March 2026 Longshore Maritime Update No. 322
Notes from your Updater:
In the long-running and complex dispute over corporate control of Eletson Gas LLC, which was formed in 2013 to transport liquified petroleum gas, Judge Liman of the United States District Court for the Southern District of New York set aside the arbitration award in favor of Eletson Holdings (beneficiaries of the award were Apargo Ltd., Desimusco Ltd., and Fentalon Ltd.) on the ground that Eletson committed fraud in the arbitration and on the arbitrator, denying a fair hearing to Levona Holdings (a subsidiary of two hedge funds, Nomis Bay and BPY). See Eletson Holdings, Inc. v. Levona Holdings, Ltd., No. 1:23-cv-7331, 2026 U.S. Dist. LEXIS 5528 (S.D.N.Y. Jan. 12, 2026).
On January 13, 2026, Judge Seabright of the United States District Court for the District of Hawaii dismissed the suit brought by Sam Monet, who has lived aboard his vessel at the Ala Wai Harbor in Honolulu, Hawaii since 2000, against the State of Hawaii and several state officials, alleging that the defendants violated state statutes and regulations in suspending the granting of new liveaboard permits as part of a “deliberate institutional effort to defund, defame, and dismantle public harbor infrastructure in order to justify private concession-style redevelopment[,] a violation of its public trust obligations and statute.” See Monet v. Hawaii, No. 1:25-cv-392, 2026 U.S. Dist. LEXIS 6214 (D. Haw. Jan. 13, 2026).
On January 20, 2026, Chief Judge Boasberg of the United States District Court for the District of Columbia dismissed the suit brought by Kōloa Rum Co., a distillery of premium rum on the Hawaiian Island of Kaui, against the Secretary of Homeland Security and the Commissioner of Customs and Border Protection, asserting that the Jones Act (requiring that transportation of its product between Hawaii and ports in the United States be undertaken on vessels owned, built, and primarily owned by United States citizens), “violates the Port Preference Clause by discriminating against Hawaiian ports through higher shipping costs and limited shipping options” and violates the Due Process Clause by infringing on the company’s substantive right to earn a living.” Chief Judge Boasberg concluded: “The Jones Act may not be the most efficient method of maintaining a merchant marine. It may not have succeeded as well as Congress hoped. But rational-basis review ‘is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” He added: “Plaintiff’s grievance is, at bottom, a policy dispute of the sort that is best brought to Congress, not this Court.”
On January 23, 2026, Judge McFadden of the United States District Court for the District of Columbia held that the environmental group, Center for Biological Diversity, had standing to challenge environmental assessments used by the Department of Interior with respect to decommissioning of structures in the waters of the outer Continental Shelf off the Gulf Coast, but the Center failed to establish, under the Administrative Procedure Act, a discrete and mandatory duty that the court could order the Secretary of Interior to perform. See Center for Biological Diversity v. Burgum, No. 1:24-cv-2014, 2026 U.S. Dist. LEXIS 13125 (D.D.C. Jan. 23, 2026).
On January 28, 2026, the Federal Maritime Commission posted a notice that an enforcement proceeding involving MSC Mediterranean Shipping Company, S.A. recently concluded with the FMC assessing a civil penalty of $22.67 million for three types of Shipping Act violations over the course of several years.
The February 2026 Update reported that Judge Lamberth of the United States District Court for the District of Columbia issued a stay and preliminary injunction of the Bureau of Ocean Energy Management’s order of December 22, 2025 that Revolution Wind, LLC suspend all ongoing activities on the Revolution Wind Project off the coast of Rhode Island for 90 days “for reasons of national security.” See Revolution Wind, LLC v. Burgum, No. 1:25-cv-2999 (D.D.C. Jan. 12, 2026). Other judges granted similar relief with respect to orders issued for the suspension of offshore wind projects as noted in the February 2026 Update. On February 2, 2026, Judge Lamberth issued a preliminary injunction with respect to the Sunrise Wind project located approximately 30 miles off the coast of New York’s Montauk Point (for reasons stated on the record). See Sunrise Wind LLC v. Burgum, No. 1:26-cv-28 (D.D.C. Feb. 2, 2026); New York v. Burgum, No. 1:26-cv-72 (D.D.C. Feb. 2, 2026).
We are familiar with Fane Lozman’s long-running disputes with the City of Riviera Beach, Florida in which he twice defeated the City in the United States Supreme Court (including the 2013 decision that resulted in Justice Breyer’s definition for a vessel, “a reasonable observer, looking to the [structure’s] physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water”). Lozman’s string of successes ended with his challenge to the city’s development plan (as a taking of his property), which resulted in dismissal of the suit for lack of subject matter jurisdiction as it was not ripe for judicial review. See Lozman v. City of Riviera Beach, Florida, No. 23-11119, 2024 U.S. App. LEXIS 26114 (11th Cir. Oct. 16, 2024) (Pryor). Lozman filed a petition for a writ of certiorari in the Supreme Court, challenging the restriction of his waterfront property to private “residential fishing or viewing platforms” and small “docks for non-motorized boats” (claiming that the restriction forbids any economically beneficial use). In contrast to the prior grants of certiorari, on June 2, 2025, the Supreme Court declined to hear Lozman’s petition. See Lozman v. Riviera Beach, Florida, No. 24-908, 2025 U.S. LEXIS 2076 (U.S. June 2, 2025).
Meanwhile, Lozman and the United States engaged in litigation that arose from Lozman’s return to Riviera Beach with a new floating home with a banner proclaiming, “Fane Lozman returns, THANK YOU . . . US. Supreme Court.” The United States charged Lozman with construction/installation of structures in Lake Worth Lagoon in Palm Beach County, Florida (his new floating home consisted of a shipping container supported by floating docks). The United States brought suit in federal court in Florida, asserting that the installation occurred in navigable waters of the United States, and failure to obtain authorization from the Corps of Engineers violated the Rivers and Harbors Act. The United States cited the definition that navigable waters for the Rivers and Harbors Act are “waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” The United States presented evidence that the Lagoon is subject to the ebb and flow of the tide and that it has been used (and is susceptible for use) to transport interstate or international commerce. Lozman argued that his property is regularly located on mudflats for days on end, but that did not change the fact that the property was subject to the tides. Lozman also argued that the authority of the Corps of Engineers did not extend to private property, but Judge Middlebrooks rejected that argument as the caselaw does not support the contention that the Corps lacks jurisdiction over navigable waters that are privately owned. Judge Middlebrooks ordered Lozman to remove his floating home and the floats upon which it rests unless and until he obtains authorization from the Corps. On appeal to the Eleventh Circuit, Lozman argued that the City of Riviera Beach had influenced the Corps to selectively prosecute Lozman as “retaliatory payback” for the complaint he filed with the Florida Ethics Board against a councilperson, but the appellate court declined to consider the argument because Lozman did not raise the argument in the district court. Agreeing with Judge Middlebrooks, the Eleventh Circuit affirmed the grant of summary judgment to the United States that Lozman’s floating home structure obstructed navigable waters within the meaning of the Rivers and Harbors Act. See United States v. Lozman, No. 24-11477, 2025 U.S. App. LEXIS 18286 (11th Cir. July 23, 2025) (per curiam).
Back in the district court, the City of Riviera Beach sought costs in the amount of $17,349.61 in connection with the litigation that resulted in the dismissal of Lozman’s suit against the City for lack of ripeness. Lozman objected that the City was not a prevailing party entitled to costs (because the case was dismissed without prejudice for lack of subject matter jurisdiction), but Judge Middlebrooks and the Eleventh Circuit disagreed, reasoning that the dismissal “prevented a material alteration in the legal relationship between Lozman and the City.” Therefore, the Eleventh Circuit affirmed the order awarding costs to the City. See Lozman v. City of Riviera Beach, Florida, No. 25-12868, 2026 U.S. App. LEXIS 3506 (11th Cir. Feb. 4, 2026) (per curiam).
On February 4, 2026, Judge Alfred Bennett of the United States District Court for the Southern District of Texas (Houston Division) agreed with Magistrate Judge Richard Bennett in a dispute between the Houston Pilots and the Galveston-Texas City Pilots with respect to ships traveling to or from locations in Harris County that stop in the Boliver Roads Anchorage located in Galveston County. Judge Bennett enjoined the Galveston-Texas City Pilots from performing pilot services (or soliciting services) for vessels using the Anchorage as an intermediate stop en route to or from a Harris County location. See Houston Pilots v. Galveston-Texas City Pilots, No. 4:25-cv-1801, 2026 U.S. Dist. LEXIS 23529 (S.D. Tex. Feb. 4, 2026), adopting 2025 U.S. Dist. LEXIS 272673 (S.D. Tex. Nov. 6, 2025).
On February 6, 2026, the Department of Labor issued this news release titled “US Department of Labor Provides Regulatory Relief for Companies, Insurers in Vital Industries:”
US Department of Labor provides regulatory relief for companies, insurers in vital industries
Affected industries include shipbuilding, resource extraction, defense
WASHINGTON – The U.S. Department of Labor today published a notice providing enhanced and transparent guidance for calculating the amount of securitization required by insurers writing policies under the Longshore and Harbor Workers' Compensation Act.
This new guidance represents a transparent and structured approach that will lower the cost of doing business for industries vital to America’s economic and military dominance while continuing to put injured workers first. It will also improve industry confidence regarding potential liabilities and how to improve their outcomes. Among the factors that are considered are the company’s financial health, experience writing LHWCA policies, and how quickly they pay accepted claims for injured workers.
“As we restore America’s maritime and energy dominance, the Department of Labor continues to put American workers’ safety and health first,” said Secretary of Labor Lori Chavez-DeRemer. “These guidelines will protect workers while creating a fairer environment for businesses that do vital work for our country.”
Publishing this guidance advances the department’s goal of protecting injured workers while reducing the burden on job-creating industries and promoting economic growth.
Administered by the department’s Office of Workers’ Compensation Programs, the LHWCA and its extensions require private-sector firms to provide workers’ compensation coverage for their employees engaged in covered positions. Insurance companies that are approved by OWCP to write policies under the acts must provide appropriate security to the department for their liabilities. While the LHWCA has always allowed companies to reduce their security burden if they meet certain risk- and performance-based criteria, action has never been taken to provide this relief.
In alignment with President Trump’s Executive Order, “Restoring America’s Maritime Dominance,” this action will reduce the economic and regulatory burden on shipbuilders by lowering the cost of insurance and helping American-built ships to better compete with foreign competitors.
Read the Guidance for Insurance Carrier Security Deposit Requirements, which is scheduled for publication in the Feb. 9, 2026, edition of the Federal Register.
Learn more about the Office of Workers' Compensation Programs.
The notification of guidance is linked:
Maritime practitioners who deal with environmental claims are familiar with the Supreme Court’s decision in International Paper Co. v. Ouellette and its application by the Fifth Circuit in the Macondo/DEEPWATER HORIZON case (In re Deepwater Horizon). On February 23, 2026, Energy companies facing suits in state court seeking to recover damages for injuries allegedly caused by the contribution of greenhouse-gas emissions to global climate change succeeded in obtaining a grant of certiorari on the issue: “Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.” As their arguments include substantial references to the Clean Water Act and maritime cases such as Ouellette, stay tuned for the impact of the decision on preemption of state law with respect to maritime and non-maritime claims. See Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County; No. 25-170, 2026 U.S. LEXIS 737 (U.S. Feb. 23, 2026).
The Update frequently addresses the application of the derivative sovereign immunity defense that is asserted by government contractors, originating in the decision of the Supreme Court in Yearsley v. W.A. Ross Construction Co. On June 2, 2025, the Supreme Court agreed to decide the question of “whether an order denying a government contractor’s claim of derivative sovereign immunity is immediately appealable under the collateral-order doctrine.” [The circuit courts were split 5-3, with the Tenth Circuit in this case agreeing with the majority of circuits that do not allow collateral-order review]. On February 25, 2026, the Supreme Court held that Yearsley affords a merits defense, and the denial of a defense to liability is not immediately appealable for an interlocutory review. Writing for the Court, Justice Kagan explained that the defense “is fully vindicable on appeal from a final judgment.” See GEO Group, Inc. v. Menocal, No. 24-758, 2026 U.S. LEXIS 1104 (U.S. Feb. 25, 2026).
On the LHWCA Front . . .
From the federal appellate courts
Ninth Circuit affirmed decision that injury and discrimination/retaliation claims brought by shipyard workers supplied by a staffing company against the shipyard were barred by the LHWCA or were not supported by federal law; Holmes v. Greenbrier Cos., No. 24-3960, 2026 U.S. App. LEXIS 1744 (9th Cir. Jan. 23, 2026) (per curiam).
Torio Holmes and Brian Brown applied for employment through a staffing company (Fugue) to work for Gunderson Marine, a marine barge manufacturer in Portland, Oregon, which is owned by Greenbrier Companies. They were hired as carpenters to erect and take down scaffolding so that other workers could access areas on the inside and outside of vessels that were being constructed. Holmes and Brown both complained of headaches, nausea, and respiratory problems from industrial chemicals and fumes, and they asked to be provided respirators. Although they were approved for respirators, they never received respirators during their employment for disputed reasons. There was a surprise OSHA inspection while Holmes and Brown were employed, and the inspection found that Greenbrier did not provide a fit test before allowing employees to wear respirators, but the inspection did not find any hazardous substances or air quality levels in excess of exposure limits. Holmes and Brown both brought LHWCA claims against Greenbrier, and an administrative law judge denied Holmes’ claim. Holmes filed suit in federal court in Louisiana against the compensation carrier, American Equity Underwriters, and the court dismissed that complaint. Holmes and Brown filed this suit in federal court in Oregon against Greenbrier Companies, alleging discrimination, retaliation, defamation, negligence, and violations of OSHA. Greenbrier moved for summary judgment that the LHWCA provides the exclusive remedy for the negligence cause of action in which the workers claimed injuries from exposure to hazardous substances in the workplace, and Judge Beckerman agreed. She reasoned that Greenbrier borrowed the plaintiffs from Fugue and that their work was under the direction and control of Greenbrier. Therefore, the exclusive remedy provision of the LHWCA barred the negligence claim. Judge Beckerman rejected the claim that Greenbrier discriminated against Holmes and Brown as African Americans for requiring that they work inside the vessel while White employees worked outside the vessel and for not providing them with respirators as lacking evidence of a discriminatory motive and for lack of evidence of disparate treatment (adding that a one-time assignment to a less desirable location did not qualify as an adverse employment action). Judge Beckerman also rejected the claim that Greenbrier retaliated against the workers by not helping them with their workers’ compensation claim, noting that Greenbrier directed the workers to Fugue to resolve the claim as Fugue provided the LHWCA coverage. The workers also claimed retaliation because of allegations make during the EEOC mediation and defamation from statements and claims in the EEOC mediation, but Judge Beckerman answered that statements made during compromise negotiations are not admissible; did not subject the plaintiffs to hatred, contempt, or ridicule; and did not tend to diminish the esteem and goodwill in which the plaintiffs were held. Finally, Judge Beckerman dismissed the claim that Greenbrier violated OSHA, because OSHA does not provide a private cause of action. See July 2024 Update.
Holmes and Brown appealed to the Ninth Circuit, arguing that Fugue was their “direct employer” that was responsible for wage replacement and medical care under the LHWCA (and entitled to the LHWCA exclusive remedy). They added that Greenbrier was their indirect employer” and was responsible for providing a safe workplace for Fugue employees. Holmes and Brown argued that Section 33 of the LHWCA addresses the situation in which an employee is injured in the course of his employment and a third party may be liable for damages for his injury: “In such situations, the employee need not elect between his compensation remedy and a third-party suit.” The Ninth Circuit rejected the argument, holding that Judge Beckerman properly granted summary judgment on the negligence claims because they are barred by the exclusive remedy provision in Section 5(a) of the LHWCA, applicable to Greenbriar as the borrowing employer. Holmes and Brown did not challenge the other rulings of Judge Beckerman, and the Ninth Circuit affirmed the judgment.
From the federal district courts
Worker who was injured when he fell to a boat from the wharf when the wharf’s marine bulkhead suddenly shifted failed the locality test, and his maritime suit in federal court was dismissed for lack of admiralty jurisdiction; Brodeur v. Rhode Island, No. 1:25-cv-235, 2026 U.S. Dist. LEXIS 7120 (D.R.I. Jan. 14, 2026) (Smith).
Peter Brodeur was injured while loading lobster traps into his boat from a state-owned wharf in Narragansett, Rhode Island when the wharf’s marine bulkhead suddenly shifted, causing him to fall onto the deck of his boat. He brought this suit in federal court in Rhode Island against the State of Rhode Island under the court’s admiralty jurisdiction, asserting the State breached its duty as a wharfinger under the general maritime law for failing to maintain the wharf in a safe condition. The State moved to dismiss the case based on a lack of admiralty jurisdiction, arguing that the tort did not occur on navigable waters. Brodeur argued that the tort did not occur on the wharf but on the vessel, which was afloat on navigable waters. He cited the First Circuit’s Butler decision, stating that the locality test depends on “where the negligence ‘takes effect,’ not where the negligent act occurred.” Although Judge Smith agreed that Brodeur’s application of the language in Butler was “plausible,” he was persuaded by the frequently cited decisions of the Supreme Court in T. Smith & Son v. Taylor and Minnie v. Port Huron Terminal in which the Court held that there was no admiralty jurisdiction in the case of a longshore worker who was knocked from the wharf into the water but there was admiralty jurisdiction in the case of a longshore worker who was knocked from a vessel onto the wharf. Applying the Supreme Court cases, Judge Smith reasoned that “Brodeur’s cause of action arose on the wharf, when the marine bulkhead shifted suddenly under his feet, causing him to fall several feet down to the deck of the boat. Although Brodeur’s injuries technically did not occur until he made impact, the ‘sole, immediate and proximate cause’ of those injuries was his fall from the wharf.” Although the Supreme Court (in Executive Jet) “has lamented ‘the perverse and casuistic borderline situations that have demonstrated some of the problems with the locality test of maritime jurisdiction,” Judge Smith noted that the Court has not “disavowed the locality test.” Concluding that the tort in this case occurred on the wharf (when Brodeur fell from the bulkhead) and not when he landed on the boat, Judge Smith dismissed the case for lack of admiralty jurisdiction.
Company engaged in scrapping a vessel had sufficient operational control over the subcontractor that it was not entitled to summary judgment when a flash fire killed an employee of the subcontractor on the vessel; Gonzales v. Louisiana Scrap Metals Recycling Lake Charles LLC, No. 2:22-cv-1037, 2026 U.S. Dist. LEXIS 9328 (W.D. La. Jan. 16, 2026) (Cain).
Adrian Gonzalez Avila, an employee of CP Contractors, was killed in a flash fire while he was torch-cutting on the M/V SMITH TIDE, which was being scrapped at Louisiana Scrap Metals Recycling’s facility in Lake Charles, Louisiana. His parents brought this suit in Louisiana federal court against CP Contractors and Louisiana Scrap Metals Recycling and subsequently added insurers for the defendants. Louisiana Scrap Metals Recycling filed a motion for summary judgment, arguing that it did not have liability because it did not exercise operational control over the work performed by Avila on the vessel. Before the motion could be heard, Avila’s parents settled their claims with CP Contractors and Louisiana Scrap Metals Recycling to the extent of their uninsured exposure, but they reserved the right to pursue claims against insurers that may provide coverage to Louisiana Scrap Metals Recycling. Judge Cain then considered the motion for summary judgment. The parties disputed the applicable law. Louisiana Scrap Metals Recycling argued that Louisiana law applied, and Avila’s parents argued that maritime law applied. However, Judge Cain determined that the general rule under both maritime law and state law was the same—that a principal is not liable for the acts of an independent contractor unless the principal retains or exercises operational control over the actions of the independent contractor. Judge Cain noted that retention of operational control in the contract between the parties “weighs heavier” than actual exercise of operational control and that the parents did not argue that the contract provided for a right to control on the part of Louisiana Scrap Metals Recycling. Instead, they argued that Louisiana Scrap Metals Recycling supervised CP Contractors’ work on the vessel. Louisiana Scrap Metals Recycling employees inspected the vessel when it arrived and made recommendations for the work that would be performed. They advised that lines should only be saw-cut as opposed to hot-cut, and they advised where to cut each day. An employee of Louisiana Scrap Metals Recycling advised the workers what to do on the day of the accident when the crew was having trouble pulling a cable off the winch (indicating that the workers should cut the walls with hot work). The safety manual for Louisiana Scrap Metals Recycling provided that Louisiana Scrap Metals Recycling supervisors were responsible for ensuring that all hot work was authorized and permitted, regardless of the party performing the hot work. As the accident resulted when Avila applied a cutting torch to an intact hydraulic line without visually inspecting the material to verify that it was safe to cut, Judge Cain believed there was sufficient evidence that Louisiana Scrap Metals Recycling had operational control, and he denied the motion for summary judgment.
Platform employee who tripped over a hose presented a fact question of negligence under state law or maritime law against the safety consultant that conducted a “hazard hunt” earlier in the day and should have continued inspecting the work area for hazards after a lunch break; Sam v. Quarternorth Energy LLC, No. 6:23-cv-630, 2026 U.S. Dist. LEXIS 10484 (W.D. La. Jan. 20, 2026) (Summerhays).
Joseph Sam, III, an employee of United Fire and Safety, LLC, his employer under the LHWCA, was assigned to work on a platform located in the South Pass Area of the outer Continental Shelf of the Gulf of America off the coast of Louisiana. He was injured when he tripped over a hose which caused him to fall down a flight of stairs. He brought suit in state court in Iberia Parish, Louisiana, asserting claims under the general maritime law and Louisiana law, against the owner/operator of the platform, QuarterNorth Energy and two contractors, Diverse Safety and Scaffolding and Performance Construction Services. QuarterNorth removed the case to federal court based on the original jurisdiction of the Outer Continental Shelf Lands Act. Diverse Safety, which was responsible for providing safety consultant services on the platform, moved for summary judgment, asserting that it did not breach any duty to Sam because it served as a third-party consultant, did not own the hose, and followed all safety protocols. Sam answered that, either under Louisiana law or maritime law, Diverse Safety undertook a duty of care because it was responsible for conducting safety evaluations, inspecting the platform, and making recommendations to prevent injuries (including performing a “hazard hunt” that should have identified the hose as a hazard). Diverse Safety conducted a hazard hunt in the morning, but Judge Summerhays found a triable fact issue whether it should have continued the hazard hunt later in the day after the crew resumed operations following a lunch break. Therefore, he denied the motion for summary judgment.
Judge declined to reconsider ruling that a longshore worker who fell while descending the gangway of the vessel presented a fact question with respect to causation for the Scindia turnover duty; Brown v. MSC Ship Management, Ltd., No. 4:23-cv-182, 2026 U.S. Dist. LEXIS 11147 (S.D. Ga. Jan. 21, 2026) (Wood).
