro agreed to provide similar indemnity to Fieldwood and its contractors. Likewise, Fieldwood and Aries entered into a Master Service Contract by which Aries agreed to provide similar indemnity to Fieldwood and its contractors. Therefore, the contracts between Fieldwood, on the one hand, and Aries, Fugro, Fluid Crane, and United Fire, on the other hand, contained provisions by which each party agreed to indemnify the others for injuries to its own employees. Consequently, Fluid Crane and United Fire were obligated to indemnify Fieldwood, Aries, and Fugro for the claims brought by the employees of Fluid Crane and United Fire if the indemnity provisions were valid under applicable law (as Aries explained, “the cross-indemnity provisions in Fieldwood’s contracts with United Fire and Aries serve to “cut[] Fieldwood out of the equation,” and the contractors may seek indemnity from each other). The validity required a determination of whether Louisiana law or maritime law applied. If maritime law applied, the agreements were valid. If Louisiana law applied, the indemnity was invalidated by the Louisiana Oilfield Indemnity Act. Judge Africk applied the requirement from the Fifth Circuit’s Doiron case (whether the contract provided or the parties expected that a vessel would play a substantial role in the performance of the contract) to determine whether the contracts were maritime or not. The contracts at issue were the contracts between Fieldwood and Fluid Crane and United Fire to perform work on Fieldwood’s platform. Although Aries and Fugro were involved with the role of the liftboat, that expectation was not relevant to the contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk distinguished cases in which the contract documents provided for the use of a vessel. In this case, “Aries and Fugro may have expected the vessel to play a substantial role in the completion of the work, but the same cannot be said of Fluid Crane and United Fire.” Therefore, Judge Africk concluded that Louisiana law applied, and he denied indemnity from Fluid Crane and United Fire to Aries and Fugro. He did not, however, hold that the LOIA invalidated the requirement for payment of defense costs when the indemnitee was found to be free from fault. Thus, if Aries were ultimately found free from fault, it would be entitled to reimbursement of its defense costs. Judge Africk had granted summary judgment on liability in favor of Fugro, so Fugro was entitled to recover its defense costs. Fluid Crane requested that Judge Africk order the defense costs be split evenly between Fluid Crane and United Fire, despite the fact that only one of the seven claimants was an employee of United Fire. Judge Africk agreed that, under Louisiana law, the defense obligation was incapable of division. Therefore, he ordered that the defense obligation be divided in equal portions between Fluid Crane and United Fire. See March 2023 Update).
One of the workers employed by Fluid Crane, Gilberto Gomez Rozas, was an undocumented immigrant who was not authorized to work in the United States. During his deposition and in discovery, Rozas repeatedly invoked the protection against self-incrimination in the Fifth Amendment, refusing to answer questions related to his citizenship and personal history. Aries argued that his claim should be dismissed with prejudice because Rozas had perpetrated a fraud on the court (and to deter future parties from similar conduct). In the alternative, Aries sought a sanction that Rozas be precluded from recovering past and future lost earnings at United States’ wage rates. Judge Africk reasoned that the party invoking the Fifth Amendment cannot hope to gain an unequal advantage against the party he has chosen to sue and that the defendant should not be required to defend against a party who refuses to reveal the very information that might absolve the defendant of liability. The Fifth Circuit has enunciated a balancing test that dismissal is appropriate only when less burdensome remedies would be an ineffective means of preventing unfairness to the defendant. In this case, Rozas did not commit perjury or provide false documents, but his invocation of the Fifth Amendment during depositions and discovery impeded Aries’ ability to investigate the claim for damages. Consequently, Judge Africk decided that the lesser sanction of precluding Rozas from seeking future wage loss awards at United States’ rates was the appropriate sanction. With respect to past wage loss, Rozas testified that he had not been working, and it had been four years since he prepared tax returns. The parties did not brief the issue of extending the sanction to past wage losses, so Judge Africk did not address the issue of past wage losses at this time. See April 2023 Update.
Aries moved for reconsideration of the decision on the contractual allocations involving Aries, Fugro Marine, United Fire, and Fluid Crane that was discussed in the March 2023 Update. Aries, Fugro, United Fire, and Fluid Crane were parties to contracts with Fieldwood that contained indemnity provisions that were enforceable under the general maritime law but that were unenforceable under Louisiana law. Applying the Fifth Circuit’s Doiron test, Judge Africk held that the contracts with United Fire and Fluid Crane were not maritime because there was no evidence that United Fire and Fluid Crane expected the vessel RAM XVIII would play a substantial role in the completion of the contract. Aries asked Judge Africk to reconsider that decision, arguing that Judge Africk erred by not considering Fieldwood’s expectations as to the use of the RAM XVIII. Judge Africk agreed that the expectations of Fieldwood were relevant (as it was a party to each of the contracts), but he answered that Aries did not cite any authority that the expectations of one party could establish that the parties expected that a vessel would play a substantial role. Thus, further discussion of Fieldwood’s expectations would not have changed the court’s analysis. Aries also argued that Judge Africk had added a third prong to the Doiron test—"did the vessel in fact play a substantial role in the completion of the contract?” Judge Africk disagreed, stating that the decision was based on the expectations of the parties and not on the use of the vessel (he noted that the actual use was only relevant, according to Doiron, when the parties’ expectations were unclear). Consequently, Judge Africk denied Aries’ motion for reconsideration. See June 2023 Update.
United Fire also sought reconsideration of Judge Africk’s decision to divide the defense costs equally between United Fire and Fluid Crane despite the fact that six of the seven claimants were employees of Fluid Crane and only one was an employee of United Fire. United Fire cited an opinion from Judge Vance of the United States District Court for the Eastern District of Louisiana that, absent a clear agreement to the contrary, insurers who owe a co-equal duty to defend must share the cost equally. However, United Fire did not identify any portion of the contracts that constituted a “clear agreement” to share defense costs in an unequal proportion, so Judge Africk held that relief was not available for arguments that had been previously considered and rejected (Judge Africk was not impressed with the analogy to seven individuals who had dinner together and split the bill for the appetizer so that each paid 6/7 of the cost, reasoning that defense costs “cannot be divided amount the claimants in the same manner that an appetizer would be shared among diners”).
As Fluid Crane and United Fire were the employers of the workers who were injured when the RAM XVIII capsized in the Gulf of America, their LHWCA carriers (American Longshore Mutual Association and the Louisiana Workers’ Compensation Corp.) paid benefits under the LHWCA for their injuries. ALMA and LWCC then brought subrogation claims to recover the benefits paid from the defendants. Fieldwood, Aries, and the plaintiffs moved for summary judgment, arguing that ALMA and LWCC had agreed to waive their rights of subrogation pursuant to the terms of the Master Services Contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk noted that the policies provided for waiver of subrogation when required by written contract, so he considered the requirements of the underlying contracts. The waiver in the MSCs extended to the “Company Group,” which was defined to include Fieldwood and its “invitees.” ALMA and LWCC argued, however, that Aries and the plaintiffs also fell under the definition of “third Party Contractor Group,” which would render the language of the indemnity and insurance sections of the contracts superfluous because all parties and contractors/subcontractors would be members of the Company Group. Fieldwood answered that there was no prohibition against an invitee satisfying another definition in the contract and that this interpretation would not lead to circular indemnity or absurd results. Therefore, Judge Africk addressed whether Aries and the claimants were, in fact, invitees, citing Louisiana law that defines an invitee as a person who goes onto premises with the expressed or implied invitation of the occupant on business of the occupant or for their mutual advantage. Fieldwood argued that it was the occupant of the platform (one who has possessory rights in, or control over, certain property or premises) and the RAM XVIII (a time charterer is an occupant of the vessel because the vessel is under the ultimate direction, control, and command of the time charterer). It also argued that Fluid Crane and United Fire were invited by Fieldwood to the platform to work by their contracts and that they, and their employees, who performed the work that benefited Fieldwood, were, therefore, invitees. Judge Africk agreed that the employees of Fluid Crane and United Fire were invitees of Fieldwood and that LWCC and ALMA were required to waive subrogation in favor of the claimants. With respect to Aries, Fieldwood argued that the RAM XVIII, owned by Aries, was invited to erect itself within the boundaries of Fieldwood’s mineral lease to assist in the platform work, so Aries qualified as an invitee. Although Aries argued that no employee of Aries ever stepped foot on the platform, it did not dispute that the vessel was attached to the platform via a walkway and that its presence benefited Fieldwood. Having concluded that Aries and the workers were invitees so that subrogation was waived, Judge Africk considered the validity of the waiver under Louisiana state law, which he had previously held was applicable to the contracts so as to invalidate the indemnity provisions. Citing the Fontenot decision from the Louisiana Supreme Court, Judge Africk noted that a waiver of subrogation provision does not violate the Louisiana Oilfield Indemnity Act if the contract does not also require indemnity. As there was unenforceable indemnity in this case, Judge Africk held that the statute did not void the waiver of subrogation (there was no evidence of payment for a “Marcel” Endorsement that would create an exception to the LOIA). Consequently, the subrogation claims of ALMA and LWCC were dismissed. See July 2023 Update.
ALMA and LWCC filed motions for reconsideration of the granting of Fieldwood’s motion for summary judgment on their subrogation claims as LHWCA carriers. LWCC argued that, notwithstanding the waiver of subrogation, it had a claim for an offset, pursuant to Section 33(f) for the net tort recovery of plaintiff Glenn Gibson. Fieldwood did not disagree with the legal proposition asserted by LWCC, but it argued that LWCC had insufficiently raised the argument in a single paragraph in its opposition with no citation to facts or legal authority, resulting in waiver of the contention. Judge Africk agreed that “LWCC’s briefing on this issue was less than clear;” however, he acknowledged that dismissal of the claim for an offset would be “legal error.” Therefore, he amended the granting of summary judgment to reflect that the order did not affect LWCC’s claim for an offset pursuant to Section 33(f). ALMA moved for reconsideration, arguing that it was not conclusively established that the vessel was attached to the platform via a walkway and that Aries did not meet the definition of an “invitee” under applicable precedent. Judge Africk, however, did not believe that the arguments were sufficient to grant reconsideration, and he denied them. Like LWCC, ALMA argued that it retained the right to claim an offset pursuant to Section 33(f). Fieldwood reiterated the argument that ALMA’s claim was waived, but, as Fieldwood did not contest the legal basis for the argument, Judge Africk granted the same relief to ALMA--that it retained the right to assert an offset against the LHWCA claim pursuant to section 33(f). See September 2023 Update.
ALMA appealed the dismissal of its intervention to the Fifth Circuit, presenting these issues:
- Whether Aries Marine is an “invitee” of Fieldwood within the definition of the “Company Group” in the applicable Master Services Contract when there is a genuine issue of material fact as to whether Aries Marine physically entered a premises controlled by Fieldwood?
- Whether the Fluid Crane Claimants qualify as “invitees” of Fieldwood within the definition of “Company Group” in the applicable Master Services Contract despite also qualifying as members of the “Contractor Group”?
- Whether the applicable Master Services Contract and ALMA insurance policy included an obligation on the part of Fluid Crane (Employer) and ALMA (Insurer) to waive subrogation in favor of Fieldwood, Aries Marine, and the Fluid Crane Claimants?
- Whether the Louisiana Oilfield Indemnity Act invalidates any purported waiver of subrogation in favor of the Fieldwood Group?
After hearing oral argument, the Fifth Circuit affirmed (without a written opinion) Judge Africk’s decision that the waiver of subrogation was not invalidated. See May 2024 Update.
Back in the district court, Aries filed a second motion for reconsideration of Judge Africk’s order granting in part and denying in part the motions for summary judgment filed by Aries, Fugro, United Fire, and Fluid Crane (holding that United Fire and Fluid Crane do not owe Aries contractual indemnity for the claims brought by Fluid Crane and United Fire employees because the indemnity provisions are unenforceable under Louisiana law). Aries asked the court to reconsider the conclusion on the ground that the decision of the Fifth Circuit in Earnest v. Palfinger was an intervening change in controlling law that confirmed that the contracts were maritime and that the indemnity provisions are valid under maritime law [an argument that was unsuccessfully made in the Offshore Oil Services case that is discussed in the November 2024 Update]. Aries argued that courts should employ a conceptual rather than a spatial analysis, (2) that courts should focus on what is considered “classically maritime” in evaluating the role of a vessel under a Doiron analysis, and (3) that the location of the work being performed under a contract is inconsequential under Doiron. Judge Long first noted that Judge Africk’s order was interlocutory and that, under Rule 54(b), Judge Long had the authority to revise the decision even in the absence of new evidence or an intervening change in or clarification of the substantive law. He did caution, however, that successor judges should “carefully and respectfully consider the conclusions of prior judges before deciding to overturn them.” Nonetheless, Judge Long was not persuaded that he should alter Judge Africk’s ruling. He did not believe that the panel’s ruling in Earnest had changed the en banc ruling in Doiron that was applied by Judge Africk, and he added that any clarification of Doiron would not compel a conclusion that the contracts in this case are maritime. Judge Long explained that Judge Africk’s ruling correctly concentrated “on the contracting parties’ expectations.” The rulings did not rest on where the work was conducted, and there was no indication that Judge Africk would have reached a different result if he had considered what was “classically maritime” in evaluating the role of the vessel. As Judge Long was not convinced that the analysis in Earnest would have caused Judge Africk to conclude that the contracts were maritime, Judge Long declined to reconsider the ruling that the indemnity was invalid under Louisiana law. See December 2024 Update.
Aries moved for summary judgment on two of the claimants’ theories of liability, arguing that Aries’ positioning of the RAM XVIII did not cause the liftboat to capsize (based on Judge Africk’s decision granting Fugro’s motion for summary judgment) and arguing that the claimants could not invoke res ipsa loquitur to support their negligence claim because Aries did not have exclusive control over the seabed, which Aries argued was the instrumentality that caused the injuries. Judge Long disagreed with both of Aries’ assertions. He explained that a Fugro surveyor provided Aries with the information that Aries’ captain used to choose the place where to place the liftboat’s legs on the seabed; however, it was the captain who made the “last call” on where to place the liftboat, and he did not perform a preload before jacking up to ensure that the legs would not punch through the seabed. Thus, there could not be issue preclusion or law-of the case because Judge Africk did not decide the same liability issue when he granted summary judgment to Fugro. Turning to the claimants’ pleading of res ipsa loquitur, Aries argued that it did not have exclusive control over the instrumentality that caused the accident—the seabed. The claimants responded that the thing which caused the injury was the liftboat, which was under the control of Aries. As Judge Africk had found a fact question with the failure to conduct a preload, Judge Long reasoned that there was a fact question whether the liftboat was the relevant instrumentality. Therefore, he declined to grant summary judgment to Aries on the theory of res ipsa loquitur.
