November 2025 Longshore Maritime Update No. 318
Notes from your Updater:
The U.S. Centers for Medicare & Medicaid Services published a Final Rule regarding Civil Money Penalties that are applicable as of October 11, 2024 and that will be enforced as of October 11, 2025 with respect to mandatory insurer reporting requirements. The Final Rule specifies how and when “CMS must calculate and impose civil money penalties (CMPs) when group health plan (GHP) and non-group health plan (NGHP) responsible reporting entities (RREs) fail to meet their Medicare Secondary Payer (MSP) reporting obligations by failing to register and report as required by MSP reporting requirements.”
CMS has set forth daily penalties for failure to timely report, and the amounts are subject to annual inflation adjustments. The maximum penalty for one instance of noncompliance is $365,000. Below are links to the announcement and the Final Rule.
NGHP Civil Money Penalties | CMS
On September 4, 2025, Judge Chuang of the United States District Court for the District of Maryland declined to transfer the suit brought by environmental groups against the National Oceanic and Atmospheric Administration (asserting that a biological opinion addressing the effects on federally protected species and critical habitats that would result from the construction and operation of two deepwater crude oil export terminals in the Gulf of America, the Sea Port Oil Terminal and the Texas GulfLink Deepwater Port Project violated the Administrative Procedure Act and the Endangered Species Act) from the federal court in Maryland to the United States District Court for the Southern District of Texas. See Sierra Club v. National Marine Fisheries Service, No. 8:24-cv-2699, 2025 U.S. Dist. LEXIS 172917 (D. Md. Sept. 4, 2025).
On September 11, 2025, the 24th anniversary of the terrorist attacks on the World Trade Center, Judge Becerra of the United States District Court for the Southern District of Florida, held that victims of the attacks and family members of victims of the attacks could use alternative service in their collection efforts for the default judgment against the Islamic Republic of Iran, the Iran Revolutionary Guard Corps, and Hezbollah in this in rem proceeding against stateless vessels, the M/V BLUEFINS, M/V B LUMINOSA, M/V BOCEANICA, M/V BUENO, M/V ADISA, and M/V NOLAN, by Inmarsat phone numbers and Telegram Messenger. See Hoglan v. M/V BLUEFINS, No. 1:24-cv-21628, 2025 U.S. Dist. LEXIS 177807 (S.D. Fla. Sept. 11, 2025).
On September 19, 2025, Judge Hendricks of the United States District Court for the District of South Carolina dismissed the suit brought by Imani Kinloch, an African-American female longshore worker against International Longshoremen’s Association Local 1422 for quid pro quo sexual harassment, hostile work environment harassment, retaliation, and discrimination in violation of Title VII of the Civil Rights Act of 1964. Judge Hendricks agreed with Magistrate Judge Baker that “to hold Local 1422 liable for Title VII violations as a labor union, Plaintiff must first show that Local 1422 directly engaged in, instigated, or actively supported discriminatory or retaliatory acts, but because Plaintiff has not pointed to sufficient evidence to create a genuine dispute of fact as to any such acts, she cannot demonstrate that Local 1422 is directly liable as a labor organization.” See Kinloch v. International Longshoremen’s Association Local 1422, No. 2:23-cv-3640, 2025 U.S. Dist. LEXIS 184399 (D.S.C. Sept. 19, 2025).
On September 20, 2025, the Eleventh Circuit denied the appeal of the Center for a Sustainable Coast, objecting to the letter of permission issued by the U.S. Army Corps of Engineers for the 500 square-foot private dock proposed by Lumar LLC on the Fancy Bluff Creek, adjacent to its 82-acre property on Cumberland Island, Georgia (concluding that the project would not have significant impact on environmental values), rejecting claims that the letter violated the Cumberland Island National Seashore Act and the Rivers and Harbors Act of 1899, and that the failure to prepare an environmental impact statement violated the National Environmental Policy Act and the Administrative Procedure Act. The Eleventh Circuit concluded: “‘The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.’ Here, the Corps ‘reasonably considered the relevant issues and reasonably explained’ its decision. So the inquiry is at an end.” See Center for a Sustainable Coast v. U.S. Army Corps of Engineers, No. 24-14171, 2025 U.S. App. LEXIS 27242 (11th Cir. Oct. 20, 2025) (citations omitted) (per curiam).
On September 24, 2025, Judge Chutkan of the United States District Court for the District of Columbia held that two shipping associations (Offshore Marine Service Association and Shipbuilders Council of America) and a ship captain had competitor standing to assert their claim that they have suffered substantial financial losses because the U.S. Bureau of Customs and Border Protection refuses to enforce the Jones Act in certain letter rulings and subsequent agency actions, resulting in foreign vessels enjoying more business than American vessels; however, Judge Chutkan dismissed the suit because the challenged letter rulings and related agency actions are not final. See Radtke v. United States Bureau of Customs & Border Protection, No. 1:17-2412, 2025 U.S. Dist. LEXIS 188059 (D.D.C. Sept. 24, 2025).
The Update previously reported that an ad hoc Committee of the International Centre for Settlement of Investment Disputes declined to annul an arbitration award in excess of $8 billion in favor of subsidiaries of ConocoPhillips against Venezuela in connection with the appropriation by Venezuela of the interests of the ConocoPhillips entities in the Corocoro Project (an offshore project for the extraction of light to medium crude oil) and the Petrozuata and Hamaca Projects (for the extraction of extra-heavy oil in Venezuela’s Orinoco Oil Belt region). See ConocoPhillips Petrozuata B.V. and Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30 (International Centre for Settlement of Investment Disputes Jan. 22, 2025). On September 26, 2025, 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).
The Update has reported that the United States Court of Appeals for the Ninth Circuit addressed the jurisdictional dispute between the International Longshore and Warehouse Union (ILWU) and the International Association of Machinists and Aerospace Workers (IAM) with respect to maintenance work at SSA Terminals’ Terminal 5 at the Port of Seattle, Washington. The National Labor Relations Board assigned the work to IAM-represented mechanics, and the ILWU filed a grievance against SSA Terminals under its collective bargaining agreement, seeking the value of the work assigned to IAM. An administrative law judge awarded the ILWU damages for the lost opportunity so that SSA Terminals would have to pay twice for the work, and SSA Terminals filed an unfair labor practice charge to which the ILWU claimed its conduct was immunized by the work-preservation defense. An administrative law judge rejected the defense, and the NLRB ordered the ILWU to cease and desist from pursuing the maintenance work at Terminal 5. The Ninth Circuit reversed, holding that its decision in Kinder Morgan allowed the ILWU to raise the work-preservation defense. Judge Miller, who wrote the decision for the Ninth Circuit, also concurred to suggest that the Ninth Circuit should reconsider Kinder Morgan en banc because it was wrongly decided. See International Longshore and Warehouse Union v. National Labor Relations Board, Nos. 23-632, 23-658, 23-780, and 23-793, 2025 U.S. App. LEXIS 15101 (9th Cir. June 18, 2025) (petitions for rehearing en banc were filed by the National Labor Relations Board and the International Association of Machinists and Aerospace Workers).
Meanwhile, the Ninth Circuit applied the work-preservation doctrine as a complete defense to the claims brought by Samson Tug & Barge Co. against International Longshore & Warehouse Union, Alaska Longshore Division, and International Longshore & Warehouse Union, Unit 222, under the Labor Relations Management Act in connection with longshore work conducted at the Womens Bay terminal owned by Matson Navigation Co., which is a signatory to the All-Alaska Longshore Agreement. See Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Nos. 24-5730, 24-6017, 2025 U.S. App. LEXIS 21565 (9th Cir. Aug. 22, 2025) (per curiam). Samson Tug filed a petition for rehearing en banc, and on September 30, 2025, the Ninth Circuit declined to hear the case en banc. See Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Nos. 24-5730, 24-6017, 2025 U.S. App. LEXIS 25386 (9th Cir. Sept. 30, 2025).
On October 2, 2025, Judge Cain of the United States District Court for the Western District of Louisiana granted summary judgment to Louisiana, Alaska, Georgia, and energy industry groups that two memoranda issued by President Biden on January 6, 2025, withdrawing certain areas of the outer Continental Shelf (off the coast of Alaska and off the East Coast, West Coast, and within the eastern Gulf of America) from potential oil and gas leasing for a period of time without specific expiration (rescinded by President Trump) exceeded the authority granted under the Outer Continental Shelf Lands Act. See Louisiana v. Biden, No. 2:25-cv-71, 2025 U.S. Dist. LEXIS 195905 (W.D. La. Oct. 2, 2025).
On October 7, 2025, the Fifth Circuit denied the petition for review filed by Prime International Shipping (an international freight forwarder that facilitates the overseas carriage of vessels, including loading vehicles into shipping containers) with respect to violation of regulations that apply to employees, rejecting the argument that the workers at its facility were independent contractors. See Prime International Shipping, L.L.C. v. Occupational Safety and Health Review Commission, No. 25-60182, 2025 U.S. App. LEXIS 26060 (5th Cir. Oct. 7, 2025) (per curiam).
On October 9, 2025, the Fifth Circuit agreed that Mississippi localities and industry groups lacked Article III standing to challenge the U.S. Army Corps of Engineers’ operation of the Bonnet Carré Spillway (a flood control structure upstream from New Orleans) in the suit in federal court in Mississippi alleging that the opening of the Spillway led to a taking of bottlenose dolphins in the Mississippi Sound, requiring the Corps to apply for authorization under the Marine Mammal Protection Act. See Harrison County, Mississippi v. United States Army Corps of Engineers, No. 24-60553, 2025 U.S. App. LEXIS 26376 (5th Cir. Oct. 9, 2025) (per curiam).
On October 14, 2025, Judge Bonilla of the United States Court of Federal Claims denied class certification for a class and two subclasses of current and former Coast Guardsmen whose religious accommodation requests were denied in connection with their failing or refusing to comply with the military’s now rescinded COVID-19 vaccination mandate. See Harkins v. United States, No. 23-1238C, 2025 U.S. Claims LEXIS 2942 (Fed. Cl. Oct. 14, 2025).
