June 2025 Longshore Maritime Update No. 313
Notes from your Updater:
On March 21, 2025, Judge Court of the United States District Court for the Central District of California rejected the motion for a voluntary remand to the Bureau of Safety and Environmental Enforcement of a suit brought by environmental groups challenging the extension of 16 offshore oil and gas leases in the Santa Ynez Unit in the Santa Barbara Channel off the California coast. The plaintiffs argued that BSEE failed to conduct meaningful reviews in violation of the Outer Continental Shelf Lands Act, the National Environmental Policy Act, and the Administrative Procedure Act. BSEE asserted that it planned to reconsider its approval of the leases “in light of Plaintiffs’ claims and conduct additional analysis, as warranted, under OCSLA and NEPA.” Judge Court noted: “Generally, courts only refuse voluntarily requested remand when the agency’s request is frivolous or made in bad faith.” However, Judge Court was “not convinced that BSEE’s declarations, which focus on potentially supplementing the analysis in its decision, establish an intent to seriously reconsider or re-review its decision.” As Judge Court was “concerned future reviews will function as mere procedural formalities, instead of adequate analysis,” she denied the motion for a voluntary remand. See Center for Biological Diversity v. Burgum, No. 2:24-cv-5459, 2025 U.S. Dist. LEXIS 83664 (C.D. Cal. Mar. 21, 2025).
On March 27, 2025, Judge Mehta of the United States District Court for the District of Columbia agreed, in part, with challenges from environmental groups to the approval of the Bureau of Ocean Energy Management of Lease Sale 259 (more than 70 million acres in the western, central, and eastern Gulf of America) for development of oil and gas. The plaintiffs argued that “BOEM’s assessment of greenhouse gas emissions, harms to Rice’s whale, environmental justice impacts, oil spill risks, and other leasing scenarios failed to provide the ‘hard look’ that federal law requires.” Judge Mehta agreed with the first two arguments and ordered briefing as to the remedy to be granted. See Healthy Gulf v. Burgum, No. 23-cv-604, 2025 U.S. Dist. LEXIS 57585 (D.D.C. Mar. 27, 2025).
On March 31, 2025, Judge Lamberth of the United States District Court for the District of Columbia considered the suit by 45 plaintiffs challenging federal agency approvals of the Revolution Wind Farm and Revolution Wind Export Cable Project (a wind energy project located off the coast of Rhode Island to provide energy to Rhode Island and Connecticut) based on alleged violations of the Administrative Procedure Act, the Outer Continental Shelf Lands Act, the National Environmental Policy Act, the Endangered Species Act, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, the Clean Water Act, the Coastal Zone Management Act, and the National Historic Preservation Act. Revolution Wind moved to dismiss all of the claims, and Judge Lamberth dismissed the claims under the Outer Continental Shelf Lands Act, the Migratory Bird Treaty Act, and the Coastal Zone Management Act. However, Judge Lamberth allowed the claims to proceed for some of the plaintiffs under the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, the Marine Mammal Protection Act, and the Clean Water Act. See Green Oceans v. United States Department of the Interior, No, 1:24-cv-141, 2025 U.S. Dist. LEXIS 62400 (D.D.C. Mar. 31, 2025).
Although our longsuffering readers know that the Update does not ordinarily discuss discovery issues, the herculean effort to arrange depositions in a major maritime case (with lawyers, witnesses, and evidence spread across the world) deserves attention. With respect to the allision between the DALI and the Francis Scott Key Bridge, it is certainly convenient for the large number of lawyers who live in or near Baltimore to take depositions in Baltimore. The convenience is different for witnesses who live halfway across the planet in India or Singapore. On April 15, 2025, Judge Breder of the United States District Court for the District of Maryland addressed this issue in In re Grace Ocean Private Ltd., No. 24-cv-941, 2025 U.S. Dist. LEXIS 71911 (D. Md. Apr. 15, 2025).
On April 30, 2025, the Supreme Court held in a 5-4 decision that a federal civilian employee (air traffic controller) who was called to active duty as petty officer with the Coast Guard (escorting vessels to and from the harbor) was entitled to differential pay for his service in the Coast Guard because the service occurred during a national emergency, without his having to show that his service had a substantial connection to the national emergency. See Feliciano v. Department of Transportation, No. 23-861, 2025 U.S. LEXIS 1745 (Apr. 30, 2025). Justice Gorsuch delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Barrett. Justice Thomas filed a dissenting opinion, joined by Justices Alito, Kagan, and Jackson.
On May 5, 2025, the Supreme Court declined to hear petitions for certiorari filed by Responsible Offshore Development Alliance and Seafreeze Shoreside, Inc., challenging the federal process for approving the plan to construct and operate the commercial offshore wind energy facility (the Vineyard Wind Project) located on the outer Continental Shelf, approximately fourteen miles south of Martha’s Vineyard and Nantucket. See Responsible Offshore Development Alliance v. United States Department of the Interior, No. 24-966, 2025 U.S. LEXIS 1807 (U.S. May 5, 2025), and Seafreeze Shoreside Inc. v. Department of the Interior, No. 24-971, 2025 U.S. LEXIS 1755 (U.S. May 5, 2025), denying cert. to Responsible Offshore Development Alliance v. United States Department of the Interior, 123 F.4th 1 (1st Cir. 2024).
On May 8, 2025, the United States Court of Appeals for the Second Circuit abrogated its Stephens decision from 1995 to hold (in a non-maritime case) that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards is self-executing and cannot be reverse preempted (under the McCarran-Ferguson Act) in connection with the request for arbitration by Lloyds, London and other insurers related to a claim for property damage in Louisiana, despite the Louisiana law prohibiting arbitration clauses in insurance contracts. See Certain Underwriters at Lloyds, London v. 3131 Veterans Blvd. LLC, Nos. 23-1268, 23-7613, 2025 U.S. App. LEXIS 11086 (2d Cir. May 8, 2025) (Lynch).
On May 8, 2025, the United States Court of Appeals for the Eleventh Circuit reversed the dismissal of the suit in Florida federal court brought by Otto Candies, which chartered vessels to Oceanografia, a Mexican oilfield services company (along with other companies that contracted with or invested in Oceanografia), against Citigroup for conspiring with Oceanografia to orchestrate and execute a vast and fraudulent scheme designed to boost the appearance of Oceanografia’s profits and increase Citigroup’s earnings. See Otto Candies, LLC v. Citigroup Inc., No. 23-13152, 2025 U.S. App. LEXIS 11156 (11th Cir. May 8, 2025) (Grant).
On May 9, 2025, a majority of a panel of the United States Court of Appeals for the Fourth Circuit reversed the dismissal of a putative class action brought against the nation’s largest shipbuilders and naval-engineering consultancies alleging a wide-ranging “no-poach” conspiracy in which the companies formed a “gentlemen’s agreement” not to recruit each other’s employees in order to drive down wages. The panel disagreed with the analysis of Judge Trenga of the United States District Court for the Eastern District of Virginia, who concluded that a “non-ink-to-paper” agreement could not constitute an affirmative act of fraudulent concealment that would toll the four-year statute of limitations in the Sherman Act. Writing for the panel of the Fourth Circuit, Judge Wynn stated: “We hold that neither logic nor our precedent supports distinguishing between defendants who destroy evidence of their conspiracy and defendants who carefully avoid creating evidence in the first place.” See Scharpf v. General Dynamics Corp., No. 24-1465, 2025 U.S. App. LEXIS 11258 (4th Cir. May 9, 2025) (Wynn).
On May 15, 2025, the United States Court of Appeals for the Eleventh Circuit denied the petition for review filed by Warrior Met Coal Mining, challenging the Benefits Review Board’s affirmance of the decision of Administrative Law Judge Leslie that coal miner Hershell Robbins was totally disabled under the Black Lung Benefits Act for his pneumonoconiosis. See Warrior Met Coal Mining, LLC v. Director, OWCP (Robbins), No. 24-11625, 2025 U.S. App. LEXIS 11815 (11th Cir. May 15, 2025) (per curiam).
On May 19, 2025, the United States Court of Appeals for the Ninth Circuit reversed the dismissal by Judge Immergut of the United States District Court for the District of Oregon of the suit brought by James Parker against the Secretary of the Department of the Army, complaining that the Corps of Engineers violated the Age Discrimination in Employment Act and the Rehabilitation Act in denying his application for the position as a Small Craft Operator, asserting that he was best qualified but was not selected because of his age and diabetes. The appellate court held that Judge Immergut had improperly required that Parker plead a prima facie case of discrimination. See Parker v. Driscoll, No. 23-35510, 2025 U.S. App. LEXIS 12044 (9th Cir. May 19, 2025) (per curiam).
On the LHWCA Front . . .
From the federal appellate courts
Petition for review to the Eleventh Circuit from the BRB was untimely as it was not received by the appellate court until after 60 days from the BRB decision (date of mailing is not determinative); Chappell v. United States Department of Labor, Benefits Review Board, No. 24-10805, 2025 U.S. App. LEXIS 12235 (11th Cir. May 20, 2025) (per curiam).
Jewell Chappell brought claims as widow of Edward Chappell and on his behalf pursuant to the Black Lung Benefits Act. The claims were denied by Acting District Chief Administrative Law Judge Rosenow, and Chappell’s appeal to the Benefits Review Board was denied on June 6, 2023. Chappell filed a timely motion for reconsideration with the BRB that was denied on January 11, 2024. Chappell had 60 days to file a petition for review with the Eleventh Circuit (March 11, 2024), but her notice of appeal was not filed until March 18, 2024, the day that it was received by the Eleventh Circuit (deemed filed on the date that the appellate court receives it, not the date that it was mailed). As the 60-day deadline is jurisdictional, the Eleventh Circuit dismissed the appeal for lack of jurisdiction.
From the federal district courts
Judge declined to reconsider ruling that siblings of Navy machinist mate who allegedly died from exposure to asbestos at a California shipyard had standing to bring survival and wrongful death suits against the shipyard for negligent exposure seeking recovery for the decedent’s pain and suffering but could not recover punitive damages, loss of society, or lost future income; Ollerton v. National Steel & Shipbuilding Co., No. 23-cv-1267, 2025 U.S. Dist. LEXIS 55533 (C.D. Cal. Mar. 25, 2025) (Fitzgerald).
William Ollerton brought this action in California state court against National Steel and Shipbuilding Co. and a number of product suppliers alleging that he was exposed to asbestos during his service as a machinist mate in the Navy while serving on the USS DULUTH that was undergoing repairs at National Steel’s shipyard in California. The allegations against National Steel were carefully limited to negligent exposure to asbestos dust, and National Steel was excluded from Ollerton’s strict liability claims. National Steel removed the case to federal court based on the Federal Officer Removal Statute, and Ollerton moved to remand, asserting a legal defense that National Steel could not establish a federal contractor defense under Boyle because that defense is limited to claims against defendants who design and manufacture military equipment, or under Yearsley because that defense is limited to property damage resulting from public works projects. Ollerton asserted a factual defense that the evidence did not establish that National Steel’s conduct was the result of the Navy’s reasonably precise specifications under Boyle or that the Navy exercised significant control over National Steel’s actions under Yearsley. Judge Fitzgerald disagreed and held that all of the elements for removal under the Federal Officer Removal Statute were satisfied, reasoning that, although the allegations were vague, the defendant established that the Navy exerted and directed detailed control over the inspection, installation, and repair of its vessels such as the DULUTH (which included the protocols to protect and warn workers about asbestos). Therefore, he denied the motion to remand. See May 2023 Update.
After Ollerton passed away, Judge Fitzgerald granted leave for Ollerton’s siblings to pursue survival and wrongful death claims (under California law). National Steel then moved to dismiss the amended complaint for lack of standing, failure to state a claim, and for seeking non-pecuniary damages. National Steel argued that the siblings were not entitled to recover under the Jones Act or under the Death on the High Seas Act, but Judge Fitzgerald rejected the argument because National Steel was not Ollerton’s employer under the Jones Act, and DOHSA did not apply to the exposure at National Steel’s facility in San Diego. National Steel also argued that, as the Supreme Court advised in Batterton [and Moragne], DOHSA and the Jones Act should guide the court’s decision as to beneficiaries in the maritime wrongful death/survival actions. Judge Fitzgerald disagreed, citing the Ninth Circuit’s pre-Batterton decision in Evich v. Connelly (permitting non-dependent brothers to maintain a maritime survival action as personal representative) and citing California’s survival statute. National Steel also argued that the siblings sought damages that were not recoverable under the general maritime law. As in its standing argument, the siblings argued that they could recover punitive damages because the Jones Act and DOHSA are not applicable. They argued that the court should look to California law, which permits recovery of punitive damages. In contrast to the ruling on standing, Judge Fitzgerald found “Batterton’s teachings” to be persuasive with respect to damages, noting the judicial restraint in light of “the increased role that legislation has taken over the past century of maritime law.” Therefore, he held that punitive damages were not recoverable. Similarly, Judge Fitzgerald held that Batterton foreclosed recovery for loss of society. He also held that loss of future income was not recoverable in the survival action, but that the siblings could recover for Ollerton’s pain and suffering. See May 2024 Update.
National Steel then moved for summary judgment that the plaintiffs lacked standing to pursue a general maritime claim, that they provided no facts supporting recovery on their wrongful death claim, and that general maritime law does not recognize a survival claim. Judge Fitzgerald described the motion as “a thinly disguised motion for reconsideration and rejected the standing argument for lack of any compelling reason to deviate from the prior decision. The plaintiffs agreed that they had not supported their recovery of pecuniary damages under the wrongful death cause of action. They stated that they would have stipulated to a dismissal of that action except that National Steel did not try to meet and confer with the plaintiffs prior to bringing this motion. Although Judge Fitzgerald took seriously the failure to comply with the meet-and-confer obligation, he was “flatly unwilling to waste the jury’s time in hearing a claim on which both parties agree there is no dispute of material fact.” Therefore, he agreed to enter judgment on the wrongful death claims. Finally, Judge Fitzgerald addressed National Steel’s motion for summary judgment on the survival claim. National Steel simply reiterated its legal argument without addressing any factual issues. As there was no additional evidence or intervening change of authority, the motion essentially disagreed with Judge Fitzgerald’s prior legal analysis (his application of the Ninth Circuit’s decision in Evich v. Connelly). Judge Fitzgerald concluded that National Steel should make that argument to the Ninth Circuit and not to the district court as a motion for summary judgment or other motion seeking to reconsider the prior decision.
Wrongful death claims on behalf of beneficiaries of shipyard worker whose death in 2023 was caused by exposure to asbestos from 1970 to 1978 were barred by the exclusive remedy provision of the LHWCA; Prude v. Fidelity & Casualty Insurance Co. of New York, No. 23-7197, 2025 U.S. Dist. LEXIS 56994 (E.D. La. Mar. 27, 2025) (Morgan).
William Prude brought suit in state court in Orleans Parish, Louisiana against Huntington Ingalls (formerly Avondale Shipyard) and various suppliers of products containing asbestos, asserting that his mesothelioma resulted from exposure to asbestos, including exposure while he was employed by Avondale Shipyard as a pipefitter and shipfitter from 1970 to 1978. Prude’s beneficiaries continued the suit after he died on April 20, 2023, and Avondale removed the case to federal court in Louisiana. Avondale moved for summary judgment, arguing that, as Prude’s employer, it was immune from suit by the exclusive remedy provision in the LHWCA. Judge Morgan reasoned that, under Louisiana law, wrongful death claims are controlled by the law applicable at the time of the death. In 2023, the LHWCA covered shipyard workers who satisfied the situs and status requirements and provided the exclusive remedy against the employer for covered workers. Avondale argued that Prude met the situs requirement because he was exposed to asbestos while working as a pipefitter and shipfitter on Avondale’s shipyard premises and that he satisfied the status requirement because he worked on ship construction. The beneficiaries did not dispute coverage under the LHWCA, and Judge Morgan held that the LHWCA covered Prude at the time of his death. Therefore, Judge Morgan held that the LHWCA’s exclusive remedy provision barred the wrongful death tort claims against Avondale (and its insurer Travelers).
Judge declined to order disclosure of the plaintiff’s confidential settlement with third parties and his confidential settlement with his employer, including a Section 8(i) settlement, as the maritime proportionate fault rule from AmClyde was applicable and not a pro tanto reduction; Cooper v. Vigor Marine, LLC, No. 22-275, 2025 U.S. Dist. LEXIS 64807 (D. Hawaii Apr. 3, 2025) (Gillmor).
Ashley Cooper claims that she was employed by International Marine and Industrial Applicators (and two other International Marine entities) to perform industrial painting, blasting, cleaning and other related work on the U.S.S. WILLIAM P. LAWRENCE, which was located in a graving dock at the Pearl Harbor Naval Shipyard in Hawaii. While trying to remove contaminants, her arm was sucked into one of the hoses of the vacuum, and she brought this suit in state court in Hawaii against her employer under the Jones Act, her supervisor (Doug Eiss), the general contractor, and some subcontractors. The defendants removed the case to federal court, and International Marine and Eiss moved to dismiss the claims against them, arguing that the LHWCA provided Cooper’s exclusive remedy against International Marine and Eiss. Before addressing whether Cooper was a seaman, Judge Gillmor noted that the complaint simply stated that Cooper was employed by the three entities and did not specify which of the entities was the employer. Citing Cosmopolitan Shipping Co. v. McAllister, Judge Gillmor held that there can be only one Jones Act employer, and the complaint did not specify the employer or allege facts establishing an employment relationship so as to support a Jones Act claim. Turning to the issue of seaman status, Judge Gillmor reasoned that a land-based worker who spends 100% of her time on a vessel but without any seagoing activity is not a seaman under the Jones Act. Thus, Cooper was required to assert facts to demonstrate the nature and duration of her employment, including the total amount of seagoing activity. Consequently, as she did not plead facts to establish that she was a seaman, her claims under the Jones Act and for maintenance and cure were dismissed, with leave to plead facts establishing seaman status. Eiss also moved to dismiss Cooper’s complaint, alleging that, as Cooper was not a seaman, Section 33(i) of the LHWCA barred her claim against him (a co-employee supervisor). Cooper asserted that Eiss was liable for willful and wanton misconduct, but Judge Gillmor ruled that the statements in the complaint were merely legal conclusions. She dismissed the count against Eiss with leave to replead a plausible claim that was not barred by the LHWCA. See August 2023 Update.
After Cooper repleaded, International Marine moved for summary judgment as to Cooper’s seaman status and with respect to her claims as a seaman. Judge Gillmore denied the motion for summary judgment with respect to seaman status, finding fact disputes on each of the elements of seaman status. As the vessels on which she worked would degrade over time if she did not paint the vessels, Judge Gillmor held that Cooper presented a question of whether her work contributed to the operation of the vessels. Noting that a vessel does not cease to be a vessel when it is undergoing repairs, Judge Gillmor agreed that a jury should decide whether the vessels had been withdrawn from navigation. Judge Gillmore found sufficient evidence of substantial duration based on Cooper’s testimony that the vast majority of her work for International Marine was aboard Navy vessels, and she found that her repair work was substantial in nature because she was exposed to special hazards and dangers because she was assigned to jobs in tight spaces because of her small size. With even less substantive discussion than she gave on the seaman status, Judge Gillmor held that Cooper presented jury issues on her claims for negligence, maintenance and cure, and punitive damages for failure to pay maintenance and cure. See June 2024 Update.
After Cooper entered into confidential settlements with International Marine and with Pacific Equipment Supply and Industrial Vacuum Equipment, the Vigor Marine defendants objected to the confidentiality of the settlements, citing Hawaii law. Judge Gillmor answered that Cooper’s claims are based on federal maritime law and that maritime law applied even though the Vigor Marine defendants removed the case based on diversity. Judge Gillmor then held that maritime law and Hawaii law are incompatible because Hawaii follows the pro tanto approach to settlements, and maritime law follows the proportionate share approach enunciated in AmClyde. Therefore, she declined to apply the Hawaii statute and held that the settlements should be confidential. Finally, the Vigor defendants argued that the settlement with International Marine contained an agreement under Section 8(i) of the LHWCA that had to be approved by the Department of Labor. Accordingly, it should be made public. Judge Gillmor stated that Section 8(i) settlements are not approved in public hearings and are subject to the Privacy Act of 1974 under which the Department of Labor is only permitted to disclose the records under limited circumstances. As the Vigor Marine defendants did not establish any circumstances justifying disclosure of the confidential Section 8(i) settlement, Judge Gillmore declined to order the disclosure, stating that the defendants were “free to pursue the question before the Department of Labor.
Employee of staffing company who was injured on a barge was a borrowed employee of the facility owner, and the employee’s exclusive remedy was the LHWCA; Sam v. Bayou Holdco, Inc., No. 6:22-cv-5208, 2025 U.S. Dist. LEXIS 69926 (W.D. La. Apr. 11, 2025) (Summerhays).
Asa Alexander Sam was employed by Global Industrial Solutions, a temporary staffing agency, and assigned to perform rigging work at a facility owned by Bayou Holdco. Sam fell from a stack of pipe that was loaded on a barge at the Port of New Iberia, Louisiana. Sam brought this suit against Bayou Holdco and others in state court in Iberia Parish, Louisiana, alleging claims for negligence and vessel negligence under Section 5(b) of the LHWCA. One of the defendants removed the case to Louisiana federal court based on federal jurisdiction from the Outer Continental Shelf Lands Act and original admiralty jurisdiction, arguing that the pipe was to be used for pipelines in the Alaminos Canyon area of the outer Continental Shelf of the Gulf of America. Bayou Holdco moved for summary judgment, arguing that it was the borrowing employer of Sam and that the exclusive remedy against it was pursuant to the LHWCA. Judge Summerhays considered the Ruiz factors to determine if Sam was a borrowed servant, and he found that Bayou Holdco had control over Sam and the work he was performing, it was Bayou Holdco’s work that was being performed, Sam acquiesced in the new work situation (he had worked for Bayou Holdco for a considerable length of time--with gaps--for more than four years), Global Industrial’s control over Sam was nominal at most, Bayou Holdco furnished the place for performance and some of his personal protective equipment, Bayou Holdco had the right to discharge Sam with respect to his work for Bayou Holdco, and the funds used to pay Sam originated with Bayou Holdco. Sam pointed to the provision in the Staffing Agreement that characterized temporary employees such as Sam as independent contractors. However, Bayou Holdco answered that the parties’ actions can modify that provision, and that modification was established by the testimony that Sam took instructions from and was supervised by Bayou Holdco personnel, which rendered that factor neutral. As the factors overwhelmingly established that Sam was a borrowed employee of Bayou Holdco, Judge Summerhays dismissed Sam’s claims against Bayou Holdco as barred by the LHWCA.
From the state courts
Longshore worker did not establish in personam jurisdiction against parent company of the entity that owned the vessel involved in his injury; Costamare, Inc. v. Mamou, No. 01-23-008865, 2025 Tex. App. LEXIS 1879 (Tex. App.—Houston [1st Dist.] Mar. 20, 2025) (Dokupil).
