May 2026 Longshore Maritime Update No. 324
Notes from your Updater:
On March 31, 2026, the D.C. Circuit rejected the challenge of the World Shipping Council (representing 90% of the world’s liner or regularly scheduled, fixed-route shipping vessel services) to the rule promulgated by the Federal Maritime Commission defining an unreasonable refusal to deal or to negotiate with respect to vessel space in connection with the prohibition of common carriers from unreasonably refusing to deal or to negotiate with would-be shippers under the Shipping Act of 1984. Although the statutory prohibition “covers all unreasonable refusals to deal or to negotiate by a common carrier, the definition in the Final Rule applies only to containerized cargo on ocean (or ‘vessel-operating’) common carriers.” The final rule identified these non-binding factors that the Commission may consider “[i]n evaluating the reasonableness of an ocean carrier’s refusal to deal or negotiate with respect to vessel space accommodations”:
- Whether the ocean common carrier followed a documented export policy that enables the timely and efficient movement of export cargo;
- Whether the ocean common carrier engaged in good faith negotiations;
- Whether the refusal was based on legitimate transportation factors; and
- Any other relevant factors or conduct.
The Council argued that the definition violated the Administrative Procedure Act because the Commission did not have statutory authority to consider the price in evaluation the reasonableness of a carrier’s offer; requiring a carrier to submit a documented export policy exceeds the Commission’s statutory authority and is arbitrary and capricious; and the removal of business decisions from the list of factors to be considered is arbitrary and capricious. Writing for the D.C. Circuit, Judge Ginsburg rejected the arguments and denied the petition for review. See World Shipping Council v. Federal Maritime Commission, No. 24-1298, 2026 U.S. App. LEXIS 9180 (D.C. Cir. Mar. 31, 2026).
On March 31, 2026, the Endangered Species Committee (colloquially described by Justice Stevens as the “God Squad” or “God Committee” because “it has the authority to approve the extinction of an endangered species), comprising the Secretary of the Interior, Secretary of the Army, Administrator of the Environmental Protection Agency, Secretary of Agriculture, Acting Chairman of the Council of Economic Advisors, and Under Secretary of Commerce for Oceans and Atmosphere and National Oceanic Atmospheric Administration Administrator, held a public meeting to address the finding of the Secretary of War that is necessary for reasons of national security to exempt oil and gas activities in the Gulf of America from the requirements of the Endangered Species Act. The Committee granted the exemption, effective immediately, noting: “Here, the agency action is being carried out in the federal waters of the Gulf of America and state waters and lands, including coastal areas, ports, airspaces, and waterways, which means that a person may obtain judicial review exclusively in the U.S. Courts of Appeals for the Fifth or Eleventh Circuits.”
On April 3, 2026, the Department of the Interior announced that it would merge the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement into the Marine Minerals Administration. This action reverses the division, in 2011, of the former Minerals Management Administration into the Bureau of Ocean Energy Management and Bureau of Safety and Environmental Enforcement, following the Macondo/DEEPWATER HORIZON spill in 2010.
For our readers who are interested in claims involving the Black Lung Benefits Act, the Eleventh Circuit held on April 7, 2026 that the presumption applicable to coal miners suffering from pneumoconiosis who have been engaged in coal mine employment for 15 years is satisfied by work in or around coal mines for at least 125 working days during 15 calendar years or partial periods totaling a year (in other words, 125 working days in or around coal mines within a 365/366-day period establishes a “year” of coal mine employment). See Hayes v. Director, OWCP (Cowin & Co.), No. 24-11260, 2026 U.S. App. LEXIS 9981 (11th Cir. Apr. 7, 2026) (Pryor).
On April 6, 2026, Administrative Law Judge Panagiotis issued a Procedural Order in response to the statement in the Joint Pre-Hearing Statement in a case brought pursuant to the Defense Base Act, that the Claimant intends to present live testimony at the formal hearing from Baghdad, Iraq through an Iraqi-Arabic interpreter with the oath at the formal hearing being administered by the Administrative Law Judge. The Order issued by ALJ Panagiotis concluded that “Congress has not empowered an ALJ in the Department of Labor with the authority to administer a valid testimonial oath to a foreign claimant seeking to testify from a foreign country.” ALJ Panagiotis added that counsel had the obligation to provide the ALJ with a proper Foreign Evidence Certificate that “details the applicable foreign law pertaining to the proposed testimony of the Claimant and any foreign documents, the applicable U.S. laws, statutory and regulatory, which apply, and how those laws have been satisfied, along with a showing of compliance with the applicable federal and OALJ rules.” He explained that counsel “shall provide citations to statutory and/or jurisprudential authorities and include exhibits from the Ministry of Justice of Iraq or other Iraqi governmental agency documenting the administration of a legally binding testimonial oath in that country.” See Jbur v. CSMI Technology Services v. Director, OWCP, Case No. 2024-LDA-02957 (OALJ, Covington Dist., Apr. 6, 2026).
In the November 2025 Update we reported that Judge Lamberth of the United States District Court for the District of Columbia granted summary judgment to three Exxon affiliates against Venezuela, enforcing an arbitral award of almost a billion dollars in connection with the appropriation of the affiliates’ investments in oil fields in Venezuela. See Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, No. 1:23-cv-3506, 2025 U.S. Dist. LEXIS 190793 (D.D.C. Sept. 26, 2025). On April 7, 2026, the D.C. Circuit summarily rejected the argument that the judgment was not entitled to full faith and credit because the International Centre for the Settlement of Investment Disputes allowed lawyers designated by the government of Nicolas Maduro, rather than lawyers designated by the government of Juan Guaidó, to represent the country in the ICSID proceedings. See Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, No. 25-7168, 2026 U.S. App. LEXIS 10003 (Apr. 7, 2026) (per curiam).
On April 16, 2026, the Eleventh Circuit rejected the argument that prosecution of three drug traffickers under the Maritime Drug Law Enforcement Act (whose go-fast vessel was stopped about 158 nautical miles southeast of Isla Beata, Dominican Republic) was unconstitutional under the Felonies Clause because their conduct lacked a nexus to the United States. The court noted that it had already held that Congress’s authority over felonies committed on the high seas extended within foreign nations’ exclusive economic zones for vessels without nationality (the go-fast vessel was stateless because Colombia declined to confirm the traffickers’ claim that the vessel was registered in Colombia), noting that stateless vessels are “international pariahs” that have “no internationally recognized right to navigate freely on the high seas.” The traffickers raised the arguments “to preserve further review,” so stay tuned. See United States v. Martinez, No. 22-13361, 2026 U.S. App. LEXIS 10914 (11th Cir. Apr. 16, 2026) (per curiam).
On April 21, 2026, the D.C. Circuit declined to dismiss the suit by the United States seeking civil forfeiture of crude oil from the tankers ARINA and NOSTOS in the Mediterranean Sea (originally loaded on the STARK I at Kharg Island, Iran) based on the argument that the oil belonged to the National Iranian Oil Company, “an entity that has materially supported the Iranian military’s terrorist activities” (a private commodities trading company asserted that it owned the oil and moved to dismiss the forfeiture action). See United States v. All Petroleum-Product Cargo Onboard the M/T ARINA, No. 24-5218, 2026 U.S. App. LEXIS 11191 (D.C. Cir. Apr. 21, 2026) (Garcia).