Marlon J. Brown was injured while employed as a longshore worker (lasher) by Gateway Terminals at Container Berth 4 of the Garden City Terminal of the Georgia Ports Authority. Brown claims that he fell while descending the gangway (with a lashing tool in his hand) to disembark the M/V MSC GAYANE because a piece of the handrail was out of place, and the slip-resistant treatment on the steps was worn. Brown brought this suit in state court in Chatham County, Georgia against the owner/operator of the vessel, asserting negligence claims under Section 5(b) of the LHWCA, and the defendants removed the case to federal court based on diversity. The parties challenged each other’s experts, and Magistrate Judge Ray first addressed the defendants’ arguments with respect to Joseph P. Crosson, an engineer specializing in metallurgical and weld-related structural failures and marine casualty investigations, who was hired to discuss the construction and deterioration of the gangway. Crosson opined that there was more wear on the lower steps of the gangway with less slip resistance, there was evidence of disrepair in the lower steps, and there was no handrail on either side of the lower five steps. The defendants accepted Crosson’s qualifications with respect to engineering and metallurgy, but they argued that he was not qualified to testify about slip resistance because he lacked expertise or certification in tribometry (the study of slippage rates and friction coefficients). Magistrate Judge Ray agreed that training in tribometry would qualify the expert, but he added that the “witness need not be the best or most qualified authority in a field to be admitted as an expert.” The objection was, instead, “fodder for cross examination.” The defendants objected to the reliability of Crosson’s opinions because he did not inspect the gangway, did not take any readings, use any scientific equipment, perform any calculations, or generally engage in any “scientific inquiry of any kind.” Crosson looked at contemporaneous photographs and measurements that were taken years after-the-fact. Magistrate Judge Ray did not believe that the methodology was unreliable, stating that Crosson could “premise his opinions based on visual inspection and his own experience and expertise.” Finally, Magistrate Judge Ray agreed that Crosson’s testimony about the slip resistance would be helpful to the jury, but he excluded the opinions with respect to the state of disrepair as immaterial and his testimony on the absence of the handrails (obvious from photographs) as unhelpful. The defendants challenged the testimony of Katharine Sweeney, a master mariner who works as a marine consultant, with respect to gangway design, human factors analysis in connection with the handrails and their role in Brown’s fall, what a longshore worker would notice, and the role of slip resistance in the fall. Magistrate Judge Ray agreed that Sweeney’s opinion with respect to the design of the gangway should be excluded because her expertise on use and repair of gangways did not qualify her to testify about design or manufacture. Likewise, Magistrate Judge Ray excluded the opinions of Sweeney about what longshore workers would have or should have noticed about the condition of the gangway as they are suitable for opinion of experts in human factors engineering, not a master mariner. In contrast to Crosson’s opinion, Sweeney’s opinion regarding slip resistance was excluded because she did not show qualifications or sound methodology to address a difference in slip resistance from the top to the bottom of the gangway as a cause of the fall. Magistrate Judge Ray did allow Sweeney’s opinion that the crew should have been more attentive to the design and wear of the gangway because of the risk of surges to the vessel while it is in port; however, he excluded Sweeney’s opinion on the duties of the vessel defendants with respect to control of the gangway as those duties are governed by Scindia. Brown objected to the opinions of Marc A. Fazioli, a marine surveyor retained by the defendants, who opined on the open and obvious condition of the gangway and the responsibilities of the longshore worker, the stevedore, and the vessel defendants. Magistrate Judge Ray rejected the objection to Fazioli’s qualifications, noting his work as a master of two types of vessels and teaching marine safety at Texas A&M University. Magistrate Judge Ray also denied the objection to the reliability of Fazioli’s opinions with respect to the responsibility of the longshore workers/stevedore and with respect to Brown’s descending the gangway in an uncontrolled manner, reasoning that Fazioli “inspected the documented evidence of Plaintiff’s fall and the circumstances surrounding the incident and relied on his personal knowledge of the maritime industry’s customs to arrive at his opinions.” Brown objected to Fazioli’s opinions with respect to the obligations of the stevedoring company for the gangway on the ground that the opinions were improper legal conclusions that contradicted legal principles establishing that the vessel is responsible for the gangway. Magistrate Judge Ray disagreed that gangways are under the control of the vessel as a matter of law, and he allowed the testimony with the caveat that Fazioli could testify as to practices normally followed by the longshore workers, but he could not give legal conclusions or instruct the jury on legal requirements of statutes and regulations. Finally, Magistrate Judge Ray excluded the testimony that the vessel passed inspection a month after the accident, as the gangway could have been in a significantly different condition at that time. Brown objected to the exclusion of opinions of Crosson and Sweeney, but Judge Wood denied the objections and affirmed the decision of Magistrate Judge Ray. See August 2025 Update.
The defendants moved for summary judgment that they did not violate the Scindia duties. Brown argued that he presented an exception to Scindia when a “contract provision, positive law, or custom” imposes a “general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations.” The defendants argued that Brown’s claims with respect to the gangway were a design defect claim that amounted to an unseaworthiness claim that was abolished by the 1972 Amendments to the LHWCA. Judge Wood was not impressed by either argument. She rejected the defendants’ argument based on the negligence characterization of the accident, stating that Brown attributed his fall to the degree of wear of the gangway steps and the failure to keep the rope handline taut, which sounded in negligence. The defendants did not dispute that it is customary for a crewmember to monitor the gangway, but Judge Wood did not believe that a policy of having a gangway watchman imposed a general duty of supervision and inspection, stating: “Mere observation of the gangway does not create a general duty of inspection and supervision because to hold as much would ‘saddle the shipowner with precisely the sort of nondelegable duty that Congress sought to eliminate by amending section 905(b).’” The presence of the gangway watchman was relevant to the examination of the three Scindia duties. The defendants cited authority that a slick, wet deck without a non-skid surface is not a latent defect for an experienced stevedore, but Judge Wood answered that Brown was complaining about the wear of the lower stairs compared to the upper stairs. The defendants argued that it was light outside at the time of the accident and that Brown had ascended the gangway without noticing the condition; however, Brown submitted a declaration from a longshore worker behind Brown at the time of the accident that the condition was not obvious to him until he made a close inspection after the fact. The defendants also asserted that the gangway could have been safely traversed by a reasonably competent longshore worker, claiming that Brown was running or jogging down the gangway; and videos showed Brown moving quickly. However, the videos and testimony of other workers reflected that Brown was moving at the same rate as the others and presented a fact question whether the gangway could have been safely traversed. As there were disputes about the condition of the tread and whether that condition was latent, Judge Wood declined to grant summary judgment on the turnover duty. With respect to the active control duty, the only dangerous condition at issue was the tautness of the rope handline because the evidence did not demonstrate that it was loose at turnover. Judge Wood found that there was an issue whether the duty was owed because the vessel crew had control of the gangway, but that did not mean that the duty was breached. The location where Brown fell was at the bottom of the gangway, and the witness testified that, as Brown fell, he grabbed for the rope, but it was too loose to support him. The watchman was at the top of the gangway, and there was no evidence when the rope became loose or how long it remained loose. In the absence of constructive knowledge of the dangerous condition, Judge Wood granted summary judgment on the active control duty. Similarly, Judge Wood granted summary judgment on the duty to intervene (the fact that there was a watchman “does not mean that the watchman or any member of the vessel’s crew observed the loose rope handline”). See September 2025 Update.
The defendants asked Judge Wood to reconsider the portion of her decision addressing the causation element for the claimed breach of the turnover duty. They argued that Brown had not produced non-speculative evidence of his “worn tread” theory of causation and that the only evidence was that it was the design of the steps that caused the slippery condition. The defendants emphasized that there was no evidence that the handline had become loose or that the crew was aware of the condition, but Judge Wood explained that the failed claim with respect to the handline did not “erode the causal link between the worn tread and the fall.” With respect to the worn tread, the defendants cited the inability of Brown to identify the cause of his fall, and the opinion of Brown’s expert that wear likely did not cause the fall and that Brown likely did not put his foot on the purportedly worn spot. However, Judge Wood cited the cargo and safety checklist, stating that the tread was “worn on bottom 5 steps,” the testimony of a witness who stated that Brown’s foot hit “overly worn treads,” causing him to fall, the video of the fall, and photographs reflecting the worn tread. She concluded that there was sufficient evidence from which a reasonable jury could find that the worn treads, which existed at turnover, factually and proximately caused Brown’s injuries.
State lawsuit seeking to recover against shipyards for death of shipyard worker from mesothelioma, that was amended after removal to federal court to add a maritime claim, gave the federal court jurisdiction and the government contractor defense was no longer necessary to avoid remand; Judge excluded expert opinions on the shipyard worker’s asbestos exposure and granted summary judgment to the shipyards; Johnson v. Air & Liquid Systems Corp., No. 2:24-cv-491, 2026 U.S. Dist. LEXIS 14112 (W.D. Wash. Jan. 26, 2026) (King).
Lonnie Stubblefield, Sr., developed mesothelioma and allegedly died from exposure to asbestos while doing environmental clean-up and working as a ship scaler at various facilities in Washington. Stubblefield’s personal representative brought this suit in state court in King County, Washington, listing seven facilities at which Stubblefield was allegedly exposed to asbestos: Lockheed Shipyard, Todd Shipyard, and Lake Union Drydock in Seattle; Tacoma Boat, ASARCO and Simpson St. Regis in Tacoma, and Weyerhaeuser in Snoqualmie. After the parties exchanged discovery, Puget Sound Commerce Center (PSCC), successor to Todd Shipyard, removed the case to federal court in Washington based on the Federal Officer Removal Statute, asserting that the discovery responses provided the information of exposure to asbestos while Stubblefield was working on U.S. Navy ships at Todd Shipyard that made the case removable. The plaintiff responded that PSCC was on notice of the government contractor defense, as reflected in the defenses raised by PSCC prior to its removal. Judge King answered that PSCC was entitled to raise an affirmative defense without possessing the information necessary to remove the case based on the Federal Removal Statute. Reviewing the documents exchanged by the parties, Judge King concluded that it was not unequivocally clear that removal was proper until the testimony and declaration of the decedent’s brother, which was within 30 days of the removal. Accordingly, Judge King denied the motion to remand (although he sanctioned PSCC $250 for violating the court’s standing order prohibiting citations in footnotes and its order to remove the footnotes from its response brief). See October 2024 Update.
Two of the shipyards, Lockheed and Puget Sound (Todd), moved for summary judgment, and the plaintiff argued that the court should remand the case because the government contractor defense was not viable. Starting with the challenge to the removal, Judge King noted that the plaintiff had amended her complaint to assert a claim under the court’s admiralty jurisdiction. Explaining that the amended complaint required that jurisdiction be “reviewed anew,” Judge King found that the locality and nexus tests were satisfied. Thus, the court lacked discretion to remand the case even if the basis for jurisdiction was different than the one that triggered removal. The shipyards moved to exclude the opinions of Christopher DePasquale, an industrial hygienist, that Stubblefield suffered exposure to asbestos from his own work and the work of others in his presence. As DePasquale could not sufficiently tie that exposure to the defendants’ shipyards, Judge King excluded those opinions. Judge King also excluded the opinions of Dr. Stephen Haber (board certified in internal medicine and pulmonary diseases), that Stubblefield’s mesothelioma was caused by exposure at the shipyards because his opinions were based on general/abstract propositions about the prevalence of asbestos at shipyards as opposed to quantification of the amount, duration, and frequency of exposure. She also excluded Dr. Haber’s opinion about the cumulative dose of all exposures as a contributing factor to his development of mesothelioma as an impermissible “every exposure” opinion. Applying maritime law, Judge King granted summary judgment to both Lockheed and Todd, concluding that the plaintiff could not offer more than speculative and conclusory allegations regarding the asbestos exposure.
From the state courts
State anti-SLAPP statute barred suit by LHWCA insurer against purported widow of deceased longshore worker, who was divorced at the time of the worker’s death, and her attorneys, seeking to recover the $455,000 in benefits and fees paid by the LHWCA insurer; Homeport Insurance v. McRae, No. A172243, 2025 Cal. App. Unpub. LEXIS 8440 (Cal. App. 1st Dist. Dec. 31, 2025) (Brown).
Veronica McRae filed a claim under the LHWCA against the Port of Oakland and Homeport Insurance, alleging that her husband passed away from an injury during his employment at the Port. The parties settled the case in a mediation, and a Section 8(i) settlement agreement was approved by an administrative law judge with a payment of $425,000 to Veronica and $30,000 to Veronica’s attorneys (a total of $455,000). Nine months later, the decedent’s daughter informed Homeport Insurance that her father was not married to Veronica at the time of his death. Homeport’s investigation revealed that Veronica and the decedent were divorced in 2010 and that Veronica had been unsuccessful in setting aside the judgment in 2022. Homeport filed a motion with the Department of Labor to set aside the order of the ALJ approving the settlement and also filed suit in the Superior Court of Alameda County, California against Veronica and her attorneys for conversion, imposition of a constructive trust, unjust enrichment, and declaratory and injunctive relief. Homeport also alleged fraud against Veronica. Veronica and her attorneys moved to dismiss the suit based on California’s anti-SLAPP statute. The lower court granted the motion, finding that the complaint arose from protected activity and that Homeport failed to show a probability of prevailing on the merits. Homeport appealed, arguing that the statute did not apply because the defendants’ activity was illegal as a matter of law. Homeport cited Section 31(a) of the LHWCA, which criminalizes the making of a knowing and willful false statement or representation by a claimant or claimant’s representative for the purpose of obtaining benefits under the Act. Presiding Justice Brown answered that Homeport did not establish that the defendants knowingly and willfully made false representations, and she rejected the illegality argument. Homeport also argued that its claims had merit, but it failed to explain why the litigation privilege did not operate as a complete bar to its claims. Therefore, the court of appeals affirmed the dismissal of the suit and remanded the case for the lower court to consider the request of the defendants for attorney fees under the anti-SLAPP statute.
Court of appeal reversed judgment in favor of longshore worker against the Port for failure to follow state procedure with respect to entry of judgments; Finney v. Board of Commissioners of the Port of New Orleans, No. 2025-CA-0423, 2026 La. App. LEXIS 11 (La. App. 4 Cir. Jan. 7, 2026) (Morial).
Darre Finney was working as a gantry crane operator for Ports America at the Nashville Avenue Terminal in the Port of New Orleans, assisting in the loading of the M/V CMA CGB BIANCA, when the ship allegedly hit the dock during a storm and Finney was injured. Finney (together with Glenda Marie Smith) brought this suit in state court in Orleans Parish against the Port, the vessel (by serving the Secretary of State), and the vessel owner (Teucarrier). The vessel and its owner removed the case to federal court in New Orleans, alleging that the federal court had exclusive admiralty jurisdiction under Section 1333 because of the in rem claim. Finney voluntarily dismissed the in rem claim and moved to remand the case to state court. The vessel owner moved to consolidate the removed case with a pending federal case in which the Port brought suit against the vessel, and opposed remand on the ground that jurisdiction is determined at the time of the removal. Chief Judge Brown first addressed the removal of the in rem claim and held that the 2011 Amendments to the Removal Statute made in rem claims removable without regard to citizenship, but that they did not make in personam claims removable (reasoning that in rem claims are civil actions over which the federal courts have original jurisdiction and that the Saving-to-Suitors Clause only applies to in personam claims). With that distinction, she followed the transformation theory that the in personam action (but not the in rem action) is transformed into a civil action and not an admiralty action, so there is no original admiralty jurisdiction over the action in federal court and it is not removable based on the federal court’s admiralty jurisdiction. Thus, Chief Judge Brown viewed the case as presenting a removable claim and a non-removable claim, and the Removal Statute permits jurisdiction over the non-removable claim as long as it is joined with a claim based on federal question jurisdiction (admiralty claims are not federal questions). Reasoning that the only basis for retention of the in personam claim was supplemental jurisdiction, Chief Judge Brown held that supplemental jurisdiction was not a basis for removal and that, even if it were, she would exercise her discretion to remand the case as there were no remaining claims over which the district court had original jurisdiction as the district court did not have original jurisdiction over the in personam admiralty claims. [Of course, the transformation theory used to support remand of admiralty suits brought in state court contradicts the Supreme Court in Romero: “All suits involving maritime claims, regardless of the remedy sought, are cases of admiralty and maritime jurisdiction within the meaning of Article III whether they are asserted in the federal courts or, under the saving clause, in the state courts.”]. Accordingly, although the in rem claim was removable, Chief Judge Brown held that the in personam claim was not removable and remanded it to state court. See January 2022 Update.
In state court, Finney and the vessel owner entered into a Mary Carter agreement in which Finney’s claims against the vessel owner were resolved and the parties jointly prosecuted the Port. Judge Sheppard then held a bench trial and rendered judgment for Finney and Smith against the Port and vessel owner in the amount of $3,142,111.08, assessing fault at 65% to the Port and 35% to the vessel owner. The Port objected on several grounds, including that the judgment did not address Smith’s claim for loss of consortium. The second judgment found damages for Finney in the total amount of $3,087,561.08 and for Smith in the amount of $100,000 for loss of consortium, and it continued to assess 65% of the fault to the Port and 35% to the vessel owner. The Port appealed, raising both procedural and substantive objections, but the Court of Appeal resolved the appeal by holding that the second judgment was an “absolute nullity” because it was entered in violation of Louisiana procedure to amend a judgment. The appellate court also held that the original judgment was deficient because Judge Sheppard did not make specific findings of fact, regardless of whether requested by a party. The Court of Appeal remanded the case for entry of a judgment consistent with Louisiana statutes.
Employer of excavator operator on barge being used to repair the fender system of a bridge was not liable in its capacity as vessel owner/operator, under Section 5(b) of the LHWCA, for injuries sustained by the operator in a fall from a bent step on the excavator or for his fall while jumping from a pile cap on the dock to shore; Cannon v. H&L Contracting, LLC, No. 2021-07187, 2026 NY App. Div. LEXIS 312 (N.Y. App. Div. 2d Dept. Jan. 21, 2026) (per curiam).
James Cannon was employed by H&L Contracting on a project to repair the fender system of the Whitestone Bridge in New York. He operated an excavator located on H&L Contracting’s barge on the Flushing River. He sustained one injury when he slipped from a bent step on the excavator into an uncovered hole of a crane mat on the barge. Cannon sustained a second injury on the last day of the project while departing the barge. On prior days, a boat transferred the crew via a floating dock that was connected to land by a gangway. On the final day, the floating dock was not present, and a tug pushed the barge to a concrete pile cap. Cannon disembarked onto the pile cap and fell in a gap between the pile cap and shore. He brought this suit against H&L Contracting in the Supreme Court of Queens County, New York, and H&L Contracting and Cannon filed cross-motions for summary judgment. Judge Dufficy denied both motions, and H&L Contracting appealed. The Appellate Division began by explaining that Cannon’s exclusive remedy against H&L Contracting was pursuant to the LHWCA, which permits, in Section 5(b), a negligent action against his employer in the capacity as vessel owner/operator but not as employer. H&L Contracting argued that liability for the first accident was based on its responsibilities as Cannon’s employer, and the Appellate Division agreed that Cannon failed to raise a triable issue of fact that there was liability as vessel owner/operator. Accordingly, the appellate court held that Judge Dufficy should have granted summary judgment to H&L Contracting with respect to the first accident. Turning to the second accident, the Appellate Division reasoned that access between a dock and a vessel is considered an appurtenance of the vessel, but piers and docks are extensions of land. As Cannon was injured while jumping from the pile cap (part of the pier) onto the land, H&L Contracting was not liable in the capacity as vessel owner. Thus, Judge Dufficy should have granted summary judgment to H&L Contracting with respect to the second injury. Thanks to John F. Karpousis, Managing Partner of Freehill Hogan & Mahar LLP, for bringing this decision to our attention.
And on the maritime front . . .
From the federal appellate courts
Ninth Circuit agreed that the judicially created discretionary function exception barred the claims brought against the Coast Guard under the Suits in Admiralty Act arising from the fire on the CONCEPTION; Fiedler v. United States, No. 24-5064, 2026 U.S. App. LEXIS 3033 (9th Cir. Jan. 30, 2026) (Owens).
This decision involves the important issue of the continued application of the discretionary function exception in actions brought under the Suits in Admiralty Act and Public Vessels Act in the context of the tragic fire on the CONCEPTION. The application of the discretionary function exception was recently considered (see November 2025 Update) when the full Eleventh Circuit declined a request for initial hearing en banc in litigation arising from an allision of a vessel and a duck blind in Lake Guntersville, Alabama. Chief Judge Pryor reasoned that the SIAA contains no language that “even remotely suggests that” the waiver of sovereign immunity in the statute “is subject to a discretionary function exception.” See Jones v. United States, No. 25-10547, 2025 U.S. App. LEXIS 26828 (11th Cir. Oct. 15, 2025).
The Update has discussed cases involving limitation of the owner’s liability and the criminal liability of the captain in connection with the fire on the CONCEPTION (moored off Santa Cruz Island) in 2019 that resulted in the deaths of 34 people (see August 2021, December 2023, and May 2024 Updates). The Update has also discussed the application of the discretionary function exception to the liability of the United States in the September 2024 Update in Fiedler v. United States, in which the personal representatives of the decedents brought an action in federal court in California against the United States, pursuant to the Suits in Admiralty Act, alleging that the Coast Guard was negligent in inspecting and certifying the CONCEPTION. The United States pleaded the discretionary function defense in its motion to dismiss, arguing that the court lacked jurisdiction over the claims. The plaintiffs alleged that, seven months before the fire, the CONCEPTION underwent an annual inspection and hull inspection while the vessel was in dry dock. The Coast Guard allowed the vessel to continue operating without requiring the vessel to repair or replace wiring that the plaintiffs believe contributed to the fire and without identifying plastic trash cans and furnishings as safety hazards. The plaintiffs argued that the applicable regulations imposed mandatory obligations on inspectors; however, Judge Anderson disagreed, answering that the regulations “actually impose obligations on vessel owners and grant to the Coast Guard and its inspectors considerable discretion when conducting vessel inspections.” Judge Anderson concluded that the statutes, regulations, and policies governing the Coast Guard’s inspection of passenger vessels vest the Coast Guard with the type of discretion that satisfies the test enunciated by the Supreme Court for application of the discretionary function exception. Therefore, Judge Anderson dismissed the suit for lack of subject matter jurisdiction.
The plaintiffs also filed suit in state court in Los Angeles County, California, asserting that the fire on the CONCEPTION was a “lithium-fueled fire . . . that had been sparked and/or critically accelerated by thermal runaway involving rechargeable lithium-ion batteries, non-rechargeable lithium batteries, and/or defective electronic devices powered by lithium-ion batteries.” The amended complaint asserted claims against Doe defendants, alleging that they “designed, manufactured, assembled, tested, described, packaged, consigned, distributed, rented, retailed, and sold” the “defective battery powered equipment, lithium batteries, and/or lithium-ion batteries” that were involved in the fire. Due to the fungible nature of the equipment and the state of the evidence, the plaintiffs alleged a “market share” claim to prove that the Doe defendants’ products were a cause of the harm. The plaintiffs argued that if they were unable to prove that a specific defendant’s product was a proximate cause of the loss, then the defendant may still be held liable as a party holding a share of the appropriate product market, specifically the market for lithium-ion batteries. The Doe defendants moved to dismiss the market share allegations as not being sufficient to satisfy the requirements for imposition of market share liability under California law and as inapplicable under federal maritime law. Judge Kuhl agreed that the allegations did fall within the limited cases in which the California courts have allowed recovery based on market share, and she added: “There certainly is no indication that federal maritime law would provide for market share liability under the facts alleged or under facts that Plaintiffs have suggested in briefing they could allege.” Consequently, Judge Kuhl struck the market share allegations. Judge Kuhl disagreed, however, with the Doe defendants that the federal limitation action filed by the owners of the vessel resulted in the state court having no jurisdiction to proceed against the Doe defendants. Judge Kuhl noted that the injunction in the limitation action prohibited the plaintiffs from prosecuting suits as to the owners who filed the limitation action. She added that the plaintiffs had the right to pursue their maritime remedies against the Doe defendants in the California state court pursuant to the Saving-to-Suitors Clause. As there was no order in the federal limitation action that prohibited the suit in state court against the Doe defendants, Judge Kuhl held that the claims could proceed in the state court. See July 2025 Update.