Brandy Mamou, a longshore truck driver, was driving his truck at the Bayport Container Terminal in the Port of Houston, assisting in discharging containers from the SEALAND WASHINGTON, when his truck was struck by a crane being serviced by the Port of Houston Authority. Mamou brought this suit in state court in Harris County, Texas against the Port of Houston Authority, later adding several entities related to the SEALAND WASHINGTON. Mamou named Costamare, Inc. as owner or operator of the vessel, arguing that it was either a beneficial owner of the vessel or an alter ego of the owner. Costamare, Inc. filed several special appearances in response to Mamou’s amended petitions, asserting that it is the parent company of 110 vessel-owning subsidiaries, such as Christos Maritime, owner of the SEALAND WASHINGTON. Christos Maritime time chartered the vessel to Maersk, and a separate entity, Costamare Shipping provided management services to the vessel-owning entities. However, the vessel owner (Christos Maritime) employed the crew, and the charterer, Maersk, directed the ports to which the vessel would call for cargo operations. Costamare, Inc. is incorporated in the Marshall Islands, has its principal office in Monaco, and does not operate in Texas. Thus, Mamou argued that Costamare, Inc. was the beneficial owner of the SEALAND WASHINGTON and was an alter ego of Christos Maritime, citing Costamare Inc.’s Form 20-F (“our subsidiaries conduct all of our operations and own all our operating assets, including our ships”). Judge Roth denied the special appearances, and Costamare Inc. appealed to the Texas Court of Appeals for the First District. Writing for the appellate court, Justice Dokupil held that Costamare Inc. had established that it did not own the vessel or employ the crew. Therefore, Justice Dokupil addressed the arguments with respect to beneficial ownership and alter ego. Mamou argued that beneficial ownership was a way to disregard the corporate form, but Justice Dokupil answered that there is a different standard to determine whether the corporate form may be disregarded. She rejected use of beneficial ownership as a basis for specific personal jurisdiction in the absence of evidence that Costamare, Inc., in its role as beneficial owner, influenced or directed the vessel’s trip to Texas. As for the theory that Costamare, Inc. is the alter ego of Christos Maritime, Justice Dokupil found none of the factors relevant to the alter ego inquiry were met. Although Costamare, Inc. owned 100% of Christos Maritime’s stock, that was not evidence of actual control. The companies have separate headquarters in different countries. The companies observe corporate formalities, and their accounts are separately maintained. Finally, there was no evidence that Costamare, Inc. exercised control over Christos Maritime, although the ultimate owner of Costamare, Inc. served as the sole director, president, secretary, and treasurer of Christos Maritime. Accordingly, the Court of Appeals reversed the denial of the special appearance and ordered the dismissal of Costamare Inc. for lack of personal jurisdiction.
And on the maritime front . . .
From the United States Supreme Court
Supreme Court declined to review the decision of the Second Circuit that rejected the contribution claim of the owner of the ALNIC MC against the United States (based on application of the Feres doctrine) arising from the collision of the ALNIC and the U.S.S. JOHN S. MCCAIN, so that the owner of the ALNIC was required to pay 100% of the damages sustained by the sailors on the MCCAIN despite the United States being found 80% at fault; Energetic Tank, Inc. v. United States, No. 24-683, 2025 U.S. LEXIS 1813 (U.S. May 5, 2025), denying cert. to In re Energetic Tank, Inc., 110 F.4th 131 (2d Cir. 2024) (Walker).
The collision between the destroyer U.S.S. JOHN S. MCCAIN and the Liberian merchant vessel M/V ALNIC MC, resulting in the deaths of ten sailors and injuries to more than 40 others, returns to the Update (see January, February, April, July, and November 2022, April 2023, and August 2024 Updates). Both ships were bound for destinations in Singapore, and they collided approximately 24 nautical miles from the Singapore mainland. The claimants sought to apply the test set forth by the Supreme Court in Jones Act cases in Lauritzen v. Larsen (as expanded by the Court in Hellenic Lines Ltd. v. Rhoditis). However, Judge Crotty held that the Lauritzen/Rhoditis test was unsuited to deciding a choice-of-law question involving a collision halfway around the globe involving a U.S. Navy warship based in Japan and a Liberian-flagged vessel. Although there was a dispute between Malaysia and Singapore over sovereignty of the area in question, Judge Crotty applied Singapore law to the collision based on the fact that the vessels were both headed to Singapore and were in the Singapore Traffic Separation Scheme.
Judge Crotty split the trial of the case into two phases and tried the liability issues in five days in November 2021. In a 70-page opinion, Judge Crotty apportioned 80% of the fault to the JOHN S. MCCAIN and 20% of the fault to the ALNIC. He then addressed whether the owner of the ALNIC was entitled to limit its liability to $16,768,480. As the owner engaged Stealth Maritime to manage the vessel, Judge Crotty looked to Stealth Maritime’s privity or knowledge “as a proxy” for the owner. In this case, Stealth Maritime was aware of deficient staffing practices and other “risky behavior” and “allowed ALNIC—one of the worst vessels the Stealth Marine Superintendent had ever audited—to again travel through one of the busiest shipping lanes in the world.” This was sufficient to establish privity or knowledge. However, Judge Crotty noted that the Limitation Act, as amended, broadens the privity or knowledge for seagoing vessels to the master at or at the beginning of the voyage. Finding that the captain planned, before the voyage, to understaff the bridge, Judge Crotty ruled that there was additional support for denying limitation to the owner of the ALNIC. Applying Singapore law, Judge Crotty held that the United States should recover 20% of its damages, and the owner of the ALNIC should recover 80% of its damages, with those damages offset. He awarded prejudgment interest in accordance with Singapore law. Going forward, Judge Crotty held that the wrongful death and injury claims for the sailor-claimants would proceed with a Phase II trial, and he reserved the questions whether the sailor-claimants would be entitled to a jury and whether the owner of the ALNIC would be entitled to contribution from the United States. Both the United States and Energetic Tank filed interlocutory appeals.
After issuing a correcting order, nunc pro tunc, with respect to damages and certifying the decision for appeal pursuant to Rule 54(b), Judge Crotty addressed the contribution claim brought by the owner of the ALNIC against the United States in connection with the claims of the sailors on the JOHN S. MCCAIN. Judge Crotty set forth the issue: The sailor-claimants brought suit against the owner of the ALNIC but not against the United States. Under admiralty law, a tortfeasor, such as the owner of the ALNIC, which pays more than its apportioned share of an injured party’s damages, may generally seek contribution from the other tortfeasors. However, the United States, which was found to be 80% at fault, is a sovereign with sovereign immunity. Although Judge Crotty previously held that Singapore law applied to the substantive issues of liability and damages, the question was presented whether Singapore law would incorporate American sovereign immunity law to bar the contribution claim. Judge Crotty noted that federal sovereign immunity is a jurisdictional matter, and he could apply American sovereign immunity principles even though foreign law provided the applicable substantive law for the case. One jurisdictional bar is the Feres-Stencel doctrine, which provides sovereign immunity against certain claims by military service members (and claims for contribution/indemnity with respect to those claims). The owner of the ALNIC argued that the United States waived its claim to sovereign immunity through the Public Vessels Act and the Suits in Admiralty Act. However, Judge Crotty held that both statutes incorporate an exception to their waiver of immunity: the Feres-Stencel doctrine. Reasoning that Feres and Stencel are directly on point, and declining to overrule the cases as wrongly decided, Judge Crotty dismissed the contribution claim for lack of jurisdiction.
Having addressed the allocation of fault, Judge Crotty turned to the determination of damages. Although he held that Singapore law governed the substantive aspects of the case, he agreed with the parties that the issue whether a jury would decide the damages was governed by federal law. Judge Crotty noted the conflict between the concursus of claims in a limitation action and the Saving-to-Suitors Clause, which preserves common law remedies that include the right to a jury trial and the balance whereby an independent basis for jurisdiction, such as diversity, may provide for the right to a jury. As limitation was denied to the owner of the ALNIC, the issues were whether the requirements for diversity jurisdiction were satisfied for the claimants and what was the effect of the Death on the High Seas Act. Judge Crotty found that there was diversity over the claims and then addressed the effect of the application of DOHSA, which, according to the Supreme Court in Tallentire, was designed to “provide a uniform and effective wrongful death remedy for survivors of persons killed on the high seas.” In contrast to the decision of the Seventh Circuit in In re Lion Air Flight JT 610 Crash (discussed in our September 2024 Update), that the presence of diversity did not give the claimants the right to a jury trial in federal court on DOHSA claims (there were no survivors and, consequently, no injury claims), Judge Crotty was persuaded that there was an exception to the non-jury result when there is a wholly independent jurisdictional predicate and an independent cause of action. In this case, the wrongful death claimants did not allege any independent causes of action that would entitle them to a jury trial. However, claims were also brought by injured claimants, who did not allege a cause of action under DOHSA, and there was diversity jurisdiction for their claims. As the wrongful death and injury claims arose from the same accident, Judge Crotty held that a jury trial should be held on both the wrongful death and injury claims based on principles of judicial economy.
The Second Circuit heard appeals from Energetic and the plaintiffs and affirmed the rulings on apportionment of liability of liability and sovereign immunity; however, the appellate court declined to rule on the plaintiffs’ appeal of the decision on choice of law, finding it to be a non-appealable collateral order. Writing for the Second Circuit, Judge Walker first addressed the jurisdiction over the several appeals. As to the decision in Phase I, apportioning fault, Judge Walker agreed that the district court properly certified the case for an interlocutory appeal under Rule 54(b). He also agreed that there was appellate jurisdiction over the dismissal of Energetic’s contribution claim as an interlocutory admiralty order under Section 1292(a)(3), but he did not believe that the appeal by the plaintiffs of the decision on the application of Singapore law was appealable. Judge Walker agreed with Judge Crotty that Singapore law applied in determining liability for the collision, although he stated that the elements of negligence were substantially the same under Singapore law and United States maritime law. Judge Walker then turned to the merits of Energetic’s challenge to the apportionment of fault and rejected all of its arguments, affirming Judge Crotty’s apportionment of fault (20% to the ALNIC and 80% to the JOHN S. MCCAIN). Judge Walker then addressed Energetic’s appeal of the decision that it must pay the full amount of the Plaintiffs’ damages even though the ALNIC was only 20% at fault, with no right of contribution or indemnity against the United States. Energetic argued that the Feres doctrine should not apply to a suit under the Public Vessels Act or the Suits in Admiralty Act, but Judge Walker responded that the Second Circuit had already applied the doctrine to claims against the United States under the Public Vessels Act and the Suits in Admiralty Act, despite the immunity waivers in those statutes. Judge Walker recognized that some jurists have criticized the Feres doctrine, but he concluded: “It is not for us to say that the United States’s assertion of immunity here goes too far.”
Meanwhile, in the district court, Judge Preska addressed the standing to assert claims by the beneficiaries of Kevin Bushell, an officer in the Navy who served on the MCCAIN and was killed on the high seas as a result of the collision. Jennifer Simon, Kevin Bushell’s widow, and Karen Bushell, Kevin Bushell’s mother, both filed claims in the limitation action filed in federal court in New York by the owner of the ALNIC, and Jennifer Simon filed a petition in Maryland state court that resulted in her being substituted for Karen Bushell as the personal representative of the estate. Jennifer Simon then filed a motion in the limitation action to confirm her status as the personal representative so that she could recover damages on behalf of all of the dependents of her late husband, and Karen Bushell responded by not opposing Jennifer Simon’s confirmation as personal representative but requesting that Karen Bushell be allowed to maintain her own claim for damages in her individual capacity. Judge Preska noted that, under the Death on the High Seas Act, only the personal representative may bring the wrongful death suit, and the personal representative has a fiduciary duty to bargain for the rights of all beneficiaries. Thus, other beneficiaries generally lack standing to maintain their own wrongful death claims. However, Judge Preska did recognize an exception that allows a beneficiary to intervene in the case if the beneficiary can establish that his/her interests are at odds with those of the personal representative. Therefore, Judge Preska considered whether there was a conflict of interest between Karen Bushell and Jennifer Simon that would allow Karen to maintain a separate wrongful death claim. Judge Preska reasoned that Jennifer Simon had an incentive to maximize the size of recovery on behalf of all of the beneficiaries, but she also had an incentive to maximize the portion of that recovery that she receives and to minimize the portion received by the other beneficiaries. Consequently, Judge Preska concluded that there was a conflict of interest, and he allowed Bushell to maintain a separate claim in her individual capacity.
The parties then turned their attention to the issues for the trial on damages. Judge Crotty held that Singapore law applied to the determination of liability and damages, and the owner of the ALNIC sought to use the Guidelines for the Assessment of General Damages in Personal Injury Cases during the trial on damages. The Guidelines is a compendium of damage awards published by the courts in Singapore that the courts use to determine damages. A group of plaintiffs objected to the use of the Guidelines at the trial, and the owner of the ALNIC responded that it did not intend to introduce the Guidelines or even to call on expert on Singapore law to testify about the Guidelines. However, the owner advised that it intended to use the Guidelines to fashion jury instructions. Based on the representations of the owner, Judge Preska agreed that the Guidelines would not be introduced into evidence. However, Judge Preska noted that the jury’s determination of damages is an issue of substantive law that may require reference to the precedent of damage awards under Singapore law. The plaintiffs made a thinly veiled attack on the prior ruling on applicable law, arguing that, under Singapore law, the calculation of damages is procedural. Judge Preska refused to lead the court into the “‘bog’ of renvoi” (referring to the “situation in which a court applying foreign law, as is the case here, would apply a rule of the foreign law that would ‘refer back to the law of the forum state, thus creating an endless cycle in which the conflicts provisions of each state point to the application of the other state’s law”). Judge Crotty held that Singapore law was the law applicable to determine substantive issues of liability and damages, and Judge Preska added that calculation of damages is an issue of substantive law under United States maritime law. Therefore, the New York court could import Singapore law on damages without referring back to United States substantive law. Consequently, Judge Preska held that the Guidelines “will guide, if not govern” the instructions to the jury on the calculation of damages. See October 2024 Update.
The wrongful death claimants filed a motion for reconsideration of Judge Preska’s decision permitting the owner of the ALNIC to propose jury instructions that include the Guidelines for the Assessment of General Damages in Personal Injury Cases published by the Singapore courts. Judge Preska reiterated that she had rejected the argument that the court should not apply Singapore damages law (including the Guidelines) because Singapore courts categorize the damages quantification as procedural, rather than substantive. She noted her reasoning that refusing to apply the Guidelines would lead the court into renvoi—referring to the law of the forum state and back to Singapore law. The claimants pointed out that renvoi arises in situations in which a court’s choice-of-law analysis results in applying a foreign forum’s conflict-of-laws rules, thereby creating an endless cycle of applying each forum’s conflicts analysis. Judge Preska agreed that the claimants were correct that the court would not apply Singapore conflicts principles; however, refusing to apply Singapore damages law would lead the court into a feedback loop between United States federal law and Singapore law. Judge Preska agreed with Judge Crotty’s “sound choice-of-law analysis” that the substantive law of Singapore applies in this case and that issues of damages must be determined according to substantive law of Singapore law or there would be no law to apply. She explained: “Determining damages is a matter of substantive law in the forum state. But because the Court may not apply the substantive law of the forum state in the instant case, it may not apply federal damages law. If the Court then could not apply Singapore damages law because it cannot apply Singapore ‘procedural’ law, which forum’s law would the Court be left to follow in determining damages? There would be none.” Judge Preska did issue some clarifications. She explained that the owner of the ALNIC may propose instructions that incorporate the Guidelines, but that did not mean that the final instructions would include the relevant portions of the Guidelines. She added that it is the province of the jury to calculate damages, but it is a question of law whether an award has surpassed any upper limit on damages. Finally, she advised that, in light of the fact that there are ranges in the Guidelines for damage awards under Singapore law, “a party may file for a remittitur after each bellwether trial if the party perceives the jury’s award to a claimant to be out of the range permitted by the applicable Guideline.” See December 2024 Update.
The owner of the ALNIC filed a petition with the United States Supreme Court, seeking to review the decision of the Second Circuit that rejected its contribution claim against the United States, requiring the ALNIC to pay 100% of the damages sustained by the sailors on the MCCAIN despite the United States being found 80% at fault (based on application of the Feres doctrine). The owner of the ALNIC presented this question to the Supreme Court:
The Federal Tort Claims Act waives the immunity of the United States for money-damages claims based on the negligence or wrongdoing of its employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1); see id. § 2674. In Feres v. United States, 340 U.S. 135 (1950), this Court interpreted the Act as implicitly excluding tort claims brought by servicemembers for injuries sustained in the course of their service.
Feres has long been the subject of criticism, see, e.g., United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting), but this Court has declined to overrule it. At the same time, this Court has never extended Feres to any other statute.
The courts of appeals have nevertheless reflexively extended Feres to eighteen different statutes. The result has been an unwritten, free-floating bar to governmental liability that spans the U.S. Code—at the expense of both Congress’s prerogatives and servicemembers’ interests.
In this case, following a collision between a U.S. Navy destroyer and a commercial vessel, the United States filed a claim for damages against the commercial vessel. The vessel’s owner counterclaimed, pursuant to an express waiver of sovereign immunity in two admiralty statutes, seeking contribution from the United States for tort claims brought by the destroyer’s injured sailors. The Second Circuit held that the commercial vessel’s counterclaim was barred under Feres.
The question presented is:
Should Feres be extended to bar claims under statutes other than the Federal Tort Claims Act?
On May 5, 2025, the Supreme Court declined to hear the case.
From the federal appellate courts
Advances paid by employer to injured seaman (even though the amount was calculated to include premiums for health insurance) were loans to be offset against a settlement/judgment and were not cure, supporting a claim for callous/willful failure to pay cure but not supporting a claim for compensatory damages for emotional distress because the seaman failed to establish that his emotional distress was caused by the employer’s breach of its obligation to pay cure; Aadland v. Boat Santa Rita II Inc., No. 24-1003, 132 F.4th 33, 2025 U.S. App. LEXIS 6244 (1st Cir. Mar. 17, 2025) (Barron).
Magnus Aadland developed an infection while serving as the Captain of the F/V LINDA on a scalloping trip. The vessel returned to shore, and Aadland was hospitalized for streptococcus and eventually had to have two cardiac surgeries. His treatment was paid first by his wife’s health insurance, then by COBRA, and then by Medicare. The defendant paid maintenance at the rate of $84 per day retroactive to Aadland’s discharge from the hospital and also paid “advances” at the rate of $114 per day (including periods of subsequent hospitalization). Aadland used the advances to pay for living expenses, including medical insurance premiums. The total paid for maintenance was $175,644, and the amount paid for advances was $328,374. The defendant also reimbursed out-of-pocket medical expenses. Aadland brought this action seeking to recover for Jones Act negligence, unseaworthiness, maintenance and cure, and failure to pay maintenance and cure. A trial was held on his claims for maintenance and cure and for failure to pay maintenance and cure, and Judge Casper denied all of the claims. She concluded that Aadland had reached maximum cure as he had been discharged from occupational therapy and was only seeing his doctors every six months for checkups. She also held that Aadland was not entitled to maintenance during the period when he was initially hospitalized. There were no outstanding medical expenses that Aadland was obligated to pay, and the record did not reflect that there were any unreasonable delays in payment of maintenance. Finally, Judge Casper held that Aadland’s employer was not liable for any failure to pay maintenance and cure. See November 2020 Update.
Aadland appealed to the First Circuit, but he did not contest that his employer had satisfied its duty of maintenance. The payment of cure was complicated by the fact that Aadland used the health insurance provided by his wife’s employer to pay the cost of his treatment, and, after his wife lost her job, they were enrolled in the COBRA plan for that insurance. Aadland used a portion of the advance payments on maintenance to pay for the costs of the COBRA premiums, and his employer reimbursed him for out-of-pocket medical expenses, such as co-pays. On the eve of trial, Aadland’s employer paid the health insurer $400,000 in full satisfaction of any claim the insurer may have had for Aadland’s medical expenses. The first issue presented to the appellate court was whether the employer breached the duty to provide cure by failing to pay the cost of reasonably necessary medical care even though the cost of the care was paid for by private insurance. A secondary issue was presented whether he could recover the sticker price for the medical care and not the reduced amount that the health care providers accepted from the insurers. As the bills were paid by the insurers and his employer reimbursed the co-pays, the only amounts for which Aadland was out of pocket were the premiums he paid for the private insurance coverage. Citing the Gauthier opinion from the Fifth Circuit, Aadland argued that the payments from private health care providers were from a collateral source, that the reimbursements made to the insurers should not reduce the amounts owed for cure, and that he should recover the full amount of $1.2 million that was invoiced by the medical providers. Writing for the First Circuit, Chief Judge Barron noted that Judge Casper had distinguished Gauthier on the basis that Aadland had not requested cure, but the employer had conceded that the duty to provide maintenance and cure includes an obligation to inform the seaman of the duty. As the employer had not notified Aadland of that duty, it could not complain that he did not request cure. Consequently, the First Circuit vacated Judge Casper’s failure to properly explain why Gauthier should not apply. Alternatively, the employer argued that the premiums for the medical insurance during the employment of Aadland’s wife were deducted from his wife’s paycheck and were not paid by Aadland (citing cases where the seaman receives financial assistance from a parent). Chief Judge Barron considered the sharing of expenses by spouses to be different than a parent gifting expenses to an adult seaman. He held that the claim for breach of the duty to provide cure had to be vacated, absent a finding that the financial relationship between Aadland and his spouse would support a finding that Aadland did not incur an expense for the cost of the premiums. Aadland’s employer also argued that it paid hundreds of thousands of dollars in advances to Aadland that he used to pay for the premiums once his wife’s employment ended. However, Chief Judge Barron answered that the evidence reflected that the payments were advances (a loan) pursuant to an agreement for repayment. Although there was no request for repayment, it was unclear whether the payments were made as a loan for which there would be no basis to allow a set-off. Chief Judge Barron remanded the case to make findings bearing on whether Aadland alone purchased his insurance and emphasized that if he did alone purchase the insurance, his employer would not be entitled to set off from its cure obligation the roughly $600,000 that the medical insurer paid for Aadland’s treatment. Chief Judge Barron then addressed the question of whether Aadland was entitled to recover the sticker price for his cure and followed the decision of the Fifth Circuit in Manderson, holding that the amount owed was the amount accepted by the medical providers. Chief Judge Barron left it to Judge Casper on remand to address whether and how to credit the advance payments made by the employer and the payment made by the employer to the medical insurer. This left Judge Casper’s denial of Aadland’s claims for compensatory damages for mental anguish based on the failure to pay cure and punitive damages and attorney fees for willful delay in failing to provide cure. As the appellate court reversed the decision that the employer did not breach its duty to provide cure, Chief Judge Barron remanded these claims to Judge Casper for reconsideration. Finally, Chief Judge Barron addressed the ruling by Judge Casper that Aadland had reached the point of maximum cure (reasoning that there was no evidence that Aadland had not reached maximum medical recovery). Concluding that this decision improperly shifted the burden to the seaman to disprove maximum cure, Chief Judge Barron reviewed the court’s determination de novo. Although Aadland was discharged from his occupational therapy, was only seeing his doctors every six months for checkups, and admitted that the doctors were not doing anything for him to get better, Chief Judge Barron was not persuaded that the evidence sufficed to establish that Aadland’s care was palliative rather than rehabilitative. Consequently, the First Circuit reversed the finding on maximum cure. See December 2022 Update.