For the latest developments in the contractual dispute between the parties involved in the salvage of the Spanish galleon, NUESTRA SEÑORA DE LAS MARAVILLAS, which sank off the coast of The Bahamas in 1656 with billions of dollars in gold and silver, see the opinion of Chief Judge O’Connor of the Northern District of Texas in Porter v. Allen, No. 3:25-cv-744, (N.D. Tex. Apr. 21, 2026).
As the Defense Base Act applies the provisions of the LHWCA (except as modified in the DBA), the Update discusses claims brought against contractors by their employees under the DBA. The DBA does not cover injury claims of United States military personnel against contractors. Army Specialist Winston T. Hencely was injured at Bagram Airfield in Afghanistan by a suicide bomber who worked for a government contractor. Hencely sued the government contractor for negligence under state law, but the Fourth Circuit held that the state claims were preempted by federal interests emanating from the Boyle exception to liability under the Federal Tort Claims Act (immunizing the government for claims arising out of combatant activities during time of war). The Supreme Court granted certiorari on this question: “Should Boyle be extended to allow federal interests emanating from the FTCA’s combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders?” On April 22, 2026, the Supreme Court concluded that neither the Constitution nor any federal statute expressly preempted Hencely’s suit. The Court was divided with six Justices in the majority (opinion by Justice Thomas), and three Justices in the minority (opinion by Justice Alito). Justice Alito reasoned: “And because the Constitution gives the Federal Government exclusive authority over foreign affairs and the conduct of wars, federal law preempts all state law that substantially interferes with the Government’s exercise of those powers.” See Hencely v. Fluor Corp., No. 24-924, 2026 U.S. LEXIS 1868 (U.S Apr. 22, 2026).
On the LHWCA Front . . .
From the federal appellate courts
Second Circuit upheld decision that medically prescribed marijuana was not a reimbursable medical treatment under Section 7 of the LHWCA; Garcia v. Director, OWCP (Calzadilla Construction Corp.), No. 23-8066, 169 F.4th 111 (2d Cir. Mar. 5, 2026) (Nardini).
Luis Peña Garcia, a resident of Puerto Rico, suffered a back injury in 1994 that was covered under the LHWCA, as extended by the DBA. His physician, Dr. Michael Soler, prescribed medical cannabis-infused cookies and edibles for pain management, and Peña sought reimbursement for the cannabis under Section 7 of the LHWCA, arguing that the request was consistent with Puerto Rico law which permits medical use of prescribed cannabis. The employer and carrier refused to reimburse Peña, and he requested a hearing before an ALJ. Chief Administrative Law Judge Henley ruled, without a hearing, that drugs listed on Schedule I of the Controlled Substances Act (marijuana) “have no currently accepted medical use and no accepted safety for use in medically supervised treatment.” Therefore, marijuana can “never constitute reasonable and necessary medical treatment” under the LHWCA, and the employer and carrier were not obligated to reimburse him for his cannabis-infused edibles. Peña appealed the denial to the Benefits Review Board, and the BRB affirmed the decision. Administrative Appeals Judges Rolfe and Jones stated: “Our affirmance of the ALJ’s decision is based on plain language of binding federal law.” Administrative Appeals Judge Buzzard dissented, noting that Congress allows states and territories “to establish systems for physicians to recommend and patients to consume medical marijuana to treat medical conditions.” Peña filed a petition for review with the First Circuit, which transferred the petition to the Second Circuit. Writing for the Second Circuit, Judge Nardini rejected all of Peña’s arguments based on the permissive views of the President, Congress, and the states toward medical use of marijuana. The Second Circuit drew a straightforward line: “All that matters is marijuana’s classification as a Schedule I substance under the CSA, which unequivocally provides, for purposes of federal law, that it has no accepted medical use.” Judge Nardini denied the petition for review, stating: “Because marijuana is presently classified as a Schedule I substance under the CSA, it cannot be treated as reimbursable medical treatment for purposes of Section 7 of the LHWCA.” Note: on April 23, 2026, the Trump Administration issued an executive order reclassifying state-licensed medical marijuana from Schedule I to Schedule III under the Controlled Substances Act.
From the federal district courts
Court rejected claim that assessment of 20% additional compensation by the claims examiner for failure to timely pay a compensation award (and not by a jury) was unconstitutional under the Seventh Amendment; Hunter v. Peabody Energy Corp., No. 4:25-cv-20, 2026 U.S. Dist. LEXIS 33887 (W.D. Ky. Feb. 19, 2026) (Jennings).
This case involves an award under the Black Lung Benefits Act with an assessment of penalties under the provisions of the LHWCA that are applicable in a BLBA claim (“claims brought under the BLBA are governed by a body of regulations and the claims processing rules of the LHWCA”). Claimant Barry Hunter was awarded compensation by an Administrative Law Judge, and the award was affirmed by the Benefits Review Board. Employer Peabody Energy did not pay benefits during the appeal, and the claims examiner issued a determination that 20% additional compensation was due under Section 14(f). Hunter then brought this suit in federal court to enforce the assessment of the claims examiner and moved for summary judgment. Peabody Energy argued in response that under the Supreme Court’s Jarkesy decision (see July 2024 Update), “the claims examiner’s assessment of the additional compensation is a civil penalty, and therefore that the proceedings are unconstitutional” because the use of administrative proceedings to assess civil monetary penalties violates the employer’s right to a jury trial under the Seventh Amendment. Judge Jennings disagreed, noting that the Court in Jarkesy explained that the civil penalties in that case were designed to punish and deter, not to compensate. In contrast, Judge Jennings considered the additional compensation under Section 14(f) to be “remedial as opposed to punitive,” noting that the majority of courts that have considered the issue have concluded that payments under Section 14(f) are “compensation rather than a penalty.” Therefore, she did not find any violation of the Seventh Amendment in the assessment of the claims examiner (she also did not find any violation of procedural due process). Accordingly, Judge Jennings granted summary judgment that Hunter was entitled to additional compensation, interest on the additional compensation, and attorney fees under Section 28.
And on the maritime front . . .
From the United States Supreme Court
Supreme Court reversed the Fifth Circuit and held that there is federal removal jurisdiction (under the Federal Officer Removal Statute) over suits by Louisiana Parishes filed in state court against energy companies for damage allegedly resulting in the Coastal Zone of those Parishes from oil and gas exploration and transportation operations along the state coast; Chevron USA Inc. v. Plaquemines Parish, No. 24-813, 2026 U.S. LEXIS 1627 (U.S. Apr. 17, 2026) (Thomas).
The Update has frequently reported on the extensive litigation in Louisiana brought by Louisiana coastal Parishes against energy companies, seeking to recover restoration costs for loss of land along the Louisiana Gulf Coast allegedly resulting from production practices carried out by the energy companies going back to World War II. In our February 2025 Update, we reported on the decision of the Fifth Circuit in New Orleans City v. Aspect Energy, L.L.C., No. 24-30199, 2025 U.S. App. LEXIS 1481 (5th Cir. Jan. 23, 2025) (Stewart). That was not the first Coastal Zone case to reach the appellate courts.
In our March 2023 Update, we reported that the Supreme Court (in Chevron USA, Inc. v. Plaquemines Parish, No. 22-715, declined to grant a writ of certiorari to consider the affirmance of a remand to the state court by the Fifth Circuit in Plaquemines Parish v. Chevron USA, Inc., No. 22-30055, 2022 U.S. App. LEXIS 28733 (5th Cir. Oct. 17, 2022). That appeal involved cases filed in Louisiana state courts by Louisiana coastal Parishes against energy companies seeking to recover restoration costs for loss of land along the Louisiana Gulf Coast allegedly resulting from production practices carried out by the energy companies.