The plaintiffs appealed Judge Anderson’s dismissal of their suit against the United States, arguing first that the discretionary function exception does not apply to the waiver of sovereign immunity in the SIAA, arguing that the Supreme Court’s decision in Thacker v. Tennessee Valley Authority “effectively overruled” the Ninth Circuit’s decision in Earles v. United States (holding that the discretionary function exception in the Federal Tort Claims Act applies in suits under the SIAA). Writing for the majority of the Ninth Circuit, Judge Owens disagreed, stating: “While Thacker brings Earles into question, we cannot say this tension rises to the level of ‘clear irreconcilability.’” Judge Owens distinguished the “more conditional” waiver of sovereign immunity in the SIAA from the sue-and-be-sued clause in the TVA Act, and he also noted the distinction between the TVA, a hybrid entity that “sometimes” resembles a government actor, from the Coast Guard, which is a traditional government actor performing traditional governmental activities. Accordingly, the Ninth Circuit continued to apply the discretionary function exception. Judge Owens then considered whether Judge Anderson correctly applied the discretionary function exception. He acknowledged that vessel inspections are mandatory, but he held that the inspectors have discretion in how to conduct the inspections, concluding: “Because no ‘federal statute, regulation, or policy mandated’ that Coast Guard inspectors identify and correct the plastic trash cans and chairs or any improper electrical wiring, the inspectors’ alleged misfeasance was discretionary.” Finally, Judge Owens explained that the inspections are “textbook discretionary judgments rooted in public policy considerations” because the inspectors are instructed to interpret the regulations “to avoid disruption and undue expense to industry.” Therefore, the Ninth Circuit affirmed the dismissal of the suit against the United States for lack of subject matter jurisdiction. Judge Bumatay dissented, reasoning that the decision in Earles was “wrong” because the court ignored plain text by incorporating the discretionary function exception into the SIAA, violating Congress’s intent and undermining the separation of powers. Finding the analysis in Earls to be irreconcilable with Thacker, Judge Bumatay believed that the panel was not bound to follow it, stating: “The Supreme Court has told us that when it comes to sovereign immunity, text is supreme and Congress’s will trumps our own. We should have listened to the Court’s instructions and recognized that Earles has been effectively overruled.
Fifth Circuit affirmed lien on vessel for bunkers supplied by contractor arranged by charterer’s agent and broker, despite no-lien clause in the charter party; Three Fifty Markets, Ltd. v. ARGOS M M/V, No. 24-30413, 2026 U.S. App. LEXIS 3321 (5th Cir. Feb. 2, 2026) (Douglas).
Three Fifty Markets sold and delivered bunkers to the vessel M/V ARGOS M at the request of AUM Scrap and Metals Trading, alleged to be the charterer of the vessel. AUM Scrap failed to pay for the bunkers, and Three Fifty brought suit against the vessel in federal court in New Orleans, resulting in the arrest of the vessel. Shortly thereafter, PMG Holding, another bunker supplier, filed suit against the vessel in federal court in New Orleans, resulting in another warrant for arrest of the vessel. Three Fifty and PMG Holding moved for interlocutory sale of the vessel after no claim was made, the crew had not been paid, and the costs to supply the arrested vessel were growing. The next claim was filed by ArcelorMittal, whose cargo of steel was aboard the vessel pursuant to a charter of the vessel to transport the steel to Costa Rica. Argos Bulkers finally filed a statement of interest in the vessel, challenging the maritime lien claims of Three Fifty and PMG Holding, and Three Fifty and PMG Holding filed motions for summary judgment seeking enforcement of their lien claims. Judge Fallon found fact questions on the issue of whether the fuel supplied by Three Fifty was purchased by an authorized agent of the vessel, and he denied summary judgment to Three Fifty. In that opinion, Judge Fallon addressed PMG Holding’s motion. PMG Holding argued that it sold the bunkers to AUM Scrap. When Argos Bunkers alleged that the charterer of the vessel was Shimsupa, PMG Holdings claimed that AUM Scrap was the agent of Shimsupa and that PMG Holdings sold the bunkers with the understanding that AUM Scrap had the authority to bind the vessel. Argos argued that although the master accepted delivery of the bunkers and the fuel was consumed by the vessel, no one with actual or apparent authority to bind the vessel purchased the bunkers. The parties did not dispute whether an individual with actual authority purchased the bunkers, and the controversy focused on whether an entity had apparent authority to bind the vessel. PMG Holdings argued that both the charterer (Shimsupa) and its agent (AUM Scrap) had apparent authority because they are majority owned and controlled by the same person and because it is recognized in the industry that AUM Scrap acts as an agent for Shimsupa. Unlike Three Fifty, PMG Holdings produced documents reflecting that the vessel was aware of the bunker sale. Argos responded that Shimsupa was responsible for purchasing the bunkers, but that the bunkers were purchased by AUM Scrap, as reflected in the documents for the sale that listed AUM Scrap as the charterer. Although Judge Fallon found that necessaries were procured for the vessel, there were broken links in the chain of apparent authority. He also found that there were fact issues with respect to the damages. Accordingly, he declined to grant summary judgment to PMG Holdings. See January 2024 Update.
It was then the vessel’s turn to file a motion for summary judgment, arguing that the no-lien clauses in the charter with Shimsupa prevented Three Fifty from enforcing a lien on the vessel. The validity of the lien turned on whether it was reasonable for Three Fifty to believe that AUM Scrap had apparent authority to make the purchase of bunkers on behalf of the vessel. This was the same issue on which Judge Fallon found a fact question on the prior motion for summary judgment, and it continued to present a fact question that precluded summary judgment: “once it’s a question of reasonable[ness], that’s always a question of fact.” Judge Fallon did stress “that germane to resolving whether AUM—or any other entity authorized by the Vessel—made the fuel bunker purchase involves taking a closer look at the past practices between the parties, the customs in the industry, as well as the nature and extent of the charter and its agents’ authority.” See March 2024 Update.
Judge Fallon held a non-jury trial and found that AUM Scrap, which had presumptive authority to bind the vessel, transacted with Three Fifty, through a bunkering service, to purchase the bunkers. The order confirmation contained Three Fifty’s General Terms and Conditions of Sale that “will apply to this contract.” As the terms contained a provision that the laws of the United States, including the Commercial Instruments and Maritime Lien Act, would apply, Judge Fallon did not have to “delve into the ‘thorny inquiry’ of Lauritzen,” and he held that United States law applied (noting that the Fifth Circuit has routinely addressed the providing of bunkers through intermediaries). Turning to whether there was a lien on the vessel, Judge Fallon held that the vessel could overcome the presumptive authority of AUM to purchase the fuel by demonstrating that Three Fifty had actual knowledge of the no-lien clause in the charter party. As the vessel failed to make that showing, Judge Fallon upheld the lien against the vessel. He awarded Three Fifty the amount of the invoice, $629,600, plus prejudgment interest at the applicable state rate (declining to award the contract interest rate of 2% per month as it is greater than the amount necessary to compensate for the loss stemming from the unpaid balance) and custodia legis expenses of $31,530.79 (without interest on the expenses). Judge Fallon also agreed that the issue of attorney fees would be severed and a hearing set to address “the amount of attorneys’ fees to be awarded.” See June 2024 Update.
Three Fifty sought attorney fees of $280,281.75, arguing that Judge Fallon had found that the General Terms and Conditions of Sale governed the matter and that the Terms provided for the buyer to pay the seller attorney fees. Judge Fallon agreed that there is a contract that contains a provision for attorney fees. However, the question presented was whether the contractual provision for attorney fees was applicable to the in rem proceeding. He cited the “multiple courts” that have held that CIMLA liens do not cover all of the terms of the underlying contract, including the provisions for attorney fees, reasoning that in rem actions arise by operation of law and not by contract. Thus, attorney fees could only be recovered if they were necessaries and were provided to the defendant vessel. As the legal services for the collection of a debt were not necessaries for the benefit of the vessel, they were not recoverable in the in rem action despite the provision in the contract. Therefore, Judge Fallon declined to award attorney fees to Three Fifty. See July 2024 Update.
The vessel appealed to the Fifth Circuit, which addressed the governing law before venturing into the issue of whether Judge Fallon properly recognized the maritime lien. Judge Fallon applied United States law to enforce the choice-of-law clause (providing for application of United States law) that was incorporated from Three Fifty’s General Terms and Conditions of Sale. However, this analysis presupposed that American law governed the contract’s formation. Writing for the Fifth Circuit, Judge Douglas stated: “If the choice-of-law provision is not on the face of the contract but separately incorporated, the question becomes whether the terms are ‘validly incorporated into the contract,’ which is answered by the law governing the contract’s formation.” She then considered the factors enunciated by the Supreme Court in Lauritzen, together with additional factors adopted by the Fifth Circuit from the Restatement (Second) of Conflict of Laws to determine the law governing the contract formation. There were six countries whose “hands are in the pot.” Evaluating the factors left Greece and the United Kingdom, but Judge Douglas noted that the court could bypass the question if each country’s laws produced the same result. Judge Douglas explained that the countries view maritime liens differently (the vessel advocated for application of Greek law that does not recognize a lien for the provision of necessaries, such as bunkers); however, diving “deeper into the maelstrom,” Judge Douglas considered whether there was a conflict as to the incorporation of the choice-of-law provision. Concluding that both Greek and UK law allow incorporation when there is clear reference to the document whose terms are incorporated, Judge Douglas found no conflict. As the Order Confirmation stated that the General Terms and Conditions would apply and were available on request, Judge Douglas held that the provision applying American law was incorporated, whether under Greek or UK law. Turning to the question whether Judge Fallon properly enforced a maritime lien, the vessel argued that Three Fifty failed to establish that there was authority to place the order and that Judge Fallon should have applied the Fifth Circuit’s general contractor-subcontractor line of cases “because AUM was Shimsupa’s general contractor and subcontracted the bunkering task down the line through BunkerEx to Three Fifty.” Judge Douglas found sufficient evidence to affirm Judge Fallon’s finding that AUM Scrap had apparent authority to bind Shimsupa, and she then considered the two lines of authority when an entity supplying necessaries to a vessel lacks privity with the owner of the vessel and instead contracts with an intermediary. She explained that the distinction between contractors and subcontractors “makes or breaks the case.” On the one hand, “[G]eneral contractor[s] supplying necessaries on the order of an entity with authority to bind the vessel ha[ve] a maritime lien.” On the other hand, subcontractors are not ‘entitled to one unless they can show ‘that an entity authorized to bind the ship controlled the selection of the subcontractor and/or its performance.’” Judge Douglas did not believe that the facts of this case fit in the general contractor/subcontractor line of cases. Instead, she held that the facts “match” the KEN LUCKY decision from the Ninth Circuit in which the contractual line “runs as follows: entity with statutory authority contracts with another entity to supply necessaries, which then subcontracts with another entity to fulfill that duty.” The general contractor/subcontractor line of cases did not apply “because the subcharterer, which had statutory authority to incur a maritime lien on the vessel, ‘admitted that [the subcontractor] sold the bunkers to [the charterer], pursuant to an order originating from [the subcharterer].’” Judge Douglas considered the KEN LUCKY result to be applicable because the sole party between Three Fifty and AUM Scrap, which made the purchase on behalf of Shimsupa and the vessel, was a fuel broker (BunkerEx) and not “an intermediate entity connecting the other two through a contractual chain.” Affirming the lien, Judge Douglas concluded: “Three Fifty delivered the fuel to the vessel after AUM ordered it on behalf of Shimsupa, which was entitled to bind the vessel.” Although the vessel challenged the reasonableness of the cost of the delivery in light of Three Fifty’s markup (12% that included the broker fee, resulting in a net profit of 10%), citing cases with substantially smaller markups, Judge Douglas did not believe that the cases established a ceiling on reasonableness, and she upheld the amount of the award. Judge Oldham dissented. He considered the issue to be “whether Shimsupa could somehow expose Argos Bulkers’ boat to a maritime lien by signing Three Fifty’s bunker contract.” He explained: “True, under its charterparty with Argos Bulkers, Shimsupa had authority to buy bunders for the ARGOS. (In fact, Shimsupa was obligated to buy bunkers.) But the charterparty also made it very clear that, in purchasing bunkers, Shimsupa was absolutely positively prohibited from doing anything that might expose the ARGOS to a maritime lien. Three Fifty’s contract exposed the ARGOS to a maritime lien. So could Shimsupa expose the ARGOS to a maritime lien by signing the contract?” However, before the court could answer that question, it had to know what law applied to decide the effect of the no-lien provisions in the charter. Instead, Judge Fallon “skipped ahead” to the choice-of-law for the bunker contract, which contained the US choice-of-law provision. Judge Oldham stated that by “glossing over” the choice-of-law issues with respect to the charter, it “put[] the barge before the tug.” He believed that the court should vacate the judgment and remand the case for Judge Fallon to conduct a proper choice-of-law inquiry to determine the effect of the charter between Argos and Shimsupa on the bunker-supply contract between Shimsupa and Three Fifty.
Fifth Circuit affirmed that a contract to perform fire watch services on an offshore platform was not maritime in connection with the pass-through indemnity sought by the owner of the lift boat whose leg punched through the seabed, causing an injury to an employee of the fire-watch contractor on the lift boat (both parties to the contract must expect that a vessel will play a substantial role in the performance of the contract); In re Aries Marine Corp., No. 25-30010, 2026 U.S. App. LEXIS 3962 (5th Cir. Feb. 9, 2026) (Graves).
Aries Marine owned the liftboat RAM XVIII, which was sent to house workers who were working on a platform in the West Delta region of the outer Continental Shelf of the Gulf of America off the coast of Louisiana (the workers were employed by Fluid Crane and United Fire). The vessel jacked up, and a construction crew worked until the next day when the vessel began to list and sank. Aries filed a limitation action in federal court in Louisiana, and seven workers on the rig filed claims against Aries under Section 5(b) of the LHWCA. Aries moved for summary judgment that it was entitled to exoneration of liability or, alternatively, limitation of liability. Judge Africk found a fact dispute whether the captain of the liftboat performed a preload before jacking up to ensure that the leg pads for the vessel were on stable ground and would not punch through the seabed. If the preload was not performed, Judge Africk concluded that the failure would constitute negligence under the vessel’s active control, in violation of the duty enunciated by the Supreme Court in the Scindia case. Turning to the limitation issue, Judge Africk noted that with respect to seagoing vessels, the privity or knowledge of the master at or before the beginning of the voyage is imputed to the owner. Aries did not dispute that the liftboat was a seagoing vessel (the accident did occur on the outer Continental Shelf more than 12 nautical miles from the coast). Thus, to the extent there was negligence of the captain before the voyage, it would be imputed to the owner. Judge Africk also cited evidence that the owner allegedly provided an unqualified captain whom it had failed to adequately train, and he declined to grant summary judgment as to limitation of liability. The vessel owner also moved to dismiss the punitive damage claims brought against it under Section 5(b) of the LHWCA on the ground that punitive damages are only recoverable against a third-party tortfeasor by a longshore worker who is injured in state territorial waters (and for lack of evidence of willful and wanton conduct). Judge Africk noted that the Fifth Circuit has not decided the question of whether punitive damages may be recoverable under Section 5(b), and he declined to grant summary judgment on the punitive damage claim. See February 2023 Update.
Fugro USA was hired to assist in positioning the liftboat by providing GPS positioning and performing a sonar scan for debris or obstructions on the sea floor. It provided plats that showed where prior vessels had been placed in the area, but the images Fugro provided only showed the impressions left by vessels that Fugro had helped to position. Therefore, it was possible that there were holes and impressions in the area that were not reflected in the data provided by Fugro to Aries. Fugro moved for summary judgment on the negligence claims asserted against it, noting that the claimants had placed the blame for the listing of the liftboat on Aries’ captain’s failure to conduct a preload (or on the conducting of an improper preload). In response to Fugro’s motion for summary judgment, the claimants argued that Fugro owed them a duty to advise the captain that there could be additional can holes in the area, that there were dark spots on the sonar images that might be additional can holes, and to exercise stop work authority when one leg of the liftboat penetrated deeper than had been expected. Judge Africk assumed for the motion that Fugro had a duty, but he could not find causation for any of the alleged failures, reasoning that, ultimately, the accident occurred because, as the claimants alleged, the captain failed to properly preload the vessel. The claimants’ expert confirmed that when the failure of the vessel occurs after the preloading, the preload was not adequate. As the preloading was not the responsibility of Fugro, Judge Africk dismissed the claims against Fugro.
Fieldwood, the owner of the platform, chartered the liftboat to provide worker housing in support of operations taking place on its platform. Fieldwood moved for summary judgment on the injury claims on the ground that, as the time charterer, it had no control over the vessel and assumed no liability for the negligence of the crew. Judge Africk noted that time charterers owe a “hybrid duty” arising from contract and tort to avoid negligent actions within the sphere of activity over which they exercise at least partial control. He added that a time charterer may be liable for directing the vessel to encounter natural hazards, such as dangerous weather or sea conditions. The claimants argued that Fieldwood was negligent by directing the liftboat to be positioned on the east side of the platform when it knew the conditions were hazardous and by limiting the scope of the marine surveyor (Fugro) to not include geo-technical data. As the claimants’ expert opined that it was likely that either soil samples existed for the location or that penetrations were known by Fieldwood, which, if credited, would permit a finding that Fieldwood had notice of the hazardous conditions and contributed to the failure, Judge Africk denied summary judgment to Fieldwood.
Judge Africk then considered the contracts between the parties for their indemnity obligations. Fieldwood entered into Master Service Contracts with both Fluid Crane and United Fire (employers of the claimants) by which Fluid Crane and United Fire agreed to indemnify Fieldwood for injuries to employees of Fluid Crane and United Fire. The indemnity extended to Fieldwood’s contractors (such as Fugro and Aries) if they entered into contracts with Fieldwood to extend indemnity (for injuries to their employees) to subcontractors of Fieldwood (such as Fluid Crane and United Fire). Fieldwood and Fugro entered into a Master Service Contract by which Fugro agreed to provide similar indemnity to Fieldwood and its contractors. Likewise, Fieldwood and Aries entered into a Master Service Contract by which Aries agreed to provide similar indemnity to Fieldwood and its contractors. Therefore, the contracts between Fieldwood, on the one hand, and Aries, Fugro, Fluid Crane, and United Fire, on the other hand, contained provisions by which each party agreed to indemnify the others for injuries to its own employees. Consequently, Fluid Crane and United Fire were obligated to indemnify Fieldwood, Aries, and Fugro for the claims brought by the employees of Fluid Crane and United Fire if the indemnity provisions were valid under applicable law (as Aries explained, “the cross-indemnity provisions in Fieldwood’s contracts with United Fire and Aries serve to “cut[] Fieldwood out of the equation,” and the contractors may seek indemnity from each other). The validity required a determination of whether Louisiana law or maritime law applied. If maritime law applied, the agreements were valid. If Louisiana law applied, the indemnity was invalidated by the Louisiana Oilfield Indemnity Act. Judge Africk applied the requirement from the Fifth Circuit’s Doiron case (whether the contract provided or the parties expected that a vessel would play a substantial role in the performance of the contract) to determine whether the contracts were maritime or not. The contracts at issue were the contracts between Fieldwood and Fluid Crane and United Fire to perform work on Fieldwood’s platform. Although Aries and Fugro were involved with the role of the liftboat, that expectation was not relevant to the contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk distinguished cases in which the contract documents provided for the use of a vessel. In this case, “Aries and Fugro may have expected the vessel to play a substantial role in the completion of the work, but the same cannot be said of Fluid Crane and United Fire.” Therefore, Judge Africk concluded that Louisiana law applied, and he denied indemnity from Fluid Crane and United Fire to Aries and Fugro. He did not, however, hold that the LOIA invalidated the requirement for payment of defense costs when the indemnitee was found to be free from fault. Thus, if Aries were ultimately found free from fault, it would be entitled to reimbursement of its defense costs. Judge Africk had granted summary judgment on liability in favor of Fugro, so Fugro was entitled to recover its defense costs. Fluid Crane requested that Judge Africk order the defense costs be split evenly between Fluid Crane and United Fire, despite the fact that only one of the seven claimants was an employee of United Fire. Judge Africk agreed that, under Louisiana law, the defense obligation was incapable of division. Therefore, he ordered that the defense obligation be divided in equal portions between Fluid Crane and United Fire. See March 2023 Update).
One of the workers employed by Fluid Crane, Gilberto Gomez Rozas, was an undocumented immigrant who was not authorized to work in the United States. During his deposition and in discovery, Rozas repeatedly invoked the protection against self-incrimination in the Fifth Amendment, refusing to answer questions related to his citizenship and personal history. Aries argued that his claim should be dismissed with prejudice because Rozas had perpetrated a fraud on the court (and to deter future parties from similar conduct). In the alternative, Aries sought a sanction that Rozas be precluded from recovering past and future lost earnings at United States’ wage rates. Judge Africk reasoned that the party invoking the Fifth Amendment cannot hope to gain an unequal advantage against the party he has chosen to sue and that the defendant should not be required to defend against a party who refuses to reveal the very information that might absolve the defendant of liability. The Fifth Circuit has enunciated a balancing test that dismissal is appropriate only when less burdensome remedies would be an ineffective means of preventing unfairness to the defendant. In this case, Rozas did not commit perjury or provide false documents, but his invocation of the Fifth Amendment during depositions and discovery impeded Aries’ ability to investigate the claim for damages. Consequently, Judge Africk decided that the lesser sanction of precluding Rozas from seeking future wage loss awards at United States’ rates was the appropriate sanction. With respect to past wage loss, Rozas testified that he had not been working, and it had been four years since he prepared tax returns. The parties did not brief the issue of extending the sanction to past wage losses, so Judge Africk did not address the issue of past wage losses at this time. See April 2023 Update.
Aries moved for reconsideration of the decision on the contractual allocations involving Aries, Fugro Marine, United Fire, and Fluid Crane that was discussed in the March 2023 Update. Aries, Fugro, United Fire, and Fluid Crane were parties to contracts with Fieldwood that contained indemnity provisions that were enforceable under the general maritime law but that were unenforceable under Louisiana law. Applying the Fifth Circuit’s Doiron test, Judge Africk held that the contracts with United Fire and Fluid Crane were not maritime because there was no evidence that United Fire and Fluid Crane expected the vessel RAM XVIII would play a substantial role in the completion of the contract. Aries asked Judge Africk to reconsider that decision, arguing that Judge Africk erred by not considering Fieldwood’s expectations as to the use of the RAM XVIII. Judge Africk agreed that the expectations of Fieldwood were relevant (as it was a party to each of the contracts), but he answered that Aries did not cite any authority that the expectations of one party could establish that the parties expected that a vessel would play a substantial role. Thus, further discussion of Fieldwood’s expectations would not have changed the court’s analysis. Aries also argued that Judge Africk had added a third prong to the Doiron test—"did the vessel in fact play a substantial role in the completion of the contract?” Judge Africk disagreed, stating that the decision was based on the expectations of the parties and not on the use of the vessel (he noted that the actual use was only relevant, according to Doiron, when the parties’ expectations were unclear). Consequently, Judge Africk denied Aries’ motion for reconsideration. See June 2023 Update.