On remand, Judge Casper addressed three issues: whether Aadland had reached maximum cure; whether the cure obligation was offset by payments already made; and whether Aadland was entitled to compensatory damages for failure or delay of his employer in providing cure. With respect to maximum cure, Judge Casper cited the opinions that there were no further surgical options available, but that his condition was improving as a result of physical and occupational therapy (although his therapist stated that his progress had plateaued). Concluding that the statement about plateauing was insufficient to carry the employer’s burden of proof, Judge Casper held that Aadland had not reached maximum cure. Judge Casper then returned to the Fifth Circuit’s Gauthier decision to determine whether the employer was relieved of its obligation to pay the roughly $600,000 in medical expenses that were paid by the medical insurance. Based on Gauthier, Judge Casper held that Aadland should be entitled to recover his medical expenses as long as the medical insurance was not gifted to him by a third party and was paid for out of his shared finances with his wife. As the payments came from insurance paid by his wife’s employer with payroll deductions, from COBRA that was paid from their joint checking account, and from Medicare (payments deducted from Aadland’s social security check), Judge Casper held that the employer was responsible for the full amount of the $600,000 accepted by the medical providers. As the employer paid $400,000 to the medical insurer, Judge Casper held that the $600,000 cure obligation should be reduced by that amount. Judge Casper then addressed the effect of the advances made by the employer “toward any settlement, judgment or award resulting from [Aadland’s] claim for personal injuries or illness occurring on or about 7/20/2014, while aboard the F/V LINDA.” Although Aadland argued that his employer could only use the advances to satisfy future obligations and not past due maintenance and cure, Judge Casper held that the receipt for advances was not limited and applied to any judgment or award. Accordingly, she reduced the $600,000 obligation by the $400,000 payment to the medical insurer and by the advances paid to Aadland, leaving a net credit against future cure obligations. Finally, Judge Casper addressed Aadland’s claim for compensatory damages for mental distress, punitive damages, and attorney fees. Although his employer did not timely fulfill its cure obligation, Aadland’s distress arose from his stress about the medical insurer’s decision not to provide him care at facilities of his choice and to refuse to allow additional physical and occupational therapy. The evidence did not establish that had the employer timely fulfilled its cure obligation, it would have paid for any treatment that Aadland did not receive or that was not covered by the medical insurer. Therefore, Judge Casper concluded that Aadland was not entitled to compensatory damages from his employer for emotional distress. With respect to punitive damages and attorney fees, Judge Casper held that Aadland timely received all care deemed medically necessary. His employer paid advances to Aadland to cover his mortgage payments, insurance, and living expenses. There were no expenses presented to the employer that it declined to pay (and it ultimately paid the medical insurer). And it was not clear that the employer was liable for the medical treatment that was paid for by private insurance while the employer was paying advances to the seaman. Judge Casper concluded that Aadland had not shown that his employer was callous or willful in its failure to pay cure, and she denied the claim for punitive damages and attorney fees. See January 2024 Update.
The same day that Judge Casper issued her opinion, Aadland filed his notice of appeal to the First Circuit. Employer Boat Santa Rita cross-appealed. Aadland did not contest the rulings that credited the advances to him and the $400,000 payment to the medical insurer as setoffs to its liability for any breach of its duty to provide cure. However, Aadland argued that he was entitled to a judgment that there was a breach of the duty to provide cure for which he was entitled to recover compensatory damages for emotional distress and punitive damages and attorney fees. The employer argued that it did not breach its duty of cure because it provided generous advances, reimbursed Aadland’s out-of-pocket medical expenses, and reimbursed the medical provider that paid for the cure. The employer argued that the advances constituted cure because the amount was calculated, in part, based on the cost of Aadland’s health insurance premiums. However, Chief Judge Barron, again writing for the First Circuit, answered that the advances were loans—advances on settlement/judgment, and they could be recovered as setoffs against a judgment, even if that judgment were not for cure. Therefore, the advances did not satisfy the cure obligation, and the seaman was entitled to recover compensatory damages for emotional distress that was caused by an unreasonable breach of the duty to pay maintenance and cure. Chief Judge Barron agreed with Judge Casper, however, that Aadland failed to show that the emotional distress he experienced resulted from his employer’s breach. Aadland argued that he suffered emotional distress because he had to fight with the medical provider for admission to a skilled nursing facility (as opposed to an acute rehabilitation facility) and as to the frequency of his physical and occupational therapy. As Aadland failed to show that his employer would have acted differently than the medical insurer, he failed to establish causation for his employer’s breach. The appellate court disagreed with Judge Casper that Aadland failed to prove that his employer acted callously or willfully, concluding that his employer lacked a reasonable defense in failing to fulfill its cure obligation. Chief Judge Barron rejected the argument that a dispute whether the employer provided adequate maintenance and cure does not support an award of punitive damages, citing decisions in which courts have imposed punitive damages and attorney fees where the vessel owner paid some cure and there was a dispute about the adequacy of the cure. Chief Judge Barron also rejected the argument that delay alone is not a basis for an award of punitive damages (based on the argument that the employer is entitled to investigate the claim), citing the six-year delay in paying cure. After reviewing the evidence in the record, Chief Judge Barron concluded that Aadland had shown that his employer’s breach of its duty to provide cure was callous, willful, recalcitrant, or wanton. Therefore, the appellate court remanded the case to Judge Casper to determine whether punitive damages and attorney fees should, in her discretion, be awarded and the amount that would be appropriate (Chief Judge Barron disagreed with Aadland that the case should be assigned to a different district court judge on remand). Finally, the First Circuit addressed the issue raised by the employer on its cross-appeal. The employer argued that the treatment Aadland was receiving was palliative, and his doctors had given Aadland lifetime prescriptions. Chief Judge Barron agreed with Judge Casper that this was not sufficient to carry the employer’s burden to establish maximum cure; however, he noted that, on remand, the amount owed for maintenance and cure would have to be determined.
Fourth Circuit affirmed findings that boat operator and not the United States was at fault when the operator piloted a vessel into a construction dike; Barnett v. United States, No. 23-2221, 2025 U.S. App. LEXIS 6398 (4th Cir. Mar. 19, 2025) (Quattlebaum).
Edward Barnett was piloting the MISS JUNE, a 24-foot work boat owned by Moran Environmental Recovery, in the Cooper River in North Charleston, South Carolina on the night of July 6, 2018, when the vessel allided with a contraction dike owned and operated by the United States. Barnett was killed, and his personal representative brought this action in federal court in South Carolina against the United States, alleging that the navigation lights on the dike were not functioning properly at the time of the collision so that the dike was not visible to approaching boaters. A bench trial was held before Judge Norton, and the United States argued that the discretionary function exception to the Suits in Admiralty Act deprived the court of jurisdiction, arguing that the claim was based on discretionary actions of the United States in connection with the number, type, and characteristics of lighted aids to navigation on or near the dike. The plaintiff argued that, once the United States chose to install a system of aids to navigation near the dike, it was obligated to use due care in maintaining the lights. Judge Norton agreed that the discretionary function exception applied to the claims relating to background lighting, flashing rhythms, or candela, but that it did not apply to the government’s maintenance of the lights. Judge Norton noted that three of the four lights on the dike were operating, so that the dike’s extension into the river was well lit. Consequently, Judge Norton did not believe that the United States breached its duty to Barnett. He concluded that the failure to maintain the aid to navigation closest to the shore on the dike did not proximately cause the allision with the middle-to-far side of the dike where the lights were operating. Turning to the fault of the decedent, neither party directly addressed THE PENNSYLVANIA Rule, but Judge Norton concluded that the decedent posted crew member David Rafferty at the stern of the boat, rather than the bow, and that the decedent had not posted a proper lookout in violation of Inland Rule 5. Additionally, Judge Norton found that the decedent was proceeding at an unsafe speed, in violation of Inland Rule 6. These violations triggered application of THE PENNSYLVANIA Rule with respect to causation. Finally, Judge Norton applied THE OREGON Rule and its presumption that a moving vessel that allides with a stationary and visible object is at fault. Judge Norton found that the dike was visible, and that the decedent had knowledge of its existence and location as he had piloted that stretch of the river hundreds of times. Consequently, Judge Norton found the decedent was solely negligent for failing to comply with the statutory navigation rules and for failing to overcome the presumption from THE OREGON Rule, and he denied recovery to the plaintiff against the United States. See February 2023 Update.
The plaintiff moved for reconsideration of the court’s findings and conclusions, essentially rehashing arguments that were previously rejected by Judge Norton. Judge Norton aptly summarized his reason for denying the motion: “While Barnett disagrees with the court’s application of the discretionary function exception, the Oregon Rule, and the Pennsylvania Rule, and disagrees with the court’s conclusions as to breach of duty and superseding cause, mere disagreement does not support a Rule 59(e) motion.” Judge Norton did, however, grant the United States leave to file a late bill of costs, finding excusable neglect because the government attorney did not believe the bill of costs was due until after the ruling on the motion for reconsideration. See December 2023 Update.
Barnett’s representative appealed to the Fourth Circuit, challenging the rulings on the discretionary function exception, that the Coast Guard did not breach its duty with respect to maintenance of the lighting, and that Barnett’s negligence was the sole cause of the accident. Barnett argued that the discretionary function exception did not apply to the Coast Guard’s choices with respect to brightness, flash sequence, and general perceptibility of the amber lights, but, writing for the Fourth Circuit, Judge Quattlebaum disagreed and held that the applicable statutes and regulations imposed no mandatory obligations or specific duties. However, Judge Quattlebaum agreed that the Coast Guard does not have unfettered discretion about whether it will maintain the aids to navigation that it establishes. Accordingly, the Coast Guard did not have discretion regarding whether to timely repair the inoperable amber light closest to the shore, and the discretionary function exception did not apply for that failure. Judge Quattlebaum summarized: “The Coast Guard’s duty—once it undertakes to establish aids to navigation—is (1) to maintain the aids in good working condition—e.g., to fix them when they break, not to update or improve them—and (2) not to mislead boaters.” Judge Norton found that the failure of the light farthest from the marked channel would not induce reliance and would not breach a duty, and Judge Quattlebaum did not find it erroneous when there were multiple, operable lights between the channel and the unlight light that could be used for navigation. He added that the lighting scheme was not misleading for directing boaters to travel outside of the navigable channel, explaining that Barnett “could not have been led to believe that there was nothing between the four working aids to navigation and land” and that “he could pass between the dike and the shore.” Finally, Judge Quattlebaum agreed that, regardless of the issues with respect to the actions of the Coast Guard, Judge Norton did not err in finding that the sole cause of the allision was the fault of Barnett: “To repeat, Mr. Barnett exited the navigable channel, traveled past the green lateral aids such that they were on the right side of his boat when they should have been on his left, failed to utilize a lockout or his chart plotter—both of which were available to him—and did all of this while traveling at approximately 34 miles an hour at night. The lighting scheme—regardless of its particular features—did not cause him to take those actions. And we thus hold that his actions alone are the sole proximate cause of the allision.”
Maritime tort of false imprisonment requires the plaintiff to sufficiently plead a willful detention without his consent and without lawful authority; cruise line’s behavior in confining seamen on vessel during COVID pandemic was not outrageous so as to state a claim for intentional infliction of emotional distress; Maglana v. Celebrity Cruises, Inc., No. 23-12476, 2o25 U.S. App. LEXIS 10910 (11th Cir. May 6, 2025) (Pryor).
Ryan Maunes Maglana and Francis Karl Bugayong were crew members on the cruise ship MILLENNIUM when the COVID-19 pandemic disrupted the cruise industry and lives around the world. Celebrity stopped carrying passengers but kept its crews on the vessels, including keeping Maglana and Bugayong on the vessel for 58 days after terminating their employment for cause (Maglana took an expensive bottle of scotch from the ship’s bar and shared it with Bugayong). The crew members were released and repatriated after the CDC provided guidance on disembarking them, but Maglana and Bugayong complained about the speed of the process and the conditions in which they were kept “like cattle.” They brought this suit in federal court in Florida, and the cruise line moved to compel arbitration based on the arbitration clauses in the employment agreements. Judge Martinez ordered the claims arbitrated, and the crew members appealed. The contracts required all disputes, whether in contract or tort, that were in any way connected with their service to be resolved by arbitration in the Philippines. The Eleventh Circuit initially discussed whether the court or arbitrator should decide the arbitrability of the claims. Although the delegation provision in the clauses gave the arbitrator the exclusive authority to decide arbitrability, the cruise line asked the district court to enter an order directing the seamen to proceed to arbitration. The Eleventh Circuit considered this to be the opposite position from what the cruise line argued on appeal. Thus, the appellate court held that the cruise line invited the district court to rule on arbitrability, and the cruise line could not argue on appeal that the arbitrability should have been decided by the arbitrator. The appellate court then addressed whether the arbitration clauses covered the intentional tort claims based on the cruise line’s conduct after it terminated the employment of the seamen. Reasoning that keeping the seamen on the vessel for weeks under miserable conditions was unconnected to their duties as beverage handlers (there were no passengers to serve), and that the claims were limited to actions taken after their termination, the Eleventh Circuit held that Maglana and Bugayong could avoid arbitration and pursue their tort claims in the district court. See September 2022 Update.
Back in the district court, the cruise line moved to dismiss the remaining claims for intentional torts (that were outside the scope of the arbitration agreement). The cruise line argued that the claim for false imprisonment failed because its actions were not unlawful, were not without legal authority, and were not unreasonable or without legal authority. It argued that the claim for intentional infliction of emotional distress failed because the cruise line’s conduct was not outrageous. Judge Martinez agreed that Maglana’s and Bugayong’s claims for false imprisonment were insufficient because they failed to mention what law the cruise line violated, and he dismissed the claim for intentional infliction of emotional distress, reasoning that the delay in disembarking Filipino crew members “may be seen as negligent or frowned upon,” but it did not “exceed all possible bounds of decency.” Maglana and Bugayong again appealed to the Eleventh Circuit, and, writing for the court, Chief Judge Pryor began by concluding that maritime law applied to the claims, explaining: “The intentional infliction of emotional distress on and false imprisonment of seamen by their employers, particularly in relation to a quarantine or pandemic, has ‘a potentially disruptive impact on maritime commerce’ because it could halt, delay, or interfere with a ship’s timely completion of its voyage or lead to unrest among a ship’s crew.” With respect to the claim for false imprisonment, the seamen argued that the lawfulness of their confinement was an affirmative defense, not an element of their claim that required specific pleading of the laws violated. Chief Judge Prior reasoned that there was no controlling precedent under the general maritime law for the elements of the tort of false imprisonment, so he reviewed state law and venerable treatises and concluded that the restraint must confine a person against his will, and the confiner must also lack the lawful authority to do so. However, the Restatements of Torts did not include unlawfulness as an element of the tort. Tasked by the Constitution with defining the elements of the tort, Chief Judge Prior concluded that the tort of false imprisonment requires willful detention without consent and without lawful authority. He explained: “A plaintiff must plead, as an initial matter, that the defendant lacked lawful authority to confine him. And the defendant may respond that the detention was privileged.” As the complaint failed to plead the laws that the cruise line allegedly violated, the seamen could not establish that their false imprisonment was unlawful. Turning to the claim for intentional infliction of emotional distress, Chief Judge Prior noted that the First and Ninth Circuits have held that the general maritime law recognizes the tort of intentional infliction of emotional distress, citing the Second Restatement of Torts, which states that liability has been found “only where the conduct has been so outrageous in character, and so extreme in danger, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” He did not believe that this standard was satisfied, acknowledging that the seamen were trapped for months on a cruise ship without guidance about when they might return home. However, he responded that the cruise line “faced a rapidly evolving crisis and changing guidelines. That Celebrity did not do this difficult job perfectly or as quickly as Maglana and Bugayong would have liked does not mean that its behavior was outrageous.”
CGL policies, not charterer’s legal liability policy, covered platform operator’s negligence from its mis-design and misuse of a device on its natural gas extraction platform (which failed to secure a vessel and caused injury to a seaman); Syndicates 1183, 1036, and 2007, Certain Underwriters at Lloyd’s, London v. Cook Inlet Spill Prevention & Response, Inc., No. 23-35429, 2025 U.S. App. LEXIS 10983 (9th Cir. May 7, 2025) (per curiam).
Furie Operating Alaska owned and operated a natural gas extraction platform in Cook Inlet, Alaska. In order to transport workers and supplies to and from the platform, Furie entered into a time charter with CISPRI Services to charter vessels as needed. Furie obtained a charterer’s legal liability policy with Syndicates 1183, 1036, and 2007 of Lloyd’s, and it obtained primary and umbrella energy commercial liability policies with Gemini Insurance. The coverage disputes in this litigation arose when a chartered vessel, PERSEVERANCE, was being secured to the mooring apparatus located on the platform (that included a wire rope sling). The rope parted, striking a deckhand on the PERSEVERANCE who was employed by CISPRI. CISPRI paid benefits to the injured crew member and eventually settled his injury claim. CISPRI then brought claims against Furie, seeking indemnity or contribution from Furie based on liability for failing to provide a safe berth and for the negligence of Furie in the design and operation of the mooring system. The claims were resolved in arbitration with findings that the platform was not a vessel; the vessel captain was negligent; Furie was negligent for installing an ad hoc solution rather than a designed/engineered connection to the pad eye, which risked an undesirable bending force in the wire rope sling; using the mooring apparatus that it should have known was unsafe to hold the vessel; installing a mooring apparatus without a margin of safety for expected vessel movement during mooring; and failing to know the circumstances for safe use of the mooring apparatus and, therefore, failing to guide the platform employees when not to use the mooring apparatus. Furie was not found to have breached the safe berth warranty because the safety of the mooring apparatus was not the same as the location being unsafe, and the platform was not a “berth.” The arbitrator apportioned the fault as 65% to Furie and 35% to CISPRI. The court confirmed an award of $8.2 million against Furie, and the coverage litigation ensued with this action by the Lloyd’s Syndicates in federal court in Alaska. Gemini tendered the full amount of its primary policy, so the issue was whether there was coverage for the arbitration award under the umbrella general liability policy and the charterer’s legal liability policy [similar issues were decided by admiralty expert, Judge John R. Brown of the Fifth Circuit, with respect to a mooring/anchoring device, in Terra Resources v. Lake Charles Dredging, but that case was not cited in the opinion]. Judge Kindred first addressed the coverage under the charterer’s policy. The Syndicates argued that the charterer’s policy covers Furie’s liability for the injury to the extent it arose out of operations and activities carried on by or ordinarily at the risk and responsibility of the charterer; but Gemini argued that the policy covered any injury to a crew member aboard a chartered vessel, regardless of the accident’s relationship to the insured’s activities as charterer. Agreeing with the Syndicates, Judge Kindred held that designing and operating the mooring apparatus on the platform was a risk that Furie assumed as the platform owner (not as charterer) and that it was, accordingly, not covered under the charterer’s policy. The next question was whether the watercraft exclusion in the umbrella policy excluded coverage--whether the injuries arose out of Furie’s use of the watercraft PERSEVERANCE. Judge Kindred incorporated the same analysis as he used with respect to the charterer’s policy to determine that Furie was not liable for exercising control over the vessel or directing the vessel to the mooring apparatus. Its liability arose from its negligent design and use of the mooring apparatus. Therefore, the watercraft exclusion did not apply and there was coverage under the umbrella policy. Accordingly, Judge Kindred held that the charterer’s legal liability policy issued by the Lloyd’s Syndicates did not provide coverage to Furie and that the Energy Commercial Umbrella Liability Policy issued by Gemini did provide coverage to Furie. See May 2023 Update.
The Lloyd’s Syndicates then sought attorney fees from Gemini, and Judge Kindred noted that Alaska follows the English Rule that the prevailing party in a civil case recovers a portion of its fees from the losing party. Gemini argued that Alaska law did not apply because the court’s subject matter jurisdiction was based on the federal Declaratory Judgment Act and admiralty jurisdiction. Judge Kindred noted, however, that Gemini’s cross-claims were based on diversity. Gemini also asserted that the Charterer’s policy contained a choice-of-law provision for New York law. The Syndicates responded that New York law applied to the interpretation of the policy, but not to the right to recover attorney fees. Following the rule of dépeçage, Judge Kindred evaluated the choice of law for attorney fees without regard to the other issues in the case. He reasoned that attorney fees are substantive for Erie purposes but not for choice of law. Thus, he looked to Alaska law, which considers its rule on attorney fees to be procedural. Consequently, Judge Kindred held that the Alaska rule on attorney fees applied in this case even though New York law governed the substantive issues. He found the Syndicates’ requests to be reasonable, and he awarded $43,952.40 in fees. See March 2024 Update.
Gemini appealed to the Ninth Circuit, arguing that the charterer’s policy covered Furie’s liability and that the umbrella commercial liability policy did not. Like Judge Kindred, the Ninth Circuit disagreed with Gemini, stating: “a plain and simple reading of the Underwriters Policy—one that any reasonable insurer would understand—is that when the policy says ‘club rules for charterers’ risks’ it refers to those club rules that concern charterers’ risks.” The appellate court rejected “Gemini’s convoluted arguments to the contrary, which seek to turn the Underwriters Policy into a general liability policy.” The court found the charterer’s policy unambiguously covered Furie’s liability only in its capacity as charterer and indemnified CISPRI for the risk of injury to seamen only to the extent that risk arose out of Furie’s “operations or activities ordinarily carried on by, or ordinarily at the risk and responsibility of, a charterer.” The appellate court then considered whether Furie’s liability to CISPRI triggered the coverage, explaining that as a time charterer, Furie directed the movement and cargo operations of the vessel, but Furie did not injure a seaman from a breach of a contractual duty stemming from the charter. Instead, its negligence arose from the mis-design and misuse of a device on the platform, which failed to secure the vessel and resulted in injury to a seaman. As Furie breached its duties as owner of the platform, not as charterer, the charter’s policy was not triggered.
Fifth Circuit disagreed that an expert must provide a specific dose of a chemical in an exposure case to establish general causation but still affirmed the striking of expert testimony in a BELO case arising from the Macondo/DEEPWATER HORIZON blowout and the granting of summary judgment to BP in the absence of expert testimony on causation; Ruffin v. BP Exploration and Production, Inc., No. 23-30854, 2025 U.S. App. LEXIS 11437 (5th Cir. May 12, 2025) (Elrod).
Floyd Ruffin brought a Back-End Litigation Option suit against BP for exposure to harmful toxins while working as a shoreline clean-up worker, boom deployer, boom recoverer, and boom decontaminator for five months after the Macondo/DEEPWATER HORIZON oil spill. Ruffin presented the opinion of Dr. Benjamin Rybicki, a genetic and molecular epidemiologist, with respect to causation for Ruffin’s diagnosis of Prostatic Adenocarcinoma, but Judge Lemelle held that his opinion failed to comply with the Fifth Circuit’s requirements because it did not provide an expert dose at the general causation level and did not provide an opinion on specific causation. Ruffin’s remaining expert was a toxicologist, Dr. James Clark. However, Judge Lemelle excluded his opinions because he made no harmful-dose or exposure-dose findings and did not evaluate general causation based on toxicity (disease association or the Bradford Hill factors). Instead, he provided a toxicity assessment based on EPA thresholds. As the exposure assessment report did not identify the level of toxins that is harmful and that could be associated with the symptoms, it failed the requirements to support general causation (he also did not provide an opinion on specific causation). Accordingly, Judge Lemelle granted summary judgment to BP. See December 2023 Update.
Ruffin appealed to the Fifth Circuit and argued that Dr. Rybicki’s methodology was permissible under Daubert. Dr. Rybicki used a differential etiology (process of elimination) approach to determining the cause of Ruffin’s prostate cancer. He ruled out other possible exposures to polycyclic aromatic hydrocarbons that are associated with an increased risk of prostate cancer and concluded that exposure to oil in the clean-up was Ruffin’s most significant exposure to PAHs in terms of intensity. BP argued that to establish general causation, the plaintiff must show by expert testimony that the chemical to which he was exposed was capable of causing his particular injury or condition in the general population, and that required an expert to identify the minimum amount (“dose”) of the chemical necessary to cause the injury/condition in the general population. Writing for the Fifth Circuit, Chief Judge Elrod disagreed with BP, explaining that general causation only requires that a substance be capable of causing the condition in the general population. A specific quantitative “dose” might be sufficient to establish general causation, but Chief Judge Elrod added that expert testimony may be relevant and admissible even if it does not provide a specific dosage. She cited the Bradford Hill criteria, commonly used for evaluating causation in epidemiological studies, which “consider a ‘[d]ose-response relationship’ as but one factor among others such as ‘[t]emporal relationship,’ ‘[b]iological plausibility,’ ‘[s]pecificity of the association,’ and ‘[c]onsistency with other knowledge.” Chief Judge Elrod also noted that the court has allowed a numerical “range” supported by other associations/connections. By way of example, Chief Judge Elrod stated: “Assuming that the underlying methods are reliable, our cases illustrate that an expert can provide a harmful ‘level’ of exposure to a chemical that is relevant to general causation by, for example, establishing a significant association between occupational exposure and the relevant condition or by providing qualitative examples of exposure, such as ingestion, that are generally known to cause the relevant condition.” Accordingly, Chief Judge Elrod held that Dr. Rybicki’s testimony was not irrelevant on the basis that he failed to provide a quantitative exposure dosage of PAHs that would cause prostate cancer. However, she held that Dr. Rybicki’s testimony was still insufficient to establish general causation. Dr. Rybicki admitted that PAHs comprise over 200 chemicals that are ubiquitous in the environment, but the only one that has been confirmed to be carcinogenic is benzo(a)pyrene, and neither Dr. Rybicki nor Ruffin claimed that benzo(a)pyrene was the chemical to which Ruffin was exposed. Dr. Rybicki’s testimony that Ruffin was most likely exposed to PAHs in crude oil did not mean that Ruffin was exposed to the carcinogenic PAH benzo(a)pyrene. Finally, Chief Judge Elrod pointed out that the expert must establish a link with the specific cancer from which the plaintiff suffers and not cancer generally. Although Dr. Rybicki linked benzo(a)pyrene to cancer, he did not demonstrate that it causes prostate cancer. In the absence of expert testimony, Chief Judge Elrod agreed that summary judgment was proper.