After the Supreme Court declined to hear the petition from the energy companies, Judge Zainey of the United States District Court for the Eastern District of Louisiana issued an order remanding to state court the suit brought by Plaquemines Parish and the State of Louisiana against a host of energy companies. The energy companies argued that they had threaded the needle to satisfy the “acting under” requirement for federal officer removal because that case involved a World War II-era refinery contract. Judge Zainey was unpersuaded, answering that the refinery contract satisfied neither the acting-under nor the related-to requirements (the energy company “may have acted under a federal officer when refining oil in Port Arthur, Texas but it did not act under a federal officer when producing that oil in Louisiana”). See Parish of Plaquemines v. Northcoast Oil Co., No. 18-cv-5228, 2023 U.S. Dist. LEXIS 67290 (E.D. La. Apr. 18, 2023). The energy companies appealed the order of remand to the Fifth Circuit (No. 23-30304), and Judge Zainey stayed the order of remand pending the appeal. Judge Morgan of the United States District Court for the Eastern District of Louisiana reached a similar result in Parish of Plaquemines v. Rozel Operating Co., No. 18-5189, 2023 U.S. Dist. LEXIS 81541 (E.D. La. May 10, 2023). The energy companies appealed the order of remand (No. 23-30336), and Judge Morgan stayed the order of remand pending the appeal. See June 2023 Update.
On June 13, 2023, Judge Summerhays of the United States District Court for the Western District of Louisiana declined to reconsider his decision remanding 42 lawsuits (removed under the Federal Officer Removal Statute) that were brought by several Louisiana parishes against energy companies based on violations of permits under the State and Local Coastal Resources Management Act of 1978 and associated regulations, rules, and ordinances in connection with the defendants’ oil exploration and production activities in coastal parishes. See Parish of Cameron v. Apache Corp. (of Delaware), No. 2:18-cv-688, 2023 U.S. Dist. LEXIS 103010 (W.D. La. June 13, 2023). Judge Summerhays granted a stay of the remand pending appeal, and the energy companies filed a notice of appeal to the Fifth Circuit (No. 23-30422). Judge Fallon also stayed remand orders pending appeal to the Fifth Circuit in Parish of Jefferson v. Destin Operating Co., No. 2:18-cv-5206 (appeal No. 23-30225); Plaquemines Parish v. Exchange Oil & Gas Co., No. 2:18-cv-5215 (appeal No. 23-30291); and Plaquemines Parish v. Great Southern Oil & Gas Co., No. 2:18-cv-5227 (appeal No. 23-30303). See August 2023 Update. On October 11, 2023, the Fifth Circuit granted the motion to lift and vacate the stay pending appeal in Plaquemines Parish v. Chevron USA, Inc., No. 23-30291, 2023 U.S. App. LEXIS 27249 (5th Cir. Oct. 11, 2023) (Higginson) in a published order, concluding that the balance of equities weighed against issuance of a stay.
Meanwhile, the energy companies requested that the Supreme Court issue a stay of the trial scheduled to begin in state court in Cameron Parish, Louisiana on November 27, 2023 (the energy companies argued that the case should be transferred to a venue where the jurors did not have a financial interest in the outcome). See No. 23A364, BP America Production Co. v. Parish of Cameron, Louisiana. On November 7, 2023, the Supreme Court declined to grant the stay. See December 2023 Update.
On May 29, 2024, the Fifth Circuit (with a dissent by Judge Oldham) held that the actions of the energy companies with respect to oil production did not have a sufficient connection with the governmental direction in their federal refinery contracts during World War II to permit removal of the cases under the Federal Officer Removal Statute. Accordingly, the Fifth Circuit affirmed the remand of the suits by Louisiana parishes against the energy companies. See Plaquemines Parish v. BP America Production Co., No. 23-30294 c/w No. 23-30422, 2024 U.S. App. LEXIS 12890 (5th Cir. May 29, 2024) (Davis). See June 2024 Update. The energy companies sought rehearing en banc, and, on October 31, 2024, the Fifth Circuit declined to grant rehearing en banc by a vote of 7-6, with 4 judges not participating in the consideration of the request for rehearing en banc. See Plaquemines Parish v. BP America Production Co., No. 23-30294 c/w No. 23-30422, 2024 U.S. App. LEXIS 27775 (5th Cir. Oct. 31, 2024).
In New Orleans City v. Aspect Energy, L.L.C., No. 24-30199, 2025 U.S. App. LEXIS 1481 (5th Cir. Jan. 23, 2025) (Stewart), the City of New Orleans claimed that pipeline operators and Entergy New Orleans allowed pipeline canals to widen and erode to a point that they now threaten the City’s storm buffer, in violation of Louisiana’s State and Local Coastal Resources Management Act of 1978. New Orleans brought suit in state court in Orleans Parish, Louisiana, and the operators removed the case to federal court based on diversity. All of the pipeline operators are citizens of other states, and Entergy New Orleans, which provides natural gas utility services to its customers in New Orleans owns three natural gas pipelines that were acquired or constructed prior to the effective date of the SLCRMA and were subject to the statute’s Historical-Use Exception. Therefore, the operators argued that Entergy New Orleans was improperly joined and there was complete diversity with the remaining defendants. Judge Guidry agreed that Entergy New Orleans was improperly joined, denied the motion to remand, and entered a final judgment dismissing Entergy. New Orleans appealed. Writing for the Fifth Circuit, Judge Stewart reasoned that the core of the City’s argument is that “Entergy should have acted to prevent widening and erosion of its canals. While it might be prudent policy to require coastal pipeline operators to monitor and maintain their decades-old canals, that policy is not found in SLCRMA.” Judge Stewart concluded: “Because Entergy constructed or purchased its pipeline canals before SLCRMA’s effective date in 1980, and because Entergy has done nothing since then that constitutes a ‘use’ under the statute, there is no reasonable basis to predict that the City can recover on its claims against Entergy.” Accordingly, as there was complete diversity (excluding Entergy), the Fifth Circuit affirmed the denial of the City’s motion to remand (also rejecting the argument that the State of Louisiana should be considered to be the real party in interest and defeat diversity jurisdiction, noting that the City was the master of its complaint and chose to file the suit on its own behalf).
Meanwhile, several energy companies sought a writ of certiorari from the United States Supreme Court with respect to the Fifth Circuit’s decision on May 29, 2024, in Plaquemines Parish v. BP America Production Co., discussed in the June 2024 Update as noted above. The questions presented to the Court were stated as follows:
This petition arises from Louisiana parishes’ efforts to hold petitioners liable in state court for, inter alia, production of crude oil in the Louisiana coastal zone during World War II. Petitioners removed these cases from state court under 28 U.S.C. §1442(a)(1), which as amended in 2011 provides federal jurisdiction over civil actions against “any person acting under [an] officer” of the United States “for or relating to any act under color of such office.” The Fifth Circuit unanimously held that petitioners satisfy the statute’s “acting under” requirement by virtue of their WWII-era contracts to supply the federal government with high-octane aviation gasoline (“avgas”). But the panel divided on the “relating to” requirement, with the two-judge majority holding that petitioners’ wartime production of crude oil was “unrelated” to their contractually required refinement of that same crude into avgas because the contracts did not contain any explicit “directive pertaining to [petitioners’] oil production activities.” . . . Judge Oldham dissented, explaining that the majority’s approach reinstates a variant of the “causal nexus” requirement that multiple circuits (and the U.S. Congress) have expressly rejected. The Fifth Circuit denied rehearing en banc by a vote of 7 to 6.