United Fire also sought reconsideration of Judge Africk’s decision to divide the defense costs equally between United Fire and Fluid Crane despite the fact that six of the seven claimants were employees of Fluid Crane and only one was an employee of United Fire. United Fire cited an opinion from Judge Vance of the United States District Court for the Eastern District of Louisiana that, absent a clear agreement to the contrary, insurers who owe a co-equal duty to defend must share the cost equally. However, United Fire did not identify any portion of the contracts that constituted a “clear agreement” to share defense costs in an unequal proportion, so Judge Africk held that relief was not available for arguments that had been previously considered and rejected (Judge Africk was not impressed with the analogy to seven individuals who had dinner together and split the bill for the appetizer so that each paid 6/7 of the cost, reasoning that defense costs “cannot be divided amount the claimants in the same manner that an appetizer would be shared among diners”).
As Fluid Crane and United Fire were the employers of the workers who were injured when the RAM XVIII capsized in the Gulf of America, their LHWCA carriers (American Longshore Mutual Association and the Louisiana Workers’ Compensation Corp.) paid benefits under the LHWCA for their injuries. ALMA and LWCC then brought subrogation claims to recover the benefits paid from the defendants. Fieldwood, Aries, and the plaintiffs moved for summary judgment, arguing that ALMA and LWCC had agreed to waive their rights of subrogation pursuant to the terms of the Master Services Contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk noted that the policies provided for waiver of subrogation when required by written contract, so he considered the requirements of the underlying contracts. The waiver in the MSCs extended to the “Company Group,” which was defined to include Fieldwood and its “invitees.” ALMA and LWCC argued, however, that Aries and the plaintiffs also fell under the definition of “third Party Contractor Group,” which would render the language of the indemnity and insurance sections of the contracts superfluous because all parties and contractors/subcontractors would be members of the Company Group. Fieldwood answered that there was no prohibition against an invitee satisfying another definition in the contract and that this interpretation would not lead to circular indemnity or absurd results. Therefore, Judge Africk addressed whether Aries and the claimants were, in fact, invitees, citing Louisiana law that defines an invitee as a person who goes onto premises with the expressed or implied invitation of the occupant on business of the occupant or for their mutual advantage. Fieldwood argued that it was the occupant of the platform (one who has possessory rights in, or control over, certain property or premises) and the RAM XVIII (a time charterer is an occupant of the vessel because the vessel is under the ultimate direction, control, and command of the time charterer). It also argued that Fluid Crane and United Fire were invited by Fieldwood to the platform to work by their contracts and that they, and their employees, who performed the work that benefited Fieldwood, were, therefore, invitees. Judge Africk agreed that the employees of Fluid Crane and United Fire were invitees of Fieldwood and that LWCC and ALMA were required to waive subrogation in favor of the claimants. With respect to Aries, Fieldwood argued that the RAM XVIII, owned by Aries, was invited to erect itself within the boundaries of Fieldwood’s mineral lease to assist in the platform work, so Aries qualified as an invitee. Although Aries argued that no employee of Aries ever stepped foot on the platform, it did not dispute that the vessel was attached to the platform via a walkway and that its presence benefited Fieldwood. Having concluded that Aries and the workers were invitees so that subrogation was waived, Judge Africk considered the validity of the waiver under Louisiana state law, which he had previously held was applicable to the contracts so as to invalidate the indemnity provisions. Citing the Fontenot decision from the Louisiana Supreme Court, Judge Africk noted that a waiver of subrogation provision does not violate the Louisiana Oilfield Indemnity Act if the contract does not also require indemnity. As there was unenforceable indemnity in this case, Judge Africk held that the statute did not void the waiver of subrogation (there was no evidence of payment for a “Marcel” Endorsement that would create an exception to the LOIA). Consequently, the subrogation claims of ALMA and LWCC were dismissed. See July 2023 Update.
ALMA and LWCC filed motions for reconsideration of the granting of Fieldwood’s motion for summary judgment on their subrogation claims as LHWCA carriers. LWCC argued that, notwithstanding the waiver of subrogation, it had a claim for an offset, pursuant to Section 33(f) for the net tort recovery of plaintiff Glenn Gibson. Fieldwood did not disagree with the legal proposition asserted by LWCC, but it argued that LWCC had insufficiently raised the argument in a single paragraph in its opposition with no citation to facts or legal authority, resulting in waiver of the contention. Judge Africk agreed that “LWCC’s briefing on this issue was less than clear;” however, he acknowledged that dismissal of the claim for an offset would be “legal error.” Therefore, he amended the granting of summary judgment to reflect that the order did not affect LWCC’s claim for an offset pursuant to Section 33(f). ALMA moved for reconsideration, arguing that it was not conclusively established that the vessel was attached to the platform via a walkway and that Aries did not meet the definition of an “invitee” under applicable precedent. Judge Africk, however, did not believe that the arguments were sufficient to grant reconsideration, and he denied them. Like LWCC, ALMA argued that it retained the right to claim an offset pursuant to Section 33(f). Fieldwood reiterated the argument that ALMA’s claim was waived, but, as Fieldwood did not contest the legal basis for the argument, Judge Africk granted the same relief to ALMA--that it retained the right to assert an offset against the LHWCA claim pursuant to section 33(f). See September 2023 Update.
ALMA appealed the dismissal of its intervention to the Fifth Circuit, presenting these issues:
- Whether Aries Marine is an “invitee” of Fieldwood within the definition of the “Company Group” in the applicable Master Services Contract when there is a genuine issue of material fact as to whether Aries Marine physically entered a premises controlled by Fieldwood?
- Whether the Fluid Crane Claimants qualify as “invitees” of Fieldwood within the definition of “Company Group” in the applicable Master Services Contract despite also qualifying as members of the “Contractor Group”?
- Whether the applicable Master Services Contract and ALMA insurance policy included an obligation on the part of Fluid Crane (Employer) and ALMA (Insurer) to waive subrogation in favor of Fieldwood, Aries Marine, and the Fluid Crane Claimants?
- Whether the Louisiana Oilfield Indemnity Act invalidates any purported waiver of subrogation in favor of the Fieldwood Group?
After hearing oral argument, the Fifth Circuit affirmed (without a written opinion) Judge Africk’s decision that the waiver of subrogation was not invalidated. See May 2024 Update.
Back in the district court, Aries filed a second motion for reconsideration of Judge Africk’s order granting in part and denying in part the motions for summary judgment filed by Aries, Fugro, United Fire, and Fluid Crane (holding that United Fire and Fluid Crane do not owe Aries contractual indemnity for the claims brought by Fluid Crane and United Fire employees because the indemnity provisions are unenforceable under Louisiana law). Aries asked the court to reconsider the conclusion on the ground that the decision of the Fifth Circuit in Earnest v. Palfinger was an intervening change in controlling law that confirmed that the contracts were maritime and that the indemnity provisions are valid under maritime law [an argument that was unsuccessfully made in the Offshore Oil Services case that is discussed in the November 2024 Update]. Aries argued that courts should employ a conceptual rather than a spatial analysis, (2) that courts should focus on what is considered “classically maritime” in evaluating the role of a vessel under a Doiron analysis, and (3) that the location of the work being performed under a contract is inconsequential under Doiron. Judge Long first noted that Judge Africk’s order was interlocutory and that, under Rule 54(b), Judge Long had the authority to revise the decision even in the absence of new evidence or an intervening change in or clarification of the substantive law. He did caution, however, that successor judges should “carefully and respectfully consider the conclusions of prior judges before deciding to overturn them.” Nonetheless, Judge Long was not persuaded that he should alter Judge Africk’s ruling. He did not believe that the panel’s ruling in Earnest had changed the en banc ruling in Doiron that was applied by Judge Africk, and he added that any clarification of Doiron would not compel a conclusion that the contracts in this case are maritime. Judge Long explained that Judge Africk’s ruling correctly concentrated “on the contracting parties’ expectations.” The rulings did not rest on where the work was conducted, and there was no indication that Judge Africk would have reached a different result if he had considered what was “classically maritime” in evaluating the role of the vessel. As Judge Long was not convinced that the analysis in Earnest would have caused Judge Africk to conclude that the contracts were maritime, Judge Long declined to reconsider the ruling that the indemnity was invalid under Louisiana law. See December 2024 Update.
Aries moved for summary judgment on two of the claimants’ theories of liability, arguing that Aries’ positioning of the RAM XVIII did not cause the liftboat to capsize (based on Judge Africk’s decision granting Fugro’s motion for summary judgment) and arguing that the claimants could not invoke res ipsa loquitur to support their negligence claim because Aries did not have exclusive control over the seabed, which Aries argued was the instrumentality that caused the injuries. Judge Long disagreed with both of Aries’ assertions. He explained that a Fugro surveyor provided Aries with the information that Aries’ captain used to choose the place where to place the liftboat’s legs on the seabed; however, it was the captain who made the “last call” on where to place the liftboat, and he did not perform a preload before jacking up to ensure that the legs would not punch through the seabed. Thus, there could not be issue preclusion or law-of the case because Judge Africk did not decide the same liability issue when he granted summary judgment to Fugro. Turning to the claimants’ pleading of res ipsa loquitur, Aries argued that it did not have exclusive control over the instrumentality that caused the accident—the seabed. The claimants responded that the thing which caused the injury was the liftboat, which was under the control of Aries. As Judge Africk had found a fact question with the failure to conduct a preload, Judge Long reasoned that there was a fact question whether the liftboat was the relevant instrumentality. Therefore, he declined to grant summary judgment to Aries on the theory of res ipsa loquitur.
Judge Long then addressed the motions filed by Fieldwood, charterer of the liftboat, and Aries (owner of the liftboat) and its insurer, U.S. Specialty, with respect to allocation of responsibility between these parties for the claims brought by the employees of Fieldwood subcontractors Fluid Crane and United Fire—whether Fieldwood must defend and indemnify Aries (and U.S. Specialty) from the personal injury claims. The answer required consideration of the time charter of the liftboat by Fieldwood from Aries, the master services contracts between Fieldwood and Fluid Crane and United Fire, and the policy issued by U.S. Specialty to Aries. The time charter required Aries to procure P&I and excess insurance that named as insureds the Charterer Group (Fieldwood and certain contractors) and to waive subrogation against the Charterer Group. The requirements applied to self-insurance and deductibles. The time charter included subcontractors within the indemnity of Aries and required Fieldwood to execute an agreement with its contractors with cross-indemnity and waiver of subrogation provisions. U.S. Specialty’s insurance policy contained P&I coverage that named Fieldwood as an insured with a waiver of subrogation when required by contract. The master services contracts between Fieldwood and Fluid Crane and United Fire contained cross-indemnity provisions requiring Fluid Crane and United Fire to indemnify Fieldwood’s contractor group (including Aries). The reciprocal cross-indemnification provisions would require Fluid Crane and United Fire to defend and indemnify both Fieldwood and Aries for injuries to the claimants (employees of Fluid Crane and United Fire), except that Judge Africk held that the indemnity was invalid under the LOIA. Aries and U.S. Specialty then sought indemnity from Fieldwood, arguing that the time charter required indemnity from Fieldwood with respect to the injury claims of employees of contractors of Fieldwood. Judge Long applied maritime law to the obligations under the charter party and Louisiana law to the policy issued by U.S. Specialty (citing Fifth Circuit cases that were based on Wilburn Boat). As the time charter required a waiver of subrogation from Aries’ insurers, and as the U.S. Specialty policy contained a waiver when required by contract, Judge Long held that Aries and U.S. Specialty had no rights to pursue Fieldwood. Judge Long then addressed the argument of Aries and U.S. Specialty that Fieldwood could not enforce the waiver of subrogation because Fieldwood breached the time charter by not obtaining valid indemnity from Fluid Crane and United Fire that extended to Aries and U.S. Specialty (as the indemnity was voided by the LOIA). Judge Long disagreed. He agreed that the time charter required the cross-indemnity provisions, but he answered that the time charter did not require that the indemnity provisions be valid. As in the Fifth Circuit’s LeBlanc case, Judge Long concluded: “Had Fieldwood and Aries wished to condition the waiver-of-subrogation and additional-insured provisions of the Time Charter on ‘the legal enforceability of’ the indemnity provisions in the Master Services Contracts, ‘they very easily could have done so.’” Judge Long then addressed the claims of Aries and U.S. Specialty that Fieldwood was required to defend and indemnify them pursuant to the indemnity provisions in the time charter. His analysis with respect to the waiver of subrogation applied similarly to the argument of Aries and U.S. Specialty that Fieldwood was required to indemnify them in the event it failed to obtain cross-indemnity provisions with subcontractors Fluid Crane and United Fire. Fieldwood cited a “thoughtful but nonprecedential” 2006 decision from Judge Fallon of the United States District Court for the Eastern District of Louisiana, which reasoned: one indemnification agreement was not substantially similar to another because the latter agreement was ‘void and unenforceable,’ and ‘a void and unenforceable indemnity agreement is the functional equivalent of no indemnity agreement.’” Judge Long distinguished the language in the contract construed by Judge Fallon, answering that the language in the time charter in this case did not condition the insurance obligations on the enforceability of the indemnity provisions. Finally, Judge Long noted that the indemnity excluded claims that are caused, in whole or in part, by the gross negligence of the Owner Group (Aries and U.S. Specialty). As Judge Africk declined to grant Aries’ motion for summary judgment on the punitive-damage claims against it, Judge Long declined the indemnity sought by Aries and U.S. Specialty for the claims that sought punitive damages. See January 2025 Update.
There was a settlement before the case was set for trial, and Judge Long entered a conditional order of dismissal and directed that any party that contended that it had a live claim requiring further litigation must file a motion to reopen as to that claim. Fluid Crane and American Longshore Mutual Association moved to reopen the case to allow them to litigate their “independent right of subrogation” and Fluid Crane’s Burnside negligence action against Aries Marine. Judge Long denied the motion, holding that the claims were not properly before the court because Fluid Crane and ALMA failed to timely and properly plead them. He noted that Fluid Crane and ALMA pleaded only one subrogation cause of action in their limitation claim, and the pleading did not include a Burnside action or an independent right of subrogation. The claim that was pleaded was denied by the court based on the waiver of subrogation, and the Fifth Circuit affirmed that decision. Fluid Crane and ALMA argued that they raised these actions in opposition to the motion for summary judgment in October 2024 and in a status report to the court later that month, but they cited no authority for the proposition that a limitation claimant may properly amend its claim in that manner or set forth good cause for the assertion that was made six months after the deadline for amendments to pleadings had expired. Fluid Crane and ALMA also argued that the independent subrogation/Burnside claims were raised in the pre-trial order, but Judge Long answered that the notice required claims to be described in section 3 of the proposed pre-trial order, but that section did not include any reference to the claims. Judge Long added that, even if the parties had intended to include the claims, they would have to satisfy the “good cause” standard, and he stated that he would not allow an amendment because they provided no excuse for the delay. Therefore, Judge Long declined to reopen the case to allow the claims for an independent right of subrogation and a Burnside action. See August 2025 Update.
Aries appealed the decision that the contract between Fieldwood and United Fire was not a maritime contract and that Louisiana law invalidated the indemnity provisions. Writing for the Fifth Circuit, Judge Graves applied the test enunciated by the en banc Fifth Circuit in Doiron. He began with the first half of the question: “does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract?” To decide whether the contract provided that a vessel would play a substantial role in the completion of the contract, Judge Graves cited Doiron that the focus “should be on whether the contract calls for substantial work to be performed from a vessel.” He noted that the only notable mention of a vessel in the MSC was for transportation, which is not considered in determining whether a vessel would play a substantial role. Aries argued that the appendix to the United Fire contract contained a checklist that directed United Fire to check boxes for each service/product it provided, and the section related to “platforms” was not checked. Thus, United Fire was not limited to performing services on a fixed platform. Judge Graves answered that the lack of a limitation to providing services on a fixed platform did “not change the fact that it was contracted—via a specific job order—to provide services on a fixed platform in this case.” The job order provided that United Fire would provide fire-watch services in an area where welding work was to be performed (using a gas detector). It made no mention of the RAM XVIII or any vessel. These documents differed from ones that were considered maritime in which the involvement of vessels was specifically identified in the contract (such as the requirement for a barge and tug for dock construction in Barrios v. Centaur or the maintenance and repair of lifeboats in Earnest v. Palfinger). Judge Graves then considered whether (when the contract does not identify use of a vessel) the parties expected a vessel to play a substantial role. The court was guided by the recent decision in Genesis Energy v. Danos (see October 2025 Update) in which the contract provided for repair work on a platform but also for the use of a vessel to house the workers and equipment to be used on the platform. The vessel’s function in transportation and housing of workers and equipment was described as “ancillary” and “legally insufficient” to consider the contract to be maritime. Fieldwood anticipated use of the liftboat for transportation, crane work, and lodging, but that did not establish the expectation of United Fire (the test is based on the expectations of the parties). Aries also argued that the actual use of the liftboat was substantial as it was used to provide construction and crane support (in addition to use as a living quarters). Judge Graves answered that the fact that the vessel was instrumental in helping with crane support was “irrelevant to United Fire, who was contracted to provide fire watch services and not crane services.” Judge Graves concluded: “Fieldwood expected that the liftboat would play a substantial role in its platform repairs. But United Fire did not.” Its “one-sided expectation” was insufficient in light of the cases that have “made clear that a vessel’s substantial role must be a shared expectation.” As the second prong of the Dorion test was not satisfied, Judge Graves affirmed the decision of Judge Africk and Judge Long that the contract was not maritime and that Louisiana law applied.
Third Circuit affirmed that no maintenance was owed when the seaman continued to work without missing time both for the same and other charter fishing companies, that she was not entitled to cure at this time (although the evidence did not demonstrate that she had reached maximum cure), and that she was not entitled to punitive damages or attorney fees as the owner did not act in bad faith; Knieling v. Fook, No. 24-2613, 2026 U.S. App. LEXIS 4208 (3d Cir. Feb. 11, 2026) (Bibas).
Tammy Knieling was employed as a chef and mate on 51-foot power catamaran, SOMEWHERE HOT, owned by William Poston and captained by Don Fung Fook. After purchasing the SOMEWHERE HOT, Poston ran charters on the vessel in the Virgin Islands, with Fook as the captain. Knieling claims that on July 3, 2021, Fook negligently instructed her to let out the dinghy line and that her hand became entangled between the line and the cleat. She sustained an injury to her left middle finger and rope burns on both hands, and a medical student who was a guest on the vessel cleaned the wound and wrapped it in a compression wrap. Knieling made an appointment at a medical center on July 9, 2021, the last day of the charter, and the doctor advised her to go to the emergency room where she was diagnosed with an avulsion fracture of her finger. She was given home exercises (because she is often out to sea), and she scheduled her follow-up appointment around her charter schedule. Her pain continued in 2023, and she had laser treatment and injections to improve the quality of the scar and pigmentation. Her doctor continued to order physical and occupational therapy. Knieling brought this suit in 2022 in federal court in the Virgin Islands against Fook and Poston, alleging claims for Jones Act negligence, maintenance and cure, and unseaworthiness, seeking compensatory and punitive damages for each count. The defendants moved for summary judgment on the claim for maintenance and the claim for punitive damages for failure to pay maintenance and cure, and Knieling moved for summary judgment on her claim for maintenance and cure. The defendants argued that Knieling was provided food and lodging on the SOMEWHERE HOT until her employment was terminated in August 2021, she never requested maintenance or time off, she said she was “good to go” without limitations, and she continued to work on other vessels after she left the service of the SOMEWHERE HOT. The defendants added that her doctor said that her fracture was healed in August 2021, she stopped attending physical therapy in September 2021, she stopped seeing a doctor for more than a year, and her doctor said her injuries were permanent. The defendants argued that treatment thereafter was palliative, not curative. Knieling cited her testimony that she was precluded from performing certain tasks and was, accordingly, incapacitated. She argued that she had not reached maximum cure, had returned to work out of necessity, and was entitled to maintenance at the rate of $91.30 per day. Based on the conflicting argument and evidence, Magistrate Judge Miller held that there were fact questions that precluded summary judgment on the claim for maintenance and cure (Magistrate Judge Miller also noted that Knieling had resided in Florida since December 2021, and her attorney had not provided any evidence of her food and lodging expenses in Florida). As to the claim for punitive damages for willful failure to pay maintenance and cure, the defendants argued that they had immediately agreed to pay medical expenses and later declined to pay when the treatment was palliative. Reasoning that the defendants are entitled to investigate and require corroboration of the claim, Magistrate Judge Miller found no basis for an award of punitive damages and granted summary judgment with respect to that claim. See July 2024 Update.
Magistrate Judge Miller held a bench trial from June 3 to June 6, 2024, and announced her findings of fact and conclusions of law. She concluded that Knieling was employed by Poston, who was responsible for any negligence of Captain Fook under the Jones Act. Knieling argued that Fook was negligent for not providing gloves to her to use when handling lines, but Magistrate Judge Miller did not find any applicable law or safety regulation requiring use of gloves for the routine task of letting out a dinghy line. Magistrate Judge Miller found it was not credible that Fook had not explained or demonstrated how to let out the dinghy line, and she added that Knieling had properly performed the task the day before. However, Judge Miller did find that Fook did not act with reasonable care when he instructed Knieling to let out the line while the vessel was moving at an unsafe speed, and that Poston was liable under the Jones Act. Magistrate Judge Miller awarded Knieling $9,599.41 for past unpaid medical expenses and no future medical expenses as Knieling did not testify that she intended to schedule any future treatment. Magistrate Judge Miller awarded $15,000 for past and future pain and suffering. Magistrate Judge Miller did not find that the vessel was unseaworthy, reasoning that the lack of gloves did not render the method of work improper and that a single act of operational negligence was not unseaworthiness. With respect to maintenance, Magistrate Judge Miller observed that there was no clear medical finding of maximum cure, particularly in August or September of 2021 as Poston claimed. However, Knieling has not had an appointment after May 2023, and Magistrate Judge Miller considered that her treatment would be palliative and not curative. Knieling never took time off from work to heal and made it clear that she did not want to miss any charters. She has continued to work as a chef after leaving the SOMEWHERE HOT (she worked on the SOMEWHERE HOT until she had a falling out with the captain) and has done well on other ships. Accordingly, Magistrate Judge Miller did not find any obligation to provide maintenance. Magistrate Judge Miller did not find any unreasonable failure to pay medical bills as there were issues with the amounts due and Poston offered to pay $2,000 to cover outstanding bills. Additionally, Poston had a reasonable basis to believe that it did not owe maintenance and cure after 2021 based on its belief that Knieling had reached maximum cure. As Poston was already liable for the medical bills under the Jones Act, Magistrate Judge Miller awarded nothing to Knieling on the claim for maintenance and cure. See September 2024 Update.
Fook and Poston moved for a new trial or a modified judgment, arguing that the liability finding was predicated on an error of fact (that the vessel was exiting the mooring field when the captain testified that the vessel was still in the mooring field), that Knieling was exclusively liable for her injury, and that the judgment was based on unreliable and inadmissible testimony. Magistrate Judge Miller rejected each reason. She answered that the vessel was still in the mooring field when it was exiting the field, that the defendants did not prove that Knieling was negligent or that the delay on her part in executing the task contributed to her injury, and that the defendants did not explain how it was unfair that the court rely on the testimony of the plaintiff’s expert because he did not listen to the testimony adduced at trial. See December 2024 Update.