Court must look at the new function of the barge after its conversion (and not its former function) to determine if there is a lien for the shipyard’s work in converting the barge into a three-vessel dredging unit; John Bludworth Shipyard, L.L.C. v. CAPTAIN FRANK BECHTOLT, No. 24-20399, 2025 U.S. App. LEXIS 12500 (5th Cir. May 22, 2025) (Southwick).
This case involves three vessels, the CAPT. FRANK BECHTOLT (owned by Manson Construction Co.), the CIT-103 (owned by Caillou Island Towing), and the IDLER (formerly owned by T.W. LaQuay Marine). LaQuay bareboat chartered the BECHTOLT and the CIT-103 and contracted with John Bludworth Shipyard to assist in combining the three vessels into a single dredging unit for work along the Gulf Coast. LaQuay filed for bankruptcy and did not pay Bludworth for the work. Bludworth filed claims and asserted liens against the vessels in the LaQuay bankruptcy. However, when Bludworth learned that the BECHTOLT and CIT-103 were bareboat chartered, it brought this action in which it arrested the BECHTOLT, the CIT-103, and the IDLER. Caillou moved to vacate the arrest of the CIT-103 on the grounds that Bludworth did not provide necessaries to the vessel or rely on the credit of the vessel when it contracted with LaQuay, and because any lien against the vessel was extinguished by laches. Prior to the work of combining the vessels, the CIT-103 was an unpowered flat deck barge, but it has been converted into a booster barge (housing a booster pump that allows the dredge pump to operate more efficiently). Caillou argued that the work on the CIT-103 was to serve the BECHTOLT, so that the CIT-103 could be used as a platform for auxiliary equipment for the BECHTOLT. The work in modifying the CIT-103 and combining it with the other two vessels was for the purpose of the dredge project, not to serve the particular function of the CIT-103. Judge Bennett cited Fifth Circuit authority for the view that a necessary is determined by “the need of the vessel.” Bludworth did not cite authority to support the argument that “modifications to one vessel so that it can be combined with separate vessels and serve the purposes of those vessels constitutes necessaries to create a maritime lien.” Finding that Bludworth did not provide necessaries to the CIT-103, Judge Bennett vacated the arrest. Bludworth sought summary judgment to enforce its maritime lien on the BECHTOLT, and Judge Bennett noted that Bludworth did a significant amount of work on the vessel besides connecting the BECHTOLT to the CIT-103. The work included blasting, coating, removal and modification of a ladder, adding sponsons, modifying the pump, adding swing winches, changing the fenders, adding anodes, replacing sea valves and strainers, repairing doors in the engine room, adding machinery guards on the generator, adding a new stairway, adding and modifying piping, and replacing hatches. Judge Bennett concluded that there were fact issues whether all of the work performed by Bludworth constituted necessaries (including an issue whether the work served the function of the BECHTOLT or perhaps a “new” vessel that the BECHTOLT “served to create.” Similarly, Judge Bennett found fact issues with respect to whether the work on the IDLER (converting it to a spud barge) constituted necessaries for that vessel. See October 2024 Update.
Bludworth filed an appeal and moved the Fifth Circuit to issue a stay of the order vacating arrest of the CIT-103 pending appeal, arguing that if the stay was not granted the dredging unit would be separated, greatly decreasing its value. Two members of the panel of the Fifth Circuit declined to grant the stay pending appeal (Judge Oldham would have granted the stay). In a published order issued on October 29, 2024, the panel agreed that Bludworth had not shown how the services it “provided to the CIT-103 (adding equipment and joining the three vessels) were to serve the needs of the CIT-103 itself rather than the dredging unit as a whole,” adding that “courts have denied maritime liens where the services provided ‘do not fit naturally into this list of traditional shore-to-ship goods and services.’” The panel distinguished the Supreme Court’s decision in THE JACK-O-LANTERN (holding that a contract to change a car float barge into an amusement steamer was maritime) because the Court in THE JACK-O-LANTERN did not have to address whether there was a maritime lien for the work. In the absence of caselaw that clearly showed the district court’s analysis was wrong, and in the absence of a question that would have significant consequences beyond the two parties, the panel declined to grant the “extraordinary relief” of a stay pending appeal.
Bludworth then sought reconsideration of the order denying its request for a stay and requested a temporary administrative stay during the consideration of its motion for reconsideration. On October 31, 2024, the Fifth Circuit agreed to a temporary stay of the order vacating the arrest of the CIT-103 pending its decision on reconsideration.
On November 14, 2024, the panel substituted an order that granted a stay pending appeal and expedited the appeal to the next available oral argument panel. In its per curiam opinion, the panel addressed the issue whether it was proper “to consider only the prior function of the barge as opposed to considering how the work served a new function of the barge as part of a dredging unit.” The majority distinguished cases such as the NOR GOLIATH decision from the Fifth Circuit (tug owner did not have a lien on a heavy lift vessel for work towing barges back and forth to the heavy lift vessel), reasoning that the opinions did not undermine the principle that work performed to change the function of a vessel gives rise to a maritime lien as long as the changes do not amount to original construction. The majority accepted the district court’s focus that the work must benefit the function of the CIT-103; however, it answered that the work done to each vessel was to benefit the function of the new, triple-sized vessel, reasoning: “Had the modifications not been performed, the CIT-103 would have failed in its particular function.” The majority summarized that “regardless of whether the work on the CIT-103 itself was repairs under the principles established in JACK-O-LANTERN or is seen more generally as necessaries for the new function of the vessel, [Bludworth] has made a strong showing that it has a maritime lien on the CIT-103.” As Bludworth made a strong showing that it was likely to succeed on the merits, the panel issued a stay pending the appeal. Judge Oldham, who agreed from the outset that a stay should be granted, concurred to state his simple syllogism that Congress is presumed to adopt the interpretation of a term when it uses that term in a statute; the Supreme Court used the term “repair” in THE JACK-O-LANTERN to include conversion of a ship from one use to another; and Congress provided for a maritime lien for “necessaries” that include “repairs” in the CIMLA. Therefore, the conversion in this case gave rise to a lien for necessaries. Judge Willett dissented, contending that a necessary is determined “by the need of the vessel.” He disagreed with the conclusion that the court must consider necessaries with regard to the “particular function of the CIT-103” and what is necessary for that vessel. He agreed with Judge Bennett that the work on the CIT-103 was for the dredging efficiency of the three-part barge and not for any use by the CIT-103 itself. Judge Willett concluded: “The panel’s analysis of the murky waters of our maritime lien caselaw is certainly a plausible reading. But I am ‘not left with a firm conviction that [the district court’s] holding was erroneous,’ so I do not believe [Bludworth] has shown the likelihood of success necessary for a stay.” See December 2024 Update.
After oral argument, the Fifth Circuit reversed Judge Bennett, summarizing: “The court’s interpretation was that the work had to provide necessaries toward the original function of a vessel, and this work was not that. Our own interpretation is that the new function must be the focus.” Writing for the Fifth Circuit, Judge Southwick noted that Judge Bennett had characterized the function of the CIT-103: “to operate as a flat unpowered deck barge that loaded and transported equipment using a tugboat as motive power.” However, that was the vessel’s function before Bludworth did work on the vessel. Judge Bennett did not believe that the modifications to the barge served the needs of the prior purpose and instead only served the new purpose of the combined vessels (Judge Southwick noted that Bludworth was asserting a lien on each of the vessels and not a single lien on the whole three-vessel unit). In order to determine the focus necessary for a maritime lien, Judge Southwick looked to the Supreme Court’s decision in New Bedford Dry Dock Co. v. Purdy (THE JACK-O-LANTERN II), which involved the transformation of an unpowered barge that had transported railroad cars into a powered amusement vessel. The Supreme Court considered the work to be “repairs” and not new construction, so that there was admiralty jurisdiction. Following that reasoning, Judge Southwick explained: “The Jack-O-Lantern case strongly supports the proposition that services converting a vessel from one purpose to another are ‘repairs’ and therefore ‘necessaries.’” Judge Southwick considered the decisions of the Fifth Circuit establishing that “a vessel’s particular function is examined individually, not based on the scope of an overall project.” However, he reasoned that “a vessel’s particular function might be to serve other vessels.” In this case, the new function of the CIT-103 as a booster barge involved other vessels, stating that it “cannot boost a dredge without a dredge to boost.” He added: “This dependency is not disqualifying to the creation of a maritime lien when an existing vessel is ‘repaired’ to perform this function.” Accordingly, Judge Southwick remanded the case to the district court to determine whether some or all of Bludworth’s work on the CIT-103 constituted necessaries to its new function as a booster barge (the appellate court simply reversed the decision to vacate the arrest and remanded the case for Judge Bennett to decide whether Bludworth had established a lien on each of the vessels and whether an interlocutory sale was appropriate).
From the federal district courts
Judge declined to dismiss Jones Act suit for lack of sufficient factual allegations, stating that the arguments were typically addressed in a motion for summary judgment; Bruce v. Halliburton Energy Services, Inc., No. 2:24-cv-2792, 2025 U.S. Dist. LEXIS 48670 (E.D. La. Mar. 17, 2025) (Zainey).
Richard Bruce brought suit against his employer Halliburton Energy Services in federal court in Louisiana, alleging that he was employed on the drillship BLACK LION, owned/operated by Noble Drilling, where he was injured while servicing equipment. Bruce did not provide any other assertions as to the nature or duration of his connection to the vessel or setting forth how he was injured or how the accident was related to any negligent acts. Halliburton moved to dismiss the complaint on the grounds that it lacked sufficient factual detail to state a claim for seaman status or negligence, but Judge Zainey was not persuaded that the complaint should be dismissed “based on the sparsity of factual detail.” He reasoned that the plaintiff is only required to provide a “short and plain statement of the claim” that is sufficient to give the defendant notice of the claim and that the arguments raised by Halliburton “are more typically addressed at the summary judgment stage rather than on the pleadings alone.” Accordingly, Judge Zainey denied the motion to dismiss [compare Judge Zainey’s reasoning with the dismissal without prejudice in the following case, D.S. v. Carnival Corp., and the dismissal with prejudice in Hines v. Carnival Corp., discussed below].
Passenger sufficiently identified employees and notice with respect to her claim for over-service of alcohol, but failed to sufficiently plead causation; passenger failed to sufficiently plead that misrepresentations of the CCTV footage caused her not to request a rape kit with the loss of her ability to pursue a claim for sexual assault; passenger’s request; D.S. v. Carnival Corp., No. 1:24-cv-24428, 2025 U.S. Dist. LEXIS 49178 (S.D. Fla. Mar. 17, 2025) (Goodman), recommendation adopted, 2025 U.S. Dist. LEXIS 64091 (S.D. Fla. Apr. 3, 2025) (Williams).
D.S., a passenger on the CARNIVAL RADIANCE, brought this suit against the cruise line, asserting that she fell down a flight of stairs on the vessel as a result of being overserved alcohol. D.S. also alleged that she was prevented from being able to know if she had been sexually assaulted because the cruise line misrepresented the contents of closed circuit television surveillance, which caused her not to request a rape kit. Her amended complaint contained two counts, vicarious liability for over-service of alcohol and vicarious liability for the alleged misrepresentation by an employee of the cruise line. The cruise line moved to dismiss the first count because D.S. failed to identify a negligent employee, failed to allege that an employee knew or should have known that she was too intoxicated to receive another drink, and failed to sufficiently allege causation. Chief Magistrate Judge Goodman disagreed with the cruise line with respect to the identification of the employee, finding it sufficient that D.S. listed the bars and pleaded that the bartenders over-served her (although he cautioned that these allegations would probably not survive a motion for summary judgment). Chief Magistrate Judge Goodman also disagreed that the pleading was conclusory as to the notice of her intoxicated state, noting that she pleaded she was swaying, stammering, slurring her speech, had alcohol on her breath, and was acting in a belligerent manner while in plain view of the crew who were serving the alcohol. However, Chief Magistrate Judge Goodman did not believe the allegation was sufficient that, due to her intoxicated state that was caused by over-service of alcohol, D.S. stumbled while attempting to walk down a set of stairs and suffered a severe fall. Chief Magistrate Judge Goodman reasoned that D.S. did not sufficiently allege causation because she failed to appropriately define what the incident was and how over-service caused it. Therefore, Chief Magistrate Judge Goodman recommended that D.S. be required to replead the first count. The cruise line argued that the allegations in the second count failed to plead a claim for intentional misrepresentation because D.S. failed to adequately plead that an employee misrepresented or omitted a material fact, failed to include a plausible allegation of inducement, and insufficiently alleged how she suffered a detriment as a result of the misrepresentation. Chief Magistrate Judge Goodman answered that D.S. complied with the heightened pleading requirement of Rule 9 for a misrepresentation claim as she sufficiently alleged the “where, when, who, and how a crew member misrepresented or omitted a material fact.” However, Chief Magistrate Judge Goodman believed that the allegations on inducement and reliance were too vague and conclusory for the court to determine causation. He noted that the misrepresentation after the fall could not have been a cause of the fall and he questioned how she was injured when the crew member offered to administer a rape kit. Therefore, he recommended that the second count be amended to sufficiently allege the misrepresentation claim. Chief Magistrate Judge Goodman then addressed the cruise line’s argument that D.S. was not entitled to seek punitive damages because she failed to show intentional misconduct by the cruise line or that the cruise line authorized or ratified the tortious conduct of its crew. Chief Magistrate Judge Goodman noted the intra-district split on the issue of whether punitive damages are allowed in maritime cases. He did not have to decide how that issue should be resolved as he concluded that the allegations were too vague and conclusory to meet the standard that “the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” He recommended that if Judge Williams agreed with his recommendation, D.S. should be given leave to replead the claim for punitive damages “if [she] has a good faith basis to allege the necessary facts to support a punitive damages claim because of exceptional circumstances of intentional wrongdoing.” D.S. did not object to the recommendations, and Judge Williams adopted them.
Owner of helicopter sufficiently alleged claims under New York law for bailment and negligence/gross negligence for damage to helicopter during land portion of shipment from Sweden to Louisiana because COGSA was not timely asserted; Milestone Aviation Group Ltd. v. DSV Air & Sea Inc., No. 24-cv-3136, 2025 U.S. Dist. LEXIS 48949 (S.D.N.Y. Mar. 18, 2025) (Cronan).
Milestone Aviation Group contracted with DSV to transport a Sikorsky helicopter from Rzeszow, Poland to Lafayette, Louisiana. DSV was to transport the helicopter via truck to the port of Gothenburg, Sweden, on the vessel DON PASQUALE to Brunswick, Georgia, and then by truck from Brunswick to Lafayette. DSV subcontracted the final leg of the journey to International Machine Transport. During the inland transportation in Louisiana, the helicopter struck a bridge and was a constructive total loss. Milestone Aviation brought this suit against DSV in federal court in New York, alleging breach of contract, negligence, gross negligence, and breach of bailment obligations. DSV moved to dismiss the bailment and tort claims based on the New York economic loss rule and to dismiss the claim for gross negligence as insufficiently pleaded. Judge Cronan disagreed, finding the economic loss rule to be inapplicable and concluding that the gross negligence claim was sufficiently pleaded. In its reply, DSV asserted that the tort and bailment claims were preempted by the Carriage of Goods by Sea Act. As the argument was raised in the reply, Judge Cronan held that it had been waived. However, Judge Cronan did note that COGSA was potentially implicated through the terms of the Sea Waybill, and he stated: “To the extent that COGSA limits DSV’s liability or Milestone’s damages in a way contrary to state law, DSV may properly raise such arguments in a future summary motion or in trial-related briefing.”
Claim for contribution/indemnity (including attorney fees and costs) in limitation action by defendant in the state suit created a multiple-claimant situation, and the Magistrate Judge declined to lift the stay without the defendant agreeing to the stipulations; In re M/V CALCASIEU RIVER, No. 3:24-cv-266, 2025 U.S. Dist. LEXIS 49858 (S.D. Tex. Mar. 19, 2025) (Edison).
Justin Moak claims that he was injured while assigned to the M/V CALCASIEU RIVER, a vessel owned by Great Lakes Dredge & D0ck Co., while the vessel was located at Marlin Marine Worx’s facility in Freeport, Texas. Moak brought suit against Great Lakes and Marlin Marine in state court in Harris County, Texas, and Great Lakes brought this limitation action in Texas federal court. Moak and Marlin Marine filed claims in the limitation action, with Marlin Marin seeking contribution and/or indemnity along with costs and attorney fees. Moak moved to lift the stay in the limitation action based on the single-claimant exception, but Marlin Marine declined to make any stipulations. Moak argued that his claim was the only one that could exceed the limitation fund, but Magistrate Judge Edison answered: “The Fifth Circuit has stated unequivocally that ‘all claimants must sign a stipulation protecting the vessel owner’s rights under the Limitation Act.’” As there were two claimants and only one signed the stipulation, Magistrate Judge Edison concluded: “Unambiguous, binding Fifth Circuit precedent compels me to deny Moak’s motion to lift stay.”
Suit by city against owner of marina located on navigable waters, demanding removal of the marina, did not arise under federal law and was not removable to federal court; City of Prescott v. Leo’s Landing, Inc., No. 24-cv-543, 2025 U.S. Dist. LEXIS 51111 (W.D. Wis. Mar. 19, 2025) (Peterson).
Leo’s Landing owns a marina at the confluence of the St. Croix River and the Mississippi River in Prescott, Wisconsin. Leo’s Landing claimed that it owned the waterbed on which the marina was located, but the City of Prescott disagreed and demanded that Leo’s Landing remove the marina. The City brought this action in state court in Pierce County, Washington, asserting a state-law riparian rights claim. Contending that the City’s claim depended on federal law governing navigable waters, Leo’s Landing removed the case to Wisconsin federal court based on federal question jurisdiction. Leo’s Landing cited the federal permit from the Corps of Engineers that allows it to operate the marina pursuant to the Rivers and Harbors Act, but Judge Peterson responded that the permit does not convey a property right, so the City’s claim did not turn on the application of the federal permit. Leo’s Landing also argued that the Wild and Scenic Rivers Act controlled its right to operate the marina because it was a historic feature of the St. Croix River that must be administered to protect and enhance the river’s value. Judge Peterson answered that the argument was at most an affirmative defense and did not affect the core question of whether the City had riparian rights over the waterbed. Concluding that Leo’s Landing had not identified any federal law that completely preempts the City’s riparian rights claim, Judge Peterson held that there was no federal question jurisdiction and remanded the case to state court (Judge Peterson added that Leo’s Landing had not relied on original admiralty jurisdiction as a basis for removal and that removal would not have been available without an independent basis for federal jurisdiction, citing the rule enunciated by a majority of district judges).
Failure to correct deficiencies in passenger’s complaint when she filed her amended complaint resulted in dismissal with prejudice of her injury suit; Hines v. Carnival Corp., No. 23-cv-24884, 2025 U.S. Dist. LEXIS 51876 (S.D. Fla. Mar. 19, 2025) (Martinez).
Gwendolyn C. Hines, a passenger on the CARNIVAL CELEBRATION, tripped and fell when walking on the gangway onto the vessel. She brought this suit in federal court in Florida against the cruise line with a single negligence count, asserting that she tripped on an improperly placed threshold on the gangway that was sticking up and that the cruise line knew or should have known of the dangerous condition and the risk of injury. The cruise line moved to dismiss the complaint, and Hines failed to respond. Faced with a show-cause order, Hines moved for leave to file an amended complaint, and the cruise line moved to dismiss the complaint for failing to separate causes of action into different counts and for failing to sufficiently plead notice. Judge Martinez agreed that the single negligence count confusingly commingled allegations of negligent maintenance, negligent failure to warn, and failure to comply with shipbuilding standards, codes, laws, and regulations (which contain distinct elements). He also agreed that the complaint failed to sufficiently allege notice, stating that the allegation that the cruise line should have known of the condition was “far too conclusory to survive dismissal.” Judge Martinez explained that the plaintiff must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and he added that “a formulaic recitation of the elements of a cause of action will not do.” Finally, Judge Martinez declined to give Hines, who is represented by counsel, the opportunity to file an additional amended complaint, stating: “Defendant’s motion to dismiss Plaintiff’s initial complaint . . . notified Plaintiff of her pleading deficiencies and, in response, Plaintiff sought leave to amend her complaint, which also fails to state a claim. A further opportunity to amend is not required.” Therefore, Judge Martinez dismissed the suit with prejudice.
Fact questions with respect to the cause of the damage to the transmission of the fishing boat resulted in denial of the ship repairer’s motion for summary judgment, despite the fact that the damage occurred after the owner hired the technician from the repairer; fishing boat owner stated a misrepresentation claim against the vessel repairer for allegedly sending an unqualified technician to work on the vessel’s solenoid; Rosauer v. Alaska Diesel Electric, Inc., No. 3:23-cv-33, 2025 U.S. Dist. LEXIS 50994 (D. Alaska Mar. 20, 2025) (Holland).
Chris Rosauer, owner of the fishing boat INTREPID, noticed that the solenoid stopped working on the Lugger engine, and Rosauer contracted with Alaska Diesel to repair the solenoid while the boat was moored in Whittier, Alaska. Alaska Diesel sent its technician, Wyatt Payne, who performed work (including removing the fuel pump four times) for six weeks. The engine still ran roughly, and Payne quit working for Alaska Diesel and began working for Rosauer as a deck hand. Eventually the transmission failed, and Rosauer brought this suit against Alaska Diesel in federal court in Alaska, asserting claims for breach of contract, breach of the warranty of workmanlike performance, negligence, and violation of the Alaska Unfair Trade Practices and Consumer Protection Act. Alaska Diesel moved for summary judgment, contending that the damage resulted from work after Rosauer hired Payne and terminated the contract with Alaska Diesel. Judge Holland found fact disputes whether the conduct causing the failure occurred while Payne was employed by Alaska Diesel or Rosauer. Therefore, Judge Holland denied the motion for summary judgment with respect to the claims for breach of contract, breach of the warranty of workmanlike performance, and negligence. As to the claim for breach of the state consumer protection act, Judge Holland found that there was a fact question whether Alaska Diesel misrepresented that an expert team would render services on the vessel by sending an untrained and uncertified technician who damaged the transmission.
Removal of suit involving injury on the OCS was proper even though it was brought in state court under the Saving-to-Suitors Clause and maritime law applied; Harding v. C-Dive, LLC, No. 24-cv-2814, 2025 U.S. Dist. LEXIS 51100 (E.D. La. Mar. 20, 2025) (Africk).