The questions presented are:
- Whether a causal-nexus or contractual-direction test survives the 2011 amendment to the federal-officer removal statute.
- Whether a federal contractor can remove to federal court when sued for oil-production activities undertaken to fulfill a federal oil-refinement contract.
On June 16, 2025, the Supreme Court agreed to hear the petition. See July 2025 Update.
On April 17, 2026, the Supreme Court unanimously reversed the Fifth Circuit (with Justice Alito recused and Justice Jackson concurring). As the suit implicated Chevron’s wartime aviation-gasoline refining for the military, Justice Thomas held that the suit was “relating to any act under color of” a federal officer or person acting under that officer. He interpreted “relating to” broadly and held that it does not require the defendant to show that his federal duties specifically invited his challenged conduct. He added that an act can relate to its consequences when when the causal chain includes acts of intermediaries and that an indirect connection can be sufficient: “Accordingly, a removing defendant need not show that his federal duties specifically required or strictly caused the challenged conduct.”
From the federal appellate courts
En banc Fifth Circuit declined to hear the question whether the court can disregard a no-lien clause in a charter party governed by foreign law and enforce the choice-of-law provision in the charterer’s bunker-supply contract to permit a lien on the vessel; Three Fifty Markets, Ltd. v. ARGOS M M/V, No. 24-30413, 2026 U.S. App. LEXIS 3321 (5th Cir. Feb. 2, 2026) (Douglas), rehearing and rehearing en banc denied, 2026 U.S. App. LEXIS 8395 (5th Cir. Mar. 20, 2026).
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. See March 2026 Update.
The vessel and its owner sought rehearing en banc, noting that foreign entities that provide necessaries around the world have sought to create maritime liens under United States law by including United States choice-of-law clauses in their general terms and conditions in contracts to which the vessel owner is not a party. The owners have contractually protected themselves by including no-lien clauses in the charter parties, which requires courts to evaluate “the interplay of the antecedent charterparty with later-in-time contracts for supplies whose terms are at odds with the authority limits in the antecedent contract.” Thus, the vessel and owner presented this issue to the Fifth Circuit for en banc consideration:
Where a charterparty undisputedly divests a charterer of authority to bind the Vessel to any lien-related encumbrances and that charterparty is governed by foreign law, must a court disregard that prohibition in favor of enforcing a choice-of-law provision in a later-in-time contract for necessaries entered into by a downstream entity without actual authority to bind the vessel, or is a court to undertake a choice-of-law evaluation to establish the effect of the antecedent charterparty provisions on the enforceability of the terms from the later contract?
On March 20, 2026, the Fifth Circuit declined to grant the request for en banc rehearing with no active judge calling for a vote.
Eleventh Circuit agreed with remand to state court of the claims brought by a seaman that are not subject to arbitration under the New York Convention but upheld removal of the seaman’s claims that are subject to the New York Convention; Chemaly v. Lampert, No. 24-10797, 2026 U.S. App. LEXIS 11481 (11th Cir. Apr. 22, 2026) (Jordan).
Byron Chemaly worked as a seaman on the 288-foot yacht FOUNTAINHEAD, which sailed under the flag of the Cayman Island with its home port as the Island Gardens Marina on Watson Island in Miami, Florida. The beneficial owner of the yacht, Eddie Lambert (former CEO of Sears), and his son were enjoying a day on the yacht off the coast of Sag Harbor, New York. His son explored the waters using a Sea Bob, a high-performance underwater scooter. When it was time to retrieve the scooter from the water, Captain Grant Gold grabbed one side of the scooter and ordered Chemaly to grab the other side. Captain Gold dropped his radio and released his hold on the scooter to reach for the radio. The weight of the scooter shifted to Chemaly, resulting in an injury to his shoulder. Chemaly claims that he did not receive medical treatment until the yacht returned to Florida and that he was repatriated to his home country of South Africa without his personal effects. He brought this suit in the Circuit Court of Miami-Dade County, Florida against Lampert, Fountainhead Marine and R. Operations, purported owners of the vessel, Captain Gold, Camper & Nicholsons, which allegedly managed and operated the vessel, and the vessel’s insurer, XL Catlin. He brought claims under the Jones Act and general maritime law for unseaworthiness (Fountainhead, Operations, and Lampert), against all of the defendants for failure to pay maintenance and cure and failure to treat, for negligence against Camper & Nicholsons, for conversion against all of the defendants, and for breach of the insurance contract against Camper & Nicholsons and Catlin. The defendants (except Catlin which had not been served) removed the case to federal court in Florida, asserting that Chemaly signed a Seafarer’s Employment Agreement providing for arbitration in the Cayman Islands, giving the federal court jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The defendants also asserted that the case was removable based on the federal court’s original admiralty jurisdiction. After holding that the court had personal jurisdiction over the defendants, Judge Bloom addressed the court’s removal jurisdiction. She noted that if the arbitration clause was applicable to the claims, then the court had subject matter jurisdiction in order to compel arbitration. She noted, in the alternative, that the court may have removal jurisdiction of the claims that did not fall under the New York Convention based on the original jurisdiction of the federal court over admiralty cases; however, the Jones Act claim could not be removed on the basis of admiralty jurisdiction unless it was shown to have been fraudulently pleaded. Thus, the Jones Act claims not covered by the New York Convention would have to be remanded to state court. Judge Bloom then addressed the arbitration clause in the contract between Chemaly and Operations. It included “any dispute arising out of the agreement.” The defendants argued that all of the claims arose out of the agreement, and Judge Bloom agreed that the claims for Jones Act negligence, maintenance and cure, and failure to treat against Operations arose out of the agreement, but she disagreed with respect to the unseaworthiness claim, reasoning that the agreement was silent about Operations’ (or any other defendants’) duty to create a fit or safe environment. Therefore, she held that the unseaworthiness claim was not subject to arbitration. Similarly, in the absence of language in the agreement about return of personal effects, Judge Bloom held that the conversion claim against the defendants was not subject to arbitration. Judge Bloom then considered whether the non-signatories to the agreement could compel arbitration under the doctrine of equitable estoppel, and she held that federal law would apply to determine whether equitable estoppel applied. As the claims against Lampert and Fountainhead arose out of substantially interdependent and concerted conduct with signatory Operations, Judge Bloom held that the claims that were arbitrable as to Operations were also arbitrable as to Lampert and Fountainhead. However, she declined to hold that non-signatories Gold, Camper & Nicholsons, or Catlin could arbitrate any claims. Based on her analysis of the claims subject to arbitration, Judge Bloom was left with determining whether to remand the claims against the non-signatories that were not subject to arbitration under the equitable estoppel doctrine. That was easy for the Jones Act claims, which are not removable except when arbitrable under the New York Convention. For the other claims, Judge Bloom reasoned that the defendants, as the removing parties, had the burden to demonstrate that federal jurisdiction existed, and they have no basis for federal jurisdiction over those claims. Therefore, she remanded to state court the claims that were not subject to arbitration. See March 2024 Update.