Judge Long then addressed the motions filed by Fieldwood, charterer of the liftboat, and Aries (owner of the liftboat) and its insurer, U.S. Specialty, with respect to allocation of responsibility between these parties for the claims brought by the employees of Fieldwood subcontractors Fluid Crane and United Fire—whether Fieldwood must defend and indemnify Aries (and U.S. Specialty) from the personal injury claims. The answer required consideration of the time charter of the liftboat by Fieldwood from Aries, the master services contracts between Fieldwood and Fluid Crane and United Fire, and the policy issued by U.S. Specialty to Aries. The time charter required Aries to procure P&I and excess insurance that named as insureds the Charterer Group (Fieldwood and certain contractors) and to waive subrogation against the Charterer Group. The requirements applied to self-insurance and deductibles. The time charter included subcontractors within the indemnity of Aries and required Fieldwood to execute an agreement with its contractors with cross-indemnity and waiver of subrogation provisions. U.S. Specialty’s insurance policy contained P&I coverage that named Fieldwood as an insured with a waiver of subrogation when required by contract. The master services contracts between Fieldwood and Fluid Crane and United Fire contained cross-indemnity provisions requiring Fluid Crane and United Fire to indemnify Fieldwood’s contractor group (including Aries). The reciprocal cross-indemnification provisions would require Fluid Crane and United Fire to defend and indemnify both Fieldwood and Aries for injuries to the claimants (employees of Fluid Crane and United Fire), except that Judge Africk held that the indemnity was invalid under the LOIA. Aries and U.S. Specialty then sought indemnity from Fieldwood, arguing that the time charter required indemnity from Fieldwood with respect to the injury claims of employees of contractors of Fieldwood. Judge Long applied maritime law to the obligations under the charter party and Louisiana law to the policy issued by U.S. Specialty (citing Fifth Circuit cases that were based on Wilburn Boat). As the time charter required a waiver of subrogation from Aries’ insurers, and as the U.S. Specialty policy contained a waiver when required by contract, Judge Long held that Aries and U.S. Specialty had no rights to pursue Fieldwood. Judge Long then addressed the argument of Aries and U.S. Specialty that Fieldwood could not enforce the waiver of subrogation because Fieldwood breached the time charter by not obtaining valid indemnity from Fluid Crane and United Fire that extended to Aries and U.S. Specialty (as the indemnity was voided by the LOIA). Judge Long disagreed. He agreed that the time charter required the cross-indemnity provisions, but he answered that the time charter did not require that the indemnity provisions be valid. As in the Fifth Circuit’s LeBlanc case, Judge Long concluded: “Had Fieldwood and Aries wished to condition the waiver-of-subrogation and additional-insured provisions of the Time Charter on ‘the legal enforceability of’ the indemnity provisions in the Master Services Contracts, ‘they very easily could have done so.’” Judge Long then addressed the claims of Aries and U.S. Specialty that Fieldwood was required to defend and indemnify them pursuant to the indemnity provisions in the time charter. His analysis with respect to the waiver of subrogation applied similarly to the argument of Aries and U.S. Specialty that Fieldwood was required to indemnify them in the event it failed to obtain cross-indemnity provisions with subcontractors Fluid Crane and United Fire. Fieldwood cited a “thoughtful but nonprecedential” 2006 decision from Judge Fallon of the United States District Court for the Eastern District of Louisiana, which reasoned: one indemnification agreement was not substantially similar to another because the latter agreement was ‘void and unenforceable,’ and ‘a void and unenforceable indemnity agreement is the functional equivalent of no indemnity agreement.’” Judge Long distinguished the language in the contract construed by Judge Fallon, answering that the language in the time charter in this case did not condition the insurance obligations on the enforceability of the indemnity provisions. Finally, Judge Long noted that the indemnity obligation excluded claims that are caused, in whole or in part, by the gross negligence of the Owner Group (Aries and U.S. Specialty). As Judge Africk declined to grant Aries’ motion for summary judgment on the punitive-damage claims against it, Judge Long declined the indemnity sought by Aries and U.S. Specialty for the claims that sought punitive damages. See January 2025 Update.
There was a settlement before the case was set for trial, and Judge Long entered a conditional order of dismissal and directed that any party that contended that it had a live claim requiring further litigation must file a motion to reopen as to that claim. Fluid Crane and American Longshore Mutual Association moved to reopen the case to allow them to litigate their “independent right of subrogation” and Fluid Crane’s Burnside negligence action against Aries Marine. Judge Long denied the motion, holding that the claims were not properly before the court because Fluid Crane and ALMA failed to timely and properly plead them. He noted that Fluid Crane and ALMA pleaded only one subrogation cause of action in their limitation claim, and the pleading did not include a Burnside action or an independent right of subrogation. The claim that was pleaded was denied by the court based on the waiver of subrogation, and the Fifth Circuit affirmed that decision. Fluid Crane and ALMA argued that they raised these actions in opposition to the motion for summary judgment in October 2024 and in a status report to the court later that month, but they cited no authority for the proposition that a limitation claimant may properly amend its claim in that manner or set forth good cause for the assertion that was made six months after the deadline for amendments to pleadings had expired. Fluid Crane and ALMA also argued that the independent subrogation/Burnside claims were raised in the pre-trial order, but Judge Long answered that the notice required claims to be described in section 3 of the proposed pre-trial order, but that section did not include any reference to the claims. Judge Long added that, even if the parties had intended to include the claims, they would have to satisfy the “good cause” standard, and he stated that he would not allow an amendment because they provided no excuse for the delay. Therefore, Judge Long declined to reopen the case to allow the claims for an independent right of subrogation and a Burnside action. See August 2025 Update.
Aries appealed the decision that the contract between Fieldwood and United Fire was not a maritime contract and that Louisiana law invalidated the indemnity provisions. Writing for the Fifth Circuit, Judge Graves applied the test enunciated by the en banc Fifth Circuit in Doiron. He began with the first half of the question: “does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract?” To decide whether the contract provided that a vessel would play a substantial role in the completion of the contract, Judge Graves cited Doiron that the focus “should be on whether the contract calls for substantial work to be performed from a vessel.” He noted that the only notable mention of a vessel in the MSC was for transportation, which is not considered in determining whether a vessel would play a substantial role. Aries argued that the appendix to the United Fire contract contained a checklist that directed United Fire to check boxes for each service/product it provided, and the section related to “platforms” was not checked. Thus, United Fire was not limited to performing services on a fixed platform. Judge Graves answered that the lack of a limitation to providing services on a fixed platform did “not change the fact that it was contracted—via a specific job order—to provide services on a fixed platform in this case.” The job order provided that United Fire would provide fire-watch services in an area where welding work was to be performed (using a gas detector). It made no mention of the RAM XVIII or any vessel. These documents differed from ones that were considered maritime in which the involvement of vessels was specifically identified in the contract (such as the requirement for a barge and tug for dock construction in Barrios v. Centaur or the maintenance and repair of lifeboats in Earnest v. Palfinger). Judge Graves then considered whether (when the contract does not identify use of a vessel) the parties expected a vessel to play a substantial role. The court was guided by the recent decision in Genesis Energy v. Danos (see October 2025 Update) in which the contract provided for repair work on a platform but also for the use of a vessel to house the workers and equipment to be used on the platform. The vessel’s function in transportation and housing of workers and equipment was described as “ancillary” and “legally insufficient” to consider the contract to be maritime. Fieldwood anticipated use of the liftboat for transportation, crane work, and lodging, but that did not establish the expectation of United Fire (the test is based on the expectations of the parties). Aries also argued that the actual use of the liftboat was substantial as it was used to provide construction and crane support (in addition to use as a living quarters). Judge Graves answered that the fact that the vessel was instrumental in helping with crane support was “irrelevant to United Fire, who was contracted to provide fire watch services and not crane services.” Judge Graves concluded: “Fieldwood expected that the liftboat would play a substantial role in its platform repairs. But United Fire did not.” Its “one-sided expectation” was insufficient in light of the cases that have “made clear that a vessel’s substantial role must be a shared expectation.” As the second prong of the Dorion test was not satisfied, Judge Graves affirmed the decision of Judge Africk and Judge Long that the contract was not maritime and that Louisiana law applied. See March 2026 Update.
LHWCA employer Fluid Crane and LHWCA carrier ALMA, whose motion to reopen the case to allow them to litigate their “independent right of subrogation” and Fluid Crane’s Burnside negligence action against Aries Marine was denied by Judge Long (see August 2025 Update), filed a motion for reconsideration of the denial, arguing that they had adequately pleaded a Burnside claim and independent right of subrogation against Aries Marine. They cited specific allegations from their pleadings and, for the first time, argued that an LHWCA claim does not encompass reimbursement for all types of expenses sought in their limitation claim and that “the very act of seeking reimbursement for certain expenses independently suffices to plead a Burnside claim alongside an LHWCA claim.” Judge Long answered that rehashing the adequacy of the pleadings was not appropriate in a motion for reconsideration, and he held that the “eleventh-hour gesture” with respect to the expenses also failed, noting that they could have raised those arguments in their original motion. He also rejected the argument that the claims were sufficiently incorporated into the final pretrial order, noting that the court had rejected “strikingly similar” arguments in the motion to reopen. Judge Long concluded: “Fluid Crane and ALMA’s ‘recitation of duplicative and meritless arguments that have already been exhaustively considered does not entitle [them] to a second bite at the apple’ under Rule 59(e).” ALMA and Fluid Crane filed a notice of appeal on April 17, 2026.
From the state courts
Franchae Norman was employed by Cooper/T. Smith to assist in the offloading of a 217-ton boiler and its 14-ton lifting frame from the M/V FAIRLOAD in the Port of Houston. During the operation, the vessel’s crane, operated by a member of the vessel’s crew, was transporting the lifting frame to the dock when the frame struck Norman. Norman brought suit against the vessel operator in state court in Houston, and her case was tried with an eight-day jury trial. The jury returned a verdict that neither the vessel operator nor Norman was negligent, and Norman appealed. Norman argued that the district judge erred in submitting a single broad-form negligence question rather than breaking out the Scindia duties that were contested into two questions (with respect to the active control duty and the duty to intervene). Writing for the appellate court, Justice Wilson responded that the Texas Rules of Civil Procedure require judges to submit issues to juries using broad-form questions whenever feasible, and it was not error to submit the single question. Norman also argued that the district judge erred in refusing to instruct the jury that any negligence of Cooper/T. Smith should not be considered in determining Norman’s negligence. Assuming that it was error to deny the instruction, Justice Wilson concluded that any error was harmless as the jury did not find any negligence on the part of either party proximately caused the incident. Norman argued that the jury must have decided to assign all blame to Norman’s supervisor. Justice Wilson responded that an instruction on the fault of the stevedore would probably not have affected the finding that any negligence of the operator was not a proximate cause of the incident, and Norman was not prevented from presenting his argument to the jury. Finally, Norman made general allegations of juror and bailiff misconduct that were rejected for lack of specificity.
And on the maritime front . . .
From the United States Supreme Court
As we noted in our April 2022, June 2022, and November 2025 Updates, Judge Bloom of the United States District Court for the Southern District of Florida held that four cruise lines violated the Helms-Burton Act (unlawfully trafficking in property confiscated by the Cuban Government) when they used the Havana Cruise Port Terminal. Havana Docks Corp. v. Carnival Corp., Nos. 19-cv-21724, 19-cv-23588, 19-cv-23590, 19-cv-23591 (S.D. Fla. Mar. 21, 2022). The cruise lines moved to certify her order for an interlocutory appeal, but, on May 13, 2022, Judge Bloom declined the request. On December 30, 2022, Judge Bloom signed final judgments against MSC Cruises, Royal Caribbean Cruises, and Norwegian Cruise Line, each in the amount of $109,848,747.87 in treble damages (including interest) plus attorney fees and costs, and a final judgment against Carnival Corp. in the amount of $109,671,180.90 in treble damages (including interest) plus attorney fees and costs. (S.D. Fla. Dec. 30, 2022). On October 22, 2024, the Eleventh Circuit held that Havana Docks’ limited property interest had expired at the time of the alleged trafficking by the cruise lines and reversed the judgments against the cruise lines. See Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., Nos. 23-10151, 23-10171, 2024 U.S. App. LEXIS 26649 (11th Cir. Oct. 22, 2024) (Jordan).
The Supreme Court granted the petition for a writ of certiorari filed by Havana Docks and, on May 21, 2026, reversed the decision of the Eleventh Circuit. Writing for the Court, Justice Thomas held that the use of the docks by the cruise lines was sufficient to establish that they used property that was confiscated by the Cuban Government and that Havana Docks was not required to establish that the cruise lines trafficked in Havana Dock’s property interest. The property that was confiscated was not limited to the plaintiff’s interest in the property. It extended to property in which the plaintiff had an interest when the Cuban Government seized control of it after January 1, 1959. The statute provides a right to compensation based on the plaintiff’s former property interest and the later trafficking in the property by the defendants (helping support the Cuban Government). The Court remanded the case to the Eleventh Circuit to consider other defenses asserted by the cruise lines. Justice Kagan dissented, agreeing with the Eleventh Circuit that the cruise lines did not traffic in Havana Docks’ “time-limited—and long-ago expired—concession.” See Havana Docks Corp. v. Royal Caribbean Cruises, No. 24-983, 2026 U.S. LEXIS 2205 (U.S. May 21, 2026) (Thomas).
The Court also granted the petition brought by Exxon Mobil Corp. seeking to recover for the confiscation of the property of Standard Oil Co. in Exxon Mobil Corp. v. Corporación Cimex, S.A. (Cuba), No. 24-699, 2025 U.S. LEXIS 2812 (U.S. Oct. 3, 2025). The issue in that case was: “Whether the Helms-Burton Act abrogates foreign sovereign immunity in cases against Cuban instrumentalities, or whether parties proceeding under that Act must also satisfy an exception under the Foreign Sovereign Immunities Act.” On June 23, 2026, the Court held that the Helms-Burton Act abrogates the sovereign immunity of Cuban agencies and instrumentalities. Thus, the plaintiffs who sue Cuban agencies or instrumentalities under the Helms-Burton Act do need to satisfy one of the enumerated exceptions to foreign sovereign immunity in the FSIA.
From the federal appellate courts
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 tugs, LA COMMANDER and 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 against Louisiana International Marine, 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 liens 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. See July 2025 Update.
Louisiana International Marine then moved to amend the judgment to award it attorney fees (together with a motion seeking an award of fees in the amount of $186,717.50 (based on an hourly rate of $300 to $350 for lead counsel with over 35 years of legal experience and an hourly rate of $225 for associates). Judge Brown began by noting that the in rem claim against the vessels should not include attorney fees, reasoning that a suit to enforce a maritime lien is “limited to the value of the lien itself,” and attorney fees are “beyond the scope of necessaries because they are not necessary for the ship to carry on its normal functions and not something essential to the vessel’s operations.” However, Louisiana International Marine argued that the judgment should include an award of fees for its in personam claim against Trailer Bridge. This case was brought by the vessel claimants seeking a declaratory judgment that the liens were invalid, and Louisiana International Marine filed a counterclaim seeking recognition of the liens. Judge Brown reasoned that in personam liability did not attach merely because the court recognized the maritime liens. Therefore, she declined to issue an in personam award of attorney fees, stating that it was equitable that each party bear its own attorney fees. Louisiana International Marine filed a cross-appeal on July 30, 2025, and Judge Brown stayed execution of the judgment in the amount of $1,493,564.60, pending appeal, based on the escrow account ($1,350,000) previously deposited by Trailer Bridge on behalf of the vessels. See September 2025 Update.