Transco was engaged in the abandonment of a 12-inch subsea pipeline on the outer Continental Shelf of the Gulf of America off the coast of Louisiana between platforms in Main Pass Block 259 and Main Pass Block 261. Transco contracted with C-Dive, which contracted with Legends PPS, which employed Rogernick Harding. Harding alleges that he was injured while being transferred in a personnel basket to the vessel MELINDA B. ADAMS, when the crane operator on the platform caused the basket to strike an appurtenance of the vessel. Harding brought suit against Transco (named as Williams Field Services) in state court in Terrebonne Parish, Louisiana, and Transco removed the case to Louisiana federal court based on jurisdiction from the Outer Continental Shelf Lands Act. Harding moved to remand the suit to state court, arguing that he filed the suit in state court pursuant to the Saving-to-Suitors Clause, and that the OCSLA “cannot serve as an independent basis for removal where maritime law applies.” Judge Africk responded that the Fifth Circuit had “squarely rejected” that argument, stating in its Barker decision that maritime law “has no effect” on the removal of an action that falls within the jurisdiction of the OCSLA. As Harding’s injury arose out of oil and gas activity on the OCS, Judge Africk concluded that the removal was proper, even if, as plaintiff contends, maritime law applies.”
Florida forum-selection clause in the ticket of a passenger who was sued by another passenger for assault was not a basis for jurisdiction over the injured passenger’s suit in Florida; injured passenger sufficiently pleaded notice from a prior incident with respect to the liability of the cruise line for negligence and negligent failure to warn for over-serving alcohol to another passenger who assaulted the plaintiff; pleading with respect to missing luggage was sufficient to allege vicarious liability of the cruise line; Doe v. Celebrity Cruises, Inc., No. 1:24-cv-20822, 2025 U.S. Dist. LEXIS 53645 (S.D. Fla. Mar. 24, 2025) (Gayles).
Jane Doe and her husband were passengers on the CONSTELLATION. Doe left her cabin to obtain a snack and forgot her key. Her husband, who was not feeling well and was sleeping, did not answer her knock. The passenger in an adjoining cabin, Raymond Smith, came out of his cabin and offered to let her access her cabin through the door from his cabin. Doe asserts that Smith physically and sexually assaulted her, but she was able to escape, banging on her door and yelling. Does’s husband awoke and answered the door, and Smith was held in the ship’s custody for the remainder of the trip. Doe claims that Smith was visibly intoxicated and that the bartenders on the ship could easily have perceived his intoxication. At the end of the cruise, a crewmember took Doe to a room to be questioned by the FBI and directed her to leave her luggage outside of the room. After she was questioned, the luggage and crewmember were gone. Doe brought this suit against the cruise line and Smith in federal court in Florida, and the cruise line and Smith moved to dismiss her amended complaint. Smith argued that he was not subject to personal jurisdiction in Florida because he does not reside in Florida, does not do business in Florida, and does not have any property or other contacts with Florida (other than boarding the vessel in Tampa). Doe responded by citing the forum-selection clause in Smith’s passenger ticket. Judge Gayles rejected that argument as Doe is not a party to Smith’s contract with the cruise line and because, under Florida law, a forum-selection clause is not a sufficient basis to confer personal jurisdiction unless there is an independent basis for jurisdiction under the Florida long arm statute. Therefore, Judge Gayles granted Smith’s motion to dismiss. The cruise line objected to the counts related to the assault (negligence and negligent failure to warn) on the ground that Doe failed to sufficiently allege notice, and it objected to the negligence count with respect to the luggage on the ground that it impermissibly comingled direct and vicarious liability. Judge Gayles believed that Doe sufficiently alleged notice of the dangerous condition of over-serving alcohol based on a previous suit against the cruise line by a massage specialist who claimed that she was raped by a crewmember who became highly intoxicated after being over-served alcohol in the crew bar. Finally, Judge Gayle rejected the argument that the count concerning her luggage improperly comingled direct and vicarious liability. The pleading stated that the cruise line owed Doe a duty to act with reasonable care and that the cruise line failed to act with reasonable care. It then asserted that the cruise line was vicariously liable for the acts of its crewmembers. Based on the statement that the cruise line was vicariously liable and the representation of the passenger that she was pleading a claim for vicarious liability, Judge Gayles denied the motion to dismiss.
Seaman who fell while side-stepping from a fixed ladder to a portable ladder failed to prove Jones Act negligence or unseaworthiness; Merced v. United States, No. 3:22-cv-1160, 2025 U.S. Dist. LEXIS 53654 (D. Ore. Mar. 24, 2025) (Immergut).
Jaime Merced was injured while working as a seaman on the SS PACIFIC TRACKER, owned by the United States, while the vessel was moored in Portland, Oregon. Merced’s supervisor, Bosun Kevin Kellum, placed a portable A-frame ladder to the right-hand side of the fixed ladder, so that Merced could tighten the bolts securing a cover plate on top of a vent. Merced, who was standing on the fixed ladder, encountered difficulty with one of the bolts. Kellum told Merced to stop work and to take his morning coffee break. Kellum walked away, and Merced continued working briefly and then stepped onto the portable ladder. The portable ladder fell over, and Merced fell to the deck. Merced brought this suit in federal court in Oregon against the United States under the Jones Act and general maritime law (unseaworthiness and maintenance and cure), and the United States moved for summary judgment on the claims for negligence and unseaworthiness. The United States argued that Merced unexpectedly side-stepped to the portable ladder that he knew was unsupported and unsecured. Merced answered that he did not know the portable ladder was unsecured and that Kellum should have been holding the ladder when Merced attempted to thread one more bolt. The United States objected to Merced’s “sham” declaration that he and his co-workers always tied off the step ladder and did not hold it for each other when working on the vents, citing his deposition testimony that “somebody has to be there holding it.” Judge Immergut did not find the contradictions to be sufficiently clear and unambiguous to apply the sham affidavit rule, and she concluded that there were fact disputes with respect to negligence and unseaworthiness (inappropriate footpads on the ladder for the deck surface). The United States also argued that Merced acted recklessly by side-stepping to the portable ladder, and this act was a superseding cause that should cut off any liability for negligence and unseaworthiness. Merced argued that the doctrine of superseding cause only applies to intervening acts of third parties, but Judge Immergut disagreed and held that Merced’s conduct could be a superseding cause. However, Judge Immergut explained that the doctrine applies where the injury was brought about by a later cause of independent origin that was not foreseeable. She answered that Merced’s alleged negligence did not operate independently of the negligence of the United States, and Merced’s acts were not so unforeseeable as to create a break in the chain of causation. Rather, the actions of the parties reflected a situation of comparative fault. The United States also moved for summary judgment on Merced’s claim for maintenance and cure, citing the joint statement of agreed facts that Merced had reached maximum medical improvement and that the United States had paid for all related medical expenses. Although Merced responded to the motion with a contention that he had not reached maximum recovery, Judge Immergut held him to his stipulation and granted summary judgment. Finally, the United States sought to strike the opinions of Merced’s marine safety expert, Captain Pinetti, with respect to the use and function of ladders, arguing that the opinions were a matter of common knowledge. Judge Immergut declined to exclude the testimony, reasoning that appropriate types of ladders, securing of ladders, and methods of movement between ladders are not common knowledge. She also held that failure to consider all facts and reliance on disputed facts were not reasons to exclude the testimony and were better left for cross-examination. See November 2024 Update.
The claims for Jones Act negligence and unseaworthiness were tried to the bench, and Judge Immergut resolved the factual disputes by finding that Merced was not credible when he testified that side-stepping to the portable ladder was a routine practice aboard the vessel. She found credible the testimony of crewmembers that there was no established work practice of standing with one foot on the fixed ladder and one foot on the portable ladder while working on the vent top. She concluded that the United States did not breach a duty to provide a safe place to work because the portable ladder was not placed in a position to allow sidestepping to the ladder (but was placed in position to be used later in the day to screw in the bolts that could not be reached from the fixed ladder). Similarly, Judge Immergut found that no work methods were unseaworthy, and that no equipment or condition was unseaworthy. Therefore, there was no negligence or unseaworthiness.
Seaman’s motion to reconsider a forum non conveniens dismissal based on defense counsel’s statement in an email 21 months after the dismissal was untimely; Matthews v. Tidewater Crewing, Ltd., No. 21-cv-1530, 2025 U.S. Dist. LEXIS 54713 (E.D. La. Mar. 25, 2025) (Vitter).
Marek Matthews worked overseas as a seaman and captain for Tidewater from 1982 to 2016, becoming a lawful permanent resident alien in Miami, Florida in 2007. Matthews signed multiple Working Agreements with Tidewater through the years that included an English choice-of-law provision and a forum-selection clause for the High Court of Justice in London. Matthews alleged that he sustained kidney damage and prostate and bone cancer from exposures on Tidewater vessels in the Red Sea, and he brought this action in Louisiana state court under the Jones Act and general maritime law (invoking the Saving-to-Suitors Clause), asserting that he was hired from Tidewater’s New Orleans office, underwent physical examinations over the years in Houma, Louisiana, and called his boss in New Orleans when he had a major problem. Tidewater removed the suit to federal court and moved to dismiss the case on the basis of forum non conveniens, arguing that Matthews had no claim under the Jones Act or general maritime law because he was not a citizen or permanent resident alien of the United States at the time of the exposure, the exposure occurred outside the territorial waters of the United States, and Matthews was injured while employed on vessels servicing oil wells in the Red Sea (arguing that Egyptian law applied by application of the Lauritzen/Rhoditis factors). Although Matthews argued that the court must first determine the applicable law before considering the forum non conveniens argument, Judge Vitter held that the order of proceeding advocated by Matthews contradicted the Fifth Circuit’s analysis in In re Air Crash based on the Supreme Court’s Piper decision. Judge Vitter then considered the mandatory London forum-selection clause and held that it was valid and enforceable. As the clause was valid, Judge Vitter reviewed the public interest factors in light of the rule that the factors would justify refusal to enforce the clause only in “truly exceptional circumstances.” As her analysis of the factors weighed in favor of dismissal, Judge Vitter dismissed the case on the basis of forum non conveniens. See April 2023 Update.
Matthews appealed, and, writing for the Fifth Circuit, Judge Southwick reviewed the analysis of the forum-selection clause de novo. Matthews argued that the forum-selection clause was neither valid nor enforceable, asserting 1) that his health constituted such an inconvenience as to render the clause unenforceable and 2) enforcement of the clause would contravene a strong public policy of the forum. As to the first argument, Judge Southwick answered that technology allows plaintiffs to remotely litigate in foreign forums. Therefore, his “health conditions, though serious, do not give him a right to bring suit in Louisiana state court.” For the second argument, Matthews relied on Louisiana public policy (as he brought the suit in Louisiana state court) whose statute voids forum-selection clauses in employment agreements unless voluntarily ratified/agreed to after the incident. This argument presented the question whether the Supreme Court in Bremen was referring to the state or federal forum when it stated that a forum-selection clause was unenforceable if its enforcement “would contravene a strong public policy of the forum in which suit is brought.” Citing the court’s Lim decision, Judge Southwick considered both federal and Louisiana public policy in its reasonableness analysis. Thus, there is a state policy against the enforcement of an unratified clause, but maritime law provides that such clauses are presumptively valid and enforceable. As in Lim, the plaintiff was not a resident of Louisiana, and the employment was not in Louisiana. There was scant connection to Louisiana, and his protection was not the object of the statute. Judge Southwick was wary of creating any inconsistency with federal policy when maritime law strains to prevent inconsistencies and when Louisiana interests are not implicated. Consequently, he held that the forum-selection clause was reasonable and enforceable and that Judge Vitter did not err in dismissing Matthews’ case on the basis of forum non conveniens. See August 2024 Update.
Back in the district court, Matthews filed a motion to rescind and remove the dismissal order on the ground that an email from Tidewater’s counsel (asserting that Matthews did not appear to have a viable claim under English law because Tidewater Crewing was not Matthews’ employer) demonstrated that it would be too unjust to transfer the case to a forum in which he did not have a viable claim. Tidewater responded that the motion was untimely under Rule 60(b) because it was filed more than a year (21 months) after entry of the order dismissing the case. Matthews argued that the appeal interrupted the deadline to file his motion, but Judge Vitter answered that the motion could have been filed even though an appeal was pending. Matthews also cited the fraud exception in Rule 60(d)(3), arguing that Tidewater defrauded the court and Matthews by misrepresenting that Tidewater Crewing was Matthews’ employer and the proper defendant in the case even though it was not. Judge Vitter disagreed, stating that the emails between counsel showed the defendants’ position, within the context of a settlement offer, that Matthews’ claims lacked merit, stating: “A party’s expression of what it perceives to be weakness in its opposing party’s case [does] not constitute fraud.” Judge Vitter added that arguments as to the favorability of English law would not have affected the Court’s forum non conveniens analysis as the Supreme Court stated in Piper Aircraft v. Reyno that “the possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.” Finally, Judge Vitter rejected Matthews’ argument that the time to file the motion was not limited to a year based on Rule 60(b)(6) because that subsection is not available when relief could have been brought under another subsection of the rule. Therefore, she denied the motion as untimely.
Successor company was entitled to rely on representations its seaman made in applying for work to its predecessor company and established a McCorpen defense based on concealment in the prior medical questionnaire; Bierwirth v. REC Marine Logistics, LLC, No. 24-cv-674, 2025 U.S. Dist. LEXIS 54725 (E.D. La. Mar. 25, 2025) (Vance).
Daniel Bierwirth was assigned to work as captain on REC Marine’s M/V LEADER. Bierwirth retrieved a pickup truck that was loaded with supplies to be offloaded onto the vessel, and he was injured while attempting to lower the tailgate of the truck, resulting in a torn rotator cuff that led to neck, shoulder, and back pain. Bierwirth brought this suit in federal court in Louisiana against REC Marine under the Jones Act and general maritime law, including a claim for maintenance and cure. REC Marine moved for summary judgment on the maintenance and cure claim, asserting a willful concealment defense under McCorpen. Bierwirth was originally hired by JNB Operating as a captain, and REC Marine acquired the operations of JNB. Bierwirth had to complete a pre-employment questionnaire for JNB, and he indicated that he did not have an injured neck or back or neck or back pain. However, he was involved in an auto accident in 2005 in which he injured his lower back, causing sciatica. He was treated for several years, and a lumbar MRI reflected a disc protrusion at L5-S1 with foraminal narrowing and abutment of the L5 nerve root. When REC Marine acquired the operations of JNB, Bierwirth did not have to complete another pre-employment survey. Instead, the operations manager at REC Marine stated that Bierwirth’s prior questionnaire was considered in deciding to allow him to continue employment as a captain for REC Marine. Bierwirth did not deny concealment of his back injury when he applied for the job at JNB; however, he argued that he never concealed anything when he started work at REC Marine. Judge Vance noted that a similar argument had been rejected by the Fifth Circuit in Meche v. Doucet, in which the appellate court held that a misrepresentation to the predecessor company was tantamount to a misrepresentation to the successor with respect to a McCorpen defense. Therefore, REC Marine was entitled to rely on the representations made in his employment application to JNB to invoke the willful concealment defense. Judge Vance found that the misrepresentation was material, citing the Fifth Circuit’s holding in Brown: “The fact that an employer asks a specific medical question on an application, and that the inquiry is rationally related to the applicant’s physical ability to perform the job duties, renders the information material for the purpose of the analysis.” Bierwirth argued that he had successfully performed his work as captain after being hired, but Judge Vance answered that this argument was not the proper inquiry: “Defendant based its hiring decision on the information in the medical questionnaire. That plaintiff performed his job well after that does not change the materiality of the information to the company’s decision to hire him.” For the third element of the defense, the causal link between the preexisting concealed disability and the disability suffered after the accident, Judge Vance noted that the diagnosis and treatment plan involved the lumbar region, specifically including L5-S1. Therefore, Judge Vance held that REC Marine established a McCorpen defense with respect to Bierwirth’s claim for maintenance and cure for his low back.
After declining to dismiss (on the basis of forum non conveniens) a suit brought on behalf of Canadian military members who were killed in the crash off the coast of Greece of a helicopter that was designed and manufactured in the United States, the Judge declined to transfer the case to the state where the helicopter manufacturer is located and designed the helicopter; Cousins v. Sikorsky Aircraft Corp., No. 23-cv-2629, 2025 U.S. Dist. LEXIS 55750 (E.D. Pa. Mar. 26, 2025) (Savage).
The representatives of the estates of six Canadian military members who died in a helicopter crash during a training mission off the coast of Greece brought this suit in federal court in Pennsylvania against Sikorsky Aircraft, the company that designed and manufactured the helicopter. The plaintiffs asserted that the helicopter’s automated flight system overrode the pilot’s manual controls, causing the helicopter to nosedive into the sea. The plaintiff asserted products liability claims under the Death on the High Seas Act. Sikorsky performed work on the helicopter in Florida, Connecticut, Colorado, Minnesota, Maryland, Alabama, and Pennsylvania (the site of the final production but later closed). Sikorsky moved to dismiss the case on the basis of forum non conveniens, arguing that the decedents were Canadian citizens, the accident was investigated by Canadian authorities, the helicopter was owned, operated, and maintained by the Canadian Air Force, which collaborated in the design, that evidence critical to the defense was in Canada, and the claims implicated Canada’s national security interests. The plaintiffs answered that the helicopter was designed, manufactured, and assembled in the United States, the electronic flight control system that they claim caused the crash was installed in Pennsylvania, and the initial flight test (by one of the decedents) was conducted in Pennsylvania. Judge Savage first addressed whether Canada is a suitable alternative forum, and he agreed that it is because Sikorsky is amenable to process and the claims are cognizable there. He added that Nova Scotia is less favorable to the plaintiffs because there is no strict liability and punitive damages are not available (stating that “DOHSA does not preclude recovery under Pennsylvania’s survival statute”), but the fact that the law is less favorable does not render the forum inadequate. Although the plaintiffs argued that their choice of forum should be entitled to a strong presumption of convenience, Judge Savage disagreed as the plaintiffs are not citizens of the forum; however, he did grant more deference to their choice than is typically given to foreign plaintiffs in light of the connection of Sikorsky and relevant evidence to the plaintiffs’ choice of forum. Judge Savage then considered the private and public interest factors in the context of the Lauritzen factors to determine applicable law. Citing the allegiance of the defendant and its base of operations in comparison to the other Lauritzen factors, Judge Savage held that American maritime law applied and that it would not be a burden for the citizens of Pennsylvania to determine whether a corporation that placed the helicopter into the stream of commerce from Pennsylvania is liable. He denied the motion, concluding that the difficulties raised by Sikorsky did not override the plaintiffs’ choice of forum based on access to evidence critical to the claims. See November 2024 Update.
Having lost its bid to dismiss the case based on forum non conveniens (asking that the case be refiled in Nova Scotia, Canada), Sikorsky moved to transfer the case to the federal court in Connecticut, where its headquarters is located. Sikorsky argued that the plaintiffs’ allegations focused on the design of the helicopter, and the liability evidence was located in Connecticut, where Sikorsky designs its aircraft products. In contrast, Sikorsky pointed out that no current or former employees who participated in the design are located in Pennsylvania, and the plaintiffs’ choice of Pennsylvania should not be given deference because it is not the home of the plaintiffs or the place where the claim arose. Starting with the private interest factors, Judge Savage agreed to give more deference to the plaintiffs’ choice of venue than is usually given to foreign plaintiffs “because their choice to litigate in Pennsylvania was based on convenience and practical issues of litigating the case,” noting that there are more connections to Pennsylvania than the offices of the plaintiffs’ attorneys. As the place where the claim arose was not significant to the claims, Judge Savage looked at the locus of the alleged culpable conduct, pointing out that the conduct occurred in Connecticut and Pennsylvania as well as in other states. As the claims did not arise exclusively in Connecticut, the location of the conduct did not favor transfer. Looking at the convenience of all the witnesses and production of documents, Judge Savage did not find that there was an advantage to Connecticut. Turning to the public interest factors, Judge Savage only found one factor that weighed in favor of Connecticut, the interest of Connecticut in the company headquartered in Connecticut that continues to develop products in Connecticut (Sikorsky is the ninth largest employer in Connecticut). However, Judge Savage did not consider this factor to outweigh the other factors that were not so inconvenient in Pennsylvania so as to override the plaintiffs’ choice of forum. Accordingly, he denied the motion to transfer.
After apportioning fault 50-50 between the platform owner and alliding vessel, the Magistrate Judge awarded damages for repairs but awarded limited economic loss to the platform owner for the delay in production during the period the well was shut-in and awarded no economic loss to the owner of the vessel because the owner failed to introduce evidence of the operational expenses to offset the lost revenue; Southern Oil of Louisiana LLC v. Alliance Offshore, LLC, No. 21-cv-2337 c/w No. 23-cv-131, 2025 U.S. Dist. LEXIS 55900 (E.D. La. Mar. 26, 2025) (Currault).
These consolidated cases from the allision between the crewboat M/V MR. CADE (chartered by Alliance Offshore) and Southern Oil’s Corvus Platform located on the outer Continental Shelf of the Gulf of America, offshore Louisiana. Jeremy Turner, a seaman on the vessel, was injured. Southern Oil brought suit in federal court in Louisiana against Alliance Offshore for damage to its platform, and Alliance Offshore brought a limitation action in Louisiana federal court. Southern Oil and Jeremy Turner brought claims in the limitation action, and Turner filed a motion to bifurcate so as to preserve his right to proceed in state court before a jury. He asked the limitation court to divide the litigation into three phases: 1) negligence of the vessel; 2) privity or knowledge of the bareboat charterer followed by the apportionment of liability or dismissal of the limitation proceeding and allowing Turner to proceed in the forum of his choice; and 3) stay of the federal proceedings to allow Turner to try his damages to a jury. Magistrate Judge Currault noted that bifurcation had been denied in complex cases but that this case was more analogous to cases in which judges found bifurcation to be appropriate. Balancing the interest of Turner under the saving-to-suitors clause with judicial economy and expediting the proceedings, Magistrate Judge Currault held that the court would try the issues of liability, limitation, and apportionment in a bench trial, and Turner’s personal injury damages would be tried separately. See June 2023 Update.
Alliance Offshore alleged that Southern Oil’s platform was not properly lighted, and Southern Oil added Sabik Oy as a defendant, alleging that Sabik Oy designed and sold a defective lantern that was placed on the platform by Southern Oil (the installer obtained the lantern from another platform, and there was no evidence that Southern Oil was the purchaser). Sabik Oy moved for summary judgment, which was initially opposed by Alliance, but Alliance withdrew its opposition, leaving Southern Oil arguing that there were material fact disputes whether the light was defective in design or construction--primarily the use of an ineffective bird deterrent and premature power depletion of the battery. Southern Oil also argued that, although there had been extensive discovery, depositions were ongoing, including the deposition of Sabik Oy’s non-retained expert and the deposition of Southern Oil’s expert. Magistrate Judge Currault was not convinced by the argument on discovery as the deadline for discovery had passed, there was no motion to extend the deadline, and Southern Oil did not identify any facts to be obtained that might influence the summary judgment motion. As to the merits, Magistrate Judge Currault noted that Southern Oil had brought a claim based on maritime products liability as well as a redhibition claim under Louisiana law (akin to a claim for breach of implied warranty but without a requirement of privity). Magistrate Judge Currault explained that application of maritime law does not necessarily preclude application of state law, and that the only reported decision addressing application of redhibition in a maritime case held that redhibition supplemented maritime law to the extent it did not conflict with maritime products liability principles derived from the Restatement. Based on the evidence produced, Magistrate Judge Currault held that Southern Oil had created a fact dispute whether there was a product defect related to a higher output draw on the battery that caused premature depletion as well as an issue whether Southern Oil was a buyer for purposes of redhibition. Therefore, she denied the motion for summary judgment. See July 2024 Update.