The parties appealed and cross-appealed, and the Eleventh Circuit reviewed the portion of the order compelling arbitration (as it lacked jurisdiction over the remand). Writing for the Eleventh Circuit, Judge Jordan began with the question whether Operations, the signatory to the employment agreement, could compel arbitration. Judge Jordan reaffirmed that the court’s decisions in Bautista and Lindo (holding that the seaman exception in the Federal Arbitration Act is not applicable to an employment agreement subject to the New York Convention) were not abrogated by the decision of the Supreme Court in GE Energy Power Conversion v. Outokumpu Stainless USA, which reasoned that courts are to use domestic law to fill the gaps in the Convention. Chemaly next argued that there was a conflict between the arbitration provision and the provision that the “parties submit to the exclusive jurisdiction of the courts of Cayman Islands.” Judge Jordan answered: “The parties can consent to choice-of-law and venue for any claims, should they not be resolved at arbitration, without creating a conflict.” Judge Jordan also rejected the argument that a Jones Act claim is not capable of resolution by arbitration as the Jones Act guarantees a civil action at law with a right to trial by jury, noting that Congress did not carve out any exception to arbitrability of Jones Act claims in the New York Convention. That left the issue of whether non-signatory defendants could enforce the arbitration agreement. Judge Jordan applied the two-part test, “whether (1) the plaintiff-signatory raises allegations of interdependent and concerted misconduct between the defendants (the signatory and the non-signatories); and (2) whether that misconduct gave rise to claims falling within the scope of the contract.” Judge Jordan found no basis to concluded that there was concerted action between Operations and Fountainhead Marine and Lampert that caused the injury (Lampert’s payment of the operating expenses of Operations was insufficient) with respect to the Jones Act claim. Accordingly, the Eleventh Circuit reversed the order allowing Fountainhead Marine and Lampert to compel arbitration of the Jones Act claim. Judge Jordan believed that the claim for failure to pay maintenance and cure required a different analysis, stating that the Jones Act claim is tied to a negligent act or omission by the Jones Act employer, but “a maintenance and cure claim contemplates a broad duty owed by the shipowner (citing the statement that maintenance and cure is owed “without regard to the negligence of the employer”). Judge Jordan noted that Chemaly alleged misconduct that arose out of the tripartite relationship between Fountainhead Marine as the shipowner, Operations as the employer, and Lampert as their representative. He concluded that, as a result of the interdependence, it was “not only fair but also plainly logical that the three entities would acquire the right to arbitrate based on the common breach.” Thus, the Eleventh Circuit affirmed the decision to compel arbitration as to the claims for maintenance and cure and failure to treat. Judge Hull concurred in the opinion except with respect to the reversal of the ruling that Fountainhead Marine and Lampert could compel arbitration of the Jones act claim under an equitable estoppel theory—reasoning that the court should reach the same result for the Jones Act claim as the claims for maintenance and cure and failure to treat.
Ninth Circuit reversed summary judgment granted to cruise line where passenger fell in the bathroom of an Alaskan lodge and the summary judgment was based on lack of notice of a dangerous condition of the configuration of the bathroom; Petrey v. Princess Cruise Lines, Ltd., No. 24-4386, 2026 U.S. App. LEXIS 11588 (9th Cir. Apr. 23, 2026 (Sung).
William Petrey purchased a sea/land package from Princess Cruise Lines that included a two-night stay at the Denali Princess Wilderness Lodge, operated by Alaska Hotel Properties, and an Alaskan cruise on the ROYAL PRINCESS. Petrey was injured in the bathroom at the lodge while using the toilet in his hotel room. While sitting on the toilet, his right shoulder rubbed against the shower curtain. When he stood up, he turned and fell backward over the shower ledge, complaining that the toilet was too close to the ledge of the open shower stall so that the user of the toilet was likely to stumble or trip on the raised ledge of the open shower stall. Petrey brought this action against the cruise line and the operator of the lodge in federal court in California based on the court’s diversity jurisdiction, asserting a claim for negligence. The parties agreed that maritime law applied to the suit based on a choice-of-law provision in the land/sea package. The defendants moved for summary judgment that Petrey did not provide evidence of notice of the dangerous condition (shower ledge being too close to the toilet). Judge Staton noted that there had been no similar incidents at the lodge, and no employees were aware of any similar incidents. Petrey argued for an exception when the defendant had a role in creating the dangerous condition, but Judge Staton noted that the cases cited by Petrey had been recognized as wrongly decided by the Eleventh Circuit, and she held that maritime law does not recognize such an exception to the notice requirement. Petrey also argued that the defendants were liable on a negligence per se theory, asserting that a violation of an applicable building code provision caused the injury. As there is not a well-developed theory of negligence per se under the general maritime law, the parties cited California law. Petrey did not cite the specific provisions of the building code that were violated, but Judge Staton reviewed the code and did not find that any provision was violated or contributed to the injury. Accordingly, Judge Staton granted summary judgment to the defendants. See August 2024 Update.
Petrey appealed to the Ninth Circuit and argued that he presented a fact issue on the notice issue. As the cruise line owns the lodge and constructed the bathroom configuration, there was no dispute that the cruise line should have known that the condition existed. The issue was whether Petrey could show that the cruise line had constructive knowledge that the condition was unreasonably dangerous. Petrey argued that he could satisfy the requirement simply by showing that the cruise line created the condition. Like the Eleventh Circuit, the Ninth Circuit disagreed, reasoning that “it is possible for a defendant to create a condition and know it exists yet lack actual or constructive knowledge that the condition is unreasonably dangerous.” Writing for the Ninth Circuit, Judge Sung clarified that proof of similar incidents was one way to establish that there was constructive notice of unreasonable dangerousness, but that was not the only way to do so and was not a requirement to establish notice. Petrey offered reports and declarations of a mechanical engineering expert, a biomechanical expert, and a human factors and safety expert about the danger of the configuration and that the cruise line should have known that the configuration was unsafe because it has a high volume of elderly guests and a large number of bathroom fall incidents at the Lodge. Judge Sung considered the expert opinions to be sufficient to create a fact question on the constructive knowledge that the configuration was unreasonably dangerous. Therefore, summary judgment to the cruise line on the negligence claim was reversed. Judge Sung did agree that the cruise line was entitled to summary judgment on the claim of negligence per se. The parties agreed that Petrey must show that the configuration violated an applicable plumbing code provision. Petrey argued that the configuration violated a requirement that the toilet’s centerline must be at least 15 inches away from a wall or obstruction, and the shower curtain, which was less than 15 inches from the centerline, qualified as an obstruction because it visually obscured the presence of the shower’s ledge (the shower ledge was more than 15 inches from the centerline). Judge Sung concluded that the “easily movable shower curtain” did not qualify as an obstruction, so there was no violation that could serve as the basis for a negligence per se claim. Accordingly, the court affirmed the grant of summary judgment on the negligence per se claim.
Fifth Circuit affirmed decision of Judge who declined to extend deadline to produce expert reports more than two years and granted summary judgment to BP in the BELO injury suit brought by a clean-up worker in connection with the Macondo/DEEPWATER HORIZON spill; Breaux v. BP Exploration & Production, Inc., No. 25-30255, 2026 U.S. App. 12043 (5th Cir. Apr. 27, 2026) (per curiam).