On appeal, Trailer Bridge first contested whether Louisiana International Marine had a lien on the barges. Writing for the Fifth Circuit, Judge Jones agreed that Louisiana International Marine fulfilled the requirements of CIMLA for a lien because it provided necessaries to the barges by providing towing services for the barges and because the services were obtained by a person authorized by the owner—the charterer who was presumed to have authority to procure the necessaries. Trailer Bridge argued that Louisiana International Marine relied exclusively on the credit of Work Cat when it provided the towage and not on the credit of the barges, citing the invoicing to Work Cat and the testimony of Louisiana International Marine’s corporate representative that he did not work for the barges or extend them credit. Judge Jones answered that the invoicing only reflected that Louisiana International Marine first attempted to collect from Work Cat, not that it never intended to rely on the credit of the barges. And she noted that the corporate representative clarified that Louisiana International Marine did not view Work Cat as the sole source of payment. Instead, he expected to lien the equipment if Work Cat did not pay. Judge Jones then turned to the no-lien provision in the barge charter. She noted that a no-lien clause does not prevent a maritime lien from arising unless the entity providing necessaries has actual knowledge of the clause. Trailer Bridge established that Louisiana International Marine had knowledge of the no-lien provision because Louisiana International Marine received a copy of the barge charter on December 20, 2020 in an email (although the representative claimed he did not read the charter for the no-lien provision and was unaware of it). However, Judge Jones answered that the tug charter had already been signed a month earlier on November 12, 2020, and knowledge of the no-lien provision must precede the completion of the agreement. Thus, Louisiana International Marine lacked actual knowledge of the no-lien provision in the barge charter at the relevant time—before it agreed to the terms of the tug charter. Trailer Bridge next argued that Louisiana International Marine had an independent duty to investigate whether the no-lien provision applied to the barges, based on language in the original Maritime Lien Act. As the reference to an “exercise of reasonable diligence” was not included when the Act was amended in 1971, Judge Jones reasoned that the removal was strong evidence that the requirement no longer exists. She also disagreed with Trailer Bridge’s interpretation of the Fifth Circuit’s decision in Cardinal Shipping that the amendment only affected materialmen and not other contractors, who still have a duty of reasonable investigation, answering that the Act specifically enumerates “towage” and, “as a provider of towage services,” Louisiana International Marine was “covered by CIMLA and therefore benefits from the statute’s elimination of the reasonable diligence requirement” (noting that the duty of reasonable diligence persists for suppliers, shippers, and charterers who provide services or other contracts that are not covered by CIMLA). Finally, Judge Jones rejected the argument that the no-lien provision rendered Work Cat’s agents incapable of incurring liens because they were not authorized by the owner to procure towage services, reasoning that the statute only requires that the person who obtained the necessaries be authorized to obtain the necessaries, not that the person be authorized to incur the lien. Judge Jones then turned to the value of the lien. Trailer Bridge argued that the lien could only include time spent under towage and not standby time, but Judge Jones answered that the argument was foreclosed by the Trico Marine decision of the Fifth Circuit holding that transit and standby time are lienable. She did agree with Trailer Bridge that the costs of fuel and lubricant used while the tugs were servicing the barges were necessaries provided to the tugs, not to the barges and that attorney fees are not necessaries and cannot be part of the value of the maritime lien. However, as Louisiana International Marine prevailed on the suit, an in personam recovery of fees against Trailer Bridge was possible in the discretion of the district court. Judge Brown ruled that it was equitable for each party to bear its attorney fees, and, as there was no separate basis for Trailer Bridge’s liability to Louisiana International Marine, Judge Jones held that she did not abuse her discretion in denying an in personam recovery of attorney fees. Therefore, the Fifth Circuit affirmed Judge Brown’s judgment.
Magistrate Judge Whitehurst provided the colorful introduction for this case: “In Louisiana, known as the sportsman's paradise, one's rights to hunt and fish are sacred. Crawfish are an especially important commodity in south Louisiana. These culturally crucial crustaceans are found in abundance in the renowned landscape of the Atchafalaya Basin, where the rights of private swampland owners at times clash with those of commercial crawfishermen. This case features Defendants, owners of swamp area known as Lost Lake in the Atchafalaya Basin, against Plaintiffs, seasoned commercial crawfishermen who have crawfished Lost Lake for years.
The dispute arose on Lost Lake, across the Atchafalaya River from Butte Larose in St. Martin Parish, Louisiana. Devin Thibodeaux, a commercial crawfisherman, was harvesting his crawfish traps in water over property owned by Kenneth Bernhard, whose son, Adam Bernhard, manages the property, when Adam Bernhard intercepted and collided with the skiff occupied by Thibodeaux. Bernard declared that Thibodeaux was trespassing, and ordered him to retrieve his traps, exit the property, and never return. Bernhard then summoned a sheriff’s deputy who issued a citation to Thibodeaux for criminal trespass. Thibodeaux brought this action in federal court under the court’s admiralty jurisdiction, asserting a conversion claim under Louisiana state law. Bernhard moved to dismiss the case for lack of admiralty jurisdiction, claiming that Thibodeaux did not sufficiently allege the location of the incident for the locality portion of the test for admiralty jurisdiction, nor did he allege how the actions of the defendant had a connection to traditional maritime activity. Magistrate Judge Whitehurst agreed that the allegations were insufficient, but she gave Thibodeaux an opportunity to amend the complaint to provide more specific allegations on the elements of the test for admiralty jurisdiction. See October 2021 Update.
After Thibodeaux filed an amended complaint and Bernhard again moved to dismiss the complaint for lack of admiralty jurisdiction, Magistrate Judge Whitehurst classified the incident as interference with the plaintiff’s ability to harvest crawfish from their traps with the potential to disrupt maritime commerce, but she recommended that the case be dismissed because the general character of the activity giving rise to the plaintiff’s claims (described as harassment, verbal accosting, declaration of trespass, and ordering the plaintiff to leave the property) was not sufficiently related to traditional maritime activity. Judge Joseph found the characterization to be deficient in two important respects—it failed to encompass the allegation that the plaintiff was forcefully intercepted and stopped, an alleged intentional obstruction of a navigable vessel, and it failed to account for the reason for the conduct—impeding the plaintiff from freely navigating in the waterway while conducting commercial crawfishing. Judge Joseph instead described the defendant’s activities as “alleged physical obstruction of a navigable vessel, verbal threats, and other intimidating actions designed to impede commercial fishing and navigation. Accordingly, Judge Joseph concluded that the maritime connection test was satisfied and remanded the matter to Magistrate Judge Whitehurst to make factual findings on whether the locality test was satisfied. See July 2022 Update.
Magistrate Judge Whitehurst held an evidentiary hearing and found: Lost Lake is a perched lake (a perched lake is one in which the bottom of the lake is above the mean level of water in the surrounding river channels) situated in a crook of undeveloped swampland between the Atchafalaya River and the Butte La Rose Cutoff Channel. Lost Lake’s bottom is perched 1 to 2 feet above the mean river stage at Butte La Rose. When the Atchafalaya River is at high stage (19 feet), Lost Lake is accessible in various routes through the woods. Otherwise, access to Lost Lake is only through a 10- to 20-foot-wide drainage channel from the Atchafalaya River. The Lake is accessible through flooding and/or the ditch about 30% of the time, or about 110 days in the crawfish season, annually. Magistrate Judge Whitehurst summarized: “Lost Lake, a privately owned, non-state claimed, flood-prone area, which standing alone, without the seasonal access provided by [a] drainage ditch, is not navigable.” That raised the question: “But what of the drainage ditch, which has permitted limited navigation relatively recently?” Rather than determining the difficult question whether Lost Lake was navigable for admiralty jurisdiction, Magistrate Judge Whitehurst ruled that there was a sufficient possibility of a federal navigational servitude that the court could exercise federal question jurisdiction with supplemental jurisdiction over the plaintiffs’ state-law claims. Judge Joseph, however, chose to supplement the lengthy factual findings of Magistrate Judge Whitehurst and concluded that Lost Lake was navigable-in-fact and that the case fell within the court’s admiralty jurisdiction. The defendants argued that Lost Lake did not form an interconnected highway of commerce because it only seasonally “communicates” with the Atchafalaya River, but Judge Joseph answered that the Fifth Circuit had found that seasonal accessibility does not preclude a finding of navigability. Judge Joseph agreed with Magistrate Judge Whitehurst’s finding that Lost Lake was accessible to the Atchafalaya River about a third of the year through the short ditch, which “wholly coincides with crawfish season,” and is “commercially significant” for that Basin. Judge Joseph concluded: “Lost Lake is navigable-in-fact, and therefore a navigable body of water for the purposes [of] this Court’s admiralty jurisdiction.” See August 2023 Update.
Bernhard appealed to the Fifth Circuit, which described the Atchafalaya Basin as “our nation’s largest floodplain swamp,” offering “picturesque scenery of bottomland forests, swamps, bayous, and backwater lakes.” Bernhard did not contest on appeal the nexus element of the test for admiralty jurisdiction, but the Fifth Circuit began by considering that element as the court had to ensure that it had authority over the case. The court agreed that the actions of the defendant disrupted maritime commerce by preventing Thibodeaux from freely navigating his vessel in the Lost Lake area of the Atchafalaya Basin. The court added that the detention of Thibodeaux’s vessel and traps resulted in his inability to engage in commercial fishing, a traditional maritime activity. Therefore, the court considered the nexus element to be satisfied. Turning to the “more hotly contested issue,” the navigability of Lost Lake, the court considered the accessibility of the Lake through the twenty-foot drainage canal that coincided with the crawfish season. Bernhard cited the Fifth Circuit’s Parm v. Shumate case, addressing a privately owned lake that received runoff from the flooding of the Mississippi River. The court distinguished Parm, however, because Lost Lake has a direct, seasonal connection to a navigable river via the canal; Lost Lake has historically supported commercial fishing activity; and Parm involved the navigational servitude and not admiralty jurisdiction. Based on “the unusual facts shown before us,” the Fifth Circuit held that Judge Joseph did not err in holding that Lost Lake was navigable for purposes of admiralty jurisdiction. See July 2024 Update.
After losing the jurisdictional argument in the Fifth Circuit, Bernhard filed a motion for complete summary judgment, arguing again that the court lacked admiralty jurisdiction, citing “newly discovered” evidence of the low water mark of the Atchafalaya River, establishing that “Lost Lake is landlocked” and that interstate travel through the landlocked waterway is not possible. Bernhard asserted that the court should reconsider the previous decision because the evidence was “substantially different.” On June 10, 2025, Judge Joseph disagreed and held that Bernhard had failed to present substantially new evidence that warranted reconsideration of the finding of admiralty jurisdiction. Judge Joseph then turned to the merits of the motion for summary judgment on the claim that Bernhard was guilty of harassment of fishermen in violation of the Louisiana statute that prevents interference with a fisherman on waters managed by the state or on private waters where the fisherman has been given permission by the owner. Bernhard argued that he was entitled to judgment because the State of Louisiana does not manage Lost Lake and the plaintiffs did not have permission to crawfish on Bernhard’s private property. The plaintiffs responded that Lost Lake is subject to a public use servitude rendering trespass impossible. After noting the “imprecision of the parties’ arguments,” Judge Joseph explained that the state statute is not dependent on the existence of a servitude and only provides a cause of action for interference with a fisherman on lands managed by the State or upon which permission has been given. As the State does not claim ownership or domain over Lost Lake or manage the Lake (reflected in a letter from the State), and as the plaintiffs did not have permission to take crawfish from the Lake, the statute did not provide a cause of action. The plaintiffs argued that a servitude of public use arises by operation of law, but Judge Joseph answered that the State had not claimed ownership, and a contrary holding “would result in a federal court sitting in admiralty bestowing ownership upon the State—with all the incumbent obligations and liabilities—of heretofore privately owned property for which it makes no claim.” The plaintiffs also argued that there is a federal navigational servitude under the Commerce Clause, but Judge Joseph reasoned that the servitude “is concerned with navigational rights and commerce, and likely does not encompass a right for commercial fishermen to harvest crawfish from privately owned property.” The plaintiffs also brought a claim of conversion for taking the crawfish that had been trapped by the plaintiffs. However, the evidence reflected that the traps had been retrieved by the plaintiffs and that the claim involved “harvestable” crawfish (not harvested crawfish). As such, there was no conversion. Accordingly, Judge Joseph granted summary judgment and dismissed the plaintiffs’ claims with prejudice. See August 2025 Update.
Bernhard did not give up on his jurisdiction argument. On July 24, 2025, Bernhard filed a motion for relief from the judgment under Rule 60(b), arguing that the court made a mistake by not addressing the argument for reconsideration of admiralty jurisdiction. Judge Joseph summarily denied the motion the next day, and Bernhard appealed. The Fifth Circuit noted that Bernhard was using the Rule 60(b) motion as a substitute for an appeal, and Bernhard was seeking relief from a judgment in his favor. He feared that he would be “repeatedly haled into federal court by trespassing fishermen who will rely on Thibodeaux v. Bernhard to establish federal admiralty jurisdiction.” The court did not believe that Bernhard had demonstrated sufficient prejudice that would outweigh Bernhard’s victory or the failure to litigate the best case at the outset of the lawsuit. Therefore, the Fifth Circuit held that Judge Joseph did not abuse his discretion by denying the Rule 60(b) motion.
From the federal district courts
Tyree Jackson, his wife, and his minor daughter, T.J., were passengers on the CARNIVAL MARDI GRAS. While exiting the main pool on Deck 16 of the vessel, T.J. slipped and fell backward when her feet contacted the deck. Tyree brought this suit against the cruise line in Florida federal court, alleging that the cruise line knew that area was unreasonably slippery and failed to implement a timely solution or block the area from passenger use and that the area was damaged and had not been timely repaired. He brought counts for vicarious liability for negligence of the crew and direct liability for negligence and failure to train. The cruise line moved for summary judgment that the evidence did not establish there was a dangerous condition immediately prior to the incident as the witnesses did not see water on the deck before the accident, and the CCTV did not show any puddles. However, T.J. was certain that the deck was wet and noticed that the deck was wet after she slipped. Her mother saw water all around the area after the fall, and the crew admitted that there is water on the pool deck most of the time. Magistrate Judge Reid concluded that there was sufficient circumstantial evidence and post-fall evidence to reject summary judgment on the existence of a dangerous condition. The cruise line also argued that the slipperiness of a wet pool deck is open and obvious, particularly because T.J. had prior experience with pools and pool decks, and the cruise line put multiple warnings on the ship and in the ticket to forbid running, horseplay, jumping, and diving around the pool area. However, Magistrate Judge Reid did not believe that wetness is the same as unreasonable slipperiness, and there were fact disputes about the manner in which T.J. exited the pool (jumping or stepping). Finally, Magistrate Judge Reid found sufficient evidence of notice to the cruise line from the evidence of a crewmember that it was his job to dry the pool deck to prevent guests from slipping and to place a warning sign in the area when he saw a wet spot. Her conclusion was supported by the fact that another passenger slipped in the same area about 40 seconds after T.J., and there were instances of substantially similar incidents. She recommended that the motion for summary judgment be denied. The cruise line objected, and Judge Gayles agreed with the recommendation and denied the motion.