Magistrate Judge Currault then held a trial to determine fault and privity or knowledge. The parties cited the presumptions from THE OREGON and THE PENNSYLVANIA, but Magistrate Judge Currault held that Southern Oil and Alliance had presented evidence regarding fault and causation, leaving no “vacuum” to be filled with an evidentiary presumption. Turning to the liability of the parties, Magistrate Judge Currault found that when the lantern left the control of Sabik Oy it was in good working order and that Southern Oil did not prove that the lantern was defective in design or manufacture (as opposed to being damaged through misuse or improper care) or that Sabik Oy made any false statement about the product that induced Southern Oil to use it. Therefore, Magistrate Currault concluded that Sabik Oy had no fault. Magistrate Judge Currault then considered the conduct of Captain Tyndall on the MR. CADE. She found that, when Captain Tyndall changed course after passing a shrimp trawler, he failed to consult the Rose Point system to determine whether there were obstructions in the new path, and he left the wheelhouse to get coffee before returning the vessel to its charted path (although he was aware that the vessel was in an area of many obstructions). After returning to the original course, he again failed to consult the Rose Point system or review maps to determine whether there were obstructions on the course back to the original plan. She also found that Alliance failed to train Captain Tyndall properly on the use of the radar and Rose Point systems so that the platform would have shown on his course, concluding that the vessel would not have run into the platform had the equipment been operating and used properly. Magistrate Judge Currault also found Southern Oil violated the federal regulation for lights on the platform and that it was negligent for failing to properly inspect the lantern before installation and failing to check the lantern’s battery health after installation. She concluded that the fault should be apportioned 50% to Alliance and 50% to Southern Oil. Magistrate Judge Currault concluded that Alliance was liable to Turner both under the Jones Act (negligence) and for unseaworthiness for failing to train Captain Tyndall on the proper use of the navigational equipment. With respect to limitation of liability, the finding that Alliance failed to properly train Captain Tyndall established the privity or knowledge that caused Magistrate Judge Currault to deny limitation of liability. Magistrate Judge Currault announced that the second phase of the trial would involve damages. See September 2024 Update.
The allision caused damage to the platform, which required that the well be shut-in during repairs, but there was no physical loss of hydrocarbons from the reservoir. The MR. CADE also suffered damage. The repairs to the platform were in the amount of $1,134,109.39, and the repairs to the MR. CADE were in the amount of $462,242.52. Magistrate Judge Currault then considered the economic loss suffered by Southern Oil during the repair and shut-in of the well (108-day delay in production). She reasoned that deferred production damages generally represent the difference between the value of hydrocarbons that would have produced during the shut-in and the present value of that same product when it is actually produced over the remaining life of the well (the difference between net revenue flow with and without the delay). Southern Oil argued that it suffered economic loss of $2.4 million because there was damage to the reservoir that would cause cessation of production three years earlier than would otherwise have occurred. Magistrate Judge Currault did not believe that Southern Oil had proven that claim, and she awarded $227,468 for the net present value of the delayed production. Turning to the loss of use of the MR. CADE, Alliance Offshore established a gross revenue loss of $335,000; however, it did not introduce evidence of the operational expenses associated with generating the lost revenue. Therefore, it failed to carry its burden to establish lost profit during the period of repair, and Magistrate Judge Currault awarded nothing for the loss of use. Magistrate Judge Currault awarded prejudgment interest using the Louisiana prejudgment interest rate.
Vessel owner and bareboat charterer barely stated a claim against their insurance broker for obtaining insurance coverage with exclusions that were not in prior policies; insurer, not broker, has duty to provide the insurance policy to the insured; Kostmayer Construction, LLC v. Zurich American Insurance Co., No. 24-408, 2025 U.S. Dist. LEXIS 56992, 92460 (E.D. La. Mar. 27, 2025, May 15, 2025) (Ashe).
Kostmayer Construction bareboat chartered the crane barge OU704 (including a Lima 175-ton lattice boom crawler crane) from Monticello Equipment Corp. for use in Kostmayer’s marine construction business. The barge was spudded adjacent to Rain Carbon’s dock near Gramercy, Louisiana, on the bank of the Mississippi River when the tug M/V LOUISIANA TRANSPORTER approached the dock, picked up a barge, and departed. The tug’s stern and propeller or wheel-wash caused damage to the OU704, which began listing and partially sank. The crane slid from the deck and damaged the adjacent dock. Kostmayer and Monticello raised the barge and crane and began preparing repairs on the dock. Kostmayer and Monticello procured insurance with Zurich, Ascot, Endurance, and Navigators through its broker, Arthur J. Gallagher Risk Management Services (AJG). The insurers declined to pay for the damage, citing exclusions in the policies, and Kostmayer brought this suit against the insurers in federal court in Louisiana. In amended pleadings, the tug’s owner and operator were named as defendants, and Monticello was named as a plaintiff. The third amended complaint added AJG as a defendant for breaching its obligations and duties to the plaintiffs by allowing the inclusion of provisions in the policy that were used to deny the claim. The fourth amended complaint asserted two claims against AJG: (1) failure to procure coverage, alleging: “The coverages presented by [AJG] to Plaintiffs were understood by Plaintiffs to be the same coverages as their previous policy” and (2) failure to provide a copy of the final policy until the plaintiffs requested a copy after the incident. AJG moved to dismiss the fourth amended complaint on the ground that the plaintiffs did not identify any duty owed and breached by AJG that would give rise to a claim. Judge Ashe explained that under Louisiana law, an insurance agent fulfills his duty of reasonable diligence to his customer when he procures the insurance requested, but the duty “has not been expanded to include the obligation to advise whether the client has procured the correct amount or type of insurance coverage.” Judge Ashe noted, however, that there is a “closely cabined” line of cases holding that a heightened fiduciary duty may arise when there is a special relationship between the broker and insured, such as when the broker is not merely an “order taker” but is familiar with the insured’s business, knows the risks against which the insured wants protection, and undertakes to recommend coverage. The narrow exception was applied when the insured told the agent about its specific coverage needs, but the broker procured a policy that excluded the exact coverage sought by the insured. Judge Ashe did not find that the exception was satisfied by the assertion in the fourth amended complaint that the insured “understood” that AJG would obtain a policy with the same coverages as their prior one. That was not a request for a specific type of coverage. Therefore, Judge Ashe held that the fourth amended complaint did not state a claim for breach of fiduciary duty against AJG, and he dismissed the claim for failure to procure coverage without prejudice. Turning to the allegation that AJG failed to timely deliver a copy of the insurance policy, the plaintiffs argued that Louisiana law required the policy be provided to the insureds. Judge Ashe answered that the Louisiana statute requires insurers to provide the policy, and as AJG is not an insurer, he dismissed that claim as well. Judge Ashe did give the plaintiffs leave to file a fifth amended complaint “in one last effort to cure the pleading deficiencies . . . if they have a basis in fact to plead such allegations,” (cautioning the plaintiffs of their obligations under Rule 11).
Kostmayer and Monticello filed a fifth amended complaint. This complaint pleaded that AJG agreed to perform “true risk management services” for the plaintiffs beyond “simply brokering insurance.” The additional services included reviewing the new policies to identify any discrepancies, and the complaint added: “Plaintiffs contracted [AJG] to place renewal insurance coverages on its fleet of vessels, including the OU701, on the same terms and conditions as Plaintiffs’ expiring annual policies.” The fifth amended complaint also stated: “In addition to its obligations as broker and provider of risk management professional services, [AJG] was further obligated to transmit, within a reasonable time, insurance policies to Plaintiffs that it received or obtain approval from/by the Insurance Defendants and other carriers.” AJG again moved to dismiss the claims, and Judge Ashe held that the failure-to-procure allegations stated a claim “albeit just barely.” He noted the change from the language in the fourth amended complaint (that the plaintiffs “understood” that AJG would place renewal insurance on the same terms as the expiring policies) to the allegation in the in the fifth amended complaint (that the plaintiffs “contracted” AJG to place renewal insurance on the same terms as the expiring policies). Accordingly, Judge Ashe held that the plaintiffs had, “by the thinnest of margins, pleaded enough facts to overcome AJG’s motion to dismiss their claim based on procurement of insurance.” The fifth amended complaint was still insufficient to plead a cause of action for failure to deliver the policy, and Judge Ashe dismissed that claim with prejudice. Finally, Judge Ashe noted ambiguities in the pleading and inconsistencies between the allegation that the plaintiffs contracted for specific renewal coverage while stating that “[t]his case is not about the types of insurance requested by Plaintiffs.” Judge Ashe again cautioned: “The Court is banking that this is not an instance of artful pleading (or ‘linguistic maneuvering,’ as AJG puts it . . .), but time and discovery—and perhaps later testing on summary judgment—will tell the tale. In the meantime, the Court’s caution regarding Rule 11 remains in place.”
Litigation in state court demonstrated that there was a reasonable possibility that the amount of the claim exceeded the value of the vessel and triggered the six-month period for the vessel owner to file a limitation of liability action; In re Genesis Marine, LLC, No. 24-cv-2881, 2025 U.S. Dist. LEXIS 56995 (E.D. La. Mar. 27, 2025) (Brown).
On December 23, 2020, Brandon Darrow, a tankerman on the tug ANACONDA was injured while handling mooring lines at the Apex Oil Co. docking facility in Mt. Airy, Louisiana. Darrow brought suit in Louisiana state court against the owner of the tug, Genesis Marine, on December 23, 2021 (served on January 19, 2022). He filed a supplemental and amended petition on July 12, 2022 (served on July 18, 2022). Darrow did not include a specific statement of the amount of damages he was seeking in either petition, but Genesis stated in its answer: “[T]he amount of damages sued for in the Petition herein greatly exceeds the amount or value of Genesis’s interest in the M/V ANACONDA, and her freight then pending, if any; Genesis accordingly invokes the benefits of the provisions of the Revised Statutes of the United States of America and the acts amendatory thereof and supplementing thereto in limitation of the liability of shipowners.” On August 21, 2024, Darrow demanded that Genesis pay more than $20 million to settle the case, and Genesis filed this complaint for limitation of liability in federal court in Louisiana within six months thereafter (December 13, 2024), asserting that the value of the vessel was $12.5 million. Darrow filed an answer and claim in the limitation action and moved for summary judgment that the limitation action was not timely filed within six months of written notice of the claim. Chief Judge Brown reasoned that the six-month period is triggered by a notice that demonstrates a “reasonable possibility” that a claim will exceed the value of the interest of the petitioner in the vessel. Once a reasonable possibility is raised, the burden falls on the shipowner to conduct an investigation and file a limitation action, if necessary, within six months. Darrow argued that the statement in the answer filed in state court that the amount sought greatly exceeded the value Genesis’s interest in the vessel was a judicial admission. Genesis responded that it was a “boilerplate” affirmative defense and simply an allegation, not an admission. Chief Judge Brown did not have to decide whether there was a judicial admission, finding that there was a reasonable possibility the claim would result in damages in excess of $12.5 million (value of the vessel). More than six months before the limitation action was filed, medical evidence indicated that Darrow was permanently disabled after failed back surgeries that rendered him unable to be able to return to work. He had permanent spinal cord stimulators implanted, his lost wages were approximately $3.5 million, and his future medical expenses were in a range of $1.7 million. With the other elements of damages (past, present, and future mental and emotional pain and suffering and disability, as well as loss of enjoyment of life), there was a reasonable possibility of damages in excess of $12.5 million. Therefore, Chief Judge Bown granted summary judgment that the limitation action was not timely, and Genesis filed a notice of appeal on April 3, 2025.
Cargo policy attached to ocean shipment of goods that had been transported on land before the policy’s effective date; warehouse-to-warehouse clause extended coverage and did not diminish coverage; fact dispute whether packaging of cargo of stone in crates was sufficient precluded summary judgment for cargo insurer; judge did not believe that the FC&S Warranty applied to cargo that was ordered to re-exported (rather than being detained), but there was a fact question whether the damage was caused by any breach of the warranty and whether the maximum coverage was $2 million for “any one vessel;” Stoneline Group, LLC v. Liberty Mutual Insurance Co., No. 1:23-cv-8115, 2025 U.S. Dist. LEXIS 57641 (S.D.N.Y. Mar. 27, 2025) (Vyskocil).
Stoneline purchases nature stone that it imports to the United States. Stoneline purchased stone valued at $1.8 million from Yaman Maden, which ordered the stone from several Turkish manufacturers. The manufacturers crated the stone, and Yaman Maden arranged for deliver of the crates of stone to the Port of Aliaga, Turkey. Stoneline chartered the vessel M/V CANNY CAROLINE for carriage of the stone to Port Everglades, Florida, and the cargo loading on the vessel was complete on August 19, 2022 (4,183 crates, with 3,485 loaded in hold number 2 and 698 crates loaded in hold number 4). While anchored at Port Everglades, the vessel was caught in the path of Hurricane Ian, causing the vessel to roll and pitch heavily. The cargo was found to be damaged when unloading began on October 6, 2022, and the cargo sustained further damage during unloading. The U.S. Department of Agriculture inspected the cargo and issued an Emergency Action Notification requiring that the entire shipment be re-exported or destroyed because of live pests (snails) in the wooden dunnage. The cargo was reloaded on the vessel (with additional damage), and it was transported on the M/V CANNY CAROLINE to Santo Domingo, Dominican Republic, where more of the cargo was found to be damaged upon unloading. Stoneline’s inspector declared that the shipment was a total loss. Stoneline made claims for the damage on its cargo policy with Liberty Mutual that was effective for all shipments of goods made during the period from August 15, 2022 to August 15, 2023. Liberty Mutual denied the claims and cancelled the policy, and Stoneline brought this suit against Liberty Mutual in federal court in New York. Liberty Mutual moved for summary judgment, and Judge Vyskocil began with the “specious” argument that application of the warehouse-to warehouse clause resulted in denial of coverage. As the clause extends the coverage to include the transportation from the time the goods leave the warehouse until they reach the final warehouse, Liberty argued that the shipment commenced before the date of the inception of the policy. Judge Vyskocil was “baffled” by that argument, as the vessel departed on the voyage during the policy period and the damage occurred during the transit. She answered that the warehouse-to-warehouse provision was intended to extend the coverage of the policy and that there was “no basis in law or reason for the argument that the Extension Clause excludes coverage for losses sustained while the goods were aboard the shipping vessel, during the Policy Period, merely because the goods commenced transit to the vessel before the effective date of the Policy.” Judge Vyskocil chided Liberty Mutual for citing “only grossly inapposite cases,” because it “audaciously insists that Stoneline was required to purchase an insurance policy that went into effect before Stoneline even assumed the risk of any loss,” and for “pretending that the Extension Clause is, instead, an exclusion.” Judge Vyskocil also disagreed with Liberty Mutual’s erecting “an obvious strawman argument” that the snails did not cause physical loss or damage to the cargo. She rejected this “red-herring” claim on the ground that there was no dispute that the cargo sustained major, tangible, physical damage in which substantial amounts of the stone were reduced to debris. Liberty Mutual next argued that there was no coverage because the stone was required to be containerized (based on language in an application submitted by Stoneline’s broker). Stoneline denied any representation that the stone would be containerized and cited the form that accompanied the application stating that the shipments would be packed in crates. Regardless of these arguments, there was a fact dispute whether the goods were sufficiently packaged, and Judge Vyskocil denied summary judgment to Liberty Mutual on the packaging of the stone. Liberty Mutual next argued that there was no coverage for any costs incurred by Stoneline as a result of the USDA order to destroy or re-export the cargo, citing the FC&S Warranty (no coverage for capture, seizure, arrest, restraint, detainment, confiscation, preemption, requisition or nationalization, and the consequences thereof). Judge Vyskocil first noted that the cargo was not detained. The Notification required Stoneline to destroy or re-export the cargo. She reasoned that all of the terms imply an effort to “hold” the goods, not to destroy or re-export them. Nonetheless, there was a question whether the Notification was the proximate cause of the subsequent losses for which Stoneline sought coverage. Finally, Liberty Mutual cited the limit of $2 million “for any one vessel” and argued that $2 million was the maximum coverage for the damage to the stone. Stoneline argued that the limiting language was ambiguous because there were separate bills of lading for two voyages on the vessel. Liberty Mutual only cited one “inapposite” case that provided “no guidance,” and Judge Vyskocil concluded that a jury would have to decide whether there was only “one vessel” for purposes of the policy’s limit of liability.
“Watch Your Step” sign near the area where a passenger fell was sufficient to establish notice of the dangerous condition to the cruise line; Lagrimas v. MSC Cruises S.A., No. 24-cv-24876, 2025 U.S. Dist. LEXIS 58618 (S.D. Fla. Mar. 27, 2025) (Scola).
Toni Lagrimas, a passenger on the MAGNIFICA, was injured while walking across the marble area of Deck 5 of the vessel. The marble area was raised above the carpeted floor, and the steps along the marble floor were shiny and consisted of the same material as the marble floor, which created an optical illusion that caused Lagrimas to miss the step and fall. Lagrimas brought this suit against the cruise line in Florida federal court, and the cruise line moved to dismiss the complaint for failure to sufficiently plead notice. Lagrimas argued that the cruise line was on notice because it had placed a green “Watch Your Step” sign near the steps. The cruise line argued that the sign did not impute knowledge of the purported latent design flaw when her claim rested on allegations that the step was caused by an “optical illusion” caused by marble flooring and “not the presence of a step per se” (citing the language from the Eleventh Circuit in Taiariol v. MSC that not all warning signs are evidence of notice and that “there must also be a connection between the warning and the danger”). Judge Scola disagreed with the cruise line, stating that the “sign near the at-issue step demonstrates that the Defendant had notice that various circumstances created a dangerous condition—the presence of a step that was not visible due to ‘an optical illusion.’” Therefore, he denied the motion to dismiss.
Judge granted relief from final judgment to allow late claim in limitation action where the claimant did not receive notice before the deadline because the notice was sent to an incorrect address; In re Southern Illinois Transfer Co., No. 1:24-cv-116, 2025 U.S. Dist. LEXIS 58766 (E.D. Mo. Mar. 28, 2025) (Limbaugh).
Eric Wright, a mate on the tug M/V JANE F, had finished connecting a barge cover to a crane when he jumped down from the barge cover to the deck of a hopper barge and fell. A month later (June 17, 2024), Southern Illinois Transfer, owner and operator of the JANE F, filed this limitation action in federal court in Missouri, noting in its complaint that Wright was the only person involved in the incident. The court ordered Southern Illinois to publish notice and to mail a copy of the public notice to every person who had made a claim against the vessel/owner. No claims were made by the deadline of September 30, 2024, and the court entered its decree of exoneration on October 2, 2024. On October 10, 2024, Wright filed a motion to set aside the decree (pursuant to Rule 60(b)), stating that he had not received the notice until after the deadline of September 30. Southern Illinois sent the notice to Wright at “631 Chester Street,” which was an address in some of Wright’s medical records. The delay occurred because Wright’s address is actually “631 Chestnut Street.” Southern Illinois was aware of that address because it had been mailing maintenance checks to Wright at the address on Chestnut Street. Southern Illinois reasoned that it did not matter whether it mailed the notice to the wrong address or whether Wright actually received the notice because Wright had not asserted a claim and Southern Illinois was not required to mail him a notice, raising the question of what constitutes a “claim” for purposes of the notice. Southern Illinois argued that its payment of maintenance and cure did not indicate that there was a claim subject to limitation as the payments were not subject to limitation and would not trigger the running of the period to file a limitation action (Wright had not filed a suit under the Jones Act or general maritime law). However, Judge Limbaugh answered: “But it certainly seems as though those payments, along with [Southern Illinois’] attempt to notify Wright of this action effectively estop [Southern Illinois] from arguing that Wright was not a claimant entitled to notification.” Judge Limbaugh pointed out the “puzzling” premise of Southern Illinois’ argument: “Here [Southern Illinois] seeks the benefits of [the Limitation Act]—limitation of liability upon receipt of a written claim—while also denying any such claim existed.” As to the relief, Judge Limbaugh noted that he certainly could have enlarged the time to file a claim (under Supplemental Rule F(4)) had there not been a final judgment. As Wright could not seek an extension, Wright’s motion was filed under Rule 60(b)(6) (“any other reason that justifies relief”). Judge Limbaugh concluded: “Wright has demonstrated that he is entitled to relief under that rule. [Southern Illinois] is estopped from arguing that it was unaware of any claim by Wright for the reasons explained above, and [Southern Illinois’s] mistakenly-addressed notice to Wright coupled with the quick entry of the Decree provide ample equitable reason to allow re-opening of this case to permit Wright to file a claim.”
Contradictory testimony of seaman in dispute with landlord was insufficient to set aside judgment in his injury case; Williams v. Central Contracting & Marine, No. 15-cv-867, 2025 U.S. Dist. LEXIS 59386 (S.D. Ill. Mar. 28, 2025) (Yandle).
Timothy Wade Williams brought this action in federal court in Illinois against his employer, Central Contracting & Marine, seeking to recover for injuries he suffered while working on its vessel. The court held a three-day bench trial in February 2017, and Williams testified that he could only do light duty work (lifting no more than 25 pounds, no repetitive bending or lifting, and alternating between sitting and standing). He testified that he could not mow lawns, hang drywall, or carry boxes. His doctor testified that his back pain would require lifelong use of Suboxone, a drug used to aid Williams with his long-term opioid addiction. The court credited the testimony of Williams and his doctor and awarded him $1,282,270.37, which was paid by his employer. After the judgment was satisfied, the court was made aware of the testimony of Williams and his doctor in a suit against Williams to collect rent that was filed in Missouri state court. Williams claimed that he agreed to perform maintenance work on the property in lieu of rent, and that included hanging drywall, mowing lawns, and other construction and maintenance work. The doctor testified that he had an interest in the outcome of the federal lawsuit that was not disclosed in that case. Judge Yandle noted that she could set aside the judgment if there was a fraud on the court, and there was no dispute that the testimony of Williams and his doctor contradicted the testimony that was given in the federal suit. However, Judge Yandle did not find that there was fraud on the court that warranted vacating the judgment because the fraud had to have prevented Central Contracting from fully and fairly presenting a meritorious claim. She stated: “Here, while testimony in the Missouri case contradicts the testimony given in this case, the Missouri state court specifically found Plaintiff’s testimony in that case not credible.” Therefore, there was a question whether the testimony given by Williams in the federal case was “true perjury.” She added: “Typically, fraud on the court involves bribery of a judge, or other undue influence on a judge, tampering with a jury, or the fraudulent submission by a lawyer for one of the parties in the proceeding of documents known to be forged or testimony known to be perjured. While a lawyer’s perjury is deemed fraud on the court, perjury by a witness that is not suborned by a lawyer in the case is not.” (Citation omitted). As there was no evidence that Williams’ attorneys had knowledge of his potential perjury, Judge Yandle held that Williams’ testimony did not amount to fraud on the court that was sufficient to set aside the judgment after it had been satisfied.
Freight forwarder owed contractual and tort duties to consignee with respect to infested cargo that had to be re-exported; COGSA defenses were not directly available to freight forwarder and were not extended to the freight forwarder by the Himalaya Clause; Colfletar SAS v. Thompson Pipe Group Inc., No. 4:22-cv-4518, 2025 U.S. Dist. LEXIS 59957 (S.D. Tex. Mar. 31, 2025) (Eskridge).