Knieling appealed, and, writing for the Third Circuit, Judge Bibas agreed that Knieling “had no need” for maintenance because she did not take time ashore to recover from her injury and continued to serve as chef and mate without missing a paycheck. Although Knieling argued that she went back to work out of financial necessity, Judge Bibas agreed with Magistrate Judge Miller that there was no indication that Knieling ever gave any hint of wanting to take time off to heal and that she did not want to miss any scheduled charters. As she incurred no living expenses, she had no right to maintenance. As for cure, Knieling recovered her past medical expenses, and Judge Bibas agreed that any future expenses were speculative as Knieling’s doctor stated that he would need to see her again to determine whether further treatments were necessary and she gave no evidence that she intended to schedule future treatment. That did not mean that future care might not be recoverable as Magistrate Judge Miller did not find sufficient evidence that Knieling had reached maximum cure. Accordingly, Judge Bibas held that Knieling could recover future curative treatment in a new proceeding. Finally, Judge Bibas agreed that Knieling was not entitled to punitive damages or attorney fees for the delay in paying medical bills, explaining that the parties had trouble determining the exact amount owed and Knieling was partly responsible because she did not respond to Poston’s offer; she did not claim cure in her first complaint; and there was a good faith basis to believe she had reached maximum cure base on her work on another boat. Thus, the Third Circuit affirmed the decision of Magistrate Judge Miller. Thanks to Michael F. Sturley, Fannie Coplin Regents Chair at the University of Texas School of Law, for bringing this decision to our attention.
From the federal district courts
Declaratory judgment action was proper vehicle for insurers to assert claims that the policy on a vessel was void ab initio, and service on the insured at the policy address gave the federal court personal jurisdiction and venue; insurers sufficiently pleaded claims for breach of warranties and uberrimae fidei, and the Judge declined to dismiss the uberrimae fidei claim as duplicative; Judge sanctioned the insured’s attorney for the frivolous defenses asserted to the declaratory judgment action; Accelerant Specialty Insurance Co. v. Small, No. 8:24-cv-425, 2025 U.S. Dist. LEXIS 266172, 2026 U.S. Dist. LEXIS 1072 (M.D. Fla. Dec. 29, 2025, Jan. 6, 2026) (Mizelle).
Eric Small, owner of a 76-foot Lazarra boat, SMALL CHANGE, purchased a policy in the amount of $649,000 with Accelerant Specialty Insurance Co. and Texas Insurance Co. covering the period from November 15, 2023 to November 15, 2024. The vessel sustained damage in October 2024 when Hurricane Milton made landfall in Florida, and Small made a claim on the policy. The insurers denied coverage on the grounds that Small violated several warranties and made misrepresentations with respect to the condition and upkeep of the vessel. The insurers brought this suit in federal court in Florida under the court’s admiralty jurisdiction against Small, seeking a declaratory judgment that the policy was void ab initio and that they did not afford coverage because Small breached the Survey Compliance Warranty, breached the Fire Suppression Warranty, breached the Windstorm Warranty, violated the doctrine of uberrimae fidei, and breached the policy condition on misrepresentations. Small moved to dismiss the suit for multiple reasons, beginning with the argument that the court lacked subject matter jurisdiction. Small complained that the insurers did not allege the factors necessary for admiralty tort jurisdiction, but Judge Mizelle answered that the suit involved a marine contract (the insurance policy on a vessel), not a maritime tort. Therefore, the case was properly pleaded under the court’s admiralty jurisdiction. Small also challenged personal jurisdiction and venue, but the insurers served him at the address in Florida listed for him on the policy, and the policy contained a forum-selection clause for the federal district court in which Small or his broker resided (the address for his broker was also in the district). Small argued that the insurers could not assert the provisions of the policy to support venue and personal jurisdiction when the insurers contended the policy was void. Judge Mizelle rejected the argument, noting that forum-selection clauses are severable from the agreement in which they are contained. Small next argued that a declaratory judgment action was an inappropriate vehicle to resolve the dispute and would deprive him of his right to a jury trial. Judge Mizelle answered that courts routinely resolve complicated fact disputes in declaratory judgment actions and that the insured does not have a right to a jury trial on a counterclaim when the original action is brought as an admiralty claim. She added that Small had not tried to bring a claim with a jury trial, so his concern about loss of a jury trial posed no barrier to adjudication of the claims in this suit. Small moved to dismiss the warranty claims because the insurers did not plead damages, but Judge Mizelle answered that the insurers pleaded a substantial likelihood of future injury because the vessel was damaged and Small allegedly breached the warranties in the policies. Small also argued that the insurers did not sufficiently comply with the heightened pleading standard under Rule 9(b) for the warranty claims because they were based on fraudulent misrepresentations and omissions. The insurers countered that they only had to plead that the warranties were breached, without the necessity of fraud, but Judge Mizelle did not have to address that dispute, finding that the allegations were sufficiently specific under Rule 9(b). The same reasoning applied to the assertion of uberrimae fidei; however, Small argued that the uberrimae fidei claim was duplicative of the warranty claims. Judge Mizelle agreed that there was an overlap in the facts of these claims, but, in the absence of briefing, she declined to dismiss the uberrimae fidei count in response to a motion to dismiss. Accordingly, she declined to dismiss the complaint and ordered Small to file an answer.
The insurers moved to sanction Small and his attorneys for making frivolous factual and legal claims in the motion to dismiss. Judge Mizelle agreed that Small’s counsel should be sanctioned for continuing to contest proper service after the insurers filed a proof of service, without speaking with Small to verify that he had been served. Judge Mizelle also agreed that the objection to subject matter jurisdiction (properly based on the contract of marine insurance) was frivolous and misleading. Judge Mizelle explained that the attorney challenged jurisdiction based on “a test that is patently inapplicable to this case.” The attorney argued that he was entitled to attempt to persuade the court “to apply a different test based on the facts of this case.” Judge Mizelle agreed that attorneys may present that type of argument, but she answered that there was no basis for the argument in this case. Finally, the attorney misstated that attorney fees could not be recovered in an admiralty proceeding with Judge Mizelle answering that they are allowed for actions taken in bad faith and for violations of Rule 11 for making frivolous and false statements as in this case. Accordingly, Judge Mizelle ordered the insurers to submit their reasonable fees and costs in preparing the motion for sanctions and response and in responding to the frivolous objections in the motion to dismiss (subject matter jurisdiction, service of process, and attorney fees).
Judge struck jury award to seaman for past loss of wage-earning capacity (where the seaman continued to work in the same capacity after his injury) and denied his request for a new trial on that element of damages; Ward v. M/Y UTOPIA IV, No. 1:22-23847, 2025 U.S. LEXIS 266981 (S.D. Fla. Dec. 30, 2025) (Bloom).
This litigation arises from the collision between the tanker TROPICAL BREEZE and the yacht UTOPIA IV in Bahamian waters. Eric Ward, a seaman on the UTOPIA IV was injured and brought this suit in federal court in Florida against the UTOPIA IV and its owner, Utopia Yachting, asserting claims for negligence under the Jones Act and for unseaworthiness and maintenance and cure under the general maritime law. Ryan Fitzgerald, a bosun on the UTOPIA IV, intervened in the suit to assert similar claims. Utopia then brought a counterclaim against Fitzgerald for tort indemnity and equitable contribution under the general maritime law, claiming that Fitzgerald was responsible for all third-party liabilities triggered by Fitzgerald’s negligence because he abandoned his non-delegable duty to ensure the safety of the vessel’s operation. Fitzgerald moved to dismiss the claim for contribution/indemnity, and Judge Scola noted that indemnity and contribution claims are only available in four narrow situations. The exception that was at issue in this case is if a party seeking indemnity/contribution is a vicariously liable or non-negligent tortfeasor. Judge Scola stated that the warranty of seaworthiness is an absolute, non-delegable duty to provide a seaworthy ship. As the warranty is non-delegable, unseaworthiness claims run directly against the shipowner and do not run against non-shipowners. Thus, Judge Scola held that Utopia could not base its claims on a theory of vicarious liability for unseaworthiness. For the Jones Act claim, Judge Scola reasoned that a seaman’s duty is to carry out the vessel’s orders and not to assess whether an order creates danger. Although Fitzgerald could be found to be comparatively at fault with respect to his own damages, he could not be liable for contribution/indemnity to Utopia under the Jones Act. Consequently, Judge Scola dismissed the counterclaim for indemnity/contribution. See July 2023 Update.
Six other crewmembers, including Fred Wennberg and Samuel Parrott, joined the suit. Some of the plaintiffs settled, and the case proceeded to a jury trial. The jury found that Utopia willfully and arbitrarily failed to pay cure and wages to Ward in the total amount of $445,000, that it willfully and arbitrarily failed to pay cure and wages to Parrott in the total amount of $182,000, and that it willfully and arbitrarily failed to pay cure in the amount of $540,000 to Wennberg. The plaintiffs then moved for court-awarded attorney fees in the amount of $1,121,284.98 based on the findings of willful and arbitrary failure to pay cure and wages. Utopia argued that the jury did not determine the entitlement to attorney fees, but Chief Magistrate Judge Goodman disagreed, stating that “the issue of entitlement was determined by the jury when it returned verdicts finding Utopia had willfully and arbitrarily failed to comply with its maintenance and cure obligations to Plaintiffs.” Utopia also argued that it did not agree to having the court award attorney fees, and that the jury was required to make the determination, relying on the decision of the Fifth Circuit in Kloster Cruise Ltd. v. DeSousa (holding that the plaintiff must present its evidence relating to the appropriate amount of attorneys’ fees to the jury unless the parties waive that right). Persuaded by that decision, Chief Magistrate Judge Goodman recommended that the court empanel a new jury to hear evidence and determine the reasonable fee. Finally, the plaintiffs sought prejudgment interest on the combined award to the plaintiffs of $1,372,300 on their Jones Act and unseaworthiness claims. As there was no allocation between the Jones Act and unseaworthiness claims, Chief Magistrate Judge Goodman recommended that prejudgment interest not be awarded (and that the breakdown between unseaworthiness and Jones Act negligence not be submitted to a new jury). See September 2025 Update.
Utopia moved to amend the judgment, arguing that the award of $181,500 to Wennberg for past lost wage-earning capacity was unsupported because he never stopped working. Wennberg argued that he had lost wage-earning capacity, citing his testimony that his injuries changed the type of work he could perform, citing cases that purportedly established that a loss of wage-earning capacity could be awarded regardless of employment status. Judge Bloom responded that Wennberg did not “cite to any case law that a plaintiff may recover for loss of earning capacity even where he returned to the same job he held prior to the injury, continued to work in the same role for other companies, and did not present any expert testimony at trial regarding past loss of earning capacity. Utopia also challenged the jury’s awards of $150,000 and $30,000 for cure for Wennberg, arguing that he never stopped working, received full wages through the end of his employment on the vessel, and that Utopia paid all the medical bills that he submitted. Judge Bloom rejected the argument that Wennberg was not entitled to cure because he continued working, quoting the Supreme Court’s decision in Vaughan v. Atkinson that it would be “a sorry day for seamen if shipowners, knowing of the claim for maintenance and cure, could disregard it, force the disabled seaman to work, and then evade part or all of their legal obligation by having it reduced by the amount of the sick man’s earnings.” Judge Bloom pointed to evidence that Wennberg had requested treatment that was not provided and that he had paid for medical treatment out of his own pocket. Accordingly, she declined to set aside the awards for cure. After declining to upset the finding that there was willful failure to pay maintenance and cure, Judge Bloom addressed Utopia’s argument on the ratio of punitive damages to compensatory damages (3:1 for Wennberg and 20-1 for Ward). Judge Bloom noted the 1:1 ratio from the Supreme Court’s decision in Exxon Shipping v. Baker, subject to an exception for the most egregious conduct, and she did not consider Utopia’s conduct to fall within the exception. However, she considered the effect of punitive damages when the compensatory damages are small, and she concluded that a 3:1 ratio was appropriate in this case “to serve the retributive and deterrent purposes of punitive damages.” Accordingly, she ordered a remittitur of Ward’s punitive damages. On October 2, 2025, Wennberg and Ward rejected Judge Bloom’s reductions and requested a new trial. See November 2025 Update.
Utopia moved to strike Wennberg’s election to proceed with a new trial because Judge Bloom did not rule that the award for loss of wage-earning capacity was unreasonable as a matter of law but held, instead, that the evidence was insufficient to submit the claim to the jury. As that portion of the verdict was for an amount that was not permitted, Utopia argued that Judge Bloom could simply enter judgment for the correct amount. Judge Bloom agreed, reasoning that the Seventh Amendment right to a jury trial was not implicated. As Wennberg was not entitled to recover for loss of wage-earning capacity, he was not entitled to a new trial when Judge Bloom denied recovery on that element of damages. Accordingly, Wennberg’s award of $181,500 for loss of wage-earning capacity was struck, and Wennberg’s election to proceed with a new trial was also struck.
Machinist mate on Navy nuclear-powered submarine who was diagnosed with a blood disorder from exposure to radiation could not bring a negligence claim against the United States under the Public Vessels Act because of the Feres doctrine, and he could not bring a claim of failure to warn under the Federal Tort Claims Act because of the discretionary function exception; Winter v. United States, No. 1:25-cv-1035, 2025 U.S. Dist. LEXIS 268123 (E.D. Wis. Dec. 31, 2025) (Griesbach).
Richard A. Winter, who served as a machinist mate on a U.S. Navy nuclear-powered submarine from 1974 to 1979, was diagnosed with Myeloproliferative Disorder, a rare blood disorder, on October 28, 2022. His physicians opined that his condition resulted from cumulative exposure to radiation during his service on the submarine. Winter submitted an administrative claim to the Department of Defense and the Department of Veterans Affairs on September 13, 2024. The VA denied his claim on January 22, 2025, and his claim to the DOD was denied by virtue of the failure to make a timely disposition. Winter then brought this suit against the United States in federal court in Wisconsin on July 16, 2025 under the Federal Tort Claims Act. The United States moved to dismiss the claims as time-barred and Feres-barred. Before addressing the merits, Judge Griesbach determined that Winter’s claim was maritime because his exposure occurred on a submarine on navigable waters and his work as a machinist’s mate near the submarine’s nuclear reactor had a substantial relationship to traditional maritime activity. Thus, the Public Vessels Act, which incorporates the 2-year limitation period from the Suits in Admiralty Act, applied. Although the United States argued that the statute may have begun to run in 1979, at the end of Winter’s exposure, it claimed that it must have expired two years after his diagnosis (October 2024), more than 8 months before he filed suit. Judge Griesbach did not have to decide that issue because he concluded that the court lacked subject matter jurisdiction--the injury was incident to military service and was barred by the Feres doctrine. The United States conceded that a serviceman’s claim based on failure to warn is independent and that a post-discharge claim for failing to warn of the increased risk of developing cancer from his radiation exposure would be governed by the Federal Tort Claims Act. However, the United States argued that the failure-to-warn claim was barred by the discretionary function exception. As there is no statute, regulation, or policy that directs the Navy to warn servicemen of potential exposure to radiation on nuclear submarines, Judge Griesbach concluded that the warning claim was barred by the discretionary function exception to the FTCA. Accordingly, he dismissed the suit for lack of subject matter jurisdiction.
Hearing established deteriorating condition of arrested vessel, and the court ordered an interlocutory sale and credit bid; Prometheus Maritime Investments, LLC v. S/Y DREAMER, No. 8:25-cv-941, 2025 U.S. Dist. LEXIS 268352 (M.D. Fla. Dec. 31, 2025) (Tuite), recommendation adopted without objection, 2026 U.S. Dist. LEXIS 9626 (M.D. Fla. Jan. 20, 2026) (Scriven).
Fernando Villa stored his vessel, S/Y DREAMER, at the Sailor’s Wharf marina in St. Petersburg, Florida. Prometheus Maritime Investments purchased the marina in April 2024 and requested that the owners of the vessels that were docked there move them to other locations. Villa declined to move the vessel, and Prometheus increased the monthly storage fee from $680.40 to $2,500 in February 2025. Villa did not pay the fee, and Prometheus filed this suit in federal court in Florida against the vessel, asserting a maritime lien on the vessel. The vessel was arrested and turned over to a substitute custodian, and Villa sent a letter to the court on June 5, 2025, as owner of the vessel, denying the claim and advising that it would take at least 6 to 9 months to get the ship in shape to be launched. In July 2025, Prometheus moved for an interlocutory sale of the vessel and to be permitted to submit a credit bid for the vessel at the interlocutory sale. A hearing was scheduled before Magistrate Judge Tuite on August 11, 2025, and Villa asked that the hearing be continued. Magistrate Judge Tuite denied the request for an interlocutory sale as inadequately supported, and Prometheus filed a second motion to which Villa responded (including a 2013 inspection report showing that the vessel was not in bad condition). A second hearing was scheduled for October 14, 2025, and Prometheus submitted an expert report on the deterioration of the vessel. Villa did not appear, and Magistrate Judge Tuite concluded that the vessel was deteriorating (the 2013 report was “hopelessly outdated”). As the vessel was valued at approximately $40,000, and the storage charges were now approximately $25,000; the vessel was deteriorating; and 8 months had passed since the arrest; Magistrate Judge Tuite recommended the interlocutory sale. There were no other claims, and Magistrate Judge Tuite recommended that Prometheus be allowed to submit a credit bid in the amount of the charges to date ($25,000), conditioned on Prometheus satisfying any superior liens. Villa did not object to the recommendation, and Judge Scriven adopted the recommendation on January 20, 2026.
Contribution and indemnity claims in limitation action involving a single injury claimant presented a multiple-claimant situation, and the Judge declined to lift the stay; Judge declined to bifurcate damages from liability and limitation issues; Judge allowed payroll employer and borrowing employer to amend their answers to assert a borrowed-servant defense after the pleading amendment, finding good cause from waiting for an adequate factual basis to plead the defense; In re Texas Petroleum Investment Co., No. 2:24-cv-2344, 2026 U.S. Dist. LEXIS 378, 1024, 1218 (E.D. La. Jan. 5, 6, 2026) (Vitter), 2026 U.S. Dist. LEXIS 16453 (E.D. La. Jan. 29, 2026) (Currault).
Second Opinion Borrowed Servant
Texas Petroleum Investment Co. owns the South Pass Block 24 platform located in Louisiana coastal waters. It also owns the crew boat LA 9395 that was used to transport workers from the platform to the dock in Venice, Louisiana. The vessel was carrying David Hayes, an employee of The Production Group (that supplied labor for Texas Petroleum Investment’s operations on the platform), and George Walcott, an employee of Taylors International Services (that also supplied labor for Texas Petroleum Investment). Hayes was operating the vessel when it allided with a submerged obstruction on inland waters in Plaquemines Parish, Louisiana, resulting in an injury to Walcott. Petroleum Investment filed this limitation action in federal court in Louisiana, and Walcott filed a claim. The Production Group and Hayes also asserted claims for non-contractual indemnity and contribution as well as claims for contractual defense and indemnity pursuant to a Master Service Agreement. Walcott moved to lift the stay in the limitation action as a single-claimant situation with stipulations to protect Petroleum Investment’s rights in the limitation action. Texas Petroleum Investment responded that the action was no longer a single-claimant proceeding and that lifting the stay was inappropriate. Chief Judge Vitter explained that the caselaw in the Fifth Circuit is clear that “Parties seeking indemnification and contribution from a shipowner must be considered claimants within the meaning of the Limitation Act.” The failure of The Production Group and Hayes to join in the stipulations was “fatal” to the motion to lift the stay because all claimants must enter into stipulations when the value of the claims exceeds the value of the vessel ($28,000 in this case). Accordingly, Chief Judge Vitter declined to lift the stay.
Walcott also filed a motion seeking to bifurcate liability and limitation issues (for a bench trial) so that a jury trial could be held in a state or federal venue of his choosing on the issue of damages in the event limitation of liability is denied. Chief Judge Vitter noted that the Fifth Circuit has cautioned that the issue to be tried separately must be so distinct and separable that trial of it alone may be had without injustice. She did not believe that Walcott carried his burden to show how convenience would be advanced or that he would be prejudiced (he simply argued that bifurcation is the “preferred approach” of courts in the Fifth Circuit). Chief Judge Vitter also did not believe that bifurcation would expedite or economize the litigation, explaining that the issues of liability, causation, and damages involve substantial amounts of overlapping evidence. Therefore, she declined to order bifurcation.
Walcott filed a cross-claim against The Production Group, asserting that it was vicariously liable for the allegedly negligent conduct of Hayes in navigating the vessel. Walcott also asserted that The Production Group was liable for negligent hiring, training, and supervision of Hayes. The Production Group did not plead a borrowed servant defense in its answer. After taking the deposition of Walcott, who testified that Hayes drove the boat when he was on it, The Production Group moved to assert a borrowed-servant defense that The Production Group was shielded from vicarious liability for its payroll employee, Hayes, because he was acting as a borrowed servant of Texas Petroleum. The Production Group explained that the application of the defense “crystalized” with the suggestion from Walcott’s testimony that Texas Petroleum Investment had control over the actions of Hayes. Chief Judge Vitter acknowledged that it was plausible that The Production Group could have realized the potential viability of the defense from the allegations asserted against it, but she did not find it unreasonable that it “waited for an adequate factual basis to assert the affirmative defense.” The fact that it discovered the factual basis to assert the defense after the deadline to amend pleadings weighed in favor of finding good cause, and Chief Judge Vitter permitted the amendment.
After Chief Judge Vitter allowed The Production Group to assert a borrowed-servant defense, Texas Petroleum Investment asked for leave to assert a borrowed servant defense in answer to the Walcott claim. Walcott argued that the amendment was untimely and would be prejudicial because, if successful, the new defense would preclude recovery. Magistrate Judge Currault disagreed, explaining that it did not fundamentally alter the nature of the case and should not require additional discovery beyond that which would be necessary for the Production Group defense. Accordingly, she granted leave for Texas Petroleum Investment to amend its answer to the Walcott claim.
Barge company sufficiently pleaded cross claim, in suit involving damage to cargo, against logistics company for failing to inspect barges, as required in the Transportation Agreement between the logistics company and the barge company, despite the fact that the inspectors were unable to inspect the barges; cargo owner sufficiently alleged claim against logistics company, as its agent, for negligently performing its agency duties from the Transportation Agreement (requiring the logistics company to inspect the barges); Mac Metal Sales, Inc. v. Ingram Barge Co. No. 2:25-cv-422, 2026 U.S. Dist. LEXIS 415, 2126 (E.D. La. Jan. 5, 7, 2026 (Vance).
Mac Metal arranged for the shipment of more than 5,500 metric tons of steel coils from Busan, South Korea to New Orleans, Louisiana on the M/V LOWLANDS FIDELITY. A pre-shipment survey indicated that the cargo was generally in good condition when loaded. The vessel docked in New Orleans, and Mid-Ship Logistics coordinated the movement of the coils to Ingram Barge Co. barges. Mac Metal alleges that surveyors employed by Marine Inspection were not allowed to witness the transfer of the coils. The barges were towed to Harahan, Louisiana, where inspectors for Marine Inspection observed water in one of the four barges (the T-13995). When the barges arrived in Indiana a month later, there was water damage to the coils on the T-13995. Mac Metal brought this suit in admiralty in Louisiana federal court against several defendants, including Mid-Ship Logistics and Marine Inspection. Marine Inspection and Mid-Ship Logistics moved to dismiss the complaint for failure to state a claim. Judge Vance accepted that Marine Inspection had a duty to perform an inspection of the cargo with reasonable care. However, the complaint did not suggest that Marine Inspection failed to exercise reasonable care. The complaint alleged that the inspectors were denied access to the ship during the transfer to the barges and that the inspectors reported water in the barge when the inspection was conducted a few days later in Harahan. Additionally, there was no allegation that Marine Inspection played a role in the damage to the coils because they were already in the water when the inspectors accessed the barge. As there had only been one complaint filed in the suit, Judge Vance granted leave for Mac Metal to sufficiently plead breach of duty and causation. With respect to Mid-Ship Logistics, Mac Metal pleaded that Mid-Ship Logistics “was its agent, charged with facilitating and coordinating the discharge of the cargo into Ingram barges, ‘as well as ensuring those barges were suitable for transporting [Mac Metal’s] cargo.’” However, Judge Vance noted that Mac Metal provided no factual basis for the creation of an agency agreement. In the absence of anything other than the conclusory allegation that Mid-Ship was its agent, Mac Metal failed to plausibly allege a claim for negligence. Therefore, Judge Vance dismissed the claim against Mid-Ship Logistics with an opportunity to file an amended complaint. See October 2025 Update.