Hyon Duk Shin, a passenger on the NORWEGIAN GETAWAY, drowned during the Horseshoe Bay Beach excursion in Bermuda. Shin went into the water to save a girl who was caught in the current, and he managed to save her. However, there was no lifeguard to save him. His wife (Yanli Gong) brought this suit against the cruise line in Florida federal court, pursuant to the Death on the High Seas Act, asserting that the cruise line was negligent for failing to disclose known, recurring hazards, such as dangerous rip currents and the absence of lifeguards. She brought the suit individually, as personal representative of Shin’s estate, and as parent and natural guardian of their two minor children. Shin’s mother (Kwang Shin) also brought a claim in the suit. The cruise line moved to dismiss the individual claims of Ms. Shin and Ms. Gong on the ground that only the personal representative may bring the claims under DOHSA, and Chief Judge Altonaga dismissed their individual claims. The cruise line also moved to dismiss the claims for negligent misrepresentation (that the cruise line made false or misleading statements about the safety and difficulty of the excursion). As the plaintiffs failed to plead facts to support the statements with the specificity required under Rule 9(b), Chief Judge Altonaga dismissed the count without prejudice (but without leave to amend as the pleading deadline had passed). Finally, the cruise line moved to dismiss the count alleging breach of a non-delegable duty that arose from the cruise line’s “making representations, promoting, vouching for, contracting for and profiting from the excursion ticket contract.” Chief Judge Altonaga was “at a loss” as to the legal basis for the non-delegable duty theory, and she dismissed it without prejudice (but without leave to amend as the pleading deadline had passed). See September 2025 Update.
The cruise line moved for summary judgment that it did not owe a duty beyond the duty to warn of dangers of which the cruise line was aware in places where passengers were invited or reasonably expected to go, and Gong argued that the cruise line owed a broader duty of reasonable care under the circumstances. As the passengers were invited to visit the beach, Chief Judge Altonaga held that the cruise line had a duty to warn its passengers of known dangers at the beach. Nine years earlier, a passenger on another ship complained that passengers were in danger of drowning, and, on the day Shin died, the ship’s log for the GETAWAY indicated that wind conditions were conducive to producing “stronger rip currents.” Therefore, there was sufficient evidence that the cruise line had notice of the dangerous condition. The cruise line argued that the dangers associated with swimming in the ocean are open and obvious, but Chief Judge Altonaga believed that this issue was more appropriately decided by the fact finder. Finally, the cruise line argued that Gong could not establish proximate causation because the evidence only established that Shin entered into the water and was found unresponsive with no evidence as to what caused him to lose consciousness. Reasoning that the better course is to have the fact finder resolve the issue, Chief Judge Altonaga denied summary judgment on the negligence counts. With respect to the damages available under DOHSA, Chief Judge Altonaga allowed funeral expenses that were reimbursed from a GoFundMe campaign as well as expenses associated with the probate lawyer.
Robert Powers was captain of the M/V FEAR KNOT, operated by Quantum Leap Charters. While operating the FEAR KNOT on a charter through the Intracoastal Waterway near Little River, South Carolina, the vessel passed a recreational vessel operated by Edward Eldridge that was carrying 12 passengers. The recreational vessel was destabilized by the wake, causing several passengers to be ejected. O.K suffered fatal injuries. Quantum Leap brought this limitation action in federal court in South Carolina, and claims were filed on behalf of O.K. and other passengers, who brought a third-party claim against Robert Powers. Powers brought a fourth-party claim against Eldridge. Powers and Quantum Leap sought to assess all liability to Eldridge, and they also sought contribution and attorney fees for defense of the injury and death claims. Eldridge moved to strike the claims for attorney fees and contribution, and Judge Dawson noted that Powers and Quantum Leap did not identify any contract, statute, or basis in maritime law that would entitle them to recover attorney fees (there was no allegation of bad faith or vexatious conduct). Accordingly, Judge Dawson struck the request for attorney fees. As the litigation arose from a maritime accident that involved multiple actors in which fault has not been determined, Judge Dawson held that the contribution claim was sufficiently alleged. See June 2026 Update.
The claimants moved to amend their pleadings to add Doug Martin, 98% owner of Quantum Leap Charters, as a defendant under theories of alter ego and veil piercing. Quantum Leap responded that the claims failed because Martin was not present at the time of the incident, owed no duty to the claimants, and could not have engaged in the alleged negligent conduct with respect to the FEAR NOT. Judge Dawson rejected that argument, at the pleading stage, because the pleading did not rely on Martin’s personal presence at the time of the casualty. The claimants alleged that he exercised dominion and control over the vessel, Quantum Leap Charters, and its sole employee. Judge Dawson explained that under general maritime law, liability may arise from direct conduct and control, supervision, and delegation of operational responsibilities. The allegations that Martin exercised pervasive control over the company and vessel and operated the entity in a manner that blurred the distinction between personal and corporate affairs were sufficient to support theories of vicarious liability or alter ego liability. The allegations went beyond “threadbare recitals,” and were sufficient to “nudge” the theories “across the line from conceivable to plausible.” Therefore, Judge Dawson permitted the amendment of the claimants’ pleadings.
Shaina Taylor-Brooks and her sister were passengers on the CARNIVAL CONQUEST. They manually lifted and pushed the two unmade upper bunks upward and believed that the beds were in a stowed position. They left the cabin to allow a steward to service the cabin. The steward had the mechanical locking key. When they returned, Taylor-Brooks again pushed the bunk upward and believed it was secure. She sat on the lower bed, and the upper bunk fell onto her head. Taylor-Brooks brought this suit in Florida federal court against the cruise line, alleging counts for direct and vicarious liability. The cruise line moved to dismiss the complaint, and Judge Bloom agreed that one count improperly comingled allegations of direct liability with vicarious liability (for the breaches by the steward), and another count combined distinct causes of action, alleging that the cruise line breached its duty to maintain the bunk bed, its duty to train, its duty to supervise, and its duty to enforce its bunk-locking procedures. Judge Bloom also agreed that the count alleging vicarious liability failed to allege any facts to establish that the steward’s negligent acts caused the injury. The allegations demonstrated that it was Taylor-Brooks’ action that caused the incident, not that the steward’s failure to lock the bunk, perform a safety test, or warn Taylor-Brooks caused the injury. Taylor-Brooks allegations also precluded application of res ipsa loquitur as it was not a failure of the locking mechanism that caused the incident but the act of Taylor-Brooks pushing the bed upright without locking it. Taylor-Brooks also failed to allege notice of the hazardous condition. She asserted that the cruise line had notice that unsecured bunks pose a danger and that passengers frequently push up the bunks themselves. Judge Bloom answered that Taylor-Brooks failed to identify the correct hazard—that Taylor-Brooks pushed up the bunk after the steward left. However, there was no evidence how long that condition existed or of any incident that was substantially similar. As Taylor-Brooks did not ask for leave to amend, Judge Bloom dismissed the complaint with prejudice.
Archie Lee Slater was employed by Marine Management as a Deck Foreman on the FPSO (floating, production, storage, and offloading) TURRITELLA. During a safety drill aboard a fast rescue craft while the TURRITELLA was several hundred miles offshore, the engine on the rescue craft failed. The vessel was adrift and was “getting slung around by the seas” because there were “nice swells that day.” Slater was getting bounced and thrown around, and, at some point, he pulled something in his groin. During the treatment for the injury he complained of back pain. The parties disputed whether the back pain was related to the injury on the TURRITELLA or to the back surgery that Slater underwent three years earlier. Marine Management paid maintenance (and cure for treatment of his groin injury) until Slater reached maximum cure with respect to the groin injury, and Marine Maintenance brought a declaratory judgment in federal court in Alabama, based on admiralty jurisdiction, seeking a declaration on the issue whether Slater’s back problems were related to an injury or illness in the service of the TURRITELLA. The next day, Slater filed a complaint based on admiralty jurisdiction against Marine Management and others in federal court in Louisiana, but Judge Morgan transferred that suit to the federal court in Alabama where the suits were consolidated. Slater then filed a counterclaim in the declaratory judgment action and demanded a jury. He also filed a motion for leave to file a third amended complaint in which he sought to withdraw his designation of his suit as an admiralty suit pursuant to Rule 9(h) and to request a trial by jury. Judge Manasco denied leave to file a third amended complaint, reasoning that Slater had not provided an explanation for the change of course 16 months after his initial complaint and 11 months after he filed his second complaint. With respect to the counterclaim, Judge Manasco explained that Marine Management’s election to proceed in admiralty “cuts off any right Mr. Slater may have had to a jury trial” and precluded Slater “from invoking the right to trial by jury which may otherwise exist.” He held that “Mr. Slater may not supplant Marine Management’s election to proceed under admiralty jurisdiction without a jury trial by demanding a jury trial in his counterclaim.” See April 2025 Update.
Marine Management and Slater filed cross-motions for partial summary judgment. Marine Management sought rulings that Slater was comparatively at fault and that he was not entitled to maintenance and cure because of his misrepresentations. Slater sought judgment on his negligence and unseaworthiness claims and a ruling that his maintenance and cure claim was not barred. Beginning with the McCorpen defense, Judge Manasco noted that Slater suffered from chronic back problems (with treatment that included multiple back surgeries) for more than a decade before applying for employment with Marine Management. He was required to provide Marine Management with a valid United States Coast Guard medical certificate (good for two years), and he had to complete a written application and be examined by a medical provider in order to obtain the certificate. For the 2020 certificate (in effect at the time of his accident in 2022), Slater checked “NO” for 34 listed conditions, including back, neck or joint problems that impair movement or cause debilitating pain and surgeries or disabilities not listed on the form. Judge Manasco cited the difference between nondisclosure and concealment and explained that when the employer requires the seaman submit to a pre-hiring medical examination or interview and the seaman intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, he is not entitled to an award of maintenance and cure. Slater argued that the application for the Coast Guard medical certificate did not count as a pre-hiring medical examination. He reasoned that he began working for Marine Management in 2019, before his application for a certificate in 2020, and that the applications were not related to his employment process other than the fact that he had to have a certificate to work on the TURRITELLA. Judge Manasco rejected both arguments. She answered that Slater was not simply hired once in 2019 but was hired on multiple occasions to work different periods under different employment agreements. His 2020 application and examination were before he was hired under the agreement that was in place at the time of his accident. However, even if she considered his employment to have begun in 2019, Slater’s 2018 certificate was based on the same misrepresentations. Judge Manasco also rejected the argument that the medical certificate application is outside the auspices of anything related to Marine Management, answering that the certificate is a condition of his employment as a seaman with Marine Management. Slater next argued that “he never lied directly to [Marine Management], only the Coast Guard.” Judge Manasco answered that the Eleventh Circuit has not held that the McCorpen defense applies only to private examinations, and she cited the numerous examples that reflect that the court should focus on the misrepresentation, its materiality, and the causal connection, “not on the public/private nature of the test in which the misrepresentation was made.” Judge Manasco concluded that, based on the misrepresentations in the application to the Coast Guard, the three elements of the McCorpen test were satisfied and granted summary judgment to Marine Maintenance on the maintenance and cure claim. Marine Maintenance next argued that it was entitled to summary judgment that Slater was comparatively at fault because he concealed material information about his preexisting condition that was aggravated/reinjured. In the absence of clear and binding precedent on the issue, Judge Manasco applied the standard for negligence in maritime cases and found a fact question of Slater’s comparative fault. Slater knew that he had provided false answers and that he had twice sustained back injuries at sea while doing the work of a seaman. However, he believed he was fit for duty and did not have any problems in the several hitches with Marine Management prior to this incident. Judge Manasco similarly found fact issues to be resolved whether the crew was negligent with respect to the maintenance and rescue plan for the fast rescue craft; however, she reached a different conclusion with respect to unseaworthiness. She cited the difference in the standards for negligence and unseaworthiness and explained that there were disputes about the maintenance and usage of the rescue craft, but there was no dispute that the engine failed. Accordingly, she held that Slater had established unseaworthiness, but he would have to prove that his back injuries were caused by the incident.
Gerald A. Gauthier served in the Navy as a Fireman Apprentice, Fireman, and Shipfitter (Metal Smith and Pipe Fitter) and asserts that he was exposed to asbestos while he was stationed aboard the USS TALLADEGA while it was moored at Todd Shipyards in San Pedro California, and while he was assigned to the USS O’HARE. He developed mesothelioma and brought this suit against 26 defendants in the Superior Court of Los Angeles County, California, including a premises liability claim against Puget Sound Commerce Center (formerly Todd Shipyards). One of the supplier defendants removed the case to federal court based on the Federal Officer Removal Statute, and Puget Sound moved for summary judgment that Gauthier could not establish that he was exposed to asbestos-containing materials while working on the vessel at the shipyard. Judge Murillo first determined that maritime law was applicable to the claim against the shipyard, concluding that the locality test was satisfied because the exposure allegedly occurred on the TALLADEGA while it was docked at the shipyard and that the nexus test was satisfied because asbestos exposure on a naval vessel has a potentially disruptive impact on maritime commerce and a substantial relationship to traditional maritime activity. Although Gauthier stated that he was exposed to asbestos during his service at the shipyard, he could not identify any product manufactured, sold, or distributed by the shipyard. Gauthier did not oppose the motion, and Judge Murillo granted summary judgment, concluding that no reasonable jury could find that asbestos exposure attributable to the shipyard was a substantial contributing factor to Gauthier’s disease.
On January 8, 2024, the bulk carrier CHANG HANG HUI HAI was moored at Dock No. 12 in the Brownsville Ship Channel. A short distance away, three tugs owned by Signet Maritime, the DEFENDER, MAGIC, and RANGER, were moored at Signet’s dock. The forward mooring lines of the CHANG HANG parted, and the vessel allided with the DEFENDER, which was pushed into the MAGIC, which allided with the dock, which buckled and thrust part of the dock into the starboard side of the RANGER. The three tugs managed to assist the CHANG HANG back to Dock No. 12. Signet constructed a temporary dock in order to continue its operations in Brownsville, using a spacer barge, a gangway, and a nine-foot staircase that were sourced from its own inventory. Signet transported the RANGER to its drydock in Pascagoula for repair and brought the COLUMBIA from Ingleside, Texas to perform some of the work that the RANGER would have completed (to comply with its tariff obligations). Signet brought this action in Texas federal court against Shanghai Ming, owner of the CHANG HANG, and Shanghai Ming conceded liability. Judge Rodriguez held a bench trial on damages, and Shanghai Ming argued that the statute of frauds prevented Signet from recovering for damage to the dock because it did not introduce a document confirming its ownership. Judge Rodriguez held that Shanghai Ming waived that argument by not pleading it as an affirmative defense and that the defense was personal to the parties to the transaction and could not be raised by a third party. He found that Signet acquired a proprietary interest in the dock when it purchased the company that was the previous owner, and it had used and maintained the dock thereafter. It also performed a “full rebuild” of the dock in 2007-2008. The parties contested whether the repair of the dock would require rebuilding all 80 feet of the dock or only the 60 feet protruding over the water. The evidence reflected that half of the dock was shattered and a quarter of the dock materially shifted. The 20 feet of the dock over land did not appear to have shifted. The experts differed whether the entire dock should be rebuilt, and Judge Rodriguez concluded that “a prudent owner would not rebuild only the 75% of the dock visibly damaged, hoping that no damage occurred to the initial 20 feet.” The parties also disputed the life expectancy of the dock and the amount of depreciation (courts depreciate the replacement value in the event of a total loss/constructive total loss “to match the remaining life of the destroyed object”). Signet argued that the dock had a life expectancy of 50 years. Judge Rodriguez noted the total rebuild of the dock in 2007-2007, about 30 years after the dock was initially built because the structure “was old” and “needed some work.” Judge Rodriguez found that the dock had a 30-year life expectancy and that it was 16 years old at the time of the allision in 2004, representing 53.3% of its life expectancy. Therefore, he depreciated the replacement cost ($1,765,319.90) by 53.3%, yielding an award of $825,404.39. Judge Rodriguez then addressed the issue of whether Signet could recover the cost of the temporary dock. Applying the doctrine of restitutio in integrum, he explained that Signet could recover for damages for repairs and loss of earnings while they are being made, which can include the cost of constructing a temporary replacement for the damaged structure. Judge Rodriguez concluded that Signet required a dock to maintain normal tugboat operations in the Port of Brownsville and would have lost revenue and profits if it reduced or ceased operations because of the absence of the dock. Therefore, it was entitled to recover its out-of-pocket expense related to the construction and maintenance of the temporary dock. It was not entitled the value of the equipment it used without evidence that it repurposed the equipment and lost profits that the equipment would have generated. Judge Rodriguez awarded $184,991 for the expenses related to the construction and use of the temporary dock. As for the damage to the RANGER, Judge Rodriguez found that Signet acted reasonably by using its drydock in Mississippi for the repairs, and he awarded $231,819.65 for the repair. He awarded lost profits for the RANGER of $85,619.04 for 48 days in transit and in drydock at a daily rate for lost profit of $1,783.73. Judge Rodriguez then considered the lost “profits” for the reassignment of the COLUMBIA to the port of Brownsville because Signet had to maintain a certain capacity of tugs/horsepower in accordance with its tariff. The COLUMBIA operated at a loss both in Brownsville and in Ingleside, but its loss was larger at Brownsville by $594.26 per day. Therefore, Judge Rodriguez awarded $28,524.48 for the 48 days at which Signet sustained a greater loss by use of the COLUMBIA. Signet billed Shanghai Ming for the rescue service to move the CHANG HANG back to the dock, using its standard tariff rate that included a 35% dead ship surcharge. Judge Rodriguez agreed that Signet could recover for the rescue service, but he did not believe the CHANG HANG was a dead ship and awarded $58,800.47. The DEFENDER and MAGIC were not damaged. He awarded prejudgment interest at a rate of 4% based on different initiation dates.