Caleb Breaux, a clean-up worker in connection with the Macondo/DEEPWATER HORIZON spill, brought this Back-End Litigation Option suit in federal court in Louisiana against BP, alleging chronic exposure-related injuries (Follicular Lymphoma Grade 1-2) related to his work on the spill. The court issued a scheduling order with a deadline for expert reports (December 22, 2022), and that deadline was extended in response to Breaux’s motions seeking additional time, citing his medical condition. The court repeatedly extended the deadlines, with the final deadline for expert reports extended from December 22, 2022 until November 14, 2024. On November 8, 2024, Breaux filed another motion to stay the deadline, arguing that he had five new Later Manifested Physical Conditions resulting from his clean-up work. He reasoned that he needed the time to file another suit that would be consolidated with his existing suit. BP opposed the motion and moved for summary judgment on the ground that Breaux did not present any expert evidence on causation. Judge Guidry did not consider the excuse asserted by Breaux to be responsive, as he was aware of the new medical conditions since 2023, and those conditions were the basis for previous stays/extensions. Concluding that there was no longer good cause to continue the deadline, Judge Guidry denied the motion to stay. Without expert evidence on causation, Judge Guidry granted BP’s motion for summary judgment. See June 2025 Update.
Breaux appealed to the Fifth Circuit, challenging the decision denying a stay of the deadline to file expert reports, arguing that the denial was inconsistent with the settlement agreement that established the Back-End Litigation Option. The Fifth Circuit disagreed, reasoning that the agreement did not require courts to delay litigation indefinitely. As the district court had already granted generous extensions and warned that there would be no further extension absent a sufficient showing of good cause (which Breaux did not provide), the Fifth Circuit was “loath to interfere with the court’s enforcement of that order.” Noting that the argument against the granting of summary judgment rested on the denial of the stay, the Fifth Circuit affirmed the dismissal of the case.
From the federal district courts
Exposure suit by Macondo/DEEPWATER HORIZON worker (who did not bring a claim against the United States until for more than two years after his suit against BP was dismissed) was untimely; Maas v. United States Government, No. 2:25-cv-10, 2026 U.S. Dist. LEXIS 28316 (M.D. Tenn. Feb. 11, 2026) (Crenshaw).
John Maas claimed that he was exposed to Corexit dispersants around 12 hours per day while working on the cleanup of the Macondo/DEEPWATER HORIZON spill and that he suffers from asthma and reactive airways disease as a result. Maas provided reports from Dr. Charles Wray and Dr. Veena Antony, and Chief Judge Crenshaw held that the opinions were sufficient to establish both general causation and specific causation. BP argued that Maas never provided the dose of Corexit to which he was exposed, so the experts could not establish specific causation. However, Chief Judge Crenshaw found the combination of evidence of exposure to Corexit for 12 hours per day for two months in an unspecified dose together with a differential diagnosis that excluded other possible sources of Maas’s conditions was sufficient to establish causation. Finally, Chief Judge Crenshaw rejected BP’s objection that the reports of the doctors should be stricken because they were prepared by Maas’s counsel as the doctors testified that the reports contained their “actual views.” Accordingly, Chief Judge Crenshaw denied BP’s motion for summary judgment. See January 2022 Update.
BP moved to certify the order for an interlocutory appeal, but Chief Judge Crenshaw denied the motion. The parties then mediated the case, resulting in a settlement and dismissal of the suit in February 2022. Almost three years later, Maas brought this suit in Tennessee federal court against the United States, specifically naming OSHA, NOAA, and the EPA and alleging negligence and gross negligence for failing to protect the cleanup workers. He pleaded that the court had jurisdiction under the Federal Tort Claims Act and in admiralty. The United States moved to dismiss the case for lack of subject matter jurisdiction. With respect to maritime jurisdiction, the United States argued that Maas failed to establish jurisdiction under the Suits in Admiralty Act because he did not satisfy the two-part tests for locality and connection to maritime activity. As for the claim under the FTCA, the United States argued that Maas failed to name the United States as a defendant and failed to present the claim to the federal agency within two years after the claim accrued. Maas failed to respond to the argument under the SIAA, so Chief Judge Crenshaw held that the court lacked jurisdiction under the SIAA. However, Maas argued that the claim under the FTCA was timely because his cause of action was “locked into” the federally approved class action against BP and he could not sue any other party until that action was dismissed. Chief Judge Crenshaw rejected his argument. She first held that his pleading, naming the agencies, was improper under the FTCA. However, even if he properly named the United States, his failure to file an administrative complaint with the agencies within two years was fatal for his FTCA claim. Accordingly, she dismissed the suit for lack of subject matter jurisdiction.
Fact disputes on superseding cause of the fault of the receiving vessel for failing to stop the bunkering when the tank was filled resulted in denial of summary judgment sought by bunker supplier that pumped more bunkers than ordered with an overflow of the fuel tank on the receiving vessel; BW Fleet Management PTE Ltd. v. Tug JUSTICE, No. 2:23-cv-2492, No. 2:23-cv-2867, 2026 U.S. Dist. LEXIS 28804 (E.D. La. Feb. 11, 2026) (Barbier).
This litigation arises from an oil spill during bunkering operations in the Mississippi River. The tug JUSTICE and the bunker barge PBL 3010, owned and operated by Kirby Inland Marine, were supplying fuel to the M/T HAFNIA RHINE. The tankerman on the bunker barge supplied more (802.79 metric tons) than the agreed amount of 700 metric tons, but Kirby alleged that the overflow of the starboard fuel oil tank on the HAFNIA RHINE was caused by the negligence of that ship’s crew, which was the superseding cause of the overflow and spill. The owner and operator of the HAFNIA RHINE brought suit against the tug, barge, and Kirby in Louisiana federal court under the general maritime law and the Oil Pollution Act of 1990, and Kirby filed a counterclaim and moved for summary judgment on superseding cause. Judge Barbier reasoned that both parties owed duties. Kirby had the duty to deliver the correct amount of fuel at the agreed flow rate. The Person in Charge of the receiving vessel (Chief Engineer) had a duty to ensure that the tank had enough space to hold the nominated amount of fuel and to monitor the transfer. The parties did not dispute that there were breaches of duty, but they disputed the proximate cause of the spill. Kirby argued that the amount of fuel it delivered was less than the capacity of the tank (879.6 metric tons) and that the Person in Charge (and his assistant) violated Coast Guard regulations and internal company policies by completely ceasing the monitoring of the tank. Thus, their failure to stop the bunkering when the tank reached its capacity, which was not foreseeable, was the superseding cause of the overflow and spill. The HAFNIA RHINE interests countered that the negligence of Kirby was simultaneous with the negligence of the receiving vessel and was not a “later” cause that superseded an earlier fault of Kirby. They also argued that the negligence of the receiving crew was foreseeable. Finding that there was a dispute on material facts with respect to causation, Judge Barbier declined to grant summary judgment.
Court lacked admiralty jurisdiction over claim against yacht for sexual assault on crewmember while the vessel was docked; Keoleian v. Carter, No. 1:25-cv-10090, 2026 U.S. Dist. LEXIS 29437 (E.D. Mich. Feb. 12, 2026) (Ludington).