On October 16, 2025, the Texas Court of Appeals for the Fourteenth District held that the San Jacinto River Authority had governmental immunity when it released water from its Lake Conroe reservoir into the West Fork of the San Jacinto River, resulting in damage to downstream property owners. See San Jacinto River Authority v. Ross, No. 14-23-00923-CV, 2025 Tex. App. LEXIS 7963 (Tex. App.—Houston [14th Dist.] Oct. 16, 2025) (Jewell).
In the May 2024 Update, we noted that, on April 12, 2024, the Supreme Court unanimously held that a transportation worker need not work in the transportation industry in order to fall within the exemption in Section 1 of the Federal Arbitration Act. The case involved franchisees who distributed products for Flowers Foods (such as Wonder Bread) and were engaged in delivery, advertising, promotion, and maintenance of inventory. They brought suit against Flowers, alleging underpayment under their agreements, and Flowers moved to compel arbitration under the FAA. The distributors asserted that they fell within the exemption in the FAA for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Writing for the court, Chief Justice Roberts held that a transportation worker need not work in the transportation industry to fall within the exemption. The Court remanded the case to determine whether the distributors were transportation workers and whether they were engaged in foreign or interstate commerce because they delivered baked goods only in Connecticut. See Bissonnette v. LePage Bakeries Park St. LLC, No. 23-51, 2024 U.S. LEXIS 1576 (U.S. Apr. 12, 2024). On October 20, 2025, the Supreme Court granted the request of Flowers Foods to review the decision of the Tenth Circuit in Brock v. Flowers Foods, Inc., 121 F.4th 753 (10th Cir. 2024), to determine whether Angelo Brock, who was involved in the intrastate part of interstate deliveries, fell within the exemption for workers engaged in foreign or interstate commerce. See Flowers Foods, Inc. v. Brock, No. 24-935, 2025 U.S. LEXIS 3947 (U.S. Oct. 20, 2025).
In the October 2025 Update, we reported that on September 22, 2025, Judge Lamberth of the United States District Court for the District of Columbia granted a preliminary injunction in favor of Revolution Wind, LLC, staying the August 22, 2025 Order issued by the Bureau of Ocean Energy Management halting all ongoing activities related to the Revolution Wind Project on the outer Continental Shelf (15 miles east of Block Island, Rhode Island and 15.7 miles from Newport, Rhode Island) that is approximately 80% complete. See Revolution Wind, LLC v. Burgum, No. 1:25-cv-2999 (D.D.C. Sept. 22, 2025). In a separate action, BOEM suspended construction of the Empire Wind offshore wind farm off the coast of New York, but it lifted the suspension order on May 19, 2025. That did not stop the efforts of Dr. Robert Stern, who “believes it to be his responsibility to guard the national resources of Long Beach Island and the waters adjacent to it, including the land animals, plants, and marine life.” Dr. Stern and his organization, Save Long Beach Island, brought suit in federal court in New Jersey against the Department of Commerce, the Secretary of Commerce, and the National Marine Fisheries Service to object to the development of several windfarms in the waters of the Atlantic Ocean off the coast of New York and New Jersey. Finding that Stern lacked standing and that his claims were not ripe and were moot, Judge Kirsch dismissed the suit without prejudice. See Save Long Beach Island v. U.S. Department of Commerce, No. 3:23-cv-1886, 2024 U.S. Dist. LEXIS 35699 (D.N.J. Feb. 29, 2024). On June 11, 2025, Judge Kirsch addressed the claims of Save Long Beach Island and Dr. Stern challenging six Incidental Harassment Authorizations and one Letter of Authorization issued by the National Marine Fisheries Service to windfarm developers off the coast of New York and New Jersey (focusing on two specific whale species—the North Atlantic Right Whale and the Humpback Whale) and directed that the case be closed. See Save Long Beach Island v. United States Department of Commerce, No. 3:23-cv-1886, 2025 U.S. Dist. LEXIS 110630 (D.N.J. June 11, 2025). On July 2, 2025, Judge Kirsch issued an amended opinion, superseding his decision issued on June 11, 2025, but dismissing the case for lack of standing and on the merits. See Save Long Beach Island v. United States Department of Commerce, No. 3:23-cv-1886, 2025 U.S. Dist. LEXIS 125929 (D.N.J. July 2, 2025). See September 2025 Update. On July 11, 2025, Dr. Stern and Save Long Beach Island filed another suit against various government defendants in the United States District Court for the District of Columbia, asserting that the authorization of the Empire Wind project off the coast of New York violated the Marine Mammal Protection Act, the National Environmental Policy Act, and the Outer Continental Shelf Lands Act. The plaintiffs moved the court to halt the construction for the protection of the Northern Migratory Coastal Bottlenose Dolphin. Concluding that Stern and Save Long Beach Island had failed to establish irreparable harm, Judge Nichols declined to grant the injunction. See Save Long Beach Island, Inc. v. United States Department of Commerce, No. 1:25-cv-2214, 2025 U.S. Dist. LEXIS 210425 (D.D.C. Oct. 24, 2025).
On the LHWCA Front . . .
From the federal appellate courts
Ninth Circuit reversed BRB affirmance of award of attorney fees in settlement of multiple claims for failing to consider the extent of success on each claim; National Steel and Shipbuilding Co. v. Director, OWCP, Nos. 23-2865, 24-6822, 2025 U.S. App. LEXIS 25607 (9th Cir. Oct. 2, 2025) (per curiam).
Eugenio Rodriguez, an employee of National Steel and Shipbuilding Co. in San Diego, California, filed a claim in 2009 for cumulative traumatic bilateral knee injuries. The parties settled the disability portion of the claim ($56,721.60) and left the medical benefits open. The settlement was approved in 2011. In September 2015, Rodriguez filed a second claim, for new cumulative traumatic injuries to both knees through July 18, 2013. National Steel controverted the 2013 claim, and a formal hearing was held before Administrative Law Judge Gee. ALJ Gee found that Rodriguez failed to establish a new injury, and Rodriguez appealed to the Benefits Review Board. The BRB affirmed the denial of a new injury, but it held that the ALJ should have considered Rodriguez’s alternate contention (that his disability after 2013 was the natural progression of the accepted 2009 claim) as a request for modification of the 2011 award under Section 22 of the LHWCA. The BRB remanded the case for modification proceedings, and the parties entered into a second settlement that globally resolved the modification request for the 2009 claim as well as the 2013 claim. National Steel agreed to pay $50,000 (which was not apportioned between the claims) and to continue to pay for medical treatment for the 2009 bilateral knee injuries. The settlement did not reach agreement on attorney fees. ALJ Nordby approved the second settlement in April 2022, and Rodriguez’s counsel submitted a fee petition seeking a total of $145,499.07 in fees and costs for both the 2009 and 2013 claims. ALJ Nordby awarded $91,399.57 for work before the ALJ and BRB, rejecting National Steel’s argument that the award should be reduced for partial success, finding that the prosecution was fully successful. The BRB affirmed the award, concluding that ALJ Nordby did not abuse his discretion in rejecting the argument that Rodriguez obtained only partial success. The BRB also rejected National Steel’s argument that it was an abuse of discretion to award a fee “in gross excess” of the settlement amount. Administrative Appeals Judge Boggs dissented in part, asserting that ALJ Nordby failed to adequately consider the degree of success in accordance with the Supreme Court’s decision in Hensley v. Eckerhart. National Steel filed a petition for review with the Ninth Circuit, arguing that the fees sought by Rodriguez’s attorney must be reduced because Rodriguez only achieved partial success—his 2013 claim failed at trial and on appeal, and the modification claim was never litigated before the ALJ. A majority of the Ninth Circuit panel agreed that, based on Hensley, the BRB erred by aggregating the work on the claims without clarifying how it apportioned the fees between the claims. The court explained: “When a party seeks attorney’s fees under a fee shifting statute following prosecution of multiple legal claims, the Supreme Court’s decision in Hensley v. Eckerhart requires the adjudicator to consider ‘the extent of a plaintiff’s success’ on each claim when determining what constitutes a ‘reasonable’ fee award for counsel’s services.” The court added that when “a party achieves only ‘partial or limited success,’ the adjudicator should ‘reduce the award to account for the limited success’” and that no fee may be awarded for services on an “‘unsuccessful claim,’ unless the claims are so intertwined that the ‘lawsuit cannot be viewed as a series of discrete claims.’” The Ninth Circuit noted that Rodriguez made two distinct claims. His original position was that the 2013 injury was wholly separate from the 2009 injury (for which his disability had been compensated). The 2013 claim was litigated before the ALJ and BRB, and Rodriguez failed on that claim at both levels. Rodriguez’s second claim was for modification of the award for the 2009 injury, and that was never litigated before the ALJ. The court summarized: “Had the BRB considered the 2009 and 2013 claims separately under Hensley, it may well have found that no fees are due for the mostly unsuccessful 2013 injury claim—unless the claims were so intertwined that the action could not ‘be viewed as a series of discrete claims’ (which the BRB did not find).” The court remanded the case to the BRB to “determine what, if any, of the $50,000 global settlement can be attributed to counsel’s efforts in prosecuting the 2013 injury claim and the 2009 modification claim” and cautioned: “If the BRB concludes Rodriguez achieved limited success on the 2013 injury claim, the agency should reduce fees accordingly.” The court also advised that the BRB should determine whether the award is governed by Section 28(a) or 28(b) of the LHWCA. Judge Bybee dissented, reasoning that both claims arose from cumulative trauma to Rodriguez’s knees and that Rodriguez was ultimately successful in obtaining additional benefits related to his knees. For Judge Bybee the important point was that the settlement compensated for the trauma to the knees regardless of whether the origin of the disability was trauma in 2009 or 2013.
From the federal district courts
General contractor performing work on Navy vessel in shipyard did not owe a duty to an injured employee of a subcontractor without retaining significant control and involvement over the safety aspects of the subcontracted work or performing an act that aggravated the risk that caused the injury; Cooper v. Vigor Marine, LLC, No. 1:22-cv-275, 2025 AMC 354, 2025 U.S. Dist. LEXIS 172776 (D. Haw. Sept. 4, 2025) (Gillmor).