Ingram Barge asserted a cross-claim against Mid-Ship Logistics for breach of contract, and Mid-Ship Logistics moved to dismiss the cross-claim for failure to state a claim. The Dry Cargo Transportation Agreement between Ingram Barge and Mid-Ship Logistics provided that Mid-Ship Logistics would inspect the barges before loading to determine their suitability and that if it failed to inspect the barges or failed to notify Ingram Barge of any objections to their condition, Mid-Ship Logistics would be deemed to have irrevocably released and waived all claims relating to the barges’ condition at loading. Ingram Barge claimed that Mid-Ship Logistics breached the contract by failing to inspect the barges prior to loading the cargo and failed to notify Ingram Barge of any unsuitable conditions. Additionally, Ingram Barge argued that Mid-Ship Logistics breached the indemnity provision in the Agreement that required Mid-Ship Logistics to defend and indemnify it for all losses arising from the breach of the Agreement or the fault of Mid-Ship Logistics, except to the extent of the fault of Ingram Barge. Mid-Ship Logistics responded that its inspectors were unable to inspect the barges, but Judge Vance answered that the contention only underscored that Mid-Ship Logistics did not inspect the barges. The inability to inspect the barges might be a defense, but it did not negate that Ingram Barge sufficiently pleaded a claim for breach of contract. Mid-Ship Logistics also argued that Ingram’s damages did not arise from the breach of contract because it could have replaced the barges or could defend the claim by showing evidence of good condition of the barges. However, Judge Vance did not believe that these conjectures detracted from the sufficient allegation of causation. Accordingly, she declined to dismiss the claims of Ingram Barge for breach of contract.
Mid-Ship Logistics moved to dismiss the claim of Mac Metal, which alleged that it entered into an agency agreement with Mid-Ship Logistics for the movement of the steel coils and that, under that agreement, Mid-Ship Logistics entered into the contract with Ingram Barge that required Mid-Ship Logistics to inspect the barges. Mac Metal argued that, as its agent, Mid-Ship Logistics was responsible for the inspection of the barges. Judge Vance agreed that, under maritime law agency principles, Mac Metal plausibly alleged an agency relationship with Mid-Ship Logistics and that it acted with the authority of Mac Metal and not as an intermediary as Mid-Ship Logistics claimed (noting that the Agreement referred to Mid-Ship Logistics as a “logistics representative” and not an agent). Although Mid-Ship Logistics argued that Mac Metal could not show that Mid-Ship Logistics owed Mac Metal a duty under the contract, Judge Vance answered that Mac Metal was arguing that it negligently performed its agency duties, which required Mid-Ship Logistics to conduct the inspection. It was the principal holding its agent liable for negligent performance of agency duties. Additionally, Mid-Ship Logistics argued that Mac Metal could not bring its breach-of-contract claim as a tort action, but Judge Vance disagreed, stating that it could allege that the breach of the agency agreement is an action in tort for negligent performance of contractual duties. Consequently, Judge Vance declined to dismiss the claims of Mid-Ship Logistics.
Non-owner who resided on a vessel and maintained the vessel did not have standing to challenge the mortgagee’s arrest of the vessel when the loan was not paid, and her challenge to the bank’s right to foreclosure on the ground that the mortgage was in the name of a predecessor bank was rejected; pro-se non-owner was held in contempt and prohibited from communicating with the bank or its attorneys for continuing to violate the court’s order by hostile, accusatory, and often threatening emails to the bank and its counsel, and she was dismissed from the suit, not based on civil contempt but for failing to state a claim; Huntington National Bank v. M/Y SOMETHING ABOUT MERI, No. 0:25-cv-6018, 2026 U.S. Dist. LEXIS 5300 (S.D. Fla. Jan. 9, 2026) (Hunt), recommendation adopted, 2026 U.S. Dist. LEXIS 14017 (S.D. Fla. Jan. 26, 2026) (Dimitrouleas); 2026 U.S. Dist. LEXIS 15677 (S.D. Fla. Jan. 14, 22026) (Hunt), recommendation adopted, 2026 U.S. Dist. LEXIS 15012 (S.D. Fla. Jan. 26, 2026) (Dimitrouleas); 2026 U.S. Dist. LEXIS 9044 (S.D. Fla. Jan. 16, 2026) (Hunt), recommendation adopted, 2026 U.S. Dist. LEXIS 20908 (S.D. Fla. Feb. 2, 2026) (Dimitrouleas).
Recommendation Interlocutory Sale
This “contentious matter” involves the arrest of the M/Y SOMETHING ABOUT MERI by Huntington National Bank because of the default of vessel owner Stanley Kalish on his loan in the amount of $1,318,000, which was secured by a first preferred ship mortgage on the vessel, a 92-foot 2005 Mangusta/Overmarine motor yacht. Huntington National Bank is the successor in interest to Chemical Bank, which is the successor in interest to the original mortgagee, Radius Bank. Danielle Morron appeared in the action as “an Interested Co-Party and lawful agent of Defendant Stanley R. Kalish, pursuant to a durable Third Party Authorization,” claiming a direct, vested interest in the vessel “due to a preexisting partnership agreement with Defendant, facilitated by and having paid substantial commission to Agents of Rick Obey Yacht Sales, a partnership dually [sic] executed and explicitly known to the First Preferred Ship Mortgage holder since 2021, resulting in extensive financial contributions to the vessel’s restoration, caretaking, and preservation over a four-year period, totaling approximately $2 million.” Morron moved to vacate the arrest on the ground that Huntington National Bank was not the recorded mortgagee and lacked a valid maritime lien on the vessel. She also argued: “Any remaining claim it has, if at all, after the wanton disregard for properly invoking the Rule C legal process in the district court, and the physical damage the bank has already caused, is governed exclusively by state law.” Thus, the arrest could not be sustained in the federal proceeding (she also complained that the bank engaged in a self-help seizure of the boat before the vessel was arrested in this proceeding). Morron later filed a verified claim in which she denied any ownership of the vessel or a lien for salvage. She asserted a possessory and custodial interest in the vessel because she resided aboard, maintained, preserved, insured, and safeguarded the vessel with the knowledge and acquiescence of the titled owner (Kalish) and an equitable interest in the vessel from the substantial expenditure of funds and labor to preserve, stabilize, and maintain the vessel. Magistrate Judge Hunt first addressed whether Morron had standing to challenge the arrest. He recognized “Morron’s heartfelt belief that she is owed something in regard to the vessel, but he held that he did not have standing to challenge the arrest.” On the merits, Magistrate Judge Hunt rejected Morron’s arguments that the bank could not engage in a self-help repossession of the vessel as that remedy was granted in the loan documents. He also rejected the argument that Huntington National Bank could not arrest the vessel because its name does not appear on the mortgage or in the records of the Coast Guard’s National Vessel Documentation Center, noting that the mortgage was properly filed and the rights automatically vested in Huntington National Bank pursuant to the Federal Bank Act by the series of mergers (he also rejected the argument that: “The stated collateral encumbrance of $1,318,000 far exceeded the actual amount advanced for the vessel, $755,008.65, and is thus non-preferred, as it conflates marine and land based debt that overstates the true whole of the vessel encumbrance by 43%.”). Accordingly, he recommended denial of the motion to vacate the arrest and to dismiss the in rem action for lack of admiralty jurisdiction. Morron objected, and Judge Dimitrouleas adopted the recommendation and denied the motion.
Although the court entered a protective order prohibiting harassment, threats, abusive communications, fabricated legal accusations, and improper conduct directed at the parties and counsel, Huntington National Bank asserted that Morron had persisted in sending “a steady stream of hostile, accusatory, and often threatening emails to Huntington’s counsel, Huntington personnel, substitute custodians, and third parties,” advancing “unsupported allegations of criminal conduct, fraud on the court, insurance fraud, RICO violations, and notarial crimes.” The bank asked the court to hold Morron in civil contempt, strike all of her pleadings and other filings, dismiss her from the case with prejudice, and prohibit her from communicating with the bank and its counsel except through properly filed court documents. Magistrate Judge Hunt found that Morron had continued to harass the bank and its attorneys in violation of the court’s prior order and recommended the sanction that Morron be forbidden from communicating with the bank and its attorneys in any way, waiving the conferral requirement between the Bank and Morron. With respect to the request that Morron be dismissed from the case with prejudice, Magistrate Judge Hunt agreed to the dismissal, but not as a matter of contempt. Instead, Magistrate Judge Hunt noted that the court had allowed Morron to intervene when it was unclear whether Morron could claim a valid interest in the vessel so that she could clarify the precise interest that she had. In light of her “continuously changing interest claims, dismissals, and reassertions,” Magistrate Judge Hunt found that “it would be nigh impossible” for Morron to assert a valid interest. Accordingly, he recommended that she be dismissed for failure to establish a viable claim to the vessel. He declined to recommend an award of attorney fees as a sanction, “mindful of Morron’s pro se status and unfamiliarity with Court procedures” and the bank’s original non-objection to the intervention. Judge Dimitrouleas approved the recommendation.
Magistrate Judge Hunt next addressed Huntington Bank’s motion for interlocutory sale of the vessel that was opposed by Morron but not by Kalish. Magistrate Judge Hunt found adequate support for the sale based on unreasonable delay, as the vessel had been under arrest for six months and for excessive expense as the storage costs for the vessel were more than $10,000 per month. He rejected Morron’s argument any change in condition of the ship was the bank’s fault. Therefore, he recommended the interlocutory sale and that the bank be entitled to credit bid at the interlocutory sale (ordering the bank to submit an affidavit supporting the total amount owed under the mortgage plus the costs of the substitute custodian). Judge Dimitrouleas adopted the recommendation and ordered the interlocutory sale and credit bid.
Beneficiaries of minor on paddle board who was struck and killed by a WaveRunner did not have claims against the United States under the Public Vessels Act or the Federal Tort Claims Act, and their claims under the Suits in Admiralty Act were dismissed for failure to state a claim for lack of any duty owed by the United States because the location of the accident, Mission Bay, is under the exclusive management and control of the City of San Diego; Peterson v. United States, No. 3:25-cv-1916, 2026 U.S. Dist. LEXIS 5628 (S.D. Cal. Jan. 12, 2026 (Huff).
Three individuals rented two privately owned personal watercraft for use in Mission Bay in San Diego, California. One of the vessels (a 2022 Yamaha EX Deluxe WaveRunner) struck and killed a 12-year-old child who was on a stand-up paddle board (Goplus 10-foot inflatable standup paddle board) near De Anza Cove in Mission Bay. The operator of that watercraft pleaded guilty to vehicular manslaughter with gross negligence. A year after the accident, the beneficiaries of the decedent filed suit in state court in San Diego County, California against the City of San Diego, the County of San Diego, the State of California, various employees of the public entities, the operators of the personal watercraft, the owners and lessors of the watercraft, and the website through which the rental was arranged. A year later the plaintiffs brought this suit against the United States in federal court in California under the Suits in Admiralty Act, the Public Vessels Act, and the Federal Tort Claims Act, asserting that the United States, through the Army Corps of Engineers and Coast Guard, maintains, operates, controls, monitors, patrols, oversees, regulates, and administers the waters and marinas of Mission Bay (in conjunction with the state and local governmental entities). The plaintiffs argued that the United States was responsible for placing and maintaining aids in navigation through the Bay and claimed that the United States failed to demarcate or separate hazardous areas, adequately regulate or prevent dangerous and unauthorized personal watercraft rentals, provide appropriate warnings or signage, patrol or enforce safety hazards, and issue adequate guidance, training, or materials for rental activity. The United States moved to dismiss the claims under the PVA and FTCA for lack of jurisdiction and the claims under the SIAA for failure to state a claim. As the complaint did not identify any public vessels owned or operated by the United States that were involved in the accident, Judge Huff dismissed the PVA claim for lack of subject matter jurisdiction. As the incident involved a collision between watercraft on navigable waters, it fell within the admiralty jurisdiction and was not covered under the FTCA. Therefore, Judge Huff dismissed the FTCA claim for lack of subject matter jurisdiction. With respect to the claim under the SIAA, the United States argued that it did not owe a duty of care to the decedent. Since 1945, Mission Bay has been under the exclusive management and control of the City of San Diego. Although the Unted States has jurisdiction to enforce federal laws in Mission Bay, it did not have the control or ownership required to have premises liability for recreational use hazards. The plaintiffs argued that the United States was liable under the Undertaking Doctrine because it oversees the aids to navigation near De Anza Cove in Mission Bay. However, the aids to navigation operated or maintained by the Coast Guard are not located in the interior waters of the Bay near De Anza Cove. Accordingly, Judge Huff held that the United States did not owe a duty to the decedent, and the claims under the SIAA were dismissed for failure to state a claim.
Magistrate Judge recommended dismissal of claims of passenger against cruise line, alleging that he was detained and prevented from exiting the vessel in a dispute over payment of an invoice (false imprisonment); unlawful search and seizure; unconstitutional policy, custom or practice; failure to train; failure to provide safe egress; failure to warn; negligent supervision; and gross negligence (the cruise line did not object to the counts for assault and battery); and he recommended dismissal of the requests for a declaratory judgment and an injunction but not the request for punitive damages; Stewart v. Royal Caribbean Cruises Ltd., No. 1:25-cv-21930, 2026 U.S. Dist. LEXIS 6350 (S.D. Fla. Jan. 13, 2026) (Torres), recommendation adopted, 2026 U.S. Dist. LEXIS 32779 (S.D. Fla. Feb. 17, 2026) (Becerra).
Fenyang Ajamu Stewart, a passenger on the NAVIGATOR OF THE SEAS, claims that he was battered, assaulted, and unlawfully detained/prevented from exiting the bridgeway from the vessel by the cruise line’s security personnel in an effort to force him to pay an outstanding invoice. Stewart brought this suit in federal court in Florida against the cruise line with, as amended, ten counts: civil assault; civil battery; false imprisonment; unlawful search and seizure; unconstitutional policy, custom, or practice; failure to train; failure to provide safe egress; failure to warn; negligent supervision; and gross negligence. He sought relief that included a declaratory judgment, injunction, and punitive damages. The cruise line moved to dismiss all of the claims, except for civil assault and civil battery, as well as the requests for punitive damages, injunctive relief, and declaratory relief. With respect to the false imprisonment claim, the cruise line cited the provision in the ticket giving it the right to restrain passengers for numerous reasons, including that the passenger was in violation of any provision in the ticket. However, Magistrate Judge Torres believed that Stewart presented a fact question whether the manner of detention was unreasonable based on the allegation that the cruise line surrounded him with multiple agents who tackled him and forcibly pinned him for several minutes. Magistrate Judge Torres did not find any plausible allegation that the security personnel were acting under color of state law, and he recommended dismissal of the claims for violation of the Fourth Amendment (unlawful search and seizure) and for having an unconstitutional policy of permitting security personnel to detain passengers over payment disputes and using excessive force. Magistrate Judge Torres also recommended dismissal of the claim for negligent failure to train because the complaint did not identify a specific program that the cruise line negligently implemented. As Stewart alleged intentional torts of battery and assault in blocking his exit and physically beating him, Magistrate Judge Torres recommended dismissal of the claim for negligent failure to provide a safe means of egress (and the claim for gross negligence), reasoning that the cruise line cannot be found negligently liable for the commission of the same intentional tort, as it would eviscerate any distinction between tort liability premised on negligence and intentional tortious activity. Magistrate Judge Torres recommended dismissal of the claims for failure to warn and negligent supervision, finding that the cruise line was not on notice that the security personnel would detain Stewart and violate his rights. Although the cruise line did not move to dismiss the battery and assault counts, it moved to dismiss the claim for punitive damages on the ground that the complaint did not allege knowledge of the cruise line of the wrongful conduct. Magistrate Judge Torres disagreed, reasoning that Stewart alleged that the personnel were acting in the course of employment when they committed the intentional acts. He explained that the issue could be revisited on summary judgment with a complete record. Finally, Magistrate Judge Torres addressed the counts seeking a declaratory judgment that the cruise line was liable under all of the counts he alleged and that an injunction should be issued in advance of his next cruise so that the incident would not be repeated. Magistrate Judge Torres recommended that the claim for a declaratory judgment be stricken, explaining that it was “cast in the form of declaratory relief” but the assertions “really speak in legal remedies.” He recommended that the claim for injunctive relief be denied because there was no plausible allegation of future harm. The cruise line objected to the portion of the recommendation that the demand for punitive damages be denied, but Judge Becerra agreed with the recommendation, noting that the issue could be revisited at the summary judgment stage.
Judge dismissed unseaworthiness claim of federal employee who was injured in transfer from the vessel using a swing rope as he did not allege any facts to support his status as a crewmember on the vessel; Williams v. C&G Boats, Inc., No. 2:25-cv-1929, 2026 U.S. Dist. LEXIS 6923 (E.D. La. Jan. 14, 2026) (Vance).
Michael Williams brought suit against C&G Boats, as owner pro hac vice, operator, and manager of the MS. MEGAN, in state court in Lafourche Parish, Louisiana, claiming that he was working aboard the vessel and was injured during a transfer from the vessel to a platform using a swing rope. He asserted claims for negligence and unseaworthiness. C&G removed the case to federal court, alleging that Williams was an employee of the U.S. Bureau of Safety and Environmental Enforcement who was being transported to a location in the South Marsh Island field on the outer Continental Shelf of the Gulf of America off the coast of Louisiana. Williams filed an amended complaint in federal court, adding M N M Boats as a defendant (asserting that C&G and M N M were the owner or owner pro hac vice of the vessel and continuing to assert claims for negligence and unseaworthiness, but providing no information for his status on the vessel. The defendants moved for judgment on the pleadings that the unseaworthiness claim should be dismissed because Williams was not a seaman. As the motion included Williams’ answers to requests for admissions, Judge Vance considered the pleading as a motion for summary judgment. The defendants argued that it was not enough to plead that Williams was working on the vessel, as that statement did not identify his connection or the work he was performing on the vessel. Williams did not oppose the motion or provide evidence that he was employed as a crewmember. Accordingly, Judge Vance dismissed the unseaworthiness claim with prejudice.
Act of state doctrine, political question doctrine, assertion that the captain breached the primary duty rule by anchoring the ship in a safe and lawful location, and contention that the owner/operator had no duty to warn of unlawful governmental activity did not bar captain’s claims under the Jones Act and general maritime law against the owner and operator of the vessel when he was imprisoned after anchoring the vessel off the coast of Indonesia; Ledoux v. SubCom, LLC, No. 1:24-cv-2168, 2026 U.S. Dist. LEXIS 6939 (D. Md. Jan. 14, 2026) (Bennett).
David A. Ledoux was employed by the owner and operator of the cable-laying vessel M/V RELIANCE as the captain. He asserts that, at the instruction of the agent for the vessel, Ben Line Agencies—Singapore, he anchored the vessel 51 nautical miles off the coast of Indonesia. On October 2, 2021, armed Indonesian Navy personnel ordered him to anchor the vessel in Batam Harbor, Indonesia so that they could inspect the vessel for seaworthiness. After anchoring the vessel in Batam Harbor, Captain Ledoux was ordered ashore and arrested for illegal anchoring and violating the United Nations Convention on the Law of the Sea. He spent 21 days in an Indonesian jail in abysmal conditions, suffering physical consequences and post-traumatic stress disorder. Ledoux brought this suit in federal court in Maryland against the vessel owner and operator under the Jones Act and general maritime law, complaining that he was not told by the vessel owner and operator that they had been warned by their P&I Clubs about the Indonesian Navy unlawfully detaining vessels and seamen off the coast of Indonesia. The defendants moved to dismiss the complaint, arguing that the claims are barred by the act of state doctrine. The defendants asserted that they only had a duty to warn of the risk of detention if Indonesian officials were invalidly detaining vessels and that they did not cause his injuries in Indonesian custody. Ledoux moved for leave to amend his claim, and the defendants again moved to dismiss based on the act of state doctrine. Judge Bennett first considered the count for Jones Act negligence, pleading that the defendants negligently directed him to anchor the vessel in an area with a known risk of detentions and failed to warn him of the risk after they were made aware by the P&I Clubs. This was not a case in which the government was sued or in which the validity of the governmental action was at issue. As the issue was whether the defendants acted negligently by instructing him to anchor at the location and failed to warn him, Judge Bennett held that the act of state doctrine had no application. Similarly, the claim that the vessel was unseaworthy because it lacked procedures to advise seamen of warnings from the Clubs and the incompetence of its steamship agent were distinct from the acts of the Indonesian government and did not implicate any judgment on the validity of its acts (Judge Bennett gave similar treatment to the count for general maritime negligence). Accordingly, Judge Bennett denied the motion to dismiss and granted leave to file an amended complaint. See September 2025 Update.
After Ledoux filed his amended complaint, the defendants filed a motion to dismiss for failure to state a claim. Their first argument again asserted that the act of state doctrine barred the claims. Judge Bennett reiterated that the doctrine prevents federal courts from declaring invalid the official act of a foreign sovereign performed within its own territory, but Ledoux would not need to prove that any official Indonesian act was valid or invalid in order to prove his case. He only needed to establish the detention, that the defendants or their agents failed to warn him of the danger, and that the detention was foreseeable. The defendants added that they would implead Indonesia if the complaint was not dismissed. Therefore, the court would “‘unquestionably’ be required to rule on the validity of an official act of a foreign sovereign—the detention and arrest of Ledoux—thereby triggering the act of state doctrine.” Judge Bennett rejected the argument, answering that the defendants “cannot create a foreign sovereignty issue based on Ledoux’s clear claims of failure to be notified.” The defendants’ second argument for dismissal was that the case is not justiciable because it presents a political question (a challenge to subject matter jurisdiction not a defense based on failure to state a claim). The defendants noted that the U.S. State Department was actively involved in monitoring the detention conditions while considering and protecting U.S. foreign policy goals for Indonesia. They asserted that the court would be required to express negative opinions of the actions taken by Indonesia and its Navy with the risk of impeding or upsetting the sensitive and critical relationship between the countries, presenting a political question that deprives the court of jurisdiction. Judge Bennett disagreed, stating that it was not necessary to make any policy determinations for the court to decide Ledoux’s claims. Therefore, the political question doctrine had no bearing on this case. The defendants’ third challenge cited the Walker primary duty rule, claiming that Ledoux, as captain of the RELIANCE, had a primary duty to anchor the vessel in a safe and lawful location. Judge Bennett noted the criticism of the rule, particularly that it is inconsistent with the concept of comparative negligence, and he added that the rule has not been squarely adopted by the Fourth Circuit. However, Judge Bennett did not have to address whether the rule applied because Ledoux’s claims survived a motion to dismiss, finding exceptions based on his pleadings of negligence and unseaworthiness, that he was injured by a dangerous condition that he did not create or control, and that the defendants failed to warn him of foreseeable risks. The defendants’ final argument was that they had no duty to warn the captain of the vessel, who is responsible for the lawful operation of the vessel, of risks from lawful governmental activity in the waters in which they sail. However, as liability arises from foreseeability of a particular danger, and as Ledoux alleged that the defendants were aware of warnings about the detention of vessels and seamen from P&I Clubs, Judge Bennett rejected the argument and declined to dismiss the amended complaint.