Colfletar, which provides transportation services as a freight forwarder, was hired by Thompson Pipe to arrange for the transportation of glass-reinforced plastic pipes from Turkey to Houston, Texas and then to job sites in Texas. Thompson Pipe purchased the pipe from Subor, a Turkish pipe manufacturer. Colfletar entered into a charter party (on behalf of Thompson Pipe) with Spliethoff to transport the pipe from Turkey to Houston, and a sea waybill was issued that identified Subor as shipper, Thompson Pipe as consignee, and Spliethoff as carrier. Subor packed the shipment in wood packaging material, but its required treatment (Phytosanitary Measures) was probably fraudulently marked on the packages. The shipment was originally cleared when it arrived in the United States, and some of the cargo was transported to Thompson Pipe job sites. It was then that Customs and Border Patrol in Houston discovered that insects and snails had bored into the wood and were present on the surface. An Emergency Action Notification was issued, mandating that the entire shipment be re-exported. A later Notification indicated that the wood had been infested prior to being loaded on the vessel. Colfletar arranged for the shipment to be fumigated off the coast of Altamira, Mexico, but when the shipment returned to Houston, it was found to still contain wood boring pests, requiring a second re-exportation and fumigation. Colfletar filed this complaint in federal court in Houston against Thompson Pipe, seeking to recover the cost for the re-exportation and fumigation services, and Thompson Pipe filed a counterclaim against Colfletar for breach of a maritime contract and negligence, seeking to recover for its losses. Both parties filed motions for summary judgment, and Judge Eskridge began by discussing Colfletar’s argument that it violated no contractual duty to Thompson Pipe. Judge Eskridge was not persuaded that the freight forwarder was allowed to deliver a pest-infected shipment that is specifically prohibited by federal law, stating: “To the extent that it argues it complied with duties to ‘properly inspect’ the shipment and to provide for its ‘supervision,’ common sense suggests that a genuine dispute of material fact obviously exists.” Turning to the maritime negligence claim, Judge Eskridge concluded that Colfletar knowingly undertook duties that would bring its work within the purview of federal law (assuming a duty to act with reasonable care). Although Colfletar argued that it could not have discovered the infestation with the exercise of reasonable care, Judge Eskridge answered: “Common sense leads one to wonder how visible snails and exit holes were beyond its competence, if it indeed cared about doing its job properly.” Thompson Pipe moved for summary judgment on affirmative defenses asserted by Colfletar under the Carriage of Goods by Sea Act, and Judge Eskridge noted the inconsistency that Colfletar argued on the one hand that it was merely providing logistical services while at the same time arguing that it was acting as the carrier and subject to the protections of COGSA. Judge Eskridge distinguished a decision in which a freight forwarder was considered a carrier because it did more than arrange for transportation, taking Colfletar at its word when it stated that it was just a freight forwarder. Judge Eskridge also rejected the argument that the Himalaya Clause in the sea waybill (extending COGSA to agents and subcontractors of the carrier) afforded COGSA defenses to Colfletar, noting that the record was undisputed that Colfletar was acting as the agent of Thompson Pipe. Therefore, he dismissed the affirmative defenses asserted by Colfletar with respect to COGSA and denied Colfletar’s motion for summary judgment.
Judge declined to extend deadline to produce expert reports more than two years and granted summary judgment to BP in the BELO injury suit brought by a clean-up worker in connection with the Macondo/DEEPWATER HORIZON spill; Breaux v. BP Exploration & Production, Inc., No. 22-cv-275, 2025 U.S. Dist. LEXIS 60055 (E.D. La. Mar. 31, 2025) (Guidry).
Caleb Breaux, a clean-up worker in connection with the Macondo/DEEPWATER HORIZON spill, brought this Back-End Litigation Option suit in federal court in Louisiana against BP, alleging chronic exposure-related injuries (Follicular Lymphoma Grade 1-2) related to his work on the spill. The court issued a scheduling order with a deadline for expert reports (December 22, 2022), and that deadline was extended in response to Breaux’s motions seeking additional time, citing his medical condition. The court repeatedly extended the deadlines, with the final deadline for expert reports extended from December 22, 2022 until November 14, 2024. On November 8, 2024, Breaux filed another motion to stay the deadline, arguing that he had five new Later Manifested Physical Conditions resulting from his clean-up work. He reasoned that he needed the time to file another suit that would be consolidated with his existing suit. BP opposed the motion and moved for summary judgment on the ground that Breaux did not present any expert evidence on causation. Judge Guidry did not consider the excuse asserted by Breaux to be responsive, as he was aware of the new medical conditions since 2023, and those conditions were the basis for previous stays/extensions. Concluding that there was no longer good cause to continue the deadline, Judge Guidry denied the motion to stay. Without expert evidence on causation, Judge Guidry granted BP’s motion for summary judgment.
Beneficiaries of Navy sailor provided sufficient evidence to support claims against manufacturers alleging failure to warn and that the products were a substantial factor in causing the sailor’s mesothelioma; fact issues prevented summary judgment on the manufacturers’ government contractor defense under Boyle; beneficiaries were not entitled to recover loss of consortium and punitive damages; Losurdo v. ViacomCBS Inc., No. 21-cv-1965, 2025 U.S. Dist. LEXIS 60167 (D.N.J. Mar. 31, 2025) (Neals).
William A. Losurdo served in the Naval Reserve and on active duty in the Navy from 1967 to 1970. During his active duty he was assigned to the U.S.S. MISSISSINEWA, an oil tanker that refueled war ships at sea. After serving as a deckhand for three months, Losurdo spent his remaining 18 months on the MISSISSINEWA as a petty officer, third class storekeeper (processing requisitions and making sure that the orders were processed). For some period in 1970, the vessel was in drydock at Boston Naval Shipyard, which required that Losurdo enter the engine room of the vessel three to four times a week, spending between 30 to 60 minutes in the proximity of equipment on which work was being performed (dust was flying). His office was located four feet from the entrance to the engine room. Losurdo was diagnosed with mesothelioma in August 2020, and he died as a result of his mesothelioma on January 15, 2022. Losurdo brought this suit in state court in Middlesex County, New Jersey against suppliers of equipment allegedly containing asbestos, and the case was removed to New Jersey federal court where the action was continued by Losurdo’s beneficiaries after his death. Two of the defendants, GE and Westinghouse, moved for summary judgment. GE supplied two main propulsion turbines, and Westinghouse supplied three ship service turbine generators. Applying maritime law, Judge Neals began by addressing the arguments of GE and Westinghouse that they were entitled to summary judgment on the claim for duty to warn (based on the standard articulated by the Supreme Court in DeVries). Finding fact questions on the elements that the product required incorporation of a part that makes the integrated product dangerous for its intended uses, that the manufacturer knew or had reason to know that the integrated product was likely to be dangerous to its intended uses, and that the manufacturer had no reason to believe that the users would realize the danger, Judge Neals declined to grant summary judgment to GE and Westinghouse on the claim for failure to warn. Turning to the design defect claims, Judge Neals found sufficient evidence from the fact and expert witnesses that the products were a substantial factor in causing Losurdo’s mesothelioma to deny the motions for summary judgment. Judge Neals denied the assertion by GE and Westinghouse of a Boyle government contractor defense based on the failure to satisfy the defendants’ burden of proof (noting for example, “As GE fails to expressly point to the record evidence that supports this propositions [sic], and it is not the Court’s responsibility to comb through the voluminous record to locate the record evidence supporting these propositions, the Court finds GE has failed to satisfy its burden of proving each of the prongs of the Boyle test for the design defect claims.”). (Citation omitted). Finally, Judge Neals addressed the defendants’ argument that the plaintiffs were not entitled to recover for loss of consortium and punitive damages. Citing the decision of the Supreme Court in Miles that beneficiaries of seamen are not entitled to recover loss of society, Judge Neals held that loss of consortium was not permitted in the claim brought by the beneficiaries of Losurdo. With respect to punitive damages, the plaintiffs cited the decision of the Supreme Court in Alvez, but Judge Neals answered that Alvez was decided before the Supreme Court’s decision in Batterton, rejecting recovery for punitive damages for beneficiaries of seamen in unseaworthiness cases. Therefore, Judge Neals granted summary judgment on the claims for loss of consortium and punitive damages.
Judge agreed with recommendations that Federal common law (not the law selected in the arbitration clause) governed the arbitrability (under the New York Convention) of the claims of an employee of a contractor on a cruise line against the cruise line, and equitable estoppel required arbitration of the seaman’s claims against the non-signatory cruise line; Anderson v. MSC Cruises, S.A., No. 24-cv-60715, 2025 U.S. Dist. LEXIS 60319 (S.D. Fla. Mar. 31, 2025) (Singhal), adopting recommendation at 2025 U.S. Dist. LEXIS 20731 (S.D. Fla. Feb. 5, 2025) (Strauss).
Espit Ventures hired Marlon Leonel Mitchell Anderson (from Nicaragua) to sell Dead Sea bath products aboard the cruise ship M/V MSC SEASIDE, owned and operated by MSC Cruises. Anderson fell while descending a flight of stairs on the vessel, and he brought this suit against the cruise line in Florida state court, alleging negligence under the Jones Act, unseaworthiness, tortious failure to provide maintenance and cure, failure to provide proper medical care, and adding a claim for disability. Anderson also initiated an arbitration proceeding against Espit based on the arbitration clause in his employment contract with Espit. The cruise line removed the case to federal court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), alleging that the claims related to an arbitration agreement, and Anderson filed an amended complaint removing the disability claim. The cruise line moved to compel arbitration, arguing that the contract between Anderson and Espit provided that the law of the flag (Malta) governed the interpretation of the contract (including who may enforce the contract) and that, under Maltese law, the cruise line could compel arbitration as a non-signatory. Anderson moved to remand the suit to state court on the ground that the cruise line was not a party to the arbitration provision, leaving the court with no basis for federal jurisdiction. Magistrate Judge Strauss first addressed the applicable law for the issue whether the cruise line (as a non-signatory) could compel arbitration. He applied federal common law to the threshold question of arbitrability. Magistrate Judge Strauss disagreed with the cruise line as to the effect of the choice-of-law provision on the arbitrability question, explaining that “the plain meaning of that provision is that Maltese law governs the substantive issues in the arbitration.” He added that the “contract is silent on what law governs interpretation of the contract as a whole, including threshold inquiries on arbitrability.” Citing the concurring opinion of Judge Tjoflat in the Outokumpu Stainless case, Magistrate Judge Strauss reasoned that federal common law should apply to the threshold question of arbitrability in a case under the New York Convention, including the application of equitable estoppel. Turning to the federal rule, Magistrate Judge Strauss stated that a non-signatory may compel arbitration when the plaintiff/signatory must rely on the terms of the written agreement to assert his claims or when the plaintiff/signatory alleges “substantially interdependent and concerted misconduct” by the signatories and non-signatories. Magistrate Judge Strauss reasoned that all of Anderson’s claims against the cruise line relied on the Espit employment contract, as he brought claims under the Jones Act and general maritime law for seamen, and the employment contract established that Anderson was a seaman. In fact, the amended complaint alleged that Anderson became the cruise line’s borrowed employee and was not provided proper medical care. At a minimum, Anderson alleged substantially interdependent and concerted misconduct by Espit and the cruise line. Therefore, equitable estoppel dictated that the cruise line could compel arbitration as a non-signatory, and Magistrate Judge Strauss recommended that the cruise line’s motion to compel arbitration be granted. See April 2025 Update.
Anderson objected to the recommendations of Magistrate Judge Strauss, stating that he was surprised by the sua sponte research and investigation conducted by Magistrate Judge Strauss with respect to the application of federal common law rather than Nicaraguan or Singaporean law, and arguing that he was not given the opportunity to respond to the application of precedents cited in the report and recommendation. Judge Singhal found the objection “to be troubling,” and he responded that the claim that he was deprived of notice and the opportunity to respond “is simply untrue.” Judge Singhal answered that Anderson had brought his concerns to the attention of the court in his objection to the report and recommendation with ample opportunity to respond. He was “not sympathetic” to the implication that “he was somehow ambushed by Judge Strauss’s research and investigation,” answering that with technological advancements, the parties no longer have to “flip through dusty, voluminous digests in dim reading rooms” to “track down the relevant authority.” Judge Singhal added: “[T]he court is not limited to choosing one side’s position or the other’s. The court’s role is to get it right, not to choose which side’s argument is better and adopt it lock, stock, and barrel.” Judge Singhal found it “puzzling” that Anderson could not locate the specific case cited by Magistrate Judge Strauss, considering “its clear relation to a case cited in Plaintiff’s Opposition.” He also stated that had Anderson’s counsel “conducted a cursory search,” the case’s “relevance and subsequent inclusion in the R&R would not have ‘[come] as a surprise.’” Turning to the merits, Judge Singhal agreed with Magistrate Judge Strauss that Maltese law governed the substantive issues in the arbitration. However, the issue of whether a non-signatory seeking to compel arbitration implicated the New York Convention and the FAA, which involve uniquely federal interests. Accordingly, Judge Singhal agreed that federal common law applied to the threshold issue of arbitrability. With respect to the doctrine of equitable estoppel under federal law, Magistrate Judge Strauss concluded that Anderson’s claims relied on the Espit contract or, at least, alleged interdependent misconduct by Espit and MSC that was intimately connected with the obligations of the contract. Anderson argued to Judge Singhal that Magistrate Judge Strauss did not discuss how the Espit contract affected Anderson’s claims against the cruise line, and Judge Singhal was not persuaded that Anderson’s claims relied on the contract (similar to Magistrate Judge Strauss’s reasoning that Anderson’s claims arose from his seaman status created by the contract but noting that Anderson did not allege a breach of the Espit contract or invoke it as the basis for his claims). Instead, the issue was the propriety of Judge Strauss’s determination that Anderson was alleging “substantially interdependent and concerted misconduct” by the cruise line and Espit that was “intimately connected with the Espit employment contract.” Judge Singhal reasoned that the allegations in Anderson’s Statement of Claim in the Panama arbitration and in his amended complaint were nearly identical and that his allegations “lay bare the tangled nature of each entities’ services and obligations.” Judge Singhal concluded: “When considering the Espit contract even specifies that Mr. Anderson will work on MSC’s Seaside, the Court must conclude that MSC and Espit’s alleged conduct is sufficiently interrelated for these purposes—and linked to the obligations of Mr. Anderson’s contract with Espit.” Thus, equitable estoppel dictated that the cruise line may compel arbitration as a non-signatory.
Judge agreed with Magistrate Judge’s recommendation for denial, in part, of cruise line’s motion to dismiss passenger’s slip-and-fall suit, finding sufficient notice of the dangerous condition from the nearby presence of a crewmember; Fisher v. Carnival Corp., No. 1:24-cv-25022, 2025 U.S. Dist. LEXIS 60735 (S.D. Fla. Mar. 31, 2025) (Goodman), recommendation adopted, 2025 U.S. Dist. LEXIS 76205 (S.D. Fla. Apr. 22, 2025) (Williams).
Robin Fisher, a passenger on the CARNIVAL LIBERTY, slipped on a pool of liquid on a marble-like floor on the Lido Deck of the vessel. Fisher brought this suit against the cruise line in federal court in Florida, and the cruise line moved to dismiss the claims for direct liability of the cruise line for lack of notice of the dangerous condition. Fisher responded that the cruise line had notice because there was a crewmember approximately 15 feet from the location of the fall, but the cruise line argued that the allegation of proximity of the crewmember was insufficient and that the passenger is obligated to allege that the crewmember saw the hazardous condition with sufficient time to remedy it (but failed to do so). Chief Magistrate Judge Goodman believed that the allegations in this case were sufficient because the complaint alleged that the crewmember had direct line of sight to the location where Fisher slipped, was close enough to have seen that the surface was wet, and “did see the subject liquid” prior to the incident. The cruise line argued that the passenger’s allegations cast doubt on the plausibility of the claim as she argued that it was difficult to detect the clear liquid in the dim lighting while simultaneously arguing that a crewmember saw it from fifteen feet away. Chief Magistrate Judge Goodman answered that it was not his job to determine whether the allegations were actually true or false; rather, it was to determine if the allegations are more than insufficient legal conclusions. Therefore, he recommended denial of the motion to dismiss the direct liability claims based on lack of notice. In contrast, Fisher’s allegations of notice from violation of industry standards, from the obligation to inspect the area, from prior incidents, and through “other reasons that will be revealed through discovery” were insufficient, and Chief Magistrate Judge Goodman recommended that the cruise line’s motion to dismiss be granted for those assertions. There were no objections to the recommendations, and Judge Williams adopted them.
Whether emails to the broker and insurer for the vessel owner were sufficient to provide notice to the vessel owner presented fact questions whether the six-month period began to run for the vessel owner to file its limitation action; In re Gremler, No. 23-cv-2199, 2025 U.S. Dist. LEXIS 61284 (E.D.N.Y. Mar. 31, 2025) (Azrack).
On June 15, 2021, the ATTA BOY, owned by William Gremler, Jr., exploded during or shortly after refueling at a dock owned by SHM Greenport in Greenport, New York. Gremler and his passenger, Lisa Schoenstein, were injured, and Schoenstein filed an action in state court against Gremler and SHM Greenport in September 2022. Gremler filed this limitation action in federal court in New York in March 2023, and SHM Greenport filed a motion to dismiss the limitation action as untimely and a motion for summary judgment on the seaworthiness of the vessel and Gremler’s privity or knowledge of any unseaworthiness. Between August 27, 2021 and April 15, 2022, counsel for SHM Greenport exchanged emails with the claims adjuster for Travelers, insurer for the ATTA BOY and Gremler, and with the insurance broker for Gremler (demanding payment for costs incurred by SHM Greenport). Gremler argued that neither Travelers nor his broker put him on notice of a claim, and he asserted that neither had the authority to act as his agent with regard to the accident. Judge Azrack found that the record was insufficient to determine whether Gremler had received notice and whether the broker or insurer had authority to act as agent for Gremler. Therefore, Judge Azrack denied the motion to dismiss (she also denied the motion for summary judgment as premature, noting that discovery had not yet occurred).
Carrier’s “Russia Policy” precluded liability for failure to deliver cargoes originating in Russia; Krasnyi Oktyabr, Inc. v. Maersk A/S, No. 24-cv-5332, 2025 U.S. Dist. LEXIS 61646 (S.D.N.Y. Mar. 31, 2025) (Rakoff).
“This case is about a shipment of Russian sweets that went sour.” Krasnyi Oktyabr brought this suit against Maersk in federal court in New York, alleging that Maersk failed to deliver eight shipments that it accepted in Riga, Latvia to be transported to Newark, New Jersey in the Fall of 2023 (scheduled to arrive in time for the December holiday market). Maersk moved for summary judgment, citing its Russia Policy.” The booking documents included a web address that directed a reader to the homepage of Maersk’s website or to a more specific page with the heading, “Advisories: Russia/Ukraine update.” The website advised that Maersk would “not accept any bookings for transport services where the ultimate origin . . . of the cargo is Russia.” As the bookings were in violation of the Russia Policy, Maersk argued that it was entitled to return the shipments to Latvia. Krasnyi Oktyabr responded that it was unclear that the Russia Policy was incorporated into its contract of carriage, asserting that the website required a user to navigate an “obstacle course” to locate the Russia Policy. Judge Rakoff disagreed, finding that the application of the Russia Policy to its shipments was clearcut. Although Krasnyi Oktyabr complained that Maersk could have simply stated the policy on the bills of lading, Judge Rakoff held that the Policy was sufficiently incorporated. As Maersk’s action was in accordance with the terms of the contract of carriage, Judge Rakoff dismissed the suit with prejudice. Krasnyi Oktyabr filed a notice of appeal on April 21, 2025.
Limitation of liability in railroad’s Intermodal Rules applied to the ocean carrier’s suit for indemnity, contribution, and breach of contract against the railroad for pilfering of cargo on an intermodal shipment while the cargo was in the custody of the railroad; MSC Mediterranean Shipping Co. S.A. v. BNSF Railway Co., No. 2:24-cv-1041, 2025 U.S. Dist. LEXIS 62582 (C.D. Cal. Mar. 31, 2025) (Garnett).
Epson America contracted with MSC Mediterranean to transport three cargoes of projectors and scanners from Batangas, Philippines and Jakarta, Indonesia to Plainfield, Indiana via the Port of Los Angeles. MSC Mediterranean subcontracted with BNSF for the rail transportation of the shipments from Los Angeles to Chicago. The cargo was pilfered while in the custody of BNSF at the Chicago Rail Ramp. Epson presented a claim to its cargo insurer, Tokio Marine, and Tokio Marine filed a subrogation claim against MSC Mediterranean in federal court in New York. MSC Mediterranean settled the subrogation claim for $269,869.09 and brought this suit against BNSF in federal court in California based on equitable indemnity, contribution, and breach of contract. BNSF responded with a motion to dismiss, arguing that COGSA preempted the indemnity and contribution claims, but Judge Garnett did not find authority directly on point and declined to rule “on this thorny and weighty preemption issue because the parties have not clearly framed the issue on the Motion to Dismiss.” Judge Garnett then considered the issue whether BNSF was entitled to rely on the limitation in its Intermodal Rules (“In no event will BNSF’s total liability for cargo loss or damage exceed $200,000 per shipment”). MSC Mediterranean argued that the limitation did not encompass indemnity and contribution claims, but Judge Garnett answered that the limitation of “total liability” for cargo loss or damage did not support that interpretation. Therefore, she held that the potential maximum recovery for all claims was limited as set forth in the Intermodal Rules.
Judge dismissed maritime lien claim brought by individuals and not by their corporate entity when the plaintiffs declined to replead their suit to set forth the facts establishing who had the right to assert the lien; Ferguson v. M/V THE PORN STAR, No. 2:23-cv-1338, 2025 U.S. Dist. LEXIS 62470 (W.D. Wash. Apr. 1, 2025) (Whitehead).
Lee Ferguson, Perry Sandberg, and Mobile Fleet Service Welding and Repair filed a Libel and Complaint in federal court in Washington, pro se and in forma pauperis, against THE PORN STAR, its owner, and a number of named and unnamed defendants, asserting that the defendants unlawfully repossessed THE PORN STAR, on which Ferguson, Sandberg, and Mobile Fleet Service claimed a maritime lien for performing uncompensated services. On sua sponte review, Judge Whitehead noted that the claims (except for the maritime lien claim) appeared to be time barred or failed to state a claim. Therefore, he issued a show-cause order for the plaintiffs to explain why the claims should not be dismissed. See July 2024 Update.
Ferguson responded to the show-cause order primarily by arguing for recusal of Judge Whitehead and by seeking a voluntary dismissal of Mobile Fleet’s claims (which had been named in the original complaint as a “Nominal only Plaintiff”). Judge Whitehead reviewed the amended complaint filed by Ferguson (as the Managing Member of Mobile Fleet and on behalf of Sandberg, a tenant who lives in Ferguson’s home and works with Mobile Fleet), which alleged that Dann Ray Ireland left his vessel, THE PORN STAR, at Mobile Fleet’s premises for repairs that were performed by Mobile Fleet. Ireland did not pick up the vessel and did not pay for the repairs or storage and instead “repossessed” the vessel from Mobile Fleet’s premises. Ferguson alleged that Ireland was assisted by Marysville Police Officers who cited “repo law” as the basis for their participation, “threatening Ferguson with arrest when he attempted to intervene.” Besides the vessel and Ireland, the amended complaint named the City of Marysville, Washington, a police officer, and multiple “Doe” defendants related to the Police Department. Ferguson alleged claims for theft, theft of services, unlawful summons of law enforcement, negligence, outrage, trespass to land and chattels, quantum meruit, civil conspiracy for a criminal enterprise, and deprivation of federal and state constitutional rights. After denying Ferguson’s recusal request, Judge Whitehead noted that Ferguson had given no reason in response to the show-cause order to doubt the original conclusion that the claims (except for the maritime lien claim) were time-barred. Therefore, he dismissed those claims. As to the maritime lien claim, Judge Whitehead noted that it was subject to the doctrine of laches. Judge Whitehead pointed out several pleading deficiencies in the amended complaint that prevented the court from issuing a warrant for the arrest of THE PORN STAR. He explained that Mobile Fleet appeared to be the contractor that could assert the lien claim, but Mobile Fleet could not proceed pro se as a business entity. Thus, Ferguson, who is not an attorney, could not bring the suit on behalf of Mobile Fleet, nor could he dismiss it. Accordingly, Judge Whitehead granted leave for the filing of an amended complaint on behalf of Mobile Fleet that is properly verified and filed by licensed counsel. Alternatively, he ordered Ferguson and Sandberg to show cause why they have standing to file a maritime lien claim (other deficiencies included failure to verify the complaint and failure to unambiguously and plausibly assert the location of the vessel). Judge Whitehead cautioned that failure to comply would result in dismissal of the lien claim. On February 11, 2025, Chief Judge Estudillo affirmed Judge Whitehead’s denial of the motion for recusal. See April 2025 Update.