Ashley Cooper claims that she was employed by International Marine and Industrial Applicators (and two other International Marine entities) to perform industrial painting, blasting, cleaning and other related work on the U.S.S. WILLIAM P. LAWRENCE, which was located in a graving dock at the Pearl Harbor Naval Shipyard in Hawaii. While trying to remove contaminants, her arm was sucked into one of the hoses of the vacuum, and she brought this suit in state court in Hawaii against her employer under the Jones Act, her supervisor (Doug Eiss), the general contractor, Vigor Marine, and subcontractors of Vigor Marine. The defendants removed the case to federal court, and International Marine and Eiss moved to dismiss the claims against them, arguing that the LHWCA provided Cooper’s exclusive remedy against International Marine and Eiss. Before addressing whether Cooper was a seaman, Judge Gillmor noted that the complaint simply stated that Cooper was employed by the three entities and did not specify which of the entities was the employer. Citing Cosmopolitan Shipping Co. v. McAllister, Judge Gillmor held that there can be only one Jones Act employer, and the complaint did not specify the employer or allege facts establishing an employment relationship so as to support a Jones Act claim. Turning to the issue of seaman status, Judge Gillmor reasoned that a land-based worker who spends 100% of her time on a vessel but without any seagoing activity is not a seaman under the Jones Act. Thus, Cooper was required to assert facts to demonstrate the nature and duration of her employment, including the total amount of seagoing activity. Consequently, as she did not plead facts to establish that she was a seaman, her claims under the Jones Act and for maintenance and cure were dismissed, with leave to plead facts establishing seaman status. Eiss also moved to dismiss Cooper’s complaint, alleging that, as Cooper was not a seaman, Section 33(i) of the LHWCA barred her claim against him (a co-employee supervisor). Cooper asserted that Eiss was liable for willful and wanton misconduct, but Judge Gillmor ruled that the statements in the complaint were merely legal conclusions. She dismissed the count against Eiss with leave to replead a plausible claim that was not barred by the LHWCA. See August 2023 Update.
After Cooper repleaded, International Marine moved for summary judgment as to Cooper’s seaman status and with respect to her claims as a seaman. Judge Gillmore denied the motion for summary judgment with respect to seaman status, finding fact disputes on each of the elements of seaman status. As the vessels on which she worked would degrade over time if she did not paint the vessels, Judge Gillmor held that Cooper presented a question of whether her work contributed to the operation of the vessels. Noting that a vessel does not cease to be a vessel when it is undergoing repairs, Judge Gillmor agreed that a jury should decide whether the vessels had been withdrawn from navigation. Judge Gillmore found sufficient evidence of substantial duration based on Cooper’s testimony that the vast majority of her work for International Marine was aboard Navy vessels, and she found that her repair work was substantial in nature because she was exposed to special hazards and dangers in connection with her assignment to jobs in tight spaces. With even less substantive discussion than she gave on the issue of seaman status, Judge Gillmor held that Cooper presented jury issues on her claims for negligence, maintenance and cure, and punitive damages for failure to pay maintenance and cure. See June 2024 Update.
After Cooper entered into confidential settlements with International Marine and with Pacific Equipment Supply and Industrial Vacuum Equipment, the Vigor Marine defendants objected to the confidentiality of the settlements, citing Hawaii law. Judge Gillmor answered that Cooper’s claims are based on federal maritime law and that maritime law applied even though the Vigor Marine defendants removed the case based on diversity. Judge Gillmor then held that maritime law and Hawaii law are incompatible because Hawaii follows the pro tanto approach to settlements, and maritime law follows the proportionate share approach enunciated in AmClyde. Therefore, she declined to apply the Hawaii statute and held that the settlements should be confidential. Finally, the Vigor defendants argued that the settlement with International Marine contained an agreement under Section 8(i) of the LHWCA that had to be approved by the Department of Labor. Accordingly, it should be made public. Judge Gillmor stated that Section 8(i) settlements are not approved in public hearings and are subject to the Privacy Act of 1974 under which the Department of Labor is only permitted to disclose the records under limited circumstances. As the Vigor Marine defendants did not establish any circumstances justifying disclosure of the confidential Section 8(i) settlement, Judge Gillmore declined to order the disclosure, stating that the defendants were “free to pursue the question before the Department of Labor.” See June 2025 Update.
The last party standing, general contractor Vigor Marine, moved for summary judgment, arguing that it did not owe a duty to ensure the safety of Cooper when Cooper was employed by subcontractor International Marine and Industrial Applicators. Judge Gillmor began by finding that maritime law applied, reasoning that the negligence claims “involve injuries aboard a Vessel in a dry dock at the Pearl Harbor Naval Shipyard which satisfy both the location and connection elements necessary for federal maritime law to apply.” Judge Gillmor then turned to the duties owed to longshore workers, noting that Vigor Marine is not the vessel owner, which owes the Scindia duties, or the employer, which owes compensation pursuant to the LHWCA (with the exception for liability in the dual role of employer and vessel owner). Based on the Nelson decision from the Ninth Circuit, Judge Gillmore held that the employer of an independent contractor is generally not liable for injury to an employee of the contractor except where “(1) the prime contractor retained significant control and involvement over the safety aspects of the job the employee performed or (2) the prime contractor’s own negligence aggravated the risk that caused the employee’s injury.” In this case, Cooper was employed using his employer’s industrial vacuum, and Vigor Marine did not oversee or supervise Cooper or instruct her with respect to use of the vacuum. Cooper cited the contract between the United States and Vigor Marine, providing that Vigor Marine was responsible for all contracted and subcontracted labor. Judge Gillmore answered that there is a distinction between tort and contract law, and Cooper was not an intended beneficiary of the prime contract. Finally, Cooper cited OSHA regulations to support a duty of care; however, Judge Gillmor noted that it is the employer who is responsible for the violations. She concluded by citing the Ninth’s Circuit’s Peters decision that the worker’s remedy is against her employer under the LHWCA and “not to sue a third-party.”
Insured’s suit against DBA carrier for breach of contract/bad faith was not timely while the insured was appealing the decision of the ALJ that the claim was covered under the DBA and that there was no coverage under the insured’s DBA policy; McHenry Management Group, Inc. v. ACE American Insurance Co., No. 2:25-cv-54, 2025 U.S. Dist. LEXIS 172883 (E.D. Va. Sept. 4, 2025) (Jackson).
Victor Lenac Shipyard, a privately owned shipyard in Croatia, entered into a contact with the United States to perform work on the USS MOUNT WHITNEY. Victor Lenac Shipyard entered into a contract with The McHenry Management Group to act as a pass-through intermediary with Mi-Tech, Inc. to provide a Mi-Tech employee, Edward Duvall, to perform engineering work on the vessel with payment for the work made by Victor Lenac Shipyard to The McHenry Management Group. The McHenry Management Group entered into a contract with Mi-Tech for Duvall’s services, and Duvall suffered a fatal heart attack at a Victor Lenac office and died in Croatia. Duvall’s widow, Kimberly, filed a claim against Mi-Tech for benefits under the Defense Base Act, and Mi-Tech responded that it did not have DBA coverage. Kimberly Duvall then amended her claim to seek DBA benefits against The McHenry Management Group (as the statutory employer of Edward Duvall), and The McHenry Management Group notified its DBA carrier, ACE American Insurance Co. ACE issued a reservation of rights letter and informed The McHenry Management Group that it would assign an attorney to represent and defend The McHenry Management Group with respect to the DBA claim. The appointed lawyer also represented ACE and presented argument on behalf of The McHenry Management Group that the claim was not covered under the DBA and on behalf of ACE that there was no coverage under the ACE Policy. Ultimately, the Benefits Review Board held that the work was covered by the DBA, and an administrative law judge ruled that the ACE policy did not provide coverage to The McHenry Management Group for Duvall’s DBA claim. At that time, The McHenry Management Group engaged independent counsel and appealed the decision of the ALJ to the Benefits Review Board (still pending). Separately, The McHenry Management Group brought suit against ACE American Insurance Co. (d/b/a Chubb Insurance Co.) in state court in Chesapeake, Virginia, asserting claims for breach of the insurance contract and breach of the implied duty of good faith and fair dealing and complaining that “the counsel Chubb appointed to defend TMMG against the Duvall Claim actually was arguing to the ALJ that TMMG had no coverage for the Duvall Claim under the Chubb Policy.” ACE removed the case to federal court in Virginia, based on diversity, and moved to dismiss the case for lack of jurisdiction. Judge Jackson agreed, noting that an order has to be final before it can be judicially reviewed. The allegations that ACE breached its contractual obligations and acted in bad faith were based on the foundation that, absent the breach, The McHenry Management Group “may not have been found liable and may not have incurred the damages it seeks in this action.” As the court would have to evaluate the merits of the ALJ’s decision, which was on appeal, Judge Jackson concluded that he “cannot reach the merits of this case without overcoming the jurisdiction hurdle”—the court lacked statutory power to review the decision because it was not a final order. The McHenry Management Group argued that its claims were distinct from the merits of the ALJ’s ruling, but Judge Jackson answered that the claims were “intertwined” with the merits, and he dismissed the suit.
Longshore worker who fell down an open hatch while plugging in refrigerated containers on a vessel sufficiently alleged a violation of the turnover duty and the active involvement duty to survive the vessel owner’s motion for summary judgment; Palmer v. Nippon Yusen Kabushiki Kaisha (NYK Line), No. 4:24-cv-309, 2025 U.S. Dist. LEXIS 192294 (N.D. Cal. Sept. 29, 2025) (Ryu).