In 2008, the predecessor of American Commercial Barge Line (ACBL) entered into a contract to lease 17 barges from MassMutual’s predecessor. Each rental term was for three months, and ACBL’s predecessor was given an option to purchase the barges on the sixteenth anniversary of the first rental term. The contract initially provided for payment on the last day of each quarter, but it was modified to provide for payment on the first day of the quarter (MassMutual was concerned about the creditworthiness of ACBL’s predecessor). Another amendment changed the length of each term to a year instead of a quarter, and payments were due on the first day of the term. The amendments gave ACBL the right to purchase the barges on July 1, 2024, but it had to pay the full annual rental on April 1, 2024, even though it would only lease the barges for three months before the purchase. ACBL paid the full year’s rental and then sued for a return of three-fourths of that amount, $469,243.53, with counts for breach of contract and unjust enrichment. Judge Divine did not find any breach of contract. ACBL argued that it paid for three quarters of rental that it did not receive, but Judge Divine answered that the contract was no longer based on quarterly rental. There was simply no text in the agreement allowing recoupment of funds if ACBL only used part of the rental period. With respect to the claim for unjust enrichment, Judge Divine was skeptical that ACBL had a claim for unjust enrichment in the face of an actual contract. However, he reasoned that it was not unjust to hold ACBL to the terms of the contract that was knowingly made.
John Rogers and Nancy LaPorta Rogers took their 22-foot Angler out on Oneida Lake in New York along with Pamela Moynihan, Paul Moynihan, and two others to travel to the Wild Horse Bar and Grill on the Oneida River for lunch (John was operating the boat). Just after they passed under the Interstate 81 Bridge into the Oneida River, they encountered a large wake from another vessel headed in the opposite direction. Pamela Moynihan was injured when she was jarred upward and slammed down on the vessel. John and Nancy Rogers filed this limitation action in federal court in New York, and Pamela and Paul Moynihan filed a claim in the suit. The Rogers filed a motion for summary judgment that they should be exonerated because they were not guilty of any negligence that caused the injury and that John was not negligent under the extremis situation presented by the wake. The Moynihans responded that John negligently operated the vessel at an imprudent speed, failed to reasonably avoid the wake, failed to keep a proper lookout, and failed to warn the passengers of the impending collision with the wake. Despite the arguments that John should have been aware of the effect of passing the other boat that was traveling at an excess speed, Judge Kahn answered that the wake arose when the other vessel gunned its engines within a couple of seconds before the passing, and John faced a decision of whether to turn into oncoming traffic, into the direction of an obstacle, or to continue on his course. Judge Kahn concluded: “His decision in the moment is not the sort of decision that is ‘so plainly wrong that a competent navigator would have rejected it.’” Therefore, “under the forgiving standard provided by the extremis doctrine,” Judge Kahn found that John acted reasonably and did not breach his duty of care by failing to avoid the wake and failing to keep a proper lookout. Judge Kahn also rejected the argument that John failed to warn them about the impending wake. He noted that Pamela and another passenger were seated at the front of the vessel and shouted to the other passengers that the wave was coming. As she had the time and opportunity to brace herself prior to the wave hitting the vessel, Pamela could not establish causation with any failure to warn. Finally, Pamela argued that John was operating the boat at an excessive speed, but she failed to establish how that was related to her injury. Accordingly, Judge Kahn granted summary judgment to John and Nancy Rogers.
This case arises from a fire at Lighthouse Marine’s shipyard in Port Bolivar, Texas. The fire started on the S/V NINO, owned by Jubilee Sailing, and spread to the M/V MS MONICA, owned by Boat Services of Galveston and chartered to Rodi Marine. Boat Services and Rodi Marine brought this suit in federal court in Texas against Lighthouse Marine, and they added Peninsula Marine as a defendant. They brought the suit under the court’s admiralty jurisdiction, and they added that the court had supplemental jurisdiction over state law claims in their amended complaint. The plaintiffs sought punitive damages under maritime law and Texas law. Jubilee Sailing intervened. Believing that the fire was started by unknown arsonists, the defendants, Lighthouse Marine and Peninsula Marine, sought leave from the court to designate John Doe (arsonist) as a responsible third party under Texas law. Such a designation would, under Texas law, result in reduction of the damages for the fault of the John Doe defendant. The designation by Peninsula Marine was in accordance with Texas law, the plaintiffs did not object, and Magistrate Judge Edison granted leave for the designation by Peninsula Marine. The plaintiffs objected to the designation by Lighthouse Marine, because it was not filed within 60 days of its original answer, and Lighthouse Marine answered that the first time that the plaintiffs added state claims was in the amended complaint. Therefore, Lighthouse Marine filed the designation in its original answer to state claims. It was not necessary, however, for Magistrate Judge Edison to “wander down” the road to address this “fascinating academic debate on the meaning of the phrase ‘original answer,’” as he held that a person designated as a responsible third party by one defendant is available for apportionment of fault by any other defendant. Therefore, Magistrate Judge Edison denied the request of Lighthouse Marine to designate John Doe as a responsible third party as moot. See May 2024 Update.
As the suit was brought as an admiralty claim for breach of a maritime contract for vessel repairs together with a claim for state-law negligence and bailment, an issue was presented whether the case would be tried to a jury or to the bench. The plaintiffs requested a trial by jury, and the defendants opposed that request, moving to strike the jury demand. The Amended Complaint only alleged admiralty jurisdiction under Section 1333, but it did not contain a designation under Rule 9(h). The plaintiffs argued that they were entitled, under Rule 9(h), to choose between a jury or bench trial when a claim for relief is within the admiralty jurisdiction and also within the court’s subject-matter jurisdiction “on some other ground.” Magistrate Judge Edison agreed, but he added that the plaintiffs had overlooked that a claim brought under supplemental jurisdiction is not brought within the court’s subject-matter jurisdiction “on some other ground” (explaining that supplemental jurisdiction does not “operate to get a case into federal court” and only becomes relevant after the pleading has invoked an independent basis to get the case into federal court). As admiralty was the sole source of subject matter jurisdiction, Magistrate Judge Edison held that the plaintiffs had no right to a jury trial, and he granted the motion to strike the jury demand. See August 2024 Update.
Lighthouse Marine moved for summary judgment on the claim that it breached an implied warranty of workmanlike performance, and Rodi Marine moved for summary judgment that Lighthouse Marine had breached the warranty and its bailment obligations. Lighthouse Marine argued that the scope of the agreements between the parties did not encompass any repair work or other services that proximately caused the fire and damage to the vessel. Magistrate Judge Edison declined to address that issue in motion practice, preferring to decide the issue after the parties fully present their positions at trial. Turning to the bailment claim, Magistrate Judge Edison explained that Rodi Marine would have to establish that a bailment relationship existed. Lighthouse Marine argued that Rodi Marine never relinquished control of its vessel to Lighthouse Marine and that Lighthouse Marine never took control of Rodi Marine’s vessel. Lighthouse Marine contended that, at most, it provided space at its shipyard for Rodi Marine to store its vessel. Magistrate Judge Edison agreed that there was a fact dispute on the bailment claim, and he denied all of the motions. See September 2024 Update.
Magistrate Judge Edison conducted a bench trial and issued his findings of fact and conclusions of law. The Lighthouse Marine shipyard is surrounded by water and a six-foot fence around half the shipyard. There is no night watchman, and anyone who wants to enter the shipyard at night has unrestricted access. Video cameras indicated that several unidentified individuals simply walked into the yard and set the fire. The shipyard’s owner testified that it was clear that the individuals had been on the premises before and knew where they were going. Magistrate Judge Edison addressed each of the causes of action asserted by the plaintiffs. The plaintiffs argued that they paid $500 a day for each of the vessels that was to provide a safe area for the vessels, and the failure to guard against the threat in this case was a breach of an implied warranty of workmanlike performance. Magistrate Judge Edison agreed that the evidence in this case was overwhelming because the shipyard failed to implement any meaningful security measures, fire prevention policies, or fire response plans. He similarly found against the shipyard on the bailment theory, concluding that the shipyard did not act as a reasonably prudent shipyard would under the same or similar circumstances. Magistrate Judge Edison explained that a marina is not an insurer for boat owners who store their boats at the marina, but it has to take some measures to protect the boats. As the separate negligence claims were duplicative of the warranty and bailment claims, Magistrate Judge Edison did not address them. Turning to damages, Magistrate Judge Edison awarded the fair market value for the constructive total loss of the vessels, $200,000 for the NINO and $4 million for the MONICA. Rodi Marine sought $5,543,503 for five years of loss-of-use damages under Texas law (allowing recovery in the event of a constructive total loss during the period necessary to replace the property), but Judge Edison found the damages were too speculative. Rodi had a long-standing relationship with Talos Energy, but there was no long-term charter. Judge Edison stated that an award would amount to an impermissible raid on Lighthouse’s coffers. He rejected Jubilee’s claim for loss of use because it only brought claims under maritime law that does not provide for recovery of loss of use for a total loss. Finally, Magistrate Judge Edison declined to award attorney fees to Rodi Marine or Jubilee Sailing, citing the general rule in maritime cases that attorney fees are not recoverable by the prevailing party. Rodi Marine and Jubilee Sailing filed notices of appeal on May 1, 2026 with respect to the award of damages. Lighthouse Marine filed a notice of cross-appeal on May 15, 2026.
Dawei Sun, a passenger on the VALIANT LADY, was struck by two large metal ceiling tiles that fell from the ceiling as he was exiting the smoking room adjacent to the casino on Deck 6. Sun brought this suit in Florida federal court against the cruise line with counts for negligent design/construction, negligent failure to inspect/maintain, negligent failure to warn, and res ipsa loquitur. The cruise line moved to dismiss Sun’s amended complaint for failing to allege facts sufficient for a negligent design claim, failure to adequately allege notice, and because res ipsa loquitur is not a stand-alone cause of action. Sun argued that he was owed a heightened standard of care because the dangerous condition in this case was a unique maritime peril—the movement and vibration of the vessel shook the heavy ceiling tiles until they came loose. He cited the language from the Eleventh Circuit in Keefe that the duty is one of ordinary reasonable care “at least where, as here, the menace is one commonly encountered on land and not clearly linked to nautical adventure.” Judge Damian declined the invitation to impose a heightened duty of care, answering that the cases have not adopted the requested heightened standard of care, even when transporting passengers in “tumultuous weather,” and finding “well taken” the response from the cruise line that ceiling tiles are commonly used on land and can fall from a variety of reasons that are unrelated to a ship’s movement. Therefore, Judge Damian applied the reasonable care standard. With respect to the adequacy of the pleading of notice, Sun argued that his counts for negligent design/construction and negligent failure to inspect/maintain were pleaded in the alternative under theories of both direct and vicarious liability and that notice was not required with respect to vicarious liability. Judge Damian responded that the pleading asserted that the cruise line and its agents, and employees breached the duties, but it did not identify an employee who was guilty of the breach. Therefore, she dismissed the counts to the extent that Sun alleged a vicarious liability claim and then considered whether Sun sufficiently alleged notice for a direct claim. The allegation that the cruise line should have known of the risk of harm from failing ceiling tiles by regular inspection and maintenance did not plausibly establish how the cruise line should have known of the dangerous condition, and the examples given of other falling ceiling tiles did not provide notice of the danger with respect to the ceiling tiles on the VALIANT LADY. Therefore, Judge Damian dismissed the negligence counts (although she held that the negligent design theory was otherwise sufficiently pleaded). Finally, Judge Damian agreed with the cruise line that res ipsa loquitur is not a cause of action but, instead, a way to prove negligence. Accordingly, she dismissed the count and added that she would determine whether to give a res ipsa loquitur instruction at trial. She dismissed the suit without prejudice and gave Sun leave to file a second amended complaint.
Joshua Wynn, a passenger on the CARNIVAL SUNRISE, was injured on the shore excursion ATV Off Road Adventure, operated by Splash Tours Ltd. at Grand Turk in the Turks and Caicos, when his leg came into contact with the overheated surface of the ATV, causing burns. He brought this suit in Florida federal court against the cruise line with two counts, negligent hiring and liability based on apparent agency, and the cruise line moved to dismiss the complaint. The first count, negligent hiring, asserted various duties and failures to warn. Judge Singhal dismissed the count because it was unclear whether Wynn was seeking to impose liability for failure to warn of known dangers, negligent hiring of an excursion operator, or both. He also dismissed the count because it sought to impose an incorrect heightened duty on the cruise line to ensure that the excursion operator provided reasonably safe equipment, to ensure that the operator’s employees were properly trained, and to ensure that the operator would provide adequate warning of the hot exhaust pipe. Finally, he dismissed the count because it lacked any factual basis for a negligent hiring claim (that the operator was unfit to perform the work, that the cruise line knew of the unfitness, and that the unfitness caused the injury). Turning to the second count (apparent agency), Judge Singhal stated that the count supported a finding that negligence by the tour operator was a cause of the injury. As for the agency relationship, the count alleged that the cruise line sold the excursion, collected funds, provided receipts, made arrangements for the excursion, advised passengers not to purchase excursions sold by entities other than the cruise line, and did not effectively disclose that the excursion was run by another entity. Judge Singhal considered these allegations to be sufficient for an apparent agency theory. However, the cruise line argued that Wynn could not establish that he reasonably believed that the excursion operator was an agent of the cruise line because the cruise ticket contract stated that shore excursions are operated by independent contractors, and the shore excursion ticket stated that the excursion was operated by an independent contractor and that the cruise line had no liability attributable to the independent contractor. Judge Singhal answered that the language cited by the cruise line created a fact issue that could not be resolved on a motion to dismiss. As the count, on its face, stated a claim for relief, Judge Singhal declined to dismiss it. Therefore, he dismissed the first count but gave Wynn leave to file an amendment.