Spencer Keoleian was a deckhand on the yacht MARGERET RINTOUL IV, captained by Amien A.S. Carter. The yacht completed the 100th Bayview Mackinac Yacht Race on July 22, 2024, and was docked in the Mackinac Island Harbor. Keoleian and another crewmember returned from biking and found Capt. Carter on the deck, allegedly intoxicated from alcohol and/or prescription narcotics. Keoleian went to bed below deck and was awakened by a transsexual prostitute performing a sex act on him. Capt. Carter allegedly told the prostitute that “[m]y crew’s had a long race, why don’t you take care of them . . . .” Keoleian resisted and filed a complaint against the captain and the yacht in Michigan federal court. He brought claims against Carter, in personam, under the general maritime law and Michigan law for negligence, gross negligence, battery, assault, and intentional infliction of emotional distress. He incorporated those assertions to assert a maritime tort lien, in rem, against the vessel and requested the arrest of the yacht. He also stated: “Jurisdiction is founded solely under diversity of citizenship.” Carter and the vessel moved to dismiss the maritime lien claim for lack of admiralty jurisdiction (Judge Ludington noted that the court still had diversity jurisdiction over the other claims). The parties agreed that the locality test was satisfied by the incident occurring on a vessel on the navigable waters of the Great Lakes. As for the connection test, Judge Ludington characterized the incident as a sexual assault of a crewmember by a non-crewmember aboard a docked sailing yacht. Keoleian argued that sexual assault of crewmembers with the involvement of the captain can disrupt maritime commerce by dissuading a crewmember from continuing the voyage, citing the reasoning that a crewmember’s assault on a passenger on a cruise ship has the potential to disrupt maritime commerce of the cruise-ship industry. Judge Ludington disagreed with the application of that reasoning to a yacht at the dock after the completion of a race, stating that “it is not conceivable that a sexual assault aboard the Rintoul—a sailing yacht having just concluded a race—could have an effect on maritime commerce in the same way that such an assault would affect a commercial cruise line.” Judge Ludington also distinguished cases involving assaults on crewmembers of commercial vessels, answering that “while an assault aboard a moving vessel may impact a victim’s ability to perform [his] duty, erode captain-crewmember trust, or even force diversion due to medical necessity—thus, impacting maritime commerce—that same concern is not present when a vessel is docked, as the Rintoul was.” Judge Ludington also rejected application of the caselaw that emergency evacuation can potentially ensnare or divert commercial vessels in the area, stating that “it is hard to imagine how an assault aboard a docked vessel could impede waterways or divert ships.” Accordingly, Judge Ludington dismissed the in rem claim against the yacht for lack of subject matter jurisdiction.
Suit for damage to vessel while in land-based repair and storage could not be removed based on admiralty jurisdiction; Stuck v. Owl Creek Boat Works & Storage, LLC, No. 2:25-cv-1175, 2026 U.S. Dist. LEXIS 29841 (M.D. Fla. Feb. 13, 2026) (Steele).
Raymond Stuck’s vessel, GOT IT!, sustained damage at Owl Creek’s boat repair shop and storage center in Lee County, Florida. He brought suit against Owl Creek in state court in Lee County, Florida, alleging breach of contract, negligence, breach of bailment duties, breach of implied warranty, trespass to chattels, and conversion. Owl Creek removed the case to federal court based on diversity and original admiralty jurisdiction. Owl Creek failed to establish diversity jurisdiction with its allegation that it is an LLC whose members included individuals or entities who are citizens of states other than Florida, so Judge Steele considered whether Owl Creek had established that there was admiralty jurisdiction. Reasoning that the damage suffered by Stuck occurred on land, Judge Steele held that Owl Creek had not satisfied the locality requirement for the exercise of admiralty jurisdiction, and he remanded the case and agreed to award attorney fees [how does that compare to the train derailment in Alabama that the Supreme Court said was maritime in Kirby?].
Declaratory judgment action brought in New York federal court by New York insurer on commercial marine policy was transferred to the federal court in Kentucky where the underlying incident occurred and where litigation is pending among the parties; Mitsui Sumitomo Insurance USA, Inc. v. Bulldog Diving, Inc., No. 1:25-cv-2504, 2026 U.S. Dist. LEXIS 30648 (S.D.N.Y. Feb. 13, 2026) (Buchwald).
Bulldog Diving is an Indiana diving company with its principal place of business in Rockport, Indiana. It performs commercial diving activities on inland waterways, primarily in Kentucky, Indiana, and Illinois. In 2016, Bulldog Diving entered into a general agreement with Louisville Gas & Electric, and in 2021 Louisville Gas hired Bulldog Diving to perform dive work and to inspect certain pump bays at the Mill Creek Generating Station located on the bank of the Ohio River near Louisville, with a purchase order incorporating the terms of the general agreement. A young member of Bulldog Diving’s dive team, Jaxxyn Wood, was killed, and Louisville Gas settled a damage claim brought against it by Wood’s estate. Louisiana Gas demanded that Bulldog Diving defend it in the suit, but Bulldog Diving declined to indemnify Louisiana Gas, and its marine commercial liability insurer, Mitsui Sumitomo, responded that Louisiana Gas was not an insured under the policy. Louisiana Gas filed suit against Bulldog Diving in Kentucky state court, and the case was removed to federal court in Kentucky. Louisiana Gas subsequently amended its complaint to add Mitsui Sumitomo as a defendant. Meanwhile, Mitsui Sumitomo filed this declaratory judgment action in admiralty against Bulldog Diving and Louisiana Gas in New York federal court, seeking declarations that it does not have coverage for the claims against Bulldog Diving and that Louisiana Gas does not qualify as an additional insured on the Mitsui Sumitomo marine commercial liability policy. Bulldog Diving and Louisiana Gas moved to dismiss the case for lack of personal jurisdiction and, alternatively, to transfer the case to the federal court in Kentucky where the suit by Louisiana Gas against Bulldog Diving and Mitsui Sumitomo is pending. Mitsui argued that there is personal jurisdiction in New York because the policy was procured from Mitsui Sumitomo (a New York-based insurer) with a provision that the policy was governed by New York law. Judge Buchwald considered it doubtful that the court had personal jurisdiction in New York over companies based in Indiana and Kentucky that have no connection to New York except the “fortuity that Mitsui is headquartered in New York and the Policy is governed by New York law.” However, Judge Buchwald did not have to decide the personal jurisdiction issue if she transferred the case, for the convenience of the parties under Section 1404(a), to Kentucky where the parties are subject to personal jurisdiction. Finding the factors supported transfer of the case to Kentucky, Judge Buchwald denied the motion to dismiss without prejudice and transferred the case to the Kentucky federal court in which the other suit is pending.
Judge declined to dismiss suit against Mauritian owner of vessel on which a California resident was injured in French Polynesia for lack of personal jurisdiction but dismissed the suit based on the Mauritian forum-selection clause in the charter of the vessel, holding that the reasonably communicated test that is applicable to cruise line tickets does not apply to a bareboat charter for a yacht; Barker v. Dream Yacht Charter, No. 1:25-cv-212, 2026 U.S. Dist. LEXIS 29836, 68638 (D. Md. Feb. 13, 2026, Mar. 31, 2026) (Bennett).