William Palmer was employed by Pacific Crane Maintenance Co. as a refrigerated container mechanic, whose job was to plug in refrigerated containers to the electrical power supply on the NYK VESTA (docked in Oakland, California) after the containers were loaded on the ship. He was injured when he descended a ladder and fell down an open hatch at the base of the ladder. Palmer brought this suit against NYK Line, as owner and operator of the NYK VESTA, in federal court in California pursuant to Section 5(b) of the LHWCA. Palmer and another employee of Pacific Crane were plugging in the containers, and Herbert Cadion, Second Officer on the VESTA, was checking to verify that the containers were properly stacked and locked. Palmer contended that Cadion left the hatch open after checking the containers in the area. NYK Line moved for summary judgment, arguing that it did not violate the three Scindia duties. Before addressing the Scindia duties, Chief Magistrate Judge Ryu considered the Daubert challenge to Palmer’s expert liability witness, Captain Katharine Sweeney. Captain Sweeney has over 20 years of experience sailing on container ships as a deck officer and master, but NYK Line argued that she is not qualified to opine on what is an unreasonably dangerous condition for an experienced longshore worker because she has not worked in that capacity. Chief Magistrate Judge Ryu disagreed, but she did strike Captain Sweeney’s testimony about industry standards for crew practices on foreign vessels related to longshore workers plugging in reefers as Captain Sweeney has no experience with the practice on foreign ships. Chief Magistrate Judge Ryu allowed Captain Sweeney’s opinions regarding the ladder and manhole design codes, but she did not allow the opinions with respect to a crewmember most likely opening the hatch and about the locking mechanism of the hatch. Turning to the Scindia duties, Palmer argued that NYK Line did not exercise ordinary care because the high-visibility paint on the hatch was worn to the point that the hatch was dangerous for an experienced stevedore. Captain Sweeney opined that the lack of high-visibility paint combined with the placement of the hatch near the foot of the ladder created a dangerous trap, even for an experienced longshore worker. Chief Magistrate Judge Ryu agreed that there was a fact question whether NYK Line breached the turnover duty, and she found a question with respect to the argument that Palmer could have avoided the problem by simply looking down, citing the testimony that the condition of the hatch was not obvious because Palmer was focused on making sure that she had a good grip on the railing and her upper body obscured her feet. Chief Magistrate Judge Ryu rejected the argument that NYK Line violated the active control duty because the high-visibility paint was in the active control of the vessel before the vessel was turned over to the stevedore. She explained that the duty only applies when the vessel retains and exercises active control over the area after being turned over. As there was no evidence that the vessel’s crew retained or exercised any control over the paint during the operation, summary judgment was appropriate on the active control duty. There was a dispute as to whether it was Cadion, Palmer, or Palmer’s co-worker who left the hatch open. Accordingly, Chief Magistrate Judge Ryu declined to grant summary judgment on the active-involvement duty.
And on the maritime front . . .
From the United States Supreme Court
Supreme Court agreed to decide if cruise lines violated the Helms-Burton Act (unlawfully trafficking in property confiscated by the Cuban Government) when they used the Havana Cruise Port Terminal; Havana Docks Corp. v. Royal Caribbean Cruises, No. 24-983, 2025 U.S. LEXIS 2813 (U.S. Oct. 3, 2025).
As we noted in our April 2022 and June 2022 Updates, Judge Bloom of the United States District Court for the Southern District of Florida held that four cruise lines violated the Helms-Burton Act (unlawfully trafficking in property confiscated by the Cuban Government) when they used the Havana Cruise Port Terminal. Havana Docks Corp. v. Carnival Corp., Nos. 19-cv-21724, 19-cv-23588, 19-cv-23590, 19-cv-23591 (S.D. Fla. Mar. 21, 2022). The cruise lines moved to certify her order for an interlocutory appeal, but, on May 13, 2022, Judge Bloom declined the request. On December 30, 2022, Judge Bloom signed final judgments against MSC Cruises, Royal Caribbean Cruises, and Norwegian Cruise Line, each in the amount of $109,848,747.87 in treble damages (including interest) plus attorney fees and costs, and a final judgment against Carnival Corp. in the amount of $109,671,180.90 in treble damages (including interest) plus attorney fees and costs. (S.D. Fla. Dec. 30, 2022). On October 22, 2024, the Eleventh Circuit held that Havana Docks’ limited property interest had expired at the time of the alleged trafficking by the cruise lines and reversed the judgments against the cruise lines. See Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., Nos. 23-10151, 23-10171, 2024 U.S. App. LEXIS 26649 (11th Cir. Oct. 22, 2024) (Jordan).
On October 3, 2025, the Supreme Court granted the petition for certiorari filed by Havana Docks Corp. presenting this question:
The LIBERTAD Act is an essential pillar of United States foreign policy toward Cuba’s hostile and anti-American regime. Title III of that Act creates a private right of action for United States nationals who have a claim to property confiscated by that regime against persons who traffic in that property. 22 U.S.C. § 6082(a)(1). The Act specifies that such trafficking “undermines the foreign policy of the United States” by, among other things, “provid[ing] badly needed financial benefit” to the Cuban regime. Id. § 6081(6).
The question presented here applies in every case brought under Title III, and will determine whether that provision continues to advance U.S. foreign policy toward Cuba: whether a plaintiff must prove that the defendant trafficked in property confiscated by the Cuban government as to which the plaintiff owns a claim (as the statute requires), or instead that the defendant trafficked in property that the plaintiff would have continued to own at the time of trafficking in a counterfactual world “as if there had been no expropriation” (as the divided Eleventh Circuit panel held below).
The Court also granted the petition brought by Exxon Mobil Corp. seeking to recover for the confiscation of the property of Standard Oil Co. in Exxon Mobil Corp. v. Corporación Cimex, S.A. (Cuba), No. 24-699, 2025 U.S. LEXIS 2812 (U.S. Oct. 3, 2025).
Supreme Court agreed to decide if the Federal Aviation Administration Authorization Act of 1994 preempts the liability of freight brokers for negligent hiring of drivers and carriers; Montgomery v. Caribe Transport II, LLC, No. 24-1238, 2025 U.S. LEXIS 2816 (U.S. Oct. 3, 2025).
The Update has previously discussed the preemptive force of the Federal Aviation Administration Authorization Act of 1994, deregulating interstate transportation industries (see discussion of Federal Insurance Co. v. ClearFreight Inc. in the July 2024 Update). On January 13, 2025, the United States Supreme Court declined to grant a writ of certiorari to review the decision of the Eleventh Circuit in Gauthier v. Hard to Stop LLC, No. 22-10774, 2024 U.S. App. LEXIS 16696 (11th Cir. July 9, 2024) (per curiam), holding that personal injury claims against freight brokers for negligent hiring of an unsafe motor carrier are preempted by the Federal Aviation Administration Authorization Act. The question presented was: “Whether a wrongful death or personal injury claim against a freight broker that is based on the broker’s negligent hiring of an unsafe motor carrier to provide motor vehicle transportation invokes the state’s safety regulatory authority ‘with respect to motor vehicles,’ and, thus, falls within the safety exception.” See Gauthier v. Total Quality Logistics, LLC, No. 24-592, 2025 U.S. LEXIS 229 (U.S. Jan. 13, 2025).
The Seventh Circuit addressed the preemptive force of the FAAAA in 124 F.4th 1053 (7th Cir. 2024) in connection with an injury suffered by Shawn Montgomery in a collision with a truck in Illinois. Montgomery sued the driver of the truck, his motor-carrier employer, and the freight broker, C.H. Robinson (for negligently selecting the driver and carrier). The district court and the Seventh Circuit held that the action against the broker was preempted by the federal statute, and Montgomery filed a petition for certiorari with the United States Supreme Court. On October 3, 2025, the Supreme Court granted the petition that presented this question:
The common law permits a cause of action for negligent selection. For example, a person injured in a truck crash has a cause of action against someone that negligently selected the truck driver to transport property.
A federal statute expressly preempts state laws “related to a price, route, or service of any motor carrier . . . or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). The statute has a safety exception, providing that the statute “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” Id. § 14501(c)(2)(A).
The question presented is:
Does § 14501(c) preempt a state common-law claim against a broker for negligently selecting a motor carrier or driver?
Three weeks later, the Florida Court of Appeal for the Second District reversed the grant of summary judgment by Judge Carroll of the Circuit Court for Sarasota County, Florida (that the claims against Coyote Logistics in connection with a fatal collision with a tractor-trailer in Florida were preempted by the FAAAA), rejecting the “suggestion that a broker can never be held liable in a negligence case under the FAAAA” because it “does not give sufficient consideration to the safety exception.” See Simon v. Coyote Logistics, LLC, No. 2D2023-2775, 2025 Fla. App. LEXIS 7925 (Fla. 2d DCA Oct. 22, 2025) (Silberman).
From the federal appellate courts
Full Eleventh Circuit declined request for initial hearing en banc with respect to application of the discretionary function exception to bar the claim of boaters against the United States and the TVA under the Suits in Admiralty Act who were injured when their boat allided with a duck blind in a navigable lake; Jones v. United States, No. 25-10547, 2025 U.S. App. LEXIS 26828 (11th Cir. Oct. 15, 2025).
Schrade Jones and Carter Gilliam were bowfishing at night in Lake Guntersville, Alabama, when their vessel allided with an unmarked duck blind. Jones and Gilliam brought this suit in federal court in Alabama against the United States and the Tennessee Valley Authority under the Suits in Admiralty Act, alleging that the defendants negligently and wantonly failed to remove, warn of, or mark the duck blind. The defendants moved to dismiss the complaint, arguing that the decisions on warning, removing, and marking are discretionary and fall within the discretionary function exception to the waiver of sovereign immunity in the SIAA. Jones and Gilliam responded that engrafting a discretionary function exception onto the SIAA violates separation of powers and that the cases cited by the defendants in support of the discretionary function exception were based on “bad law.” Judge Burke began by noting that the court had admiralty jurisdiction over the suit and that maritime law governed the substantive issues. He then agreed that the SIAA does waive sovereign immunity for suits against the United States and any federally owned corporation and that the claims could only proceed with the waiver of sovereign immunity in the SIAA. Although the Eleventh Circuit has clearly applied the discretionary function exception in actions brought under the SIAA, Jones and Gilliam spent almost 29 pages arguing that the discretionary function exception did not apply. Judge Burke declined to overrule the Eleventh Circuit and proceeded to apply the discretionary function exception. The exception applies if the conduct involves an element of judgment or choice, and conduct involves an element of judgment or choice unless “a federal statute, regulation, or policy specifically [prescribes] a course of action embodying a fixed or readily ascertainable standard.” The plaintiffs failed to identify any statute, regulation, or policy that required marking, warning, or removal with respect to a privately owned structure located outside of the commercial navigation channel. Instead, they argued that duties imposed by the general maritime law and by Alabama case law on negligence were sufficient. However, Judge Burke answered that neither maritime law nor Alabama law specifically prescribed a course of action embodying a fixed or readily ascertainable standard. Therefore, the plaintiffs failed to satisfy the first requirement to overcome the discretionary function exception. Judge Burke added that the second element was not satisfied because the decision not to mark, warn, or remove is the type of decision that the exception is designed to shield. As the United States and the TVA were entitled to sovereign immunity, Judge Burke dismissed the complaint. See April 2025 Update.