After the federal judge in Utah transferred to federal court in New York a case brought in Utah state court (involving a shipment of goods from Italy to Utah) that was removed to federal court by the third-party defendant ocean carrier, the Judge in New York federal court remanded the case to the state court in Utah; TD srl v. Italia Granite Supply, LLC, No. 1:25-cv-9362, 2026 U.S. Dist. LEXIS 8621 (S.D.N.Y. Jan. 15, 2026) (Rakoff).
Italian company TD srl sold 61 slabs of marble stone to Italia Granite Supply, a Utah company. The marble slabs were shipped from Volargne, Italy to Salt Lake City, Utah through the ports of La Spezia, Italy and Long Beach, California under Mediterranean Shipping Company’s sea waybill. The marble slabs arrived in a damaged condition, and Italia Granite declined to pay the invoice to TD srl. TD srl brought this suit against Italia Granite in state court in Salt Lake County, Utah for breach of contract, and Italia Granite brought a third-party complaint against Mediterranean Shipping Company and others, alleging negligence, gross negligence, bailment, and liability under the Carmack Amendment and the Carriage of Goods by Sea Act. Mediterranean Shipping removed the case to Utah federal court, basing jurisdiction on diversity in the original action and federal question and admiralty for the third-party complaint. Mediterranean Shipping then filed a motion to dismiss the third-party complaint as time-barred and, alternatively, to transfer the case to the United States District Court for the Southern District of New York in accordance with the forum-selection clause in the sea waybill. A week and a half after the 30-day deadline to file a motion to remand had expired, third-party plaintiff Italia Granite moved to extend the time to file a motion to remand (citing excusable neglect from staffing changes at its law firm), and the court granted an extension during which Italia Granite filed a motion to remand. As a transfer would avoid the Utah court’s having to rule on the merits of the time-bar argument, Judge Barlow first considered the transfer argument. Italia Granite argued that enforcement of the forum-selection clause was unconscionable. Judge Barlow noted that Italia Granite would have to allege unconscionability as to the clause itself, but its motion addressed the incorporation of terms in the waybill and not the clause itself (with respect to procedural unconscionability), and the statute of limitations and package limit (with respect to substantive unconscionability). Therefore, the unconscionability argument failed. Finally, Italia Granite argued that interests of public policy, fairness, and judicial economy weighed against enforcing the clause. Judge Barlow noted that Italia Granite would have to show that the transfer would make the litigation so gravely difficult and inconvenient that it would effectively deny Italia Granite its day in court. As Italia Granite could not satisfy that standard, Judge Barlow transferred the case to the federal court in New York and stated that Mediterranean Shipping could file its motion to dismiss in the transferee court. See December 2025 Update.
In federal court in New York, Mediterranean Shipping renewed its motion to dismiss, and Italia Granite renewed its motion to remand the case to Utah state court. Mediterranean argued that the motion to remand was untimely, but Judge Rakoff answered that the court had already granted leave to file the late motion to remand, and it was not for the New York court to revisit the timeliness. Turning to the merits of the motion to remand, Judge Rakoff found no provisions in the Removal Statute that allowed Mediterranean Shipping to remove this case. He first held that the general removal provisions in Section 1441(a) only apply to defendants, not third-party defendants. Although Mediterranean Shipping argued that this conclusion would prejudice its ability to raise the forum-selection defense, Judge Rakoff answered that, “unfair as it may appear,” Mediterranean Shipping would have to raise the defense in state court. Judge Rakoff rejected removal based on Section 1441(b) as it does not supply independent removal authority and, even if it did, removal based on diversity would violate the forum-defendant rule as defendant Italia Granite is a Utah citizen. Judge Rakoff also held that Section 1441(c) did not provide an independent basis for removal and in any event did not apply. Although Mediterranean Shipping argued that the case should not be remanded to state court in Utah because it would revisit the decision to transfer the case to New York, Judge Rakoff responded that Judge Barlow in Utah federal court did not address the motion to remand, which was entirely separate from the motion to transfer. Remand to Utah state court did not entail a reexamination of the previous transfer decision and was not a “game of jurisdictional ping-pong.” Judge Rakoff remanded the case to Utah state court and denied Italia Granite’s request for attorney fees, reasoning that Italia Granite had itself violated the provisions of the Removal Statute with its late objection to removal and “it would be unfair to award fees to a party that itself failed to comply with the statute.”
Judge issued warrant for arrest of a vessel at the request of the purchaser that alleged that it had paid the full purchase price and was entitled to title and possession under Supplemental Rule D, despite the purchaser’s motion seeking the arrest under Supplemental Rule C to foreclose a maritime lien for a first preferred ship mortgage; AB Properties, LLC v. JAYS N SEAS, No. 3:26-cv-2, 2026 U.S. Dist. LEXIS 11613 (D.V.I. Jan. 16, 2026) (Teague).
AB Properties alleges that it entered into a purchase agreement with Navigare Yachting USA for the vessel JAYS N SEAS for the price of $1,241,500. AB Properties claims that it made the three installment payments and is entitled to transfer of title to the vessel (pursuant to the purchase agreement) that was unlawfully withheld by seller Navigare. AB Properties then brought this action against the vessel, in rem, in federal court in the Virgin Islands, based on Supplemental Rule D, seeking arrest of the vessel and a declaration that it is entitled to ownership and title to the vessel. In its motion seeking issuance of the warrant for arrest of the vessel, however, AB Properties cited Supplemental Rule C and stated that the case was governed by the Commercial Instruments and Maritime Lien Act as an action to foreclose a maritime lien under the terms of a first preferred ship mortgage. Judge Teague agreed to issue the warrant for arrest of the vessel, but he pointed out that AB Properties appeared to request the warrant under the wrong Rule. The complaint did not assert a claim to enforce a maritime lien, and the motion did not attempt to explain how AB Properties had a lien under the CIMLA. Using the allegations in the complaint, Judge Teague considered whether the warrant should be issued pursuant to Rule D. He explained that a party seeking possession of a vessel under Rule D must have legal title or a legal claim to possession and that a “Rule D claim that asserts only equitable interest in a vessel, with no separate basis for admiralty jurisdiction, is not cognizable in admiralty.” Therefore, he was faced with the question of whether this was a dispute over title that gave the court admiralty jurisdiction. The purchase agreement provided that title would pass to AB Properties at closing upon the satisfaction of two contingencies that were pleaded to have been satisfied. However, the complaint did not allege that AB Properties had legal title to the vessel, only that it had a superior legal right to title and ownership. However, Rule D permits a party seeking possession to maintain the Rule D action if it has a legal claim to possession. The complaint alleged that AB Properties had paid the full purchase price and was entitled to legal title, that it was seeking to recover immediate possession, and that Navigare’s continued retention of the vessel was unlawful. Judge Teague believed that it was a “close call,” but he held that AB Properties had made out a prima facie case for a possessory action pursuant to Rule D, and he ordered the issuance of the warrant for the arrest of the vessel.
Finance company failed to establish irreparable harm to obtain a TRO to protect its security interest in vessels when the vessel owner defaulted on loans; Skypeak Fund I LP v. Celebration Riverboat Co., No. 2:26-cv-116, 2026 U.S. Dist. LEXIS 9727 (E.D. La. Jan. 20, 2026) (Brown).
Skypeak Fund I, a private equity and financing entity, provided loans to Celebration Riverboat Co. to assist it in obtaining a small tugboat and events barge for business in Louisiana. Celebration defaulted on the notes and Skypeak brought suit in federal court in Louisiana against Celebration based on diversity, not admiralty. Skypeak sought a temporary restraining order, without notice to Celebration, prohibiting Celebration from selling, encumbering, or interfering with its security interests in the vessels. However, Judge Brown did not believe that Skypeak had demonstrated that it would suffer irreparable harm and declined to issue the TRO. She did state that the denial was without prejudice and that Skypeak could file a motion for a preliminary injunction after serving Celebration.
Court ordered owner of vessel that was arrested in a Rule D action by a party seeking title to the vessel to pay a share of the custodial expenses despite its argument that it did not benefit from the arrest of its vessel; Sendowski v. M/Y MONARCH, No. 0:25-cv-60815, 2026 U.S. Dist. LEXIS 10423 (S.D. Fla. Jan. 20, 2026) (Valle), recommendation adopted, 2026 U.S. Dist. LEXIS 20910 (S.D. Fla. Feb. 2, 2026) (Damian).
Janusz Sendowski and Randall Postma formed Blue Sea I, LLC, to purchase the M/Y MONARCH, using financing from Essex Credit Corp. (predecessor to BMO Bank). Sendowski sold his interest in the vessel and sought to be removed from the loan resulting in litigation and a settlement agreement that Postma and Blue Sea would refinance or sell the vessel within nine months or Sendowski would have the right to force the sale of the vessel or take possession of the vessel. The vessel was not sold or refinanced, and Sendowski brought this suit in Florida federal court pursuant to Supplemental Rule D, alleging that he was entitled to possession and title to the vessel and requesting arrest of the vessel to prevent its departure from the United States. The vessel was arrested, and Sendowski paid the fees for the substitute custodian. Blue Sea filed a claim of owner, asserting that it is the sole owner of the vessel, and BMO Bank filed a claim based on its preferred ship mortgage. Arguing that both Blue Sea and BMO Bank benefit from the preservation of the vessel during its custody, Sendowski filed a motion to allocate the custodial costs and compel payment of a proportionate share from Blue Sea and BMO Bank (consistent with the Eleventh Circuit rule that all claimants should share in the administrative cost of preserving the vessel while under arrest). The bank did not object, but Blue Sea argued that it (as the true owner) should not have to pay a third of the cost of arresting the vessel because, unlike a lienor, it receives no benefit from the arrest of its vessel. In a paperless recommendation, Magistrate Judge Valle found Blue Sea’s argument unpersuasive. She recommended that both the bank and Blue Sea be held responsible for a third of the custodial charges while the vessel remains under arrest, including the charges incurred to date. Blue Sea did not object to the recommendation, and Judge Damain agreed with the “well-reasoned recommendations” and ordered that Blue Sea and the bank are each responsible for a third of the custodial charges.
Carrier failed to sufficiently allege breach of contract or quasi-contract claims against consignee for freight, demurrage, and detention charges; Hapag-Lloyd (America), LLC v. Indorama Ventures Alphapet Holdings, Inc., No. 1:23-cv-1016, 2026 U.S. Dist. LEXIS 10816 (D. Del. Jan. 21, 2026) (Tennyson).
Dhunseri Polyester Co. shipped cargo to Indorama Ventures on Hapag-Lloyd vessels pursuant to bills of lading listing Indorama Ventures as the consignee. Hapag-Lloyd brought suit in federal court in Delaware against Indorama for $605,987.26 in freight, demurrage, and detention charges, and its original complaint was dismissed for failure to state a claim. Hapag-Lloyd filed an amended complaint with additional information and exhibits, bringing claims for breach of maritime contracts, unjust enrichment, quantum meruit, account stated, and attorney fees. Indorama moved to dismiss all of the claims, and Magistrate Judge Tennyson recommended that the claims be dismissed. Starting with the contract claim, Magistrate Judge Tennyson reasoned that the bills of lading are contracts between the shipper/consignor and carrier, and that consignees are third-party beneficiaries. She found an open question under maritime law whether mere acceptance of the cargo is sufficient to bind the consignee to the terms of the bill of lading, finding persuasive the decision of the Ninth Circuit in Milos Product Tanker Corp. v. Valero Marketing (see December 2025 Update), which she described as finding that “acceptance alone is sufficient to bind a consignee in the maritime context only if both parties are common carriers”). As Hapag-Lloyd did not allege that Indorama is a common carrier, Magistrate Judge Tennyson held that Hapag-Lloyd must sufficiently allege that Indorama manifested acceptance or consent to be bound by the bills of lading or that an agency/alter-ego relationship existed between Indorama and Dhunseri. Hapag-Lloyd did not allege facts indicating that Indorama filed suit under the bills of lading, presented them to Hapag-Lloyd, or signed/endorsed them. Hapag-Lloyd alleged that Dhunseri was acting as an agent for Indorama, a parent or affiliated company, so that Indorama was in contractual privity with Hapag-Lloyd, but Magistrate Judge Tennyson held that these allegations did not plausibly allege that Indorama consented to be bound by the bills of lading. Therefore, she recommended that the contract claims be dismissed. Turning to the alternative claims, Indorama objected that Hapag-Lloyd’s pleading of the contract claims precluded assertion of quasi-contract claims. Magistrate Judge Tennyson rejected that argument in view of the dispute whether Indorama was bound by the contract, but she recommended dismissal of the claims for unjust enrichment because Hapag-Lloyd did not allege that Indorama knowingly facilitated and benefitted from Dhunseri’s non-payment, and she recommended dismissal of the claims for quantum meruit because Hapag-Lloyd did not allege that it would be unable to recover full compensation from Dhunseri under the contract. Finally, she recommended that the claim for account stated be dismissed because Hapag-Lloyd did not allege any admission by Indorama that it owed a specific amount and that the claim for attorney fees be dismissed based on the conclusion that Indorama was not bound by the bills of lading. Hapag-Lloyd voluntarily dismissed the case without prejudice.
Judge dismissed passenger’s suit against cruise line in California (alleging sexual harassment and assault during a cruise from Port Canaveral, Florida to the Caribbean) for lack of personal jurisdiction; Gayed v. Royal Caribbean International, No. 2:25-cv-4665, 2026 U.S. Dist. LEXIS 14122 (C.D. Cal. Jan. 22, 2026) (Wilson).
Sylvia Gayed, a passenger on the WONDER OF THE SEAS on a cruise to the Caribbean from Port Canaveral, Florida, brought this suit, pro se, in federal court in California against the cruise line, complaining of sexual harassment and assault by a casino host in the vessel’s Casino Royale. The cruise line moved to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and failure to state a claim. Judge Wilson rejected the argument that the court lacked admiralty jurisdiction, noting that the incident occurred on a cruise ship at sea and that the alleged sexual battery of a passenger by a crewmember had a substantial relationship to traditional maritime activity and the potential to disrupt maritime commerce (Judge Wilson added that Gayed had not pleaded diversity or a private cause of action that would support federal question jurisdiction, but she had likely pleaded a cause of action for battery, although she named it as sexual harassment and assault). With respect to personal jurisdiction, Judge Wilson reasoned that the complaint did not allege any actions by the cruise line that indicated a purposeful availment of the California forum in connection with the cruise from Port Canaveral to the Caribbean for specific jurisdiction. With respect to general jurisdiction, Gayed did not allege any facts to support that the cruise line was “essentially at home” in California (it is incorporated in Liberia and maintains its principal place of business in Florida). Accordingly, Judge Wilson dismissed the case for lack of personal jurisdiction. In the event that Gayed repleads the jurisdiction allegations, Judge Wilson found it “appropriate to offer limited guidance to the pro se Plaintiff in the interest of judicial efficiency.” He noted that the ticket contained a forum-selection clause requiring litigation in the United States District Court for the Southern District of Florida that would require transfer of the case if the court finds the clause to be enforceable. He dismissed the case for want of personal jurisdiction, stating that “for expeditious resolution of the case, Plaintiff would be best served to re-file any amended complaint in the Southern District of Florida.”
Judge dismissed the negligence and premises liability claims of an employee of an independent contractor against the owner/operator of an offshore spar and the company men; Kennedy v. Shell USA, Inc., No. 2:22-cv-4591, 2026 U.S. Dist. LEXIS 13462 (E.D. La. Jan. 26, 2026) (Papillion).
Frank Kevin Kennedy was employed by Helmerich & Payne as a floor hand on its Rig 205 located on Shell Offshore’s spar, PERDIDO, on Alaminos Canyon Block 857 on the outer Continental Shelf offshore Texas. Kennedy alleges that he was being hoisted by a man rider above the monkey board when his secondary cable became hung up on the monkey board, which engaged the brake and caused him to be pulled violently by the man rider. Kennedy brought this suit in federal court in Louisiana against Helmerich & Payne, Shell, and company men Joseph Hollis and Allen Rollins under the Jones Act and general maritime law, and alternatively under the LHWCA and Outer Continental Shelf Lands Act. Shell and the company men moved to dismiss the complaint for failure to state a claim. As the PERDIDO is a spar located on the outer Continental Shelf, Judge Papillion held that the OCSLA applied, and he then addressed the question of what law to apply. Citing Fifth Circuit decisions holding that spars are not vessels because they are anchored to the seabed and are not intended to be moved, Judge Papillion held that the maritime situs requirement was not met and that maritime law was not applicable. Therefore, he applied Texas law as the law of the adjacent state pursuant to the choice-of-law provision of the OCSLA. Shell, as owner of the PERDIDO, argued that Kennedy had not pleaded any claim of a defect in the spar for a premises liability claim and that the brake did its job when it engaged. It was the tangled cable that was the cause of the danger. Although “sparse,” Judge Papillion considered the allegations of a defect in the equipment, the failure to discover and warn of dangerous conditions, and the failure to intervene to be sufficient to state a claim for negligence and premises liability against Shell Offshore (but not other Shell entities). However, the allegations against the company men were dismissed (without prejudice) because they did not allege any particular act or omission causally related to the injury. As Judge Papillion held that Texas law and not maritime law applied, he dismissed the claims under the Jones Act and general maritime law with prejudice. See July 2024 Update.
After the plaintiffs filed an amended complaint, the Shell defendants and the company men moved for summary judgment. Kennedy asserted that the company men were negligent for choosing Claire El Hayek to serve as the Shell night representative while knowing that El Hayek lacked the requisite knowledge and experience. As the negligent acts were performed by the company men in the scope of their employment with Shell and not in connection with any independent duty, the company men were not personally liable under Texas law, and Judge Papillion granted summary judgment to them. Shell moved for summary judgment that it did not have a duty to an employee of an independent contractor as it did not have a contractual right to control the contractor (or its employees) and did not exercise actual operational control over the work. Shell cited the contractual provision in the Master Drilling Agreement with Helmerich & Payne that Helmerich and Payne was an independent contractor over which Shell had no right to control. However, Kennedy cited the provision in the contract that allowed Shell to take possession of the well and the Helmerich & Payne’s operations if there was an imminent danger of a blowout or other well hazard. Judge Papillion answered that Kennedy’s injury was not caused by work on a well or well hazard and that the contract did not give Shell the right to take over the decommissioning work in which Kennedy was injured. Thus, Kennedy had to show that Shell actually exercised control over the manner in which Helmerich & Payne’s work was performed in the activity that injured Kennedy. Although Shell was involved in the operation, it was an employee of Helmerich & Payne who gave Kennedy the instruction to ride the man-rider, and Judge Papillion granted summary judgment to Shell on the negligence claim. With respect to premises liability, Shell argued that it lacked notice of a dangerous condition in the hoisting mechanism that was used to lift the workers. Kennedy argued that Shell knew of the danger of using a safety lanyard attached to the derrick’s static line for man-riding operations, but Judge Papillion considered that to be a danger of the method of Kennedy’s work, and not a defective condition of the premises. Accordingly, he dismissed the Shell defendants with prejudice.
Judge declined to sever a seaman’s claim for maintenance and cure for an expedited trial; Sullivan v. C-Dive, LLC, No. 2:24-cv-2843, 2026 U.S. Dist. LEXIS 13464 (E.D. La. Jan. 26, 2026) (Lemelle).
Matthew Sullivan, a commercial diver employed by C-Dive, claims that he sustained dysbaric osteonecrosis because of improper decompression protocols in his employment connected with vessels owned and operated by C-Dive in waters off the coast of Louisiana. He reported the condition to C-Dive, but he asserts that his employer’s third-party administrator, Maritime-Subsea Claims, declined to pay maintenance and cure benefits. Sullivan brought this suit on December 10, 2024 against C-Dive in federal court in Louisiana, asserting claims as a seaman under the Jones Act and general maritime law (unseaworthiness and maintenance and cure). Eight months later, on August 12, 2025, Sullivan moved to sever his claim for maintenance and cure for an expedited trial. C-Dive opposed the motion, arguing that critical disputes about facts and extensive ongoing discovery weighed against a separate trial. Judge Lemelle weighed factors that promoted judicial economy and noted that Sullivan argued that he had a surgical recommendation and was in great pain; however, that recommendation was from December 2024, and he could have elected to use the group health insurance provided by C-Dive. The case is set for a jury trial in April 2026, expert reports were not due until February, discovery was ongoing, and the same medical experts would testify in both trials. Weighing these factors, Judge Lemelle declined to grant a separate trial on the maintenance and cure claim.
Federal judge in Louisiana upheld personal jurisdiction over vessel owner and operator whose principal place of business is in Florida for an accident that just happened to be in Louisiana during cargo operations; Howard v. Crowley Maritime Corp., No. 2:25-cv-745, 2026 U.S. Dist. LEXIS 14400 (E.D. La. Jan. 27, 2026) (Brown).
Jonathan Howard was employed by Intrepid Personnel as a crewmember on its vessel M/V AMERICAN PRIDE that was docked in Mount Airy, Louisiana. He claims that he was injured by the negligence of a co-employee who failed to monitor the tension on an aft spring line. He brought suit in federal court in Louisiana against Crowley Maritime, but he amended his complaint to name Intrepid Personnel and Intrepid Ship Management as the owner and operator of the vessel. The defendants moved to dismiss the case for lack of personal jurisdiction, arguing that the court lacked general jurisdiction over the companies that are incorporated in Delaware with their principal place of business in Florida and because the court lacked specific jurisdiction over an accident that occurred while the vessel “just happened to be in Louisiana.” Judge Brown agreed that Howard did not establish that the defendants’ contacts with Louisiana were so continuous and systematic to render them essentially at home in Louisiana (for general jurisdiction). However, she found that the accident arose out of the defendants’ purposeful conduct of business in Louisiana, noting that the AMERICAN PRIDE regularly traverses waterways in the district and was loading cargo in the district at the time of the accident. Therefore, she denied the motion to dismiss.
Breach of Multiple Operator Warranty voided coverage under yacht policy, and the insurer had no duty to defend the vessel owner in a suit by a crewmember for an injury sustained on the vessel; Accelerant Specialty Insurance Co. v. Stewart, No. 8:25-cv-2024, 2026 U.S. Dist. LEXIS 14745 (M.D. Fla. Jan. 27, 2026) (Moody).
Kevin Greenstein, a mate aboard the yacht BLUWATER, owned by David Lee Stewart, was injured while tying up the vessel in The Bahamas on a trip from Stuart, Florida. Greenstein brough a suit against Stewart in state court in Martin County, Florida under the Jones Act, general maritime law, and Florida law, and the insurer for the vessel, Accelerant Specialty, brought this declaratory judgment action against Stewart (and Greenstein, who did not answer) in Florida federal court, seeking a declaration that the policy was void ab initio and that it owed no defense in the suit or medical benefits based on violation of the Multiple Operator Warranty (that a minimum of two Named Operators must be on board whenever the vessel is navigating). Stewart acknowledged that only one of the Named Operators was on board. In accordance with the New York choice-of-law clause, Judge Moody held that the breach of warranty voided the policy, regardless of causal connection to the loss. Therefore, Judge Moody entered judgment that the policy afforded no coverage for any claims arising from the accident (including that Accelerant had no duty to indemnify Stewart with respect to Greenstein’s suit).