This case arises from the allision of the M/V MISS MOLLYE D, an inland pushboat owned pro hac vice and operated by Deloach Marine Services (and its tow of six barges) with the Bayou Ramos Bridge on Louisiana Highway 182 in St. Mary Parish. Deloach filed this limitation action in Louisiana federal court and admitted that its mate, Joseph M. Giordano, Jr., negligently caused the allision; however, it argued that the negligence was an isolated error in navigation about which it had no privity or knowledge. Judge deGravelles bifurcated trial on limitation of liability and damages and held a bench trial on limitation in October 2024. Judge deGravelles concluded that the MISS MOLLYE D was unseaworthy by virtue of an insufficiently competent and trained crew (incompetence of Giordano). He then addressed privity or knowledge and found that Deloach had not carried its burden to show it lacked privity or knowledge and that it actually participated in bringing about the unseaworthy condition because its training was both inadequate and ineffective (and Giordano’s inadequacies could have been discovered with more thorough testing). By characterizing the unseaworthiness in terms of the incompetence of Giordano that was caused and contributed to by the inadequate and ineffective training of Deloach, the cause of the allision was not an isolated act of negligence for which the owner would not have been in privity. Accordingly, Judge deGravelles held that Deloach was not entitled to limit its liability.
The United States Navy’s amphibious assault ship, the USS BONHOMME RICHARD, was undergoing maintenance pier-side at the Naval Base in San Diego, California. National Steel & Shipbuilding Co. (a subsidiary of General Dynamics) and United Support Services were under contract with the Navy to service the vessel. A fire originated from the cargo area of the ship and quickly spread through the ship, resulting in several explosions. The fire lasted from July 12, 2020 until July 16, 2020, and a host of homeowners, renters, business owners, and other individuals claimed that they suffered damage to their health and property from exposure to more than a dozen harmful substances released into the air. The injured/damaged parties brought suit in California state court against National Steel, General Dynamics, and United Support, and National Steel and General Dynamics removed the cases to federal court based on federal enclave jurisdiction, the Federal Officer Removal Statute, and admiralty jurisdiction. The defendants argued that the suits arose from conduct that took place within a federal enclave (the Naval Base), and that the ship that was docked at the Base was itself a federal enclave. The plaintiffs moved to remand the suits, arguing that the injuries did not arise from a federal enclave because a tort is not complete without an injury, and the injuries did not occur in the enclave. Judge Battaglia disagreed, answering that the Ninth Circuit does not require that both the injury and tortious conduct occur on a federal enclave and that it is the location of the conduct that controls (this was not a situation like the climate-change cases in which the connection with a federal enclave such as the outer Continental Shelf was too attenuated). The allegation that the plaintiffs were damaged by days of exposure to smoke with harmful chemicals was sufficiently connected to the conduct in the enclave. The plaintiffs also argued that the location of the ship on navigable waters could not be within the federal enclave, implicitly arguing that water cannot be both navigable and a federal enclave. Judge Battaglia disagreed as the waters were located within the bounds of a military installation (and were restricted as a “security zone”). Finally, Judge Battaglia held that the federal enclave extended to the BONHOMME RICHARD, which was docked within the enclave. Therefore, he denied the motions to remand. See May 2025 Update.
National Steel and General Dynamics moved to dismiss the suit for lack of subject matter jurisdiction and failure to state a claim. They argued that the court lacked jurisdiction because the defendants were acting as agents of the United States, not independent contractors, and were therefore immune from suit under the exclusivity clause of the Suits in Admiralty Act (requiring that suit be brought only against the United States and not its agents). National Steel argued that its relationship with the United States was one of agency because the Navy “comprehensively controlled” its work (United Support Services joined in the motion, claiming that the argument applied equally to the work performed by United Support Services). There were fact disputes, however, with the level of control that were intertwined with the merits of the plaintiffs’ claims. Accordingly, Judge Battaglia denied the motion to dismiss for lack of jurisdiction without prejudice, awaiting a determination of the facts either by a motion for summary judgment (after discovery) or at trial. The motion to dismiss for failure to state a claim challenged the sufficiency of the allegations, particularly against General Dynamics, and for impermissible group pleading. Judge Battaglia disagreed with respect to National Steel and United Support Services, answering that the complaint has sufficient individualized allegations delineating their responsibilities and failures to comply with the standards of Rule 8. Judge Battaglia reached a different conclusion with respect to General Dynamics, noting that the complaint only asserted that General Dynamics provided services supporting the BONHOMME RICHARD through its agents, employees, and subsidiaries, including by working in concert through National Steel, and that National Steel worked with and reported to General Dynamics. Although the plaintiffs had filed one amendment, Judge Battaglia allowed them leave to file another amendment.
Antoniette Scarda was the owner of a 45-foot Streamline yacht that she purchased for $1.7 million. The yacht caught fire and sank while on a voyage to Fort Lauderdale, Florida, and Scarda made a claim on the Recreational Yacht Insurance Policy, insuring the vessel for $1 million, that Scarda purchased from Sutton National Insurance. Sutton National denied the claim on the ground that Scarda breached the warranty in the policy that the vessel must be equipped with a monitored GPS vessel trafficking system that is always active and functional. Sutton National brought this action against Scarda in Florida federal court, seeking a declaratory judgment that the loss was not covered under the policy. Scarda counterclaimed against Sutton National for breach of contract and brought a third-party complaint against her broker, CSI of Suffolk, for professional negligence and breach of fiduciary duty. Scarda alleges that she asked Christopher Schephis of CSI whether the boat needed a security system (the boat had an Automatic Identification System) and Schephis responded, “That’s perfect, all you need.” Scarda also alleged that CSI knew that Scarda had purchased the boat for $1.7 million but only procured a policy providing $1 million in coverage. CSI moved to dismiss the claims brought by Scarda on the grounds that Scarda lacked standing, the claims were not ripe for review, and the claims were improperly joined under Rule 14(c). CSI argued that Scarda lacked standing to bring the claims for negligence and breach of fiduciary duty with respect to the GPS warranty, claiming that she did not allege an injury in fact. CSI reasoned that Scarda was arguing that Sutton could not deny coverage based on the warranty, so any adjudication with respect to the broker would be advisory. Judge Bloom agreed and found that Scarda lacked standing for those counts. CSI argued that all of the counts should be dismissed for lack of ripeness because they were contingent upon the coverage determination that had “not yet materialized.” Judge Bloom agreed with respect to the counts involving the GPS warranty as Scarda’s counterclaim alleged “if it is ultimately alleged that the Policy does not provide coverage . . . .” However, Judge Bloom held that Scarda’s claims with respect to the amount of coverage were ripe for judicial review because the events to support the claim had already occurred and did not depend on the occurrence of future events. Therefore, Judge Bloom considered whether the counts based on the underinsurance of the vessel were properly joined under Rule 14(c). CSI argued that the claims were improper because Scarda did not seek contribution or indemnity from CSI, but Judge Bloom answered that the Eleventh Circuit and other courts have allowed third-party suits against insurance brokers in declaratory judgment actions filed by the insurer. However, the underinsurance counts were not secondary or derivative to the claims brought by Sutton against Scarda as she stated that “regardless of whether Scarda complied with the Warranty, Scarda still would have claims against CSI for procuring a Policy that provided only $1 million in coverage for the total loss of a $1.7 million boat.” Judge Bloom added that the claims were wholly independent of the underlying declaratory judgment action, and, therefore, ran afoul of the requirement that the third-party action be on account of the same transaction or occurrence. Consequently, she dismissed the claims based on the amount of insurance coverage.
Nicholas Reed Magee was a deckhand on the M/V JOHN PASENTINE, owned by Florida Marine. He fell into the Ohio River near Catlettsburg, Kentucky while traversing a fuel flat and dock to unload trash from the vessel. Magee brought this suit in federal court in Louisiana against Florida Marine under the Jones Act and general maritime law, and Florida Marine moved for summary judgment on the Jones Act and unseaworthiness counts. Magee responded that Florida Marine either misunderstood the bases of his theories of liability or mischaracterized them. Magee argued that Florida Marine failed to provide Magee with a safe method to accomplish the task of removing trash from the vessel, failed to provide an adequate number of crew, and failed to warn Magee of the wake from a passing vessel. Florida Marine argued that it had no duty to instruct Magee on matters known by an experienced seaman. Judge Papillion found sufficient evidence of failure to provide a safe place to work, including the fact that Magee had to step over a gap between the fuel flat and dock while the Master of the vessel was standing nearby. As to unseaworthiness, Judge Papillion noted that Florida Marine focused on the very specific task of disposing of the trash to argue that the crew was not engaged in an unsafe method of work. However, he found evidence that the vessel was undermanned because two of the three deckhands were “green” and required Magee’s assistance to perform their duties and that the Master and Wheelman of the vessel were ill-trained. Therefore, Judge Papillion declined to grant summary judgment to Florida Marine on the Jones Act and unseaworthiness claims.
Florida Marine sought to exclude the opinions of Magee’s liability experts, Steven Cunningham and Michael Berry, on the ground that their opinions were conclusions that the fact finder could reach by using common sense. Cunningham opined that the fuel barge was in motion at the time of the accident, and the movement was most likely a result of the vessel TRI STATE passing by a few minutes before. Cunningham used the Automatic Identification System records together with his experience on the effects of a passing vessel to reach his conclusion. Judge Papillion disagreed with Florida Marine, answering that it was likely that Cunningham’s testimony would be helpful to the fact finder. Florida Marine challenged Berry’s opinions that Florida Marine violated its company policies and federal regulations, and Judge Papillion agreed that the opinions were not helpful because the Court could make that determination itself after reviewing the policies and regulations (but he declined to strike the testimony as to the standard of care in the industry). As with Cunningham, Judge Papillion found helpful the opinion regarding movement of the fuel barge. Florida Marine objected to the opinions of Dr. Charles A. Czeisler with respect to fatigue risk management on the ground that his opinions were beyond the scope of his expertise and unreliable. Judge Papillion disagreed and held that Dr. Czeisler is qualified to testify about whether fatigue was a factor in causing Magee’s injury and about whether the fatigue management policies of Florida Marine were sufficient. Florida Marine next sought to exclude the testimony of Dr. Susan Kahn as to the abilities of Magee because she did not perform a physical examination of Magee or ask him to demonstrate his abilities to perform the tasks addressed in her opinion. Judge Papillion disagreed, as Dr. Kahn was asked to assess whether she believed he would be able to perform the tasks. Similarly, Judge Papillion declined to exclude Florida Marine’s vocational and economic experts. Finally, Judge Papillion declined to exclude the job offer made by Florida Marine to Magee (Magee argued that it was not a “real” job offer but was only submitted to reduce his damage claim). Judge Papillion held that he would consider the weight to be given the offer after hearing all of the evidence. See August 2024 Update.
Magee originally filed his seaman’s suit with a jury demand. After the case was assigned to Judge Papillion, Magee filed a motion to withdraw his jury demand so that the case could proceed with a bench trial. Florida Marine recognized that a Jones Act seaman can withdraw his jury demand without the traditional consent required of the defendant. However, Florida Marine argued that significant motion practice and discovery had occurred with the objective of a jury trial, and that nearly all pre-trial deadlines had passed. Judge Papillion disagreed, answering that Florida Marine had not shown how it would be “truly prejudiced” by the conversion of this matter to a bench trial. Judge Papillion also pointed out that the case involved a limitation defense sought by Florida Marine, and the withdrawal of the jury demand would be more efficient as all claims and defenses would be tried together. Accordingly, Judge Papillion granted Magee’s motion to withdraw the jury demand.
As Magee allegedly slipped and fell while walking between the fuel flat and dock, Florida Marine filed a third-party action under Rule 14(c) against McNational, Inc. (d/b/a Mid-America Fuels), which Florida Marine asserted had custody of the fuel flat and dock. Mid-America Fuels filed a motion to dismiss for lack of personal jurisdiction, and Judge Papillion granted the motion. Florida Marine then filed a suit against Mid-America Fuels in federal court in Kentucky, seeking to recover the maintenance and cure it paid as well as contribution for any tort liability to Magee. Florida Marine moved to transfer the Magee suit to the federal court in Kentucky so that all claims arising from the incident could be litigated in one setting. Florida Marine also moved for reconsideration of the dismissal of Mid-America Fuels for lack of personal jurisdiction and asked the court to transfer the suit rather than dismissing the third-party claim. With respect to the reconsideration of dismissal so that the case could be transferred, Florida Marine argued that Mid-America Fuels was brought into the case under Rule 14(c) so that a transfer was appropriate to a court where jurisdiction would have been proper. Judge Papillion answered that, at the time of the dismissal, the suit was still pending as a seaman’s suit under the Jones Act with a jury demand and not as an admiralty case with a Rule 9(h) designation. Thus, Judge Papillion did not believe that transfer of the plaintiff’s suit would have been appropriate. However, even if there were a proper tender under Rule 14(c), Judge Papillion would not have transferred the suit because there was no evidence that the Kentucky federal court would have been able to exercise personal jurisdiction over McNational (d/b/a Mid-America Fuels), whose principal place of business is in Ohio (although the incident occurred in Kentucky). Turning to the separate motion to transfer to the federal court in Kentucky (where Florida Marine’s suit against Mid-America Fuels is pending), there was no dispute that Magee’s suit against Florida Marine could have been brought in Kentucky. The issue was whether transfer would be for the convenience of the parties and witnesses and in the interest of justice. Judge Papillion noted that Florida Marine focused primarily on the fact that the federal court in Kentucky was the only forum that would permit Magee to pursue his claims against Florida Marine and Florida Marine to pursue its claims against Mid-America Fuels in one setting. However, that was only one factor, and many of the other private and public interest factors favored Louisiana, where both Magee and Florida Marine are domiciled and many of the potential witnesses reside. Judge Papillion denied the motion to transfer, concluding that Florida Marine had failed to show that Kentucky was a “clearly more convenient forum.”
Magee moved for summary judgment that Florida Marine could not assert a defense of comparative negligence (and that Florida Marine was guilty of negligence per se) for violation of the statutory requirement to log Magee’s working hours and because the vessel was undermanned in violation of the Towing Safety Management System’s manning regulation. Although it was undisputed that Florida Marine violated the logging requirement, there was a dispute whether it violated the manning requirement. Nonetheless, Magee would still have to prove that any violation contributed to his injury, and Judge Papillion noted that there were “numerous theories of causation in this case, many of which are intertwined.” Accordingly, Judge Papillion ruled that he, as fact finder, would make a decision on causation at trial and then determine whether Magee could be found guilty of any comparative fault. See September 2024 Update.