Jones and Gilliam filed a notice of appeal to the Eleventh Circuit and sought initial hearing en banc, requesting that the full court overrule its decision in Williams v. United States that incorporated into the Suits in Admiralty Act the discretionary function exemption contained in the Federal Tort Claims Act. The en banc Eleventh Circuit declined to grant initial hearing en banc, but Chief Judge Pryor wrote to explain the reason for the denial. He succinctly stated: “Williams was wrong the day we decided it. Nothing in the text of the [SIAA] even remotely suggests that the waiver of sovereign immunity effectuated by section 30903(a) is subject to a discretionary function exception. And we have no business ‘rewrit[ing] the statute’ to supply exceptions that Congress did not provide.” He reasoned that the decision “reflects a fundamental misunderstanding of our constitutional structure” and that the power to waive the federal government’s immunity “is Congress’s prerogative, not ours.” Turning to the appeal of Jones and Gilliam, Chief Judge Pryor stated: “In an appropriate case, we should overrule Williams.” He agreed that this might be the appropriate case, but that there were reasons to submit the appeal to a panel before consideration by the full court (a panel of the appellate court might conclude that the discretionary function exception did not apply on its facts or that the TVA otherwise waived sovereign immunity). Accordingly, Chief Judge Pryor concluded: “If the panel holds that Williams controls, the many problems with Williams would provide strong grounds to grant rehearing en banc and overrule it. Until then, we should let the ordinary appellate process run its course.” [Note that the issue whether courts should apply the discretionary function exception from the FTCA in claims brought under the SIAA was presented to the Ninth Circuit in Fiedler v. United States, No. 24-5064, in the briefs and in the oral argument on October 22, 2025, arising out of the fire on the CONCEPTION that killed 34 passengers and crew (discussed in our August 2021, December 2023, May 2024, September 2024, and July 2025 Updates)].
Fifth Circuit affirmed credibility choice that an injured seaman did not fail to mitigate damages by failing to return to work, but the court reversed the award for future economic loss for failure to state how the District Judge applied Culver II to account for inflation; Fifth Circuit held that the seaman’s employer has no obligation to pay cure until it receives documentation and is not liable for punitive damages for payment of expenses 2 ½ years after they were incurred; Vaughn v. American Commercial Barge Line, L.L.C., No. 23-30494, 2025 U.S. App. LEXIS 27168 (5th Cir. Oct. 17, 2025) (Richman).
Jamal Vaughn, a deckhand employed by American Commercial Barge Line on its vessel M/V EXPLORER, was injured when the EXPLORER struck a moored vessel while traveling from Baton Rouge to Harahan, Louisiana for repairs. Vaughn brought this suit against ACBL in federal court in Louisiana, asserting claims for Jones Act negligence, unseaworthiness, and maintenance and cure and seeking to recover damages that included pain and suffering on the Jones Act and unseaworthiness claims and punitive damages and attorney fees for willful failure to pay maintenance and cure. ACBL moved for partial summary judgment that Vaughn had reached maximum cure and was not entitled to maintenance and cure, citing the opinion of the orthopedic surgeon who performed two arthroscopic surgeries on Vaughn’s right shoulder and who signed off on Vaughn being at maximum cure with respect to his right shoulder. Shortly before that finding from Vaughn’s orthopedic surgeon, Vaughn began treating with a different orthopedic surgeon, Dr. Andrew G. Todd, with respect to his neck and back. Dr. Todd performed disc replacement surgery and epidural steroid injections and opined that Vaughn had reached nonsurgical maximum improvement but would continue to require intermittent epidural steroid injections that were “meant to address ongoing complaints of pain.” ACBL argued that any future treatment was palliative, and that the opinion that Vaughn had reached nonsurgical maximum improvement indicated he was at maximum cure because Vaughn had elected not to have further surgery at this time. Judge Barbier disagreed, holding that Dr. Todd’s communications reflected an issue of fact remained as to whether Vaughn had reached maximum cure and whether further treatment was curative. Therefore, he held that ACBL had not carried its burden to provide unequivocal evidence that Vaughn had reached maximum cure. For the same reason, Judge Barbier declined to dismiss Vaughn’s claims for punitive damages and attorney fees for willful failure to pay maintenance and cure, reasoning that, absent an unequivocal justification to terminate maintenance and cure, the employer may subject itself to liability for punitive damages and attorney fees for terminating benefits. Finally, ACBL sought summary judgment on Vaughn’s claims for non-pecuniary damages for mental anguish, emotional distress, loss of enjoyment of life, and pain and suffering. Judge Barbier agreed that nonpecuniary damages such as loss of society are not recoverable by a seaman in his claims for Jones Act negligence and unseaworthiness; however, Judge Barbier found no controlling case precluding a Jones Act seaman from recovery for pain and suffering, and he noted that the Fifth Circuit had permitted awards of pain and suffering by seamen. Categorizing pain and suffering as pecuniary damages, Judge Barbier declined to dismiss Vaughn’s claim for pain and suffering. See June 2023 Update.
ACBL stipulated to liability, and Judge Barbier held a bench trial on damages. Judge Barbier awarded Vaughn $221,246 for past wage loss (accepting the estimate from Vaughn’s expert) and awarded $750,000 for loss of future earnings “extrapolating from the calculations by competing economists.” He also awarded damages for future medical expenses ($150,000), pain and suffering and future disability ($350,000 in past physical and mental pain and suffering and $400,000 for future pain, suffering, and permanent disability) that neither party appealed. Judge Barbier declined to award punitive damages or attorney fees for failure to timely pay cure. ACBL appealed the calculation of past and future wage losses, and Vaughn appealed the denial of punitive damages and attorney fees. ACBL argued that Judge Barbier failed to take into account that Vaughn voluntarily failed to return to work for more than a year and a half before trial, and that the award for past wage loss should be reduced by $38,287.09. Vaughn answered that his physician did not tell him that he could return to work, that he was in pain, that he was continuing his medical treatment, and that he was unsure whether an employer would accommodate his treatment. Giving deference to the findings, Judge Richman, writing for the Fifth Circuit, accepted Judge Barbier’s finding that Vaughn was credible and that he sufficiently attempted to mitigated damages by calling potential employers. The issue with respect to future wage loss involved the application of the Fifth Circuit’s Culver II adjustment for inflation. Under Culver II, the fact finder must calculate the lost income stream and then apply an appropriate below-market discount rate. Vaughn’s economist calculated the loss as $1,604,256, and ACBL’s economist gave a range with a midpoint of $450,836.82. The experts both used a below-market method in their calculations. Judge Barbier extrapolated from the opinions to reach a finding of $750,000; however, Judge Richman explained that extrapolating from the expert opinions “does not provide sufficient reasoning for appellate review.” Accordingly, the Fifth Circuit vacated the finding so that Judge Barbier could set forth his reasoning for “application of the four steps set forth in Culver II, with an explanation of the evidence that supports the findings at each step.” Judge Richman then addressed Vaughn’s claim for failure to timely pay cure. She noted that the seaman faces a “high burden,” establishing that the employer was not just unreasonable but also “egregiously at fault”—“the seaman must demonstrate ‘an element of bad faith.’” Vaughn complained that it took ACBL 2 ½ years to investigate and pay bills incurred for his medical treatment, and ACBL responded that it was making good faith efforts to reimburse expenses when it was not receiving necessary paperwork to document the expenses. Judge Richman reasoned that this case was unlike cases in which punitive damages were permitted because ACBL acknowledged the claim, investigated it, did not refuse to make payments entirely, and did not terminate payments when Vaughn retained counsel. She stated that “ACBL’s untimely payments are not an independent basis for punitive damages,” citing the Fifth Circuit’s Ober decision in which the court noted that the cases “do not support such an award on the basis of untimely payment alone.” She explained that ACBL was entitled to request documentation and concluded: “Prior to this point, ACBL had no obligation to pay cure benefits in light of Vaughn’s failure to submit proof of payment.” Therefore, there was no error in denying the claim for punitive damages and attorney fees.
Seizure of oil company’s cargo of crude oil in Venezuela after extension of sanctions by the United States was covered under the Institute War Clauses as the seizure was “arising from” an “insurrection;” CITGO Petroleum Corp. v. Ascot Underwriting Ltd., No. 24-227, 2025 U.S. App. LEXIS 28170 (2d Cir. Oct. 28, 2025) (Chin).