Insurer with title to vessel was entitled to possession in Rule D action; Progressive Casualty Insurance Co. v. M/V BELLA CHRISTINA, No. 2:25-cv-14312, 2026 U.S. Dist. LEXIS 14821 (S.D. Fla. Jan. 27, 2026) (Maynard).
Progressive Casualty Insurance Co. took title to the M/V BELLA CHRISTINA, a 2022 Sea Ray 290 SDX, which was located at a facility located in Stuart, Florida, but the facility declined to turn over possession of the vessel to Progressive. Progressive filed this action in federal court in Florida, pursuant to Supplemental Rule D, seeking possession of the vessel that was being wrongfully denied by the facility without a legal claim to the vessel. Judge Martinez ordered the arrest of the vessel; the vessel was arrested; and it was turned over to a substitute custodian. Progressive published notice of the arrest and served the arrest warrant on individuals and entities that it suspected as possibly having claims. After entry of a clerk’s default, a notice of appearance and motion to undue the default were filed on behalf of one potential claimant, but the motion was withdrawn less than an hour later. As there was no other claimant, Progressive moved for a judgment directing that the vessel be released to Progressive. Magistrate Judge Maynard found that Progressive had complied with the procedural requirements for bringing an action in rem (Supplemental Rule C and Local Admiralty Rule C). Magistrate Judge Maynard noted that Rule D provides for “notice in the manner provided by Rule B(2) to the adverse party or parties,” and that the Rule aligned with the requirement in the Local Admiralty Rules. Magistrate Judge Maynard then considered the elements of a possessory action under Rule D and found that they were satisfied because Progressive had the legal title and the possession had been denied by a facility that did not have a legal claim (established by the default as there were no contesting claims). Accordingly, she recommended that the vessel be released to Progressive. There was no objection to the recommendation, and Judge Martinez adopted it. He entered a final judgment in rem that Progressive “is deemed the rightful owner and legal title holder” of the BELLA CHRISTINA, “to the exclusion of all other potential claimants,” directing the Marshal to release the vessel to Progressive.
Judge dismissed suits by passengers who were injured from collapse of wooden bench in the sauna on a passenger vessel for lack of notice and because the elements of res ipsa loquitur were not established; Kim v. Carnival Corp., No. 1:24-cv-24051, 2026 U.S. Dist. LEXIS 15594 (S.D. Fla. Jan. 28, 2026) (Damian).
Kum Neo Kim and Kyung Park, passengers on the CARNIVAL LIBERTY, were injured when a wooden bench in the women’s sauna on the ship collapsed. They noticed the day before that the bench moved slightly when they sat on it, but they did not report it. The next day the bench started shaking and moving when Park sat down and then collapsed, resulting in injuries to both passengers. Kim and Park brought separate actions against the cruise line in federal court in Florida, which were consolidated. The complaints each asserted one count of negligence for failing to ensure that the bench was safe (including an allegation of res ipsa loquitur), and the cruise line moved for summary judgment on the grounds that the passengers failed to establish notice, that there was no evidence that the cruise line breached a duty or proximately caused the accident, and that the passengers failed to prove the elements of res ipsa loquitur. The passengers moved for partial summary judgment that the cruise line had notice, that its negligent maintenance protocols were an independent basis of liability, and that there was no evidence of comparative fault. The passengers cited a work order for a bench in the sauna six months earlier as notice of the dangerous condition of the bench from damage to the wood. Judge Damian disagreed, as the work order did not establish that there was damage to the specific bench or that the repair of wood damage involved the same issue that caused the collapse that injured the passengers. The passengers asserted that the condition developed over time (so that they could establish that it should have been discovered), but they did not offer evidence that would establish a condition that invited corrective measures. In fact, they sat on the bench the day before and did not believe that they needed to report the condition. Therefore, Judge Damian held that summary judgment was proper. Judge Damian added that the doctrine of res ipsa loquitur did not help the passengers because it does not eliminate the obligation to prove that the defendant owed a duty to the plaintiffs in the first place, and no duty was owed in the absence of notice. She also noted that res ipsa loquitur requires that the injuries would not have occurred without negligence, but there was more than one inference about what caused the collapse. Judge Damian also rejected the argument based on negligent maintenance protocols as an impermissible claim for negligent mode of operation. Therefore, she granted summary judgment to the cruise line and dismissed the suits.
New York Federal Judge transferred second-filed suit arising from arbitration of charter party dispute to Louisiana federal court where the court had vacated arrests of vessels for lack of a maritime lien; Atlantic Oceanic LLC v. Fleetzero, Inc., No. 1:25-cv-10290, 2026 U.S. Dist. LEXIS 16311 (S.D.N.Y. Jan. 28, 2026) (Garnett).
Fleetzero bareboat chartered the M/V PACIFIC JOULE to Atlantic Oceanic, and Atlantic Oceanic allegedly breached the charter by failing to pay charter hire, refusing to deliver the vessel to Fleetzero, and failing to pay a performance guaranty. Atlantic Oceanic initiated an arbitration proceeding, and the panel issued a partial final award in favor of Fleetzero and a final award in the amount of $4,157,724.59. Fleetzero then filed a suit in federal court in Louisiana to confirm the arbitration award and sought to arrest two vessels owned by Atlantic Ocean, the M/V ATLANTIC POWER and the M/V ATLANTIC WIND, pursuant to Supplemental Rule C. The court ordered the arrest of the vessels, and Atlantic Oceanic moved to vacate the arrests on the ground that Fleetzero did not plead that it had a maritime lien on the vessels that would permit their arrest under Rule C. Fleetzero argued that it was not proceeding under Rule C (1)(a), which provides that an in rem action may be brought to “enforce any maritime lien.” Instead, it asserted that it arrested the vessels pursuant to Rule C (1)(b), which permits an in rem action “[w]henever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto." Fleetzero argued that the United States statute providing for an in rem action is Section 8 of the Federal Arbitration Act, which provides: “If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, then, notwithstanding anything herein to the contrary, the party claiming to be aggrieved may begin his proceeding hereunder by libel and seizure of the vessel or other property of the other party according to the usual course of admiralty proceedings, and the court shall then have jurisdiction to direct the parties to proceed with the arbitration and shall retain jurisdiction to enter its decree upon the award.” Magistrate Judge Ayo noted the Sembawang decision of the Fifth Circuit in which the appellate court rejected the argument that Rule C (1)(b) provides for an in rem action based on Section 8 of the Federal Arbitration Act. The Fifth Circuit reasoned that Section 8 “does not confer jurisdiction or a right against the vessel in rem,” concluding that Sembawang could not proceed in rem under Rule C (1)(b) (Sembawang was allowed to proceed under Rule B in that case). As Magistrate Judge Ayo was “unable to conclude here that the Fifth Circuit’s holding would not apply to the situation in the instant case,” Magistrate Judge Ayo vacated the arrests. See February 2026 Update.
While the Louisiana suit was pending, Atlantic Oceanic filed suit against Fleetzero in state court in New York (seeking to vacate the damages portion of the arbitration award). Fleetzero removed the action to federal court and moved to transfer the suit to the federal court in Louisiana based on the first-filed rule. Atlantic Oceanic opposed the transfer, arguing that the federal court in Louisiana was not the proper venue and that the balance of convenience factors favored maintaining the suit in New York. Judge Garnett disagreed, reasoning that the vessel that was the subject of the arbitration primarily operated in Louisiana and that the site of the arbitration in New York did not require a different outcome. She answered the convenience argument, noting the prior action between the same parties in Louisiana that involved the same events and facts. Accordingly, Judge Garnett transferred the New York suit to Louisiana, and Magistrate Judge Ayo ordered the two cases consolidated.
Judge dismissed claims against cruise line brought by passenger who was injured during a shore excursion (based on apparent agency and a joint venture with the tour operator) in light of the language in the passenger ticket, the excursion ticket, and the agreement between the cruise line and the excursion operator; Bollinger v. NCL (Bahamas) Ltd., No. 1:24-cv-23502, 2026 U.S. Dist. LEXIS 20455 (S.D. Fla. Jan. 28, 2026) (Altonaga).
Beau Bollinger, a passenger on the PRIMA, chose a shore excursion in Roatan, Honduras during the booking progress for the cruise—Island Adventure, including snorkeling, operated by Seabreeze Inn, a Honduran company. When it was time to return to the ship from the excursion, the operator did not have adequate transportation to have Bollinger back in time for the PRIMA’s departure, and Bollinger asserts that the operator engaged a pickup truck and instructed Bollinger to ride in the cargo bed of the truck. As Bollinger boarded the bed of the truck, the driver accelerated without warning, injuring Bollinger. Bolinger brought this suit against the cruise line and tour operator in Florida federal court, alleging claims against the cruise line for negligent failure to warn, negligent selection of the tour operator, negligent retention of the tour operator, negligence based on agency, negligence based on joint venture, and negligent provision of land transportation. The cruise line argued that the complaint did not allege facts from which the court could reasonably infer that the cruise line had notice of the hazards associated with the shore excursion. Chief Judge Altonaga agreed, noting that Bollinger did not allege that participants on the excursion previously sustained injuries from unsafe transportation or that the tour operator previously used unsafe transportation. Chief Judge Altonaga declined to make the “inferential leap” that the cruise line should have known the tour operator would resort to unsafe transportation from its coordination with the tour operator on scheduling and capacity and from its knowledge of the island’s population and infrastructure. Chief Judge Altonaga also rejected the argument that the cruise line should have known that the tour operator would have rushed the return because it failed to inform the tour operator that the ship would wait for the passengers before departing. Therefore, she dismissed all of the counts involving direct liability for lack of sufficient pleading of notice. This dismissal did not apply to the counts based on vicarious liability theories of agency and joint venture (which did not require notice on the part of the cruise line). The cruise line objected to the count alleging apparent agency, contending that its only duty was to warn of known, hidden dangers and that Bollinger could not have reasonably believed that the tour operator was an agent of the cruise line. Chief Judge Altonaga disagreed, noting that a defendant can be vicariously liable under the maritime law for the actions of its apparent agents. She also agreed that Bollinger had sufficiently pleaded a claim for apparent agency from the conduct of the cruise line in advertising the excursion in print, online, and onboard the vessel using the cruise line’s logo; collecting payment, encouraging passengers to book excursions exclusively through the cruise line; making safety-related representations during booking; and concealing the tour operator’s identity (together with Bollinger’s representation that he would not have booked the tour if he believed that a party other than the cruise line or its agent operated it). Finally, Chief Judge Altonaga declined to dismiss the joint venture claim. Although the agreement between the tour operator and cruise line disclaimed a joint venture, Chief Judge Altonaga stated that a joint venture may be “implied” from the conduct of the parties. In this case, she found plausible support for an implied joint venture agreement from the allegations that the cruise line exercised control over the excursion, shared in the profits and losses of the venture, and held an ownership interest in the venture. See November 2025 Update.
The cruise line then moved for summary judgment on the claims for negligence based on apparent agency/agency by estoppel and negligence based on joint venture. The cruise line challenged the evidence for the element of the apparent agency claim that the passenger reasonably relied on representations from the cruise line, citing the provisions in the passenger ticket stating that shore excursions are provided by independent contractors, that the cruise line does not supervise the independent contractors, and that the cruise line assumes no responsibility for the performance of the independent contractors. The cruise line also pointed to the language of the shore excursion ticket that stated that the excursion operator was an independent contractor, was not a joint venturer, and had no relationship with the cruise line other than as an independent contractor. Citing decisions from the Eleventh Circuit, Judge Altonaga held that the language rendered unreasonable any belief that the excursion operator was an agent of the cruise line. Similarly, Judge Altonaga considered the unequivocal language in the agreement between the cruise line and the excursion operator that it did not constitute a joint venture to be sufficient to preclude the joint venture claim. Accordingly, she granted summary judgment and issued a final judgment in favor of the cruise line.
As is, where is clause in purchase and sale agreement for barge was defense to negligent misrepresentation claim but not to claims for fraud and fraudulent inducement; HC&D, LLC v. Cashman Equipment Corp., No. 1:22-cv-10224, 2026 U.S. Dist. LEXIS 17185 (D. Mass. Jan. 29, 2026) (Burroughs).
HC&D, a Hawaiian company, purchased a freight barge from Cashman Equipment to use in transporting concrete in Hawaii. The Purchase and Sale Agreement contained a Boston, Massachusetts forum-selection clause. Prior to executing the Agreement, Precision NDT & Consulting (a Louisiana company with its office in Patterson, Louisiana) inspected the barge in Louisiana and prepared a Hull Diminution Survey for the barge, demonstrating its seaworthiness. HC&D allegedly relied on the report for its purchase. After the sale, the barge was towed from Amelia, Louisiana to California, where a visual inspection revealed the barge to be flooded and holed out. HC&D, which spent almost $4 million to repair the barge, brought this suit in federal court in Massachusetts against Cashman Equipment and Precision NDT, and Precision NDT asserted that the complaint should be dismissed for lack of personal jurisdiction. HC&D then moved to transfer the case to Louisiana in its entirety. Judge Woodlock found that Massachusetts had personal jurisdiction over Cashman Equipment, but that there was no personal jurisdiction over Precision NDT in Massachusetts. Instead, he found that there was personal jurisdiction over Precision NDT in the Western District of Louisiana, and that there was also personal jurisdiction over Cashman Equipment, which conducts a meaningful amount of business in Louisiana and has a business address there. Accordingly, the Western District of Louisiana could be an appropriate venue for both defendants. That conclusion presented the issue of whether the judge should transfer all or a portion of the case. Giving effect to the forum-selection clause, Judge Woodlock agreed to sever HC&D’s claims against Precision NDT so that the claims against Cashman Equipment would remain in federal court in Massachusetts, and the claims against Precision NDT were transferred to the Western District of Louisiana. See November 2023 Update.
Cashman Equipment moved to dismiss the complaint for failure to state a claim, citing the clause that the vessel was being sold and purchased in its current condition, “AS IS-WHERE IS.” Judge Burroughs held that HC&D had, despite the “as is” clause, sufficiently pleaded facts to support its claims for fraud and fraudulent inducement based on representations related to the purchase of the barge. She explained that the clause was a general disclaimer that did not contradict the many specific representations made about the barge by Cashman Equipment. However, Judge Burroughs agreed to dismiss the claim for negligent misrepresentation, reasoning that “intentional misconduct . . . justifies judicial intrusion upon contractual relationships in order to prevent the wrongdoer from securing contractual benefits for which he has not bargained,” but the “as is” clause barred a claim for negligent misrepresentation. Finally, as HC&D asserted that it was deceived from its headquarters in Hawaii, Judge Burroughs dismissed the claim for violation of Massachusetts’ unfair practice statute, despite the fact that the contract designated Massachusetts law to apply and the fact that Cashman Equipment was headquartered in Massachusetts. See December 2024 Update.
Cashman Equipment moved for summary judgment on the remaining claims of fraud and fraudulent inducement (brought under Massachusetts law). Judge Burroughs began by enumerating the three alleged misrepresentations, that Cashman Equipment represented that it had recently renewed the barge’s five-year certification and addressed any related maintenance issues; that Cashman Equipment provided the Precision Gauging Report to HC&D, which contained representations about the barge’s steel wastage and other measurements; and that Cashman Equipment may have represented that water observed in the hull (noted in the Condition and Valuation Survey) was rain water from a tank inspection. Although Cashman Equipment presented evidence to dispute the falsity of the representations, Judge Burroughs found sufficient evidence to create a fact issue whether the representations were knowingly false, material, and made with an intent to deceive. That left the issue of materiality. Cashman Equipment argued that its acceptance of HC&D’s offer to purchase the barge constituted a binding contract, but Judge Burroughs found that there was a question whether the contract was subject to a condition precedent, which reserved to HC&D the right to withdraw its offer if the survey findings were not satisfactory. After HC&D reviewed the materials, the agreement provided that the vessel was to be sold/purchased AS IS-WHERE IS, and it disclaimed any representations with respect to seaworthiness or fitness. Cashman argued that any reliance on misrepresentations would be unreasonable as a matter of law in light of the provision, but Judge Burroughs held that the complained-of misrepresentations went beyond the specific disclaimer as they involved the origin of the water, the recency of the certification and completion of repairs, and the amount of wastage and wear. Accordingly, the contract did not bar HC&D from asserting that its reliance on the representations was reasonable. Therefore, Judge Burroughs declined to grant summary judgment on the claims for fraud and fraudulent inducement.
Beneficiaries of crewmember on the USS RONALD REAGAN (who allegedly died from medical negligence) had no appeal from the denial of their medical negligence claim by the Defense Health Agency’s appeals board; Luckey v. Hegseth, No. 1:25-cv-299, 2026 U.S. Dist. LEXIS 17481 (D.D.C. Jan. 29, 2026) (Kelley).
Danyelle Luckey became ill while serving on the USS RONALD REAGAN in the Indo-Asia Pacific in 2016 at a time when the crew of the vessel began a mass vaccination for influenza. Her condition worsened and tests eventually showed that her liver and kidneys were failing. She suffered a cardiac arrest and died with the autopsy listing sepsis as the cause of her death. An autopsy performed at the request of her family concluded that she died from medical negligence. Luckey’s beneficiaries brought a claim against the Department of the Navy, which denied it on the grounds that Luckey was not treated at a covered Military Treatment Facility under the Military Claims Act and because the claim was filed outside the 3-year limitation period. The Defense Health Agency’s appeals board upheld the denial, and the beneficiaries brought this suit in federal court in the District of Columbia against the Secretary of Defense and the Defense Health Agency. The defendants moved to dismiss the suit for lack of subject matter jurisdiction because the Military Claims Act bars judicial review. Judge Kelley agreed, rejecting claims for an exception to the rule barring judicial review (violating a clear statutory mandate or due process rights). Therefore, he dismissed the suit for lack of subject matter jurisdiction.
Cruise line must attach the correct collective bargaining agreement if it wants to remove a case under the New York Convention based on the arbitration clause in the CBA; Hermawan v. SP Cruises Crewco Ltd., No. 1:25-cv-26016, 2026 U.S. Dist. LEXIS 19519 (S.D. Fla. Jan. 29, 2026) (Altman).
Putu Yudi Hermawan, a bar server on the AZAMARA ONWARD, was injured when he slipped and fell on a slippery step while carrying a drink tray. He brought suit against the cruise line in state court in Miami-Dade County, Florida, and the cruise ship removed the case to federal court in Florida based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), attaching the employment contract signed by Hermawan and a copy of the Norwegian Seafarers’ Union’s Collective Bargaining Agreement containing an arbitration agreement that was allegedly incorporated into the employment contract. Hermawan moved to remand the case, noting that the employment contract incorporated the terms of the collective bargaining agreement issued on January 7, 2022, but the defendant attached the CBA that was effective on January 1, 2024. Agreeing with Hermawan that the cruise line was seeking to enforce the arbitration provision in a CBA that was not incorporated into the employment contract (and that the removal did not include the CBA that was actually incorporated), Judge Altman held that the federal court lacked subject matter jurisdiction and granted the motion to remand.
From the state courts
Grant of admiralty jurisdiction to the federal courts did not divest the state court of jurisdiction to enter a child custody order in a divorce proceeding brought against a seaman; Hudspeth v. Hudspeth, No.90145-COA, 2026 Nev. App. Unpub. LEXIS 35 (Nev. App. Jan. 22, 2026) (per curiam).
Robert Timothy Hudspeth, Chief Engineer of Matson’s container ship MAUNALEI, was at sea on foreign articles when two hearings were held in a divorce proceeding brought against Tim in Nevada state court by his wife, Lisa Marie Hudspeth. Tim brought a suit against Lisa in federal court in Nevada, asking the court to take jurisdiction of his divorce case, to overturn and modify orders entered in that case, and to order that no further court action may occur while he is on a vessel or on his way to a vessel. He claimed the federal court had admiralty jurisdiction because the court actions occurred while he was on a vessel in international waters, and he added that the Nevada state court had “no jurisdiction to order the defendant to appear in court because of Maritime flavor.” Lisa moved to dismiss the federal suit for lack of jurisdiction, and Judge Gordon agreed that the torts alleged against Lisa, the orders, and her taking of his property in accordance with the orders, did not occur on navigable waters: “Even if Tim was on a ship during a Nevada court hearing related to that tort, the alleged events underlying the tort did not occur on navigable waters.” Accordingly, Judge Gordon dismissed the complaint. As Judge Gordon did not believe that the deficiencies in the complaint could be cured by amendment, he did not give Tim leave to amend. [Judge Gordon noted that Congress has given active-duty military personnel the ability to stay state-court civil cases while they are on active duty, but it has not extended that relief to merchant mariners]. See July 2025 Update.
Judge Parlade in the state district court in Clark County, Nevada, granted a divorce, and Tim appealed the custody determination, arguing that the state court lacked jurisdiction to enter a custody order because the grant of admiralty jurisdiction in Section 1333 provides that “federal district courts shall have exclusive jurisdiction over seamen.” The Nevada Court of Appeals disagreed, concluding that the divorce case was not a case of admiralty or maritime jurisdiction. The court reasoned: “When determining whether a dispute gives rise to maritime jurisdiction, a court must determine whether the principal issue or objective is maritime commerce.” However, the objectives and purposes of the divorce suit “were to dissolve the couple’s marital relationship, resolve child custody and support, and settle the property disputes.” The fact that Tim was employed as a seaman on a maritime vessel did not transform the divorce proceeding into one of maritime jurisdiction. Accordingly, the appellate court held that the district court had jurisdiction to enter the custody order.
Kenneth G. Engerrand
Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1915 23rd Suite B Gulfport, MS 39501 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
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After Judge Engelhardt’s eloquent dissent in Sterling v. City of Jackson, Mississippi, 159 F.4th 361 (5th Cir. 2025), decrying the transformation of the court “into the ultimate arbiters of good policy judgment” when political missteps are recast as “conscience-shocking knavery,” the Fifth Circuit agreed to grant rehearing en banc in the case on February 19, 2026. Judge Engelhardt ended his dissent with these words:
Today’s opinion opens Pandora’s box of substantive due process claims and transforms this court—instead of the electorate—into the ultimate arbiters of good policy judgment. I have long been under the impression that substantive due process does not provide collateral review of every harmful decision made by elected officials in the process of balancing competing governmental priorities. E.g., Paul, 424 U.S. at 701 (The Due Process Clause does not create “a right to be free of injury wherever the State may be characterized as the tortfeasor.”). The majority takes a different view, but I am uncertain how long our constitutional and federalist order can sustain it. “The Judiciary . . . is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.” Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (citation omitted). We must “be extremely reluctant to breathe . . . further substantive content into the Due Process Clause.” Id. Today’s opinion abandons reluctance to the threshing floor, inviting litigants to claim a violation of heretofore unrecognized “fundamental rights” and to recast every political misstep as conscience-shocking knavery.
Knavery or not, what “shocks my unelected conscience” should not determine the quality of governmental services administered by an official in whom voters have placed confidence. Lewis, 523 U.S. at 862 (Scalia, J., concurring). Whether that confidence was properly placed in the first instance is not a matter of constitutional proportions. Tort law, other statutes, and the ballot box provide a remedy that the Constitution does not. So, qualified immunity notwithstanding, I respectfully dissent.
Id. at 424-25.
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© Kenneth G. Engerrand, February 27, 2026; redistribution permitted with proper attribution.