On March 10, 2025, Ferguson and Sandberg filed a notice of appeal to the Ninth Circuit, and the Ninth Circuit dismissed the appeal on March 27, 2025 for lack of appellate jurisdiction. Finally, the warning with respect to the lien claim came to conclusion. Judge Whitehead raised the issue of the viability of the lien claim (the last remaining claim), recalling his statement that the claim appeared to belong to Mobile Fleet, a business entity, and not to Ferguson or Sandberg as individuals. Judge Whitehead ordered Ferguson and Sandberg to file a properly verified complaint on behalf of Mobile Fleet, through counsel, or to show cause why they have standing, individually, to bring a lien claim. Instead of responding to Judge Whitehead’s order, the plaintiffs filed the notice of appeal. That appeal was dismissed, and the time for Ferguson and Sandberg to comply with Judge Whitehead’s order passed. Therefore, Judge Whitehead dismissed the maritime lien claim without prejudice.
Judge questioned admiralty jurisdiction over a suit by the owner of a yacht against its insurer seeking to recover under the yacht policy for damage to the yacht caused by seawater entry from a broken pipe; 5th LLC v. Kemah Marine, No. 25-cv-364, 2025 U.S. Dist. LEXIS 63171 (W.D. Okla. Apr. 2, 2025) (DeGiusti).
5th LLC is the owner of a Moonen 83 yacht, the BLUE SYMPHONIE, which was insured with Kemah Marine and Clear Spring Property and Casualty Co. with a Recreational Yacht Insurance Policy. The vessel experienced damage from seawater ingress from a broken pipe while the vessel was docked in Sarasota, Florida, and its owner presented a claim for insurance coverage. When the coverage was denied, the owner brought this suit against the insurers in state court in Oklahoma County, Oklahoma, asserting claims for breach of contract and bad faith. The defendants removed the case to federal court in Oklahoma based on diversity jurisdiction and admiralty jurisdiction (breach of a marine insurance policy), and, after examining the Notice of Removal, Chief Judge DeGiusti issued an order directing the defendants to file an amended notice of removal setting forth the diversity facts with respect to 5th LLC (as an LLC) and providing more information on the issue of admiralty jurisdiction, stating that “it is not immediately clear how a case involving state-law claims for breach of contract and bad faith (which stem from ‘seawater ingress into the vessel, while the vessel was docked’) without more, falls within § 1333’s admiralty jurisdiction.” Chief Judge DeGiusti noted that the test to determine whether admiralty jurisdiction governs the suit is “unsurprisingly, nuanced.” The defendants filed an amended notice of removal explaining that the claims arose from a claim for seawater entry into a yacht that was docked on the coast of Sarasota, Florida, in navigable waters, and the dispute arose from a marine insurance policy that is a maritime contract, resulting in admiralty jurisdiction. The defendants also added facts setting forth the complete diversity between the plaintiff and the defendants. 5th LLC then filed an amended complaint in the federal court based on diversity and dropped the bad faith claim.
Judge declined to reconsider ruling that the TVA Act waived sovereign immunity in maritime wrongful death actions against the TVA based on actions taken as a commercial enterprise (not as the sovereign), and that the limited waiver of sovereign immunity in the Suits in Admiralty Act (not waiving sovereign immunity for punitive damages) was not applicable; Paulk v. Tennessee Valley Authority, Nos. 5:22-cv-15, 5:22-cv-105, 5:22-cv-114, 2025 U.S. Dist. LEXIS 69719 (N.D. Ala. Apr. 10, 2025) (Maze).
The Tennessee Valley Authority is a corporate instrumentality of the United States that is statutorily charged with the development and regulation of the Tennessee River system, including the Guntersville Reservoir (a large impoundment on the Tennessee River in northeast Alabama). The TVA acquired real estate outside the original river channel and then deeded some of the property to Jackson County, Alabama by an Indenture. The Indenture gave Jackson County the right to construct and maintain piers, docks, and other facilities on the property and in the abutting water. The Indenture reserved to the United States the right to enter the area to carry out any functions, activities, or programs provided for in the TVA Act and provided that the TVA was liable for injuries or property damaged caused by the sole negligence of the TVA. As part of Jackson County Park and Marina, Jackson County designed, built, owned, operated, and maintained Dock B, a wood-framed covered dock with a metal roof and 2 uncovered and 36 covered slips. The DIXIE DELIGHT, a 43-foot liveaboard houseboat owned by Tim Parker, was berthed in slip 36 of Dock B—the slip closest to the shore. A fire broke out on the vessel, and the fire spread to neighboring vessels and to Dock B. As the fire spread to the dock, it prevented occupants of vessels located farther from shore from using the dock to make it to shore, resulting in injuries and deaths. The fire originated in the inner walls within the hull of the DIXIE DELIGHT between the electrical panel and its storage closet. Each of the slips on Dock B had a breaker box and a meter box to deliver and meter electricity. Jackson County had performed maintenance work on the slip 36 breaker box less than two weeks before the fire. Suits were filed in federal court in Alabama against the TVA, seeking to recover for the injuries, deaths, and property losses, and suits were also filed against Jackson County and others in Alabama state court. The TVA moved to dismiss the federal suits for several reasons. The TVA argued that the plaintiffs could not hold it liable as owner of the dock or submerged land, but Judge Maze did not have to address the issue of whether the TVA owned the dock because the plaintiffs alleged that the TVA owned, managed, and/or controlled the dock. Noting that the contractual agreements gave the TVA rights of inspection, that the TVA performed inspections, and that the plaintiffs alleged that the TVA voluntarily assumed a duty to warn of hazards based on findings from its inspections, Judge Maze concluded that the plaintiffs had alleged enough facts to support a finding of control of the dock by the TVA to survive a motion to dismiss. The TVA next argued that the Indenture with Jackson County provided that the TVA would not be liable for injuries, deaths, or property damage unless caused by the sole negligence of the TVA. As the plaintiffs brought suits alleging the negligence of both the TVA and the County and the negligence of the TVA was based on the deficiencies in the construction and operation of the dock by the County, the TVA argued that the incident could not have resulted from the sole negligence of the TVA and the claims against the TVA had been released. Judge Maze responded that the Indenture was an indemnification agreement from the County and not a release of third parties. Additionally, Judge Maze reasoned that it would be redundant for the County to indemnify the TVA from liability to third parties if the third parties had released the TVA from that liability. Judge Maze also rejected the argument that the plaintiffs’ entry onto Dock B was under the County’s title, so the plaintiffs could have no rights against the TVA that are greater than the rights of the County. He could not conclude that the language extended beyond the County and, at most, provided that the County would indemnify the TVA for the injuries/damages. Additionally, Judge Maze reasoned that, even if the language did operate as a release, the sole negligence exception precluded granting a motion to dismiss. Judge Maze noted that the plaintiffs asserted that the TVA undertook the duty to inspect and warn, which could make it liable for its own conduct and not only vicarious liability for the failings of the County. Finally, Judge Maze rejected arguments that the TVA was not liable under the Good Samaritan Doctrine or because the County had superior knowledge, as those issues were better resolved after discovery. See September 2023 Update.
As noted, the plaintiffs filed suits in federal court against the TVA as well as suits in Alabama state court that included as defendants the City of Scottsboro and the Electric Power Board of the City of Scottsboro. In the federal proceedings, the TVA filed a third-party complaint against Scottsboro, Jackson County, the Electric Power Board, and Parker. The TVA eventually dismissed its claims against Parker; however, Scottsboro and the Electric Power Board filed fourth-party complaints against Parker, seeking contribution for his share of the liability. Parker moved to dismiss the contribution claims, arguing that they should have been brought against him in the state actions as a compulsory counterclaim and, alternatively, that contribution is not a standalone claim under the general maritime law. Judge Maze rejected both arguments. He noted that the TVA was not a party to the state action, and Scottsboro and the Electric Power Board only requested contribution from Parker if the court found them liable on the TVA’s third-party complaint. Thus, Scottsboro and the Electric Power Board could not have been called upon to assert contribution in the state court for a claim that only arose later in the federal proceeding. Judge Maze also held that contribution is a standalone claim in maritime cases, arising when a tortfeasor pays more than his share of a judgment. He noted that under Rule 14(c) a defendant may implead a third-party defendant either for contribution or indemnity or to tender the third-party defendant to the plaintiff. Thus, Scottsboro and the Electric Power Board were free to use the impleader rule to bring a contribution claim, and they did not need to bring a separate tort claim. There was also no issue with the statute of limitations for the contribution claim. See November 2024 Update.
The TVA then moved to dismiss the plaintiffs’ state-law claims and to dismiss their request for punitive damages. The plaintiffs brought five claims against the TVA, three under general maritime law and two under state law, and the plaintiffs designated Rule 9(h) for the maritime claims. They based their state claims on federal question jurisdiction and supplemental jurisdiction. Judge Maze ruled that the court had admiralty jurisdiction because the locality and connection tests were satisfied with the fire starting on a vessel on navigable waters, reasoning: “Docking a vessel at a marina on a navigable waterway is a common, if not indispensable, maritime activity.” Agreeing that the court had supplemental jurisdiction over the state claims, Judge Maze then considered whether the TVA had sovereign immunity on the supplemental claims. Judge Maze noted that the Eleventh Circuit has held that the Suits in Admiralty Act does not waive sovereign immunity for punitive damages; however, the TVA Act specifically allowed suit for the same remedies faced by a private business. As the TVA Act waiver was more specific, Judge Maze applied the TVA Act waiver. Finding that the application of state law to supplement the plaintiffs’ maritime remedies would not violate the constitution or frustrate the provisions of the SAA, Judge Maze declined to dismiss the plaintiffs’ claims on the basis of sovereign immunity (rejecting the TVA’s argument that the SAA provides the exclusive immunity waiver in admiralty cases). Turning to the merits of the claims, Judge Maze noted that the plaintiffs brought similar claims under maritime law and Alabama law. Beginning with the injury claims, Judge Maze explained that maritime law applied unless there was a gap in the maritime remedies that could be filled with state law. As the injury plaintiffs did not identify any gap in maritime remedies, Judge Maze dismissed the state claims but allowed the plaintiffs to file an amended complaint setting forth the basis for state remedies to supplement maritime remedies. His analysis was slightly different with respect to the wrongful death plaintiffs in light of the Yamaha decision of the Supreme Court and the Amtrak decision of the Eleventh Circuit. Judge Maze held that the wrongful death plaintiffs could seek punitive damages under Alabama’s wrongful death statute, but they would have to apply the general maritime law’s standard for wanton conduct and apportionment of liability. See March 2025 Update.
The TVA moved for reconsideration of the ruling that it could not invoke sovereign immunity against the wrongful death plaintiffs’ state-law punitive damage claims, and Judge Maze denied the motion but added analysis to respond to the TVA’s arguments. The TVA argued that if a claim can be pleaded against the TVA in admiralty, it must be pleaded under the Suits in Admiralty Act, which precludes punitive damages. However, Judge Maze cited the Thacker decision from the Supreme Court, stating: “If the conduct is commercial—the kind of thing any power company might do—the TVA cannot invoke sovereign immunity. In that event, the TVA’s sue-and-be-sued clause renders it liable to the same extent as a private party.” Thus, if the plaintiffs are suing the TVA as a commercial enterprise, they are not suing it as “the sovereign,” and the limited waiver of sovereign immunity in the SAA has no purpose and became “pointless.” Judge Maze summarized: “The plaintiffs don’t need the SAA to remove TVA’s sovereign immunity a second time” because it was not entitled to invoke sovereign immunity in the first place. “One complete waiver of immunity is enough.” Judge Maze did note that this is an admiralty case and that the TVA could file an interlocutory admiralty appeal under Section 1292(a)(3).
Owner/co-owner of pleasure craft on sea trial with potential purchasers did not owe a duty to an injured potential buyer when the owner/co-owner was not on the vessel and did not know who would be operating the boat, but her husband, who was operating the boat, was not entitled to summary judgment for the injury suffered when the vessel struck two waves because there was sufficient evidence that he could have anticipated the waves; Bergman v. Moffitt, No. 7:23-cv-1064, 2025 U.S. Dist. LEXIS 69966 (E.D.N.C. Apr. 11, 2025) (Myers).
George and Michele Moffitt listed their boat (a Palmetto 33) for sale, and Josh and Mary Beth Bergman were looking for a boat to purchase. The boat broker for the Bergmans arranged for a sea trial of the boat, and the occupants of the boat on the sea trial were Mr. Moffitt, the Bergmans, the Bergman’s broker, and a marine surveyor. The Moffitts’ broker and Ms. Moffitt were not on the boat. George Moffitt operated the vessel in conditions that were less than ideal (heavy traffic on the day before the Fourth of July, “pretty windy,” and “really choppy” water). Moffitt navigated the vessel through Beaufort Inlet toward the Atlantic Ocean and was returning through the Inlet. In order to show how smoothly the vessel could operate in choppy waters, Moffitt increased the speed of the vessel. He did not reduce his speed when passing between two sport fishing boats. While Moffitt was talking about the vessel’s electronics, the vessel struck two large waves in rapid succession, and Mary Beth Bergman was catapulted off her seat and onto the deck. The Bergmans purchased the vessel, and Mary Beth Bergman brought this suit in federal court in North Carolina against George Moffitt for negligent operation of the boat and Michele Moffitt based on respondeat superior. The Moffitts moved for summary judgment with Michele arguing that she was not on the boat and George arguing that the cause of the accident was unforeseeable rogue waves. The vessel documents reflected that Michele was the owner of the boat, and Bergman argued that Michele was liable for appointing George as her agent to conduct the sea trial. Chief Judge Myers found that the evidence was lacking of Michele’s appointment of George to conduct the sea trial. She was in her home with her children when George and the others went to the dock, and she had no idea who would be operating the boat. Accordingly, Chief Judge Myers granted summary judgment to Michele. George supported his motion for summary judgment with two arguments. First, he cited the testimony of Mary Beth Bergman that the vessel “caught two rogue big waves.” Chief Judge Myers did not believe that her testimony was sufficient to defeat her claim (as an unforeseeable act of God), answering that “a reasonable factfinder could conclude that Ms. Bergman used the term rogue wave in the colloquial (not technical) sense, meaning that the vessel striking two waves in rapid succession was an unexpected occurrence to her, not that the waves were an unforeseeable risk to Mr. Moffitt.” Second, George argued that he could not have anticipated the waves; however, Chief Judge Myers found that there was a fact question whether the vessel struck rogue waves or the wake from the passing sport fishing boats (which was foreseeable and avoidable). Finally, George argued that Bergman did not present evidence of the standard of conduct to establish the duty and whether it was breached. Chief Judge Myers disagreed, stating that the shipowner owes a duty of reasonable care to those on the vessel pursuant to Kermarec, and there was sufficient evidence for the factfinder to infer that George breached that duty. Therefore, he denied George’s motion for summary judgment.
Passenger’s pleading that the cabin steward had been a few feet away from her bed where the headboard fell on her head and was close enough to see that it was broken was sufficient to plead notice for the passenger’s direct liability claims against the cruise line; Love v. Carnival Corp., No. 1:24-cv-24222, 2025 U.S. Dist. LEXIS 70561 (S.D. Fla. Apr. 11, 2025) (Goodman), recommendation adopted, 2025 U.S. Dist. LEXIS 85051 (S.D. Fla. May 5, 2025) (Williams).
Jyvonne Love, a passenger on the CARNIVAL RADIANCE, was injured when the headboard on her bed fell on her head. Love brought this suit against the cruise line in federal court in Florida, with three counts of direct liability and two counts of vicarious liability. The cruise line moved to dismiss the three counts of direct liability for failure to sufficiently plead notice. Love pleaded that she observed the cabin steward in the area, within five to ten feet of the site of the accident, he had direct line of sight to the headboard and was close enough to see that it was broken, and he failed to secure it. The cabin steward also mentioned that cabin headboards had fallen on passengers in other cabins. Comparing the allegations to those in the Quiñones case (see August 2024 Update), Chief Magistrate Judge Goodman recommended that Love had sufficiently pleaded a plausible theory of notice of the dangerous condition. Chief Magistrate Judge Goodman did not, however, recommend that notice was sufficiently pleaded with respect to industry standards, general inspections, and other reasons that will be revealed in discovery, and he did not believe that the citations to prior incidents were sufficient, including the statement made by the cabin steward. The cruise line objected to the two counts pleading vicarious liability because they comingled allegations of direct and vicarious liability. Chief Magistrate Judge Goodman agreed, reasoning that the counts improperly incorporated the notice paragraphs from the direct liability counts. Although that was not a fatal flaw, it did lead to confusion. He recommended that the vicarious counts be dismissed without prejudice.
Offshore platform operator did not owe a duty to an employee of a contractor who was injured on the platform while chocking a helicopter; Sessums v. Shell USA, Inc., No. 24-cv-104, 2025 U.S. Dist. LEXIS 71113 (E.D. La. Apr. 15, 2025) (North)
Jeremy Sessums, an employee of Helmerich & Payne, was injured while working as a roustabout on an offshore platform located on the outer Continental Shelf of the Gulf of America off the coast of Louisiana. Shell Offshore Inc., which operated the platform for its owner, Shell Gas Pipeline Co., contracted with Helmerich & Payne to perform oil and gas drilling operations on the platform. The platform was used to service a pipeline of Shell USA, and Doye Sepulvado was the company man for Shell USA. Sessums was ordered to place chocks on the wheels of a helicopter by contractor Danos, LLC, and Sessums was injured in the process. Sessums brought this suit in federal court against all of the mentioned parties except his employer, Helmerich & Payne (as his exclusive remedy is the LHWCA). Shell USA and Sepulvado moved to dismiss the claims against them, and Judge Lemelle applied Louisiana law as the law of the adjacent state under the Outer Continental Shelf Lands Act. Judge Lemelle agreed that Sessums had not established that Sepulvado owed a duty to Sessums, holding that the allegation that he had the authority and duty to monitor the operations on the platform and pipeline and to stop unsafe practices was insufficient. Aside from being conclusory, the allegations did not assert that Sepulvado affirmatively assumed a workplace safety duty or created the helicopter hazard himself. And Sepulvado was removed from the incident because he was the company man of the pipeline owner, not the platform operator. Similarly, Shell USA was the owner of 320 miles of offshore pipeline and supervised pipeline projects. Sessums’ duties on the platform did not implicate any duty with respect to the operation of the pipeline. Accordingly, Judge Lemelle dismissed the claims against Sepulvado and Shell USA. See July 24, 2025 Update.
Shell Offshore, operator of the platform, then moved for summary judgment, arguing that it did not exercise operational control over Helmerich & Payne or supervise the work leading to Sessums’ injury. Shell Offshore employees were not present at the safety meeting, did not order Sessums to place the chocks on the wheels, and did not give the order to work with respect to the helicopter. Sessums did not speak with any Shell Offshore employee from the time he began work until the time of his injury on the day of his accident. Sessums responded with a report of his expert, Gregg Perkin, suggesting that Shell Offshore had a duty to provide its contractors with a workplace free of recognized hazards and that operations on the platform were being controlled by Shell Offshore. Shell Offshore argued that the report did not indicate that Shell Offshore had exercised operational control over Sessum’s work with the chocks, and Magistrate Judge North agreed, noting that the report was conclusory and failed to point to any “how to” instructions or express or implied order on the part of Shell Offshore. Perkin’s citation to Shell Offshore’s failure to conduct safety meetings and lack of communication with Helmerich & Payne only demonstrated that control was in the hands of Helmerich & Payne, not Shell Offshore. In the absence of any evidence of its involvement, Shell Offshore was entitled to summary judgment on the issue of operational control. That determination was also fatal to the argument that Shell Offshore could be liable for its own independent negligence as it could not have created the hazard when it did not control the operation. Finally, Magistrate Judge North addressed Sessum’s argument that Shell Offshore was liable under a theory of premises liability. As Sessum testified that the chocks were not defective, he could not establish a claim for premises liability, and Magistrate Judge North dismissed the claim. Accordingly, Magistrate Judge North granted summary judgment to Shell Offshore, dismissing the claims against it with prejudice.
From the state courts
Award in London arbitration between buyer and seller of alumina collaterally estopped the buyer from establishing that the alumina was stolen/misappropriated or seized, and the buyer/insured was unable to establish a physical loss or damage within its cargo policy that was not excluded from coverage under the FC&S Warranty; Gerald Metals, LLC v. Certain Underwriters at International Underwriting Association of London, 231 Conn. App. 513, 2025 Conn. App. LEXIS 78 (Conn. App. Mar. 25, 2025) (Bright).
Gerald Metals contracted to purchase 25,250 metric tons of alumina from Shenzhen Shenhuo Trading, a Chines aluminum smelter. The material was shipped from the port of Bunbury, Australia on the M/V AS ELYSIA to the port of Qingdao, China where it was offloaded, bagged, and stored in a warehouse. Gerald Metals agreed to pay $9,090,000 by a letter of credit, and the funds were released to the seller after issuance of a warehouse receipt. The alumina was detained by Chinese authorities, and eventually most of the material disappeared. Gerald Metals made a claim against its cargo insurer, which denied the claim on the grounds that there was no physical loss or damage and because the loss was the result of capture, seizure, arrest, restraint, detainment, or confiscation by the Chinese government (excluded by the Free of Capture and Seizure Warranty). Gerald Metals brought this suit against its cargo insurer in Connecticut state court and also proceeded with a London arbitration against seller Shenzhen. The London arbitration resulted in rulings that the seller was liable because it did not have the right to sell the material and did not give Gerald Metals quiet possession of the alumina. The material was seized and confiscated by the police and auctioned by order of the Qingdao Intermediate People’s Court. The cargo insurer then argued in the Connecticut suit that collateral estoppel barred the cargo claim, and Judge Lee held that Gerald Metals was unable to establish a prima facie case for coverage because it failed to demonstrate an insurable interest, the claim did not involve “physical loss or damage,” and, in any event, the FC&S Warranty excluded the loss from coverage. Gerald Metals appealed to the Appellate Court of Connecticut, and, writing for the court, Judge Bright concluded that the issues in the London arbitration of whether the material was stolen and/or appropriated and whether the material was seized were identical to the issues presented in the coverage suit. Therefore, the appellate court held that Judge Lee properly concluded that Gerald Metals was unable to establish a loss that was not excluded from coverage under the policy.
Kenneth G. Engerrand
President, Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1110 Cowan Road Suite B #214 Gulfport, MS 39507 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
Quote:
From Chief Magistrate Judge Goodman of the United States District Court for the Southern District of Florida in Lehmann v. Carnival Corp., No. 1:24-cv-20060, 2025 U.S. Dist. LEXIS 15944, at *1-*2 (S.D. Fla. Jan. 29, 2025):
In his opening statement at his September 12, 2005 confirmation hearing for Chief Justice of the United States, John G. Roberts, Jr. made some often-repeated comments to the Senate Judiciary Committee about the role of judges. He said that "judges are like umpires. Umpires don't make the rules, they apply them. I will remember that it's my job to call balls and strikes, and not to pitch or bat."
In other words, judges are not supposed to volunteer strategy. That is what coaches do, and judges are umpires (and are not supposed to be coaches or involved in coaching). Judges may call legal balls and strikes; determine the size of an evidentiary strike zone; decide whether a party was metaphorically tagged out at the plate through an Order denying a motion; and reach other conclusions. They may not, however, transform themselves into a legal Casey Stengel by suggesting, for example, that the legal equivalent of a bunt might be a wise play.
This often-discussed baseball metaphor about judging and umpiring arises here in this maritime lawsuit because many of the best arguments to be made to support motions to exclude expert testimony were not raised by the parties (and I will not switch my role from umpire to coach and pitch legal fastballs by raising and developing never-asserted challenges).
The procedural history underlying my decision to not morph into a coach arises from a garden-variety personal injury lawsuit filed by a cruise ship passenger . . . .
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© Kenneth G. Engerrand, May 30, 2025; redistribution permitted with proper attribution.