This case arises during the upheaval in Venezuela after the death of its longtime leader Hugo Chávez. Nicholás Maduro stepped in, but his opponents won control of the National Assembly, and the United States recognized Juan Guaidó as the legitimate leader. During this period, CITGO purchased nearly a million barrels of crude oil from an indirect and wholly owned U.S. subsidiary of Venezuela’s state-owned oil company, Petroleos de Venezuela. CITGO chartered the M/T GERD KNUTSEN to carry the oil from Venezuela to Aruba. A portion of the oil was loaded at the Port of Jose, Venezuela, and a second portion was loaded in the Gulf of Paria, Venezuela. Two days before the master requested clearance to depart the Gulf of Paria to sail to Aruba, President Trump extended sanctions on Venezuela to new entities, including Petroleos de Venezuela, S.A. Petroleos de Venezuela requested that the cargo be returned to its custody, and CITGO argued that title passed upon its loading on the vessel and it had already made payment by means of crude product swaps. Petroleos de Venezuela did not accept the offset claim and declined to let the ship sail from Venezuela without receiving payment. After a standoff for several months, Venezuelan military vessels approached the GERD KNUTSEN, and representatives of the military and Petroleos de Venezuela boarded the vessel, ordering the master to return the cargo. The vessel sailed to Port Jose under protest, escorted by a Venezuelan Navy patrol boat, and the cargo was removed and returned to Petroleos de Venezuela. CITGO presented a claim to its reinsurers, demanding coverage under the policy’s Institute War Clauses, but the reinsurers denied the claim, stating that the conditions in Venezuela did not constitute an “insurrection.” CITGO brought this action against the reinsurers in federal court in New York with a single cause of action for breach of contract. The parties filed cross-motions for summary judgment with CITGO claiming that an insurrection occurred, that it owned the cargo, and that the insurrection caused its loss. Judge Woods ruled that the policy term “insurrection” was ambiguous because it was not explicitly defined and reasonable people could disagree as to its meaning. He then endeavored to apply the definition of insurrection set forth by the Second Circuit in Pan American World Airways v. Aetna Casualty: “(1) a violent uprising by a group or movement (2) acting for the specific purpose of overthrowing the constituted government and seizing its powers.” The parties did not dispute that Maduro used violence in his effort to retain control of the country and that the court was bound to recognize Guaidó because of the recognition by the United States. However, Judge Woods struggled in determining whether Maduro’s actions constituted an uprising intended to overthrow and seize powers from Guaidó. As neither party presented extrinsic evidence about their intent for this disputed term, Judge Woods applied the doctrine of contra proferentem under New York law, requiring that ambiguity be resolved against the insurer in favor of coverage. Therefore, he granted partial summary judgment to CITGO and held a trial on causation and damages. The reinsurers cited the language in the policy covering “loss of or damage caused by . . . seizure . . . arising from” an insurrection and argued that the “arising from” language required an instruction on proximate cause under which remote causes of losses are not relevant. Judge Woods demanded authority for the proximate cause submission, and the reinsurers withdrew their objection (with Judge Woods instructing the jury on but-for causation, not proximate causation). The jury found that the reinsurers breached the Institute War Clauses and awarded $46,545,593 for total loss of the cargo and $2,296,000 for carriage and other charges. The jury awarded costs and expenses under the Sue and Labor clause in the amount of $195,155, and it awarded $314,279 in additional charges, expenses, and fees for the release, storage and/or shipment of the cargo under the Forwarding Expenses clause. The jury did not find the reinsurers were liable under the Demurrage/Late Return Charges clause for late return penalties or demurrage charges. The reinsurers appealed and contested the decision that the term “insurrection” was ambiguous and that the actions taken by Maduro constituted an insurrection. Writing for the Second Circuit, Judge Chin agreed that the term was ambiguous. He reasoned that the parties presented interpretations that “pose no significant danger of straining the contractual language,” and reference to dictionary meanings did “not resolve whether the Maduro regime fits that definition.” Judge Chin also agreed with the reliance on the Pan American definition, explaining that an established definition by state law or industry usage will serve as a default rule “unless the parties explicitly indicate, on the face of their agreement, that [a] term is to have some other meaning.” The Pan American definition has three elements: "violence, an uprising to overthrow and seize powers, and a constituted government.” Judge Chin agreed that the actions of Maduro and his allies were “clearly violent,” and he concluded, as a matter of law, that the regime was an “uprising . . . acting for the specific purpose of overthrowing the constituted government and seizing its powers.” He added that Judge Woods correctly applied contra proferentem and rejected the reinsurers’ claim that the “uprising” element was not met (the reinsurers argued that Guaidó never took de facto control of Venezuela, so that Maduro could not have led an uprising to overthrow him). Finally, Judge Chin upheld the finding that the insurrection was committed against a “lawfully constituted regime,” noting that the power to recognize (or decline to recognize) a foreign state/government “is committed to the Executive Branch alone.” Thus, the actions of President Trump and Secretary Pompeo in recognizing Guaidó as interim president were “conclusive on all domestic courts.” The reinsurers also argued that Judge Woods erred in giving a but-for causation (rather than proximate causation) instruction. Judge Chin answered that the reinsurers waived their causation argument by withdrawing the objection (although the reinsurers argued that they withdrew the objection under duress of an “impossible deadline” from Judge Woods and threats of sanctions). Nonetheless, Judge Chin concluded that the “arising from” language of the policy established a but-for causation standard (citing the Maroney decision of the New York Court of Appeals). Therefore, the Second Circuit affirmed the judgment against the reinsurers.
From the federal district courts
Magistrate Judge ordered limitation action transferred to the division within the district where the injured worker filed suit in state court; In re BAFFIN BAY, No. 3:25-cv-213, 2025 AMC 387, 2025 U.S. Dist. LEXIS 172148 (S.D. Tex. Sept. 4, 2025) (Edison).
Justin Roth, a crewmember of the BAFFIN BAY, owned by Kirby Corporation, fell ill and was disembarked from the vessel on March 24, 2025 in Lake Charles, Louisiana. A third-party transportation company picked up Roth at the dock in Lake Charles to transport him to the hospital; however, the vehicle crashed en route, resulting in injuries that rendered Roth a paraplegic. Roth filed suit against Kirby in state court in Harris County, Texas on May 13, 2025 (within the Houston Division of the United States District Court for the Southern District of Texas). Kirby brought this limitation action in the Southern District of Texas (Galveston Division) on July 8, 2025, asserting that venue was proper under Rule F in the Southern District of Texas because suit had been filed in that District. On July 9, 2025, the federal court in Galveston ordered Kirby to explain the court’s connection to the Galveston Division and how the court should weigh the private and public interest factors with respect to a transfer of the venue. Magistrate Judge Edison noted that the Southern District of Texas was the only place where the limitation action could have been filed, as the suit was pending in state court within the district. He added that Section 1404(a) contemplates venue transfer between a district or division, but Rule F(9) only addresses venue transfer “to any district.” Reasoning that the intent of the rule was to “conform closely” to the language of Section 1404(a) and Section 1406(a), Magistrate Judge Edison was confident that he had the discretion to transfer the case within divisions of the same district for convenience. Kirby emphasized that Roth resided with his mother within the Galveston Division, but Magistrate Judge Edison agreed with Roth that the residence actually favored the Houston Division because the location is only 25 minutes from the courthouse in Houston and is more than an hour from the courthouse in Galveston. As all but one of the other factors either favored the Houston Division or were neutral (the Galveston Division is less congested), Magistrate Judge Edison transferred the limitation action to the Houston Division.
Judge found cruise line had notice of the dangerous condition of a gap in the threshold on which a passenger fell on a cruise ship, that the condition was not open and obvious, that the damage request was “ridiculously overblown” (awarding $344,051.24 in comparison to the request for $4.1 million), and that prejudgment interest should not be awarded; Rondon v. Carnival Corp., No. 1:24-cv-20228, 2025 AMC 383, 2025 U.S. Dist. LEXIS 172959 (S.D. Fla. Sept. 4, 2025) (Altman).
Vivian Ruiz Rondon, a passenger on the CARNIVAL CELEBRATION, was injured when she tripped and fell on a threshold in the hallway outside her cabin. The parties skipped summary judgment and proceeded to a bench trial. Rondon sought $4.1 million (reduced from $13,764,894.50 in her proposed findings of fact/conclusions of law) claiming that the threshold had been improperly installed and maintained because there was a large gap on the latch side of the doorway between the carpet and the threshold. The cruise line did not dispute Rondon’s claims for a broken right arm, a dislocated right shoulder, and partial tears to two tendons in her right shoulder. There was a dispute whether the fall caused tears to two other rotator cuff tendons. The primary disputes on liability involved constructive notice and whether the condition was open and obvious. Judge Altman concluded that there was a defective condition in the threshold about which the cruise line should have known (the crew had to push luggage and food delivery carts over the threshold, and Rondon’s expert even witnessed a cart get stuck on the threshold) and that the defect was not open and obvious to passengers even though it was probably known to the crew. However, Judge Altman found Rondon’s request for damages to be “ridiculously overblown,” stating that “her injuries are far more limited than she claims” and that “she’s mostly recovered from her injuries in any event.” Judge Altman awarded half of the lien for the past medical expenses after finding that the injuries were confined to one shoulder (a total of $29,051.24), plus $100,000 per year in pain and suffering, embarrassment, loss of enjoyment of life, mental anguish, scarring, disfigurement, physical impairment, and disability for the past two years (a total of $200,000) and $5,000 per year for future non-economic damages for her life expectancy of 23 years (a total of $115,000). That resulted in an award of $344,051.24 in compensatory damages. Finally, Rondon requested pre-judgment interest on non-economic damages from the date of the injury through the date on which the final judgment is entered. Judge Altman disagreed, reasoning that in personal injury cases, “damages are uncertain and are not liquidated until determined by the jury.”
Estate of seaman who died in a vessel collision was not entitled to recover lost future earnings/loss of support; Houston Fleeting Services LLC v. M/V Yangze, No. 4:24-cv-2705 c/w Nos. 4:24-cv-2855, 4:24-cv-2739, and 4:24-cv-2759, 2025 U.S. Dist. LEXIS 174290 (S.D. Tex. Sept. 8, 2025) (Eskridge), adopting recommendation of 2025 U.S. Dist. LEXIS 115924 (S.D. Tex. Apr. 22, 2025) (Palermo).
This litigation results from a collision in the Houston Ship Channel between the M/V YANGZE 7 and the M/V MISS PEGGY (owned by Houston Fleeting Services). Aquarius Lowman, a seaman on the MISS PEGGY, died, and his personal representative, Karribian Scott, brought claims for negligence and unseaworthiness under the Jones Act and general maritime law (including a demand for future lost earnings). Houston Fleeting Services moved to dismiss the claim for future lost earnings, arguing that the seaman’s estate is only entitled to recover losses suffering during his lifetime. Scott argued that the estate was entitled to recover for loss of support, but Magistrate Judge Palermo answered that “only dependents are entitled to that relief.” As Scott’s claims were brought on behalf of Lowman’s estate, he was not entitled to loss of support or loss of future earnings. Therefore, Magistrate Palermo recommended that the motion to dismiss be granted. Scott objected to the recommendation, but Judge Eskridge adopted the recommendation and dismissed with prejudice the estate’s claim for lost future earnings/loss of support.