Judge Papillion held a nonjury trial from July 29, 2024 to August 2, 2024 and issued his findings of fact and conclusions of law on March 31, 2026. He described the accident from the video cameras on the tug: “Next, it shows Mr. Magee walking across the fuel barge with a trash bag in each hand. When Mr. Magee reaches the edge of the fuel barge, he stands next to Captain Spencer for approximately 10 seconds. Mr. Magee then begins to step across the gap with his left leg. As he places his left leg onto the stairway of the dock, Mr. Magee loses his balance and falls backwards into the Ohio River, in between the fuel barge and dock. Captain Spencer then leans down from the fuel barge and assists Mr. Magee out of the water and onto the landing area at the base of the dock’s stairway. Mr. Magee stays seated on the landing area for approximately one minute before stepping back across the gap, onto the fuel barge, and walking back to the Vessel.” Judge Papillion found that it was more likely than not that the fuel barge did not move as Magee stepped from the fuel barge to the dock. He found that Magee slipped and fell because “the method of work was unsafe given the distance between the fuel barge and dock, the wet stairs, and the inability to step from the fuel barge to the landing area at the base of the stairway.” Magee underwent surgery for a suspected tear of the medial meniscus in his knee, but the doctor found no tear and instead performed a plica resection and microfracture repair of a medial femoral condyle defect that the doctor attributed to an impact injury to the cartilage in Magee’s knee. After the surgery, Magee suffered from deep vein thrombosis and a pulmonary embolism. Magee ultimately underwent another arthroscopic surgery to remove inflamed tissue. The surgeon found the meniscal tear but was unable to repair it. Judge Papillion found that Magee suffers from PTSD, major depressive disorder, and somatic symptom disorder with predominant pain. Judge Papillion concluded that Florida Marine was negligent under the Jones Act because Captain Spencer was aware of the unsafe condition in requiring Magee to traverse the gap between the fuel barge and the dock with no access to a handrail when it was raining and the steps were wet and slippery. As he found negligence, Judge Papillion did not address whether there was unseaworthiness. He apportioned 35% fault to Magee because he is an experienced deckhand who should have known that he was not using three points of contact and could have stopped the operation and not taken the step until a safer method was chosen. Although Magee brought a claim for compensatory and punitive damages for failure to authorize cure for psychiatric care, Judge Papillion rejected the claim because Florida Marine was requesting evidence to support the claim and eventually authorized treatment after receiving opinions from the treating and examining physicians (it never denied treatment). Turning to damages, Judge Papillion found that Magee, who was under 30 at the time of the accident, would have become a captain and had future wage loss of $2,731,813 in addition to $225,693 in lost future maintenance and $261,261 in past lost wages and $21,323 in past lost medical insurance benefits. He added $110,794 for future medical expenses, $750,000 for past pain and suffering, and $1 million for future pain and suffering. He awarded prejudgment interest (at 3%) on the economic and non-economic damages suffered in the past ($671,179.60). Therefore, after the reduction for comparative fault, the total award was $3,315,574.60. Florida Marine filed a notice of appeal on April 27, 2026.
This opinion addresses coverage issues arising for the injury sustained by Russel J. Gannard, III, an employee of Quality Construction & Production who was injured while being transferred from the deck of a REC Marine vessel to an offshore fixed platform owned by Arena Offshore. Gannard claims that he was attempting to enter the personnel basket and was slammed onto the deck of the vessel as a result of the negligence of the crane operator on the platform, who was employed by an entity named Quality Production Management. Gannard brought suit in Louisiana federal court, naming REC Marine Logistics, and Quality Production Management brought this suit in Louisiana federal court against REC Marine and Quality Construction’s insurers in response to REC Marine’s demand against Quality Construction for defense and indemnity. REC Marine and Arena are parties to a Master Time Charter Agreement under which Arena agreed to indemnify REC Marine for injuries to employees of Arena or its contractors. Arena also agreed to name REC Marine as an additional insured on enumerated policies. Quality Construction entered in a Master Service Contract with Arena under which Quality Construction agreed to indemnity Arena and its contractors for injuries to Quality Construction’s employees and to name Arena and its contractors on enumerated policies. Arena paid the insurance provisions for itself and its contractors to be named on a policy issued by Travelers Underwriter Syndicate No. 5000 TRV to Quality Construction. Arena also entered into a Master Service Contract with Quality Production Management that contained similar provisions for indemnity and insurance in connection with demands made by its employees. REC Marine requested indemnity and additional insurance from Arena (based on the time charter) on the ground that Gannard was an employee of Gannard’s contractor, Quality Construction, and Arena made a demand on Quality Construction to defend and provide additional insurance for REC Marine pursuant to its Master Service Contract with Quality Construction (as REC Marine was a contractor of Arena). Quality Construction notified its insurer Travelers of the demand, and Travelers agreed to participate in the defense of REC Marine, subject to a reservation of rights. Travelers filed a motion for judgment on the pleadings, and Quality Construction filed a motion for summary judgment. Judge Summerhays began by analyzing Arena’s claim for contractual liability coverage (for its indemnity obligation to REC Marine) under the policy issued by Travelers to Quality Construction. The Master Service Contract required that Arena be named as an insured and that Quality Construction indemnify both Arena and its contractor REC Marine. However, the Master Service Contract did not require Quality Construction to assume the contractual liability of Arena to REC Marine. Additionally, Judge Summerhays stated that the demand came from REC Marine, which was not an invitee of Quality Construction. Therefore, Judge Summerhays granted Travelers judgment that it did not provide contractual liability coverage to Arena for its indemnity obligation to REC Marine under the time charter. Judge Summerhays then addressed Quality Construction’s motion addressing whether it must pay the $250,000 deductible owed under the Travelers policy with respect to costs incurred by Arena and/or REC Marine as a result of their own fault (arguing that such an obligation would violate the Louisiana Oilfield Indemnity Act). Judge Summerhays had to determine whether the contract was governed by maritime law in order to decide if the LOIA was applicable. The Master Service Contract required Quality Construction to provide construction operations on a fixed platform on the outer Continental Shelf and did not require use of vessels except for transportation (which is not considered under the Doiron test). Therefore, Judge Summerhays held that Louisiana law and the LOIA applied to the Master Service Contract. That presented a question of first impression—whether the payment of an insurance deductible by an indemnitor violates the LOIA when the indemnitee/principal paid a Marcel premium to be an additional insured on the policy. Judge Summerhays reasoned that the payment of the Marcel premium addressed the cost of insurance, but it did not address the fact that Quality Construction would bear the economic burden of the cost of defense/liability for REC Marine if it was liable for the deductible. To that extent, Judge Summerhays believed that the contractual indemnity/insurance requirement would violate the LOIA if the defense/liability costs arose out of the negligence of REC Marine. At this stage of the litigation, summary judgment was premature because the liability of REC Marine had not been determined.
Kersha Leanie Lampson Hodgson was hired by International Cruise Shops to work as a Sales Associate on the cruise ship CELEBRITY SILHOUETTE. Once on board the vessel, Hodgson was under the direction and control of Starboard Cruise Services and/or Celebrity Cruise Lines. She worked for a Starboard supervisor to assist in selling goods in the shops on the vessel, and the Starboard supervisor worked under the supervision of the Celebrity Hotel Director (with final decisions coming from Celebrity). Thus, International Cruse Shops was her Jones Act employer, and Starboard and Celebrity were her borrowing employers. While lifting a box, Hodgson felt a sharp pain in her low back and began to experience menstrual bleeding and abdominal pain. She went to the ship’s infirmary and was diagnosed with endometriosis and dysmenorrhea, but she claims her back complaints were ignored. She was eventually medically disembarked and sent back to her home country of Nicaragua where a physician diagnosed her with grade 4 endometriosis. She was not found to be at maximum cure with respect to her lumbar complaints or endometriosis. Hodgson brought this complaint against Starboard, Celebrity Cruise Line, Celebrity Silhouette, and International Cruise Shops under the Jones Act and general maritime law, including claims for maintenance and cure and failure to provide adequate medical care. The defendants moved to dismiss the complaint, and Judge Bloom agreed that the complaint improperly combined multiple theories into each count. For example, the first count alleged that Starboard was negligent for failing to provide a safe workplace, failing to instruct and train its crewmembers, and failing to implement safe work methods. Celebrity Cruise Line and Celebrity Silhouette also moved to dismiss the complaint for insufficient service of process. Hodgson served CT Corporation, which rejected service as it is not the agent for the parties named by Hodgson. Although Hodgson argued that the rejection was based on a minor discrepancy in the names, Judge Bloom held that the service was insufficient.
Grace O’Marcaigh worked as a stewardess on the megayacht VICTORIOUS. According to O’Marcaigh, Sean Combs chartered the yacht for the holiday period in December 2022, including the use of his son Christian Combs (Sean claims the yacht was chartered by JCMUS, Inc.). Sean, a rap artist and record executive, typically stayed on the yacht in the waters near the U.S. Virgin Islands, and Christian, a rap artist, stayed at a nearby villa and boarded the yacht most evenings. Other guests included “suspected sex workers and other A-List celebrities.” O’Marcaigh worked the overnight shift, providing dinner and drinks to those on the vessel. On December 29, 2022, Christian boarded the yacht to record music in a makeshift recording studio. O’Marcaigh alleges that he insisted and forced her to partake in shots that she suspects were spiked and that he touched her inappropriately, tried to kiss her, and attempted to force her to engage in oral sex. Sean was not present when the incident occurred. She asserts that, when informed, Sean paid a “generous tip” to the captain of the yacht to keep him quiet. O’Marcaigh brought suit against Sean and Christian in state court in Los Angeles County, California, alleging counts against Christian for assault, battery, sexual assault, and negligent and intentional infliction of emotional distress. She alleged counts against Sean for premises liability and aiding and abetting. The defendants removed the case to federal court based on diversity and original admiralty jurisdiction, and the court determined that it had admiralty jurisdiction. Sean moved to dismiss the claims for lack of personal jurisdiction. Although O’Marcaigh argued that Sean resided in Beverly Hills, California, Judge Gee cited evidence from Sean that he is a permanent resident and domiciliary of Florida and held that there was no general jurisdiction over Sean in California. As for specific jurisdiction, Judge Gee found no connection between Sean’s business dealings in California and the allegations in the suit. Therefore, she granted Sean’s motion to dismiss for lack of personal jurisdiction, but she gave O’Marcaigh leave to amend the allegations with respect to personal jurisdiction. Sean also moved to dismiss the suit for failure to state a claim, arguing that the claims made under California law were not applicable to the incident that did not occur in California. Judge Gee answered that both parties missed the mark, noting that maritime law applied. As neither party addressed how to assess the claims under maritime law, Judge Gee denied the motion to dismiss for failure to state a claim without prejudice.
This “contentious matter” involves the arrest of the M/Y SOMETHING ABOUT MERI by Huntington National Bank because of the default of vessel owner Stanley Kalish on his loan in the amount of $1,318,000, which was secured by a first preferred ship mortgage on the vessel, a 92-foot 2005 Mangusta/Overmarine motor yacht. Huntington National Bank is the successor in interest to Chemical Bank, which is the successor in interest to the original mortgage, Radius Bank. Danielle Morron appeared in the action as “an Interested Co-Party and lawful agent of Defendant Stanley R. Kalish, pursuant to a durable Third Party Authorization,” claiming a direct, vested interest in the vessel “due to a preexisting partnership agreement with Defendant, facilitated by and having paid substantial commission to Agents of Rick Obey Yacht Sales, a partnership dually [sic] executed and explicitly known to the First Preferred Ship Mortgage holder since 2021, resulting in extensive financial contributions to the vessel’s restoration, caretaking, and preservation over a four-year period, totaling approximately $2 million.” Morron moved to vacate the arrest on the ground that Huntington National Bank was not the recorded mortgagee and lacked a valid maritime lien on the vessel. She also argued: “Any remaining claim it has, if at all, after the wanton disregard for properly invoking the Rule C legal process in the district court, and the physical damage the bank has already caused, is governed exclusively by state law.” Thus, the arrest could not be sustained in the federal proceeding (she also complained that the bank engaged in a self-help seizure of the boat before the vessel was arrested in this proceeding). Morron later filed a verified claim in which she denied any ownership of the vessel or a lien for salvage. She asserted a possessory and custodial interest in the vessel because she resided aboard, maintained, preserved, insured, and safeguarded the vessel with the knowledge and acquiescence of the titled owner (Kalish) and an equitable interest in the vessel from the substantial expenditure of funds and labor to preserve, stabilize, and maintain the vessel. Magistrate Judge Hunt first addressed whether Morron had standing to challenge the arrest. He recognized “Morron’s heartfelt belief that she is owed something in regard to the vessel, but he held that he did not have standing to challenge the arrest.” On the merits, Magistrate Judge Hunt rejected Morron’s arguments that the bank could not engage in a self-help repossession of the vessel as that remedy was granted in the loan documents. He also rejected the argument that Huntington National Bank could not arrest the vessel because its name does not appear on the mortgage or in the records of the Coast Guard’s National Vessel Documentation Center, noting that the mortgage was properly filed and the rights automatically vested in Huntington National Bank pursuant to the Federal Bank Act by a series of mergers (he also rejected the argument that: “The stated collateral encumbrance of $1,318,000 far exceeded the actual amount advanced for the vessel, $755,008.65, and is thus non-preferred, as it conflates marine and land based debt that overstates the true whole of the vessel encumbrance by 43%.”). Accordingly, he recommended denial of the motion to vacate the arrest and to dismiss the in rem action for lack of admiralty jurisdiction. Morron objected, and Judge Dimitrouleas adopted the recommendation and denied the motion.
Although the court entered a protective order prohibiting harassment, threats, abusive communications, fabricated legal accusations, and improper conduct directed at the parties and counsel, Huntington National Bank asserted that Morron had persisted in sending “a steady stream of hostile, accusatory, and often threatening emails to Huntington’s counsel, Huntington personnel, substitute custodians, and third parties,” advancing “unsupported allegations of criminal conduct, fraud on the court, insurance fraud, RICO violations, and notarial crimes.” The bank asked the court to hold Morron in civil contempt, strike all of her pleadings and other filings, dismiss her from the case with prejudice, and prohibit her from communicating with the bank and its counsel except through properly filed court documents. Magistrate Judge Hunt found that Morron had continued to harass the bank and its attorneys in violation of the court’s prior order and recommended the sanction that Morron be forbidden from communicating with the bank and its attorneys in any way, waiving the conferral requirement between the Bank and Morron. With respect to the request that Morron be dismissed from the case with prejudice, Magistrate Judge Hunt agreed to the dismissal, but not as a matter of contempt. Instead, Magistrate Judge Hunt noted that the court had allowed Morron to intervene when it was unclear whether Morron could claim a valid interest in the vessel so that she could clarify the precise interest that she had. In light of her “continuously changing interest claims, dismissals, and reassertions,” Magistrate Judge Hunt found that “it would be nigh impossible” for Morron to assert a valid interest. Accordingly, he recommended that she be dismissed for failure to establish a viable claim to the vessel. He declined to recommend an award of attorney fees as a sanction, “mindful of Morron’s pro se status and unfamiliarity with Court procedures” and the bank’s original non-objection to the intervention. Judge Dimitrouleas approved the recommendation.