Peter and Jessica Barker, residents of California, took a trip in March 2023 to the South Pacific with their children and friends. The group chartered a 50-foot catamaran from Dream Yacht Charter, a Mauritian corporation, and its subsidiary, Dream Yacht Americas, a Maryland corporation. The Barkers were sailing through the islands surrounding Raiatea, French Polynesia, when Peter fell three or four feet through the floor into the hull of the catamaran, injuring his leg. The Barkers brought this suit against Dream Yacht Charter and Dream Yacht Americas in federal court in Maryland, asserting jurisdiction based on diversity and admiralty, and alleging claims for negligence for failure to keep the catamaran in a safe condition. Dream Yacht Charter moved to dismiss the suit for lack of personal jurisdiction and, alternatively, the defendants moved to dismiss the case on the ground of forum non conveniens. Judge Bennett noted that the bareboat charter for the catamaran was entered into by one member of the traveling party, John Ziskind. The charter was not a “model of clarity,” referring to both Dream Yacht Charter and Dream Yacht Americas and listing Maryland and Mauritian addresses. Although Dream Yacht Charter argued that it did not do business in Maryland, Judge Bennett rejected the claim based on the references in the website and contract to Maryland and Mauritian addresses for the companies, indicating that the companies were not distinct entities and that Dream Yacht Charter was purposefully operating in Maryland through its subsidiary. The defendants had better success with their motion to dismiss on the basis of forum non conveniens, citing the forum-selection clause in the charter that [a]ny legal action arising under or in connection with this contract will be adjudicated in Port Louis, Mauritius. The Barkers argued that they did not enter into the charter and the forum-selection clause was not reasonably communicated to them, citing the test applicable to passengers on cruise ships. The defendants answered that the reasonably communicated test did not apply to bareboat charters for yachts, and Judge Bennett agreed. He reasoned that with a bareboat charter for yacht, the charterer is the owner pro hac vice of the vessel for the term of the charter, like a contract for a rental car. The contracting party understands that he is responsible for the safe operation of the rented equipment, safety of the passengers, and the itinerary of the vessel. In contrast, the passenger on a cruise line exchanges responsibility for safety for the non-negotiable itinerary and other features of the cruise. Although the Barkers sought to compare the booking by Ziskind to that of a broker so that the owner would have to communicate the terms of the charter to the entire traveling group, Judge Bennet answered that the argument “failed to bridge the doctrinal gap between passenger tickets for cruises and bareboat charters for yachts. Therefore, Judge Bennett held that the forum-selection clause was mandatory and reasonable, and he dismissed the suit on the basis of forum non conveniens.
Jury awarded damages for emotional pain and suffering and mental anguish to passenger against cruise line for over-service of alcohol resulting in her fall down a staircase; D.S. v. Carnival Corp., No. 1:24-cv-24428 (S.D. Fla. Apr. 10, 2026).
D.S., a passenger on the CARNIVAL RADIANCE, brought this suit against the cruise line, asserting that she fell down a flight of stairs on the vessel as a result of being overserved alcohol. D.S. also alleged that she was prevented from being able to know if she had been sexually assaulted because the cruise line misrepresented the contents of closed-circuit television surveillance, which caused her not to request a rape kit. Her amended complaint contained two counts, vicarious liability for over-service of alcohol and vicarious liability for the alleged misrepresentation by an employee of the cruise line. The cruise line moved to dismiss the first count because D.S. failed to identify a negligent employee, failed to allege that an employee knew or should have known that she was too intoxicated to receive another drink, and failed to sufficiently allege causation. Chief Magistrate Judge Goodman disagreed with the cruise line with respect to the identification of the employee, finding it sufficient that D.S. listed the bars and pleaded that the bartenders over-served her (although he cautioned that these allegations would probably not survive a motion for summary judgment). Chief Magistrate Judge Goodman also disagreed that the pleading was conclusory as to the notice of her intoxicated state, noting that she pleaded she was swaying, stammering, slurring her speech, had alcohol on her breath, and was acting in a belligerent manner while in plain view of the crew who were serving the alcohol. However, Chief Magistrate Judge Goodman did not believe the allegation was sufficient that, due to her intoxicated state that was caused by over-service of alcohol, D.S. stumbled while attempting to walk down a set of stairs and suffered a severe fall. Chief Magistrate Judge Goodman reasoned that D.S. did not sufficiently allege causation because she failed to appropriately define what the incident was and how over-service caused it. Therefore, Chief Magistrate Judge Goodman recommended that D.S. be required to replead the first count. The cruise line argued that the allegations in the second count failed to plead a claim for intentional misrepresentation because D.S. failed to adequately plead that an employee misrepresented or omitted a material fact, failed to include a plausible allegation of inducement, and insufficiently alleged how she suffered a detriment as a result of the misrepresentation. Chief Magistrate Judge Goodman answered that D.S. complied with the heightened pleading requirement of Rule 9 for a misrepresentation claim as she sufficiently alleged the “where, when, who, and how a crew member misrepresented or omitted a material fact.” However, Chief Magistrate Judge Goodman believed that the allegations on inducement and reliance were too vague and conclusory for the court to determine causation. He noted that the misrepresentation after the fall could not have been a cause of the fall and he questioned how she was injured when the crew member offered to administer a rape kit. Therefore, he recommended that the second count be amended to sufficiently allege the misrepresentation claim. Chief Magistrate Judge Goodman then addressed the cruise line’s argument that D.S. was not entitled to seek punitive damages because she failed to show intentional misconduct by the cruise line or that the cruise line authorized or ratified the tortious conduct of its crew. Chief Magistrate Judge Goodman noted the intra-district split on the issue of whether punitive damages are allowed in maritime cases. He did not have to decide how that issue should be resolved as he concluded that the allegations were too vague and conclusory to meet the standard that “the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” He recommended that if Judge Williams agreed with his recommendation, D.S. should be given leave to replead the claim for punitive damages “if [she] has a good faith basis to allege the necessary facts to support a punitive damages claim because of exceptional circumstances of intentional wrongdoing.” D.S. did not object to the recommendations, and Judge Williams adopted them. See June 2025 Update.
A jury trial was held before Judge Williams, and the jury found that the cruise line was negligent by virtue of the overserving of alcohol to D.S., that the negligence was a legal cause of physical injury or impact that caused emotional damage to D.S., that D.S. was negligent, that the allocation of fault was 60% to the cruise line and 40% to D.S., that D.S. sustained damages for emotional pain and suffering and mental anguish of $300,000, that 25% of her emotional damages pre-existed her fall down the staircase, and that 75% of her emotional damages were aggravated by the fall down the staircase.
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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The Fifth Circuit addressed the firing by Trader Joe’s of a crewmember (crewmembers perform a variety of tasks, “including working the registers, answering customer questions, receiving pallets of products and stocking shelves) in Trader Joe’s Co. v. National Labor Relations Board, No. 24-60367, 167 F.4th 766 (5th Cir. Feb. 18, 2026). The NLRB determined that Trader Joe’s had discriminated against the crewmember, and a majority of the panel of the Fifth Circuit upheld the decision. Judge Oldham dissented, criticizing the majority’s failure to apply the Fifth Circuit’s rule of orderliness (“a panel of three judges may not unilaterally overrule or disregard the precedent that has been established by our previous decisions”). Judge Oldham pointed out the Fifth Circuit’s treatment of the application of the rule:
To some, blowing out candles is a critical part of a birthday. To others, it has talismanic powers and yields a wish. And to still more, it’s a triviality that means nothing at all. So too with this circuit’s varying attitude towards the rule of orderliness.
Judge Oldham also provided a colorful summary of the majority’s opinion:
Jill Groeschel was the sort of employee who haunts the nightmares of HR managers everywhere. She berated co-workers and customers with profanity-laden screeds, threatened the lives of her co-workers with heavy equipment, and was the focus of at least a dozen employee complaints. Her conduct obviously violated Trader Joe’s at-will employment policy. Yet the National Labor Relations Board held that Groeschel’s firing was unlawful—because this California-based, famously-progressive grocery chain harbored some secret animus against people who took COVID seriously? Astonishingly, the majority agrees.
I respectfully dissent.
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© Kenneth G. Engerrand, April 30, 2026; redistribution permitted with proper attribution.