Seaman who was in charge of the operation and selected the method of freeing a stuck shackle that resulted in his injury was found 20% at fault for comparative negligence, and his employer was found 80% at fault for improper procedures, policies, and training, resulting in a judgment in favor of the seaman of $867,498.96 after surgeries on his knee and ankle; Vallecillo v. McDermott, Inc., No. 6:19-cv-508, 2025 U.S. Dist. LEXIS 177793 (W.D. La. Sept. 9, 2025) (Summerhays).
Rene Vallecillo was employed as a seaman by McDermott for nearly 30 years. He was working as the Barge Leaderman on the DB50, a derrick barge that was retrieving a tension leg buoy that was submerged or partially submerged in the Gulf of America, approximately 220 miles south of Port Fourchon, Louisiana. While trying to free the stuck shackle from the buoy’s pad-eye, the shackle broke free in an uncontrolled manner and struck Vallecillo’s safety lanyard, pulling him down onto the top of the buoy. Vallecillo brought this suit against McDermott in Louisiana federal court under the Jones Act and general maritime law, and Judge Summerhays conducted a non-jury trial. Judge Summerhays found McDermott was negligent because the use of the crane to pull on a stuck shackle created unknown forces that caused the shackle to behave unpredictably when it broke free from the pad-eye without precautions being taken, such as using additional lines to secure the sling or shackle. McDermott argued that Vallecillo was the person in charge of the job and should bear sole responsibility for the decision. However, Judge Summerhays answered that Vallecillo’s experience was shaped by McDermott’s procedures, policies, and training with respect to use of cranes to free stuck shackles, which were inadequate. As Vallecillo “made the decision to use the crane, ordered the use of the crane, failed to request removal from the top of the [buoy] and failed to secure the shackle or sling with additional lines,” Judge Summerhays found Vallecillo was 20% responsible for his injuries. Vallecillo suffered injuries to his right knee and ankle that required surgeries. Judge Summerhays awarded past medical expenses in the amount of $10,648.59 (in excess of the amount already paid in cure) and $75,971.70 for future medical expenses (for a knee replacement that is currently not necessary but is a certainty in the future). Vallecillo was injured in 2016, retired before trial, and did not seek future wage loss. Judge Summerhays awarded $546,265 in lost wages and $92,137 in lost fringe benefits for the period between the accident and the date Vallecillo intended to retire (age 67). After reviewing awards for general damages for injuries to the knee and ankle, Judge Summerhays awarded $300,000 for past and future general damages for the knee injury and $70,000 for past and future general damages for the ankle injury. Judge Summerhays awarded prejudgment interest on Vallecillo’s past damages [the general damages were not broken down between the past and future], and reduced the award of $1,084,373.70 by 20%, for a recovery of $867,498.96.
Judge dismissed direct negligence claims against cruise line in connection with injury to passenger during a shore excursion in Honduras, but she declined to dismiss the claims against the cruise line based on apparent agency and a joint venture with the tour operator; Bollinger v. NCL (Bahamas) Ltd., No. 1:24-cv-23502, 2025 U.S. Dist. LEXIS 176806 (S.D. Fla. Sept. 10, 2025) (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, 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 counts 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.
Judge declined to bifurcate claims in limitation actions involving multiple claims and parties; In re Harbor Dredging LA, Inc., No. 3:24-cv-742, 2025 U.S. Dist. LEXIS 177342 (M.D. La. Sept. 10, 2025) (Jackson).
Harbor Dredging engaged Tom’s Marine to move dredge pipe from Myrtle Grove to Port Fourchon, Louisiana. While in tow of Tom’s Marine’s vessel, M/V SUPER T, the dredge pipe came loose. Harbor Dredging secured the pipe on the side of the canal until a crane barge could transport it to its destination; however, a fishing boat struck the dredge pipe, resulting in injuries to Kedrich Stewart, Lawrence Noel, Sr., and Lawrence Noel, Jr. The injured workers filed suit against Harbor Dredging and Tom’s Marine in state court in the Parish of East Baton Rouge, Louisiana, and Harbor Dredging and Tom’s Marine filed limitation actions in Louisiana federal court. The injured workers filed claims in the limitation actions, and Harbor Dredging and Tom’s Marine each filed a claim in the other’s limitation action. The injured workers did not move to lift the stay in the limitation actions or file stipulations. Instead, they moved for bifurcation into two phases. In the first phase, the federal court would determine whether the petitioners were negligent (or their vessels were unseaworthy) and whether there was privity with the negligence or unseaworthiness. In the event the court denied limitation of liability in the first phase, the state court would resolve all remaining issues, including the fault of other parties, apportionment of liability, and damages. Judge Jackson denied the request, finding that the balance of the equities did not favor bifurcation. He reasoned that bifurcation would not promote convenience or judicial economy, explaining that much of the evidence on damages and causation would be produced in both state and federal court. And, as Harbor Dredging did not wish to proceed in state court with its claims against Tom’s Marine, the federal and state courts would have to address the same apportionment of fault with the risk of inconsistent judgments. Besides the prejudice from the duplicative efforts, Judge Jackson found that bifurcation would impede the efforts to reach comprehensive settlement agreements “to resolve the web of claims and counter claims.”
Judge declined to dismiss vessel owner’s suit against charter broker for non-payment of charter hire (based on the provision that the broker was not responsible for the charterer’s non-payment of charter hire) because the broker agreed to undertake all reasonable efforts to collect charter hire and discovery was necessary to determine if reasonable efforts were undertaken; Offshore Liftboats, LLC v. GOL, LLC, No. 2:24-cv-1632, 2025 U.S. Dist. LEXIS 178597 (E.D. La. Sept. 12, 2025) (Guidry).
Judge dismissed vessel owner’s suit against charter broker for non-payment of charter hire, finding that the broker did not breach its agreement to remit charter hire payments and did not breach its agreement to use reasonable efforts to collect the hire; Seacor Marine, LLC v. GOL, LLC, No. 2:24-cv-2409, 2025 U.S. Dist. LEXIS 180892 (E.D. La. Sept. 16, 2025) (Vance).
Offshore Liftboats, which operates crewed vessels for marine transportation in support of oil and gas production, contracted with GOL to broker Offshore Liftboats’ vessels to charterers. The brokerage agreement provided for a fee based on a percentage of the charter hire. Charterers would pay the charter hire to GOL, which would remit the hire (minus the brokerage fee) to Offshore Liftboats. The agreement stated that GOL would not be responsible for the charterers’ non-payment of charter hire, but that GOL would undertake all reasonable efforts to collect the hire (although Offshore Liftboats retained the right to try to collect unpaid invoices directly from the charterer). GOL arranged for charters with Cox Operating, which stopped paying invoices that grew to $3,339,343.78 before it sought bankruptcy. Offshore Liftboats then brought this action in federal court in Louisiana seeking to recover the unpaid invoices based on failure to undertake reasonable efforts to collect the charter hire. GOL moved for judgment on the pleadings, citing the contract provision that it would not be responsible for non-payment of charter hire. Offshore Liftboats responded that GOL breached the separate obligation to use reasonable efforts to collect the charter hire. Judge Guidry declined to resolve the dispute over the contract terms at this preliminary stage of the litigation. He agreed the brokerage agreement provided that GOL would not be responsible for non-payment of charter hire. However, the allegations went beyond non-payment. Judge Guidry explained that Offshore Liftboats “attributes its damages to [GOL’s] failure to use reasonable measures to collect the charter hire, not Cox’s non-payment.” That was sufficient to state a claim for breach of contract, and discovery was necessary to determine whether GOL took all reasonable efforts to collect the hire.
Seacor, which provides crewed vessels for marine transportation in support of oil and gas production, similarly contracted with GOL to broker Seacor’s vessels to charterers. The agreement contained the same provisions as in the previous case that charterers would pay the charter hire to GOL, which would remit the hire (minus the brokerage fee) to Seacor. The agreement stated that GOL would not be responsible for the charterers’ non-payment of charter hire, but that GOL would undertake all reasonable efforts to collect the hire (although Seacor retained the right to try to collect unpaid invoices directly from the charterer). Seacor provided vessels to Cox Operating that were brokered by GOL, but Cox Operating stopped paying for the charters and sought bankruptcy. GOL filed a claim in the bankruptcy proceeding that included approximately $2.7 million in unpaid invoices for Seacor’s charters (Seacor also filed a claim), and Seacor brought this suit in federal court in Louisiana against GOL, seeking the full amount of the outstanding invoices and an accounting with respect to payments GOL received from Cox Operating in the bankruptcy action ($13 million). Seacor and GOL filed motions for summary judgment, and Judge Vance began by finding that the brokerage agreement was unambiguous, concluding that whether GOL owed Seacor payments depended on whether GOL received payment on Seacor’s invoices. The Trade Agreement in the bankruptcy proceeding did not specify the invoices it was paying. However, the purpose of the agreement was to pay companies that continued to provide services to support Cox Operating in reorganization. As Seacor stopped providing services to Cox Operating months before the bankruptcy and did not commit to providing post-petition services, Judge Vance held that GOL did not have the discretion to pay Seacor from the $13 million disbursed in the Trade Agreement. Therefore, she held that GOL did not breach its duty to remit funds to Seacor. Judge Vance also rejected Seacor’s claim of breach of fiduciary duty, answering that GOL’s fiduciary duties were limited as it was Seacor’s agent only for obtaining charter hire and remitting payments actually received (GOL did not have a fiduciary duty over money to which Seacor was not entitled). Finally, Judge Vance addressed Seacor’s claim that GOL did not use reasonable efforts to collect the charter hire. GOL argued that it sought payment of unpaid invoices before the bankruptcy action and even filed liens on Seacor’s behalf. It continued collection efforts after the bankruptcy, including preserving the liens in the bankruptcy proceeding. However, Seacor argued that there were “significant other” steps that GOL could have taken, pre-petition, but it did not specify that those steps were. As Seacor did not identify additional actions or provide an industry standard that GOL failed to meet, Judge Vance found that Seacor failed to raise an issue of material fact that GOL did not use all reasonable efforts. Therefore, she dismissed Seacor’s claims with prejudice.