Magistrate Judge Hunt next addressed Huntington Bank’s motion for interlocutory sale of the vessel that was opposed by Morron but not by Kalish. Magistrate Judge Hunt found adequate support for the sale based on unreasonable delay, as the vessel had been under arrest for six months and for excessive expense as the storage costs for the vessel were more than $10,000 per month. He rejected Morron’s argument that any change in condition of the ship was the bank’s fault. Therefore, he recommended the interlocutory sale and that the bank be entitled to credit bid at the interlocutory sale (ordering the bank to submit an affidavit supporting the total amount owed under the mortgage plus the costs of the substitute custodian). Judge Dimitrouleas adopted the recommendation and ordered the interlocutory sale and credit bid. See March 2026 Update.
Huntington Bank then moved for summary judgment against the vessel and Kalish. The bank established the requirements to enforce its rights under the loan agreement and mortgage and its right to foreclose on its lien. Kalish did not contest the default or the bank’s right to recover. Kalish argued that the bank’s post-repossession conduct and failure to preserve the collateral caused damage to the vessel and that the bank improperly sought judgment for the entire outstanding loan without crediting the value, use, or proceeds of the vessel against the outstanding loan balance. Judge Dimitrouleas agreed with both parties in part. He granted summary judgment that Kalish was in default, that Huntington was entitled to foreclose on the mortgage, and that Kalish was personally liable for breach. However, he denied summary judgment as to the measure of damages.
Morron filed a motion for authorization to credit bid on the sale of the vessel for her salvage lien on the vessel. Magistrate Judge Hunt addressed that request after considering the motion of Huntington Bank to compel removal of two electronic control modules from the vessel, rendering the vessel’s main engines inoperable. Morron denied that she had the modules and suggested that others had the opportunity to take them. Magistrate Judge Hunt ordered that Morron return the modules if they are in her possession, custody, or control and must notify the bank if she has any knowledge of the whereabouts of the modules. Otherwise, the motion was denied. Magistrate Judge Hunt noted that Morron “appears to have some difficulty adhering to this Court’s Orders.” He stated during a hearing that “Morron should be aware of the potentially serious consequences for misrepresenting to the Court whether she was, in fact, involved in the removal of the modules.” He added: “Should those modules find their way back to the boat on or before the scheduled sale on April 21, 2026, the Court assures the Parties that no such consequences will be enforced.” He made no such assurances after that date. As for the salvage claim, Morron argued that she has a lien of $1,011,539.05 arising from an emergency sinking casualty in 2022. The vessel was restored to self-propulsion in 2025, and Morron claimed salvage for this period. Although the bank argued that the time to assert the lien was two years after the date services were rendered, Magistrate Judge Hunt assumed that the lien had not lapsed and considered whether Morron had established a claim for salvage. Magistrate Judge Hunt reasoned that Morron “runs into trouble” on the requirement that the service be voluntarily rendered. He explained that the salvage effort began in 2022 when Morron argued that she had a “direct, vested interest” in the vessel “due to a preexisting partnership agreement” with Kalish. The incident occurred while the vessel was moored at Morron’s home, and Magistrate Judge Hunt found it “abundantly clear” that Morron was “under a preexisting obligation to render aid to the boat.” Therefore, he concluded that her salvage lien was invalid. Morron filed a notice of appeal on April 21, 2026 with respect to the denial of her salvage lien.
Judge Dimitrouleas declined to extend the date for the interlocutory sale or the confirmation, and he confirmed the sale to Huntington Bank on May 15, 2026 (as the second highest bidder) for its credit bid of $500,000 (as the higher bid of $500,001 was not concluded by a deposit or payment).
Eight United States service members died in the crash of a V-22 Osprey aircraft operated by the United States Air Force in a crash into the East China Sea off the coast of Japan while on a military training exercise. Their beneficiaries brought this survival action in Pennsylvania federal court (based on diversity) against the manufacturers of the aircraft under Pennsylvania law and sought economic and non-economic damages, including punitive damages. The manufacturers moved to dismiss the state claims, arguing that they were preempted by the Death on the High Seas Act. They also argued that the plaintiffs were not entitled to a jury trial under DOHSA. The beneficiaries argued that they could bring a survival action under state law because the Supreme Court has never explicitly determined that state survival statutes are preempted by DOHSA. They noted that the decision of the Supreme Court in Dooley v. Korean Air Lines, rejecting recovery of a survival action under the general maritime law, had no bearing on the survival action brought under state law. Judge Murphy rejected their arguments crafted from the language of DOHSA because they were foreclosed by the decisions in Higginbotham, Tallentire, and Dooley. He held that DOHSA preempts all claims under state survival or wrongful death statutes. The beneficiaries next challenged the applicability of DOHSA, arguing that the wrongful act did not occur on the high seas—arguing that the wrongful act occurred on land where the defendants manufactured the allegedly defective aircraft. Judge Murphy disagreed, agreeing with other courts that the faulty manufacturing had its effect on the decedents during the flight over water, so the wrongful act occurred on the high seas, and DOHSA applies. Therefore, he dismissed the suit and granted the beneficiaries the right to replead their claims under DOHSA. He did not have to decide at this stage whether the beneficiaries would have a right to a jury trial.
The beneficiaries petitioned the Third Circuit for permission to file an appeal under 28 U.S.C. Section 1292(b), arguing: “The preemptive effect of DOHSA on land-based torts is a matter of first impression in this court and should be evaluated now.” On June 29, 2026, the Third Circuit denied the petition to appeal without issuing an opinion.
Fred Farah claims that his 2013 Crownline 285 boat was seriously damaged on July 8, 2024 in Hurricane Beryl while he was out of the country and the boat was located at a shop for cleaning. He transferred the boat to an auto repair shop, Chad Car Care, located on property owned by Farah. Chad Car Care provided an estimate in the amount of $42,815. Farah made a claim on the Chubb Masterpiece Policy, and Chubb engaged a marine surveyor who reported that the damage was not consistent with hurricane damage and was the result of wear and tear and diminution in value. Chubb issued a check in the amount of $6,785 (for damage and related expenses of $7,565 minus the deductible of $780), and Farah brought this against Chubb in state court in Houston, Texas, with claims for breach of contract, bad faith, violations of the Texas Insurance Code and Deceptive Trade Practices Act, and violation of the Prompt Payment of Claims Act. Chubb removed the case to federal court based on diversity and filed a motion for summary judgment. Farah did not respond, and, in the absence of evidence refuting the evidence provided by the surveyor, Judge Hanen ruled that there was no breach of contract. He then considered the extracontractual remedies and held that they failed because Farah did not demonstrate any right to receive additional benefits under the policy or an independent injury. Finally, Judge Hanen rejected the claim for violation of the Prompt Payment of Claims Act, noting that it does not apply to marine insurance policies. Accordingly, Judge Hanen dismissed the suit.
This litigation involves video voyeurism committed by Arvin Joseph Mirasol, who was a stateroom attendant on the cruise ship SYMPHONY OF THE SEAS for twelve cruises between December 2023 and February 2024. Mirasol placed hidden cameras in the staterooms of the plaintiffs in 11 cases and captured videos of the plaintiffs, including minor children, while undressed and engaging in private activities. Mirasol also entered staterooms and hid under the bed to record guests with his cellular device while they were in the shower. [Note: the Eleventh Circuit affirmed a sentence of 360 months for Mirasol for production of child pornography in United States v. Mirasol, No. 24-13022, 2025 U.S. App. LEXIS 15556 (11th Cir. June 24, 2025)]. Before consideration of consolidation and class certification, the cruise line moved to stay the suit brought in Florida federal court by Jane Doe (S.F.) against the cruise line and Mirasol, on her own behalf and on behalf of others similarly situated, asserting counts against Mirasol for invasion of privacy by video voyeurism and intentional and negligent infliction of emotional distress by video voyeurism and sexual assault, and asserting counts against the cruise line for vicarious strict liability for invasion of privacy by video voyeurism and sexual assault, vicarious strict liability for intentional infliction of emotional distress by video voyeurism and sexual assault, negligent infliction of emotional distress by video voyeurism and sexual assault, negligent security, and general negligence. Amended complaints added counts against the cruise line for breach of an implied covenant of good faith and fair dealing and negligent hiring and retention. The cruise line moved to compel arbitration and stay the litigation pursuant to the arbitration provision in its ticket contract. Doe (and the other plaintiffs) did not dispute the validity of the contract; however, they responded that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) precluded the court from enforcing the arbitration provision. The cruise line responded that the video voyeurism (and Marisol’s self-stimulation) without any physical contact with the plaintiffs did not qualify as a sexual assault dispute or sexual harassment dispute under the statute. The cruise line also argued that because the mental and emotional distress injuries did not arise from physical or bodily injury, the arbitration provision was not invalidated by 46 U.S.C. Section 30527. Magistrate Judge Shaw-Wilder noted that the plaintiffs framed their case as a “sexual assault dispute.” Magistrate Judge Shaw-Wilder explained that the plaintiffs must allege conduct constituting a nonconsensual “sexual act” or “sexual contact.” The cruise line argued that Mirasol’s conduct in self-stimulation while watching the plaintiffs fell short of “sexual contact” because he did not touch the private areas of the plaintiffs. Magistrate Judge Shaw-Wilder disagreed, noting cases that held that the defendants touching of himself was sufficient. The cruise line next argued that EFAA requires that the plaintiff’s case be filed under federal or state law and be related to the sexual assault dispute or sexual harassment dispute. Magistrate Judge Shaw-Wilder noted that district courts have distinguished between cases proceeding under the sexual assault dispute and sexual harassment dispute prongs of EFAA. When plaintiffs plead a sexual assault claim, they do not have to bring claims under federal or state law that specifically prohibit sexual assault. Thus, Magistrate Judge Shaw-Wilder held that EFAA was triggered, and the bar to arbitration applied to the entire case. Magistrate Judge Shaw-Wilder then considered the effect of Section 30527 and held that the prohibition on arbitration of personal injury claims applied to the claims for emotional distress. However, the statute does not bar arbitration of claims sounding in contract. Therefore, Section 30527 would not bar arbitration of the count based on breach of implied covenant of good faith and fair dealing (although arbitration was barred by EFAA). Accordingly, Magistrate Judge Shaw-Wilder recommended that the motion to compel arbitration and to stay the litigation be denied. The cruise line objected to the recommendation, but Judge Gayles agreed with the recommendations and adopted them. The cruise line then filed a notice of interlocutory appeal to the Eleventh Circuit on May 29, 2026.
From the state courts
Bonnie and Matt Muler were passengers on a Royal Caribbean Cruise. Bonnie removed her rings and placed them in a glass on the bedside table of her stateroom and went to breakfast. Security records reflect that the cabin steward, Jose, entered the room while she was gone. Bonnie later discovered that the glass and rings were missing, and Bonnie brought this suit in California state court against the cruise line, alleging failure to secure, supervise, and monitor the crew and staterooms and failure to safeguard passenger belongings as reasonably expected of a common carrier. The cruise line moved to compel arbitration in accordance with the mandatory arbitration clause incorporated into the cruise ticket contract. Judge Young found that there was notice of the arbitration clause in the Booking Confirmations, the Guest Ticket Booklet, and the landing page for passengers whose primary country of residence is the United States. Judge Young also held that the presentation of the terms after purchase, but prior to boarding, met the reasonable communicativeness requirements of federal maritime law. Therefore, he ordered arbitration of the claims.
Between-The-Bridges operates a commercial marina in Old Saybrook, Connecticut where it provides slip rentals and associated services, such as repair, storage, and hauling of vessels. In July 2020, a vessel owned by Bob and Joanne Abbott was towed to the marina after it partially sank, and Between-The-Bridges pumped out the water and stored it on land. The Abbotts’ insurer paid for the cost to pump out the water and haul it to land but did not pay for the storage. James S. O’Rourke purchased the vessel from the Abbotts and advised Between-The-Bridges that he would keep the vessel at the marina to work on it and reconstruct it. There was no written agreement, and Between-The-Bridges invoiced storage fees to O’Rourke that he did not pay. O’Rourke has not accessed the vessel since July 4, 2022 when Between-The-Bridges “had [him] trespassed” by the local police. Between-The-Bridges filed a complaint against O’Rourke in Connecticut state court based on unjust enrichment and asserting a common-law lien on the vessel. The judge allowed O’Rourke to inspect the vessel but declined to allow him to remove it. O’Rourke filed a counterclaim that asserted claims for tortious interference with a business relationship, violation of the Connecticut Unfair Trade Practices Act, conversion, and statutory theft. The case was tried to the court, and on October 17, 2024, the judge entered a judgment to Between-The-Bridges in the amount of $17,636 for unjust enrichment and denied the counterclaim. The judge gave O’Rourke 21 days to remove the vessel and ordered O’Rourke to pay $215 per month thereafter if he did not remove the vessel. Between-The-Bridges declined to allow O’Rourke to remove the vessel and filed a lien on the vessel with the Connecticut Secretary of State, and O’Rourke moved for contempt. The Judge declined to reconsider the prior decision with respect to removal of the vessel and denied the motion for contempt. Between-The-Bridges appealed the decision authorizing removal of the vessel. Writing for the Connecticut Appellate Court, Judge Moll noted that the request for removal was made before the counterclaim and the request was not renewed in the pleadings or trial. Therefore, the Judge lacked authority to enter the removal order as it did not conform to the pleadings. Between-The-Bridges also argued that the Judge failed to award post-judgment interest, but Judge Moll considered the argument to be abandoned because it was not timely presented.
Kenneth G. Engerrand
Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1915 23rd Suite B Gulfport, MS 39501 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
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Judge Andrew S. Oldham of the Fifth Circuit recently concurred with the vacatur of the decision of the National Labor Relations Board, which held that Starbucks’ firing of a union organizer for using extreme profanity targeted at co-workers was pretextual. The panel of the Fifth Circuit remanded the case to the NLRB to reconsider the evidence. However, Judge Oldham did not believe that the case should be remanded to the NLRB in light of its “troubling tendencies” and because it “starkly deviated from fairminded, law-based adjudication.” Judge Oldham stated:
I wholeheartedly agree with my esteemed colleagues that Starbucks’s petition for review must be granted. But I would not remand the matter to the National Labor Relations Board. The Board has starkly deviated from fairminded, law-based adjudication. And this case is yet another example of the Board’s troubling tendencies.
Starbucks fired an employee named James Schenk. Why? Because Schenk called his female coworker with a documented medical condition a “dumb ******* ***** who can’t even use cleaners” and “useless ******* [person].”And Schenk called his store manager a “chicken ****,” a “******** **** ******,” a “******* stupid[]” “lizard brain,” and a “******* *****” who “can **** my ******* ****.” If a company in this country cannot choose to fire someone for this sort of unhinged abuse, then Heaven help us.
The administrative law judge recognized the obviously correct fact that Schenk could be fired for his wild-eyed, profanity-laden rants—particularly because he directed some of them at a subordinate and the rest of them at his boss. Then the Board entirely ignored it. That is not the stuff of reasonable, fairminded adjudication. So I would not give the Board a second chance to do the right thing.
See Starbucks Corp v. National Labor Relations Board, No. 24-60649, 2026 U.S. App. LEXIS 13936 (5th Cir. May 14, 2026) (Oldham, J., concurring) (record cites omitted) (further redaction provided by the author of the Update).
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© Kenneth G. Engerrand, June 30, 2026; redistribution permitted with proper attribution.