In another case brought against GOL in federal court in Louisiana arising out of GOL’s brokering vessels that were chartered to Cox Operating, GOL sought to disqualify the law firm representing the plaintiff (R&R Boats), asserting that an attorney at the firm previously represented Cox Operating in its bankruptcy action. Judge Fallon denied the motion. See R&R Boats, Inc. v. GOL, LLC, No. 2:24-cv-1875, 22025 U.S. Dist. LEXIS 185295 (E.D. La. Sept. 22, 2025) (Fallon).
Judge held that seamen injured in explosion were entitled to seek damages for emotional distress/mental anguish/PTSD related to their physical injuries, but not discomfort, permanent disability, disfigurement, and loss of enjoyment of life; Judge declined to impose adverse presumption against defendants for spoliation as the evidence did not establish that the defendants intentionally destroyed evidence; Judge addressed admissibility of evidence allegedly involving subsequent remedial measures; Galland v. Harvey Gulf International Marine, LLC, No. 2:23-cv-3392, 2025 U.S. Dist. LEXIS 178609, 178858, 198881 (E.D. La. Sept. 12, October 7, 2025) (Vitter).
Paul Galland and Brennan Cubbedge were working as deckhands on the PSV HARVEY ENERGY that was located at the Harvey dock in Port Fourchon, Louisiana (the HARVEY ENERGY is a tri-fuel offshore supply vessel that operates on liquid natural gas, diesel fuel, and battery power). Galland was standing near an LNG vent on the funnel deck of the vessel when he attempted to light a cigarette. The spark from his lighter resulted in an LNG explosion that injured Galland and Cubbedge. Galland and Cubbedge brought this suit in federal court in Louisiana, seeking to recover under the Jones Act and general maritime law against various Harvey Energy entities (as the owner/operator/manager of the HARVEY ENERGY). They sought non-pecuniary damages for discomfort, disability/disfigurement, emotional distress/mental anguish, and loss of enjoyment of life. The defendants moved for partial summary judgment that Galland and Cubbedge are not entitled to recover non-pecuniary damages as seamen, and the plaintiffs responded that “the Jones Act does not permit separate damage awards for discomfort, permanent disability and disfigurement,” but that “evidence of these injury aspects would certainly be relevant to support their physical pain and suffering claims.” Thus, they should be allowed to introduce evidence of scarring, disfigurement, disability, mental anguish, and emotional distress as part of their claim for pain and suffering “even if separate line item damage awards are not allowed under the Jones Act.” Galland and Cubbedge also argued that they are entitled to recover for their psychological injuries, including post-traumatic stress disorder, depression, and anxiety either related to their physical injuries or under a zone-of-danger theory. Chief Judge Vitter agreed that pain and suffering is a pecuniary loss and that seamen may recover damages for emotional injury provided there is some physical contact. As the seamen claimed physical injuries from the explosion, Chief Judge Vitter held that they were entitled to seek damages for emotional distress/mental anguish related to the injuries (but not discomfort, permanent disability, disfigurement, and loss of enjoyment of life). Judge Vitter declined, at this stage, however, to give an evidentiary ruling whether the seamen are allowed to present evidence of scarring, disfigurement, and disability.
The seamen asserted a spoliation claim for failure to preserve documents related to the job safety analysis and the hot work permit for work being performed on the funnel deck. The defendants moved for summary judgment on the claim, arguing that the Jones Act and general maritime law do not provide an independent cause of action for spoliation of evidence, that monetary damages for spoliation are nonpecuniary and not recoverable in a Jones Act case, and that the plaintiffs failed to establish that the defendants acted in bad faith or intentionally destroyed evidence. The seamen did not oppose the motion with respect to a separate award of damages for spoliation; however, they argued that the court should instruct the jury to impose an adverse presumption that the evidence would have been unfavorable to the defendants. As the plaintiffs did not have direct evidence that the defendants intentionally destroyed any evidence, Chief Judge Vitter held that the seamen were barred from seeking to impose an adverse presumption against the defendants.
After the incident, the defendants allegedly repaired a loose wire and/or nut on a valve actuator on the vessel, painted/stenciled/installed “No Smoking” and “Hazard” signs on the vessel, implemented a safety stand-down, modified their safety manual and/or policies, and conducted investigations. The defendants filed a motion in limine to exclude evidence of these actions as subsequent remedial measures, and the plaintiffs objected, arguing that the actions were actually measures that the defendants failed to implement or negligently implemented before the incident and, alternatively, that they are allowed by Rule 407 for feasibility, ownership or control, and impeachment. The plaintiffs added that Chief Judge Vitter should hear the testimony at trial and then decide the admissibility. Beginning with the repair of the actuator valve, Chief Judge Vitter ruled that evidence of the subsequent repair could be admissible to show the defendants’ potential knowledge of the allegedly faulty valve actuator prior to the incident (and that she would balance the probative value and potential for unfair prejudice). She declined to admit evidence of subsequent repair with respect to causation as the defendants conceded that liquified natural gas fumes were present in the area near the vents, and she declined to admit the evidence with respect to the defense of contributory negligence as the text of Rule 407 prohibits the introduction of evidence of subsequent remedial measures to prove negligence. Chief Judge Vitter also declined to allow the evidence to establish whether the dangerous condition was obvious, noting that the defendants conceded that gas was present and concluding that evidence of the remedial action would unfairly prejudice the defendants because the jury would likely imply culpability. With respect to the placement of warning signs, Chief Judge Vitter reasoned that the evidence was “exactly the type of evidence contemplated by Rule 407,” citing the caution against liberal application of the impeachment exception to “guard against the improper admission of evidence to prove prior negligence under the guise of impeachment.” Chief Judge Vitter did not consider the stand down to be a remedial measure and was not excludable, except to the extent there was mention during the stand down of remedial measures. Chief Judge Vitter agreed with the defendants that changes to their safety manual or safety policies and procedures were not admissible, but she deferred ruling on whether they might be used for impeachment. Turning to the post-incident investigation, Chief Judge Vitter distinguished between remedial measures and a party’s analysis of an accident. As the defendants did not point to remedial measures recommended by the investigation that were actually implemented, she held that the investigation would not be excluded under Rule 407, but she would conduct a Rule 403 analysis at trial. Finally, Chief Judge Vitter declined to rule on the sweeping request with respect to all photos, video, documents, and communications between the defendants and any government agency or internally related to subsequent remedial measures, noting that she would make rulings at trial based on proper objections.
Judge declined to reconsider decision that passenger’s failure to correct pleading deficiency of comingling theories into a single negligence count resulted in dismissal of her amended complaint with prejudice; White v. Carnival Corp., No. 1:25-cv-20925, 2025 U.S. Dist. LEXIS 180072 (S.D. Fla. Sept. 15, 2025) (Bloom).
Teressa White, a passenger on the CARNIVAL CONQUEST, was walking with food in her hand when she slipped and fell on a wet and slippery floor tile near the food concession and ingress/egress door on the Lido Deck of the vessel. White brought this suit in Florida federal court, pleading a single negligence count, asserting that the wet tile floor was caused by other passengers walking from the Lido Deck pool area. She asserted that the cruise line should have known that the high traffic would cause the floor to become wet and slippery. Her negligence count alleged that the cruise line breached its duty of care by failing to maintain the premises in a reasonably safe condition and failing to warn her of the slippery condition. The cruise line moved to dismiss the complaint for comingling distinct causes of action into a single count and for failing to adequately allege notice to the cruise line. The cruise line added that the dismissal should be with prejudice because White had been given an opportunity to amend her complaint to cure deficiencies outlined in the cruise line’s prior motion to dismiss, which included the comingling of theories. As White’s amended complaint continued to comingle theories into a single count, Judge Bloom dismissed the complaint with prejudice. See September 2025 Update.
White moved to alter or amend the judgment, arguing that the dismissal should not have been with prejudice because she had made good faith efforts to amend the complaint and because the court could have easily stricken the allegations of failure to warn and allowed her to proceed with the remainder of the claim for failure to maintain the premises. Judge Bloom rejected the first argument because it simply rehashed the same argument that the court previously denied and was not a permissible basis for reconsideration. As to the argument that dismissal was unwarranted because the court could simply have stricken the failure to warn claim, Judge Bloom responded that she was unaware of authority allowing the court to strike portions of a complaint that is improperly commingled. Judge Bloom explained that White could have cured the defect after it was raised by the cruise line. Judge Bloom concluded that it was not exceptional nor unwarranted to dismiss the complaint with prejudice when the plaintiff could have cured the defect.
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; Judge capped punitive damages for failure to pay cure at a 3:1 ratio to the cure award; Ward v. M/Y UTOPIA IV, No. 1:22-23847, 2025 U.S. LEXIS 180067 (S.D. Fla. Sept. 15, 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.” And 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.
Provision in contract for transportation of coal (“Term: September—October, 2021”) was ambiguous whether coal had to be loaded or delivered by the end of October, and the Judge used testimony on industry custom together with analysis of other contract provisions to conclude that the provision reflected a loading window rather than a delivery deadline so that delivery in November was not a breach of contract; Marquette Transportation Co. v. Emerald International Corp., No. 5:22-cv-24, 2025 U.S. Dist. LEXIS 180101 (W.D. Ky. Sept. 15, 2025) (Beaton).
Emerald International, a Kentucky business that exports coal internationally, contracted with Marquette Transportation in August 2021 to ship 100,000 tons of coal on the waterways of Kentucky and Indiana to Louisiana (50,000 tons in September 2021 and 50,000 tons in October 2021). There were delays because Hurricane Ida struck the Gulf Coast at the end of August and a third party refused to load the second shipment on Marquette’s barges until Emerald paid overdue invoices. The contract provided: “Term: September—October, 2021,” and the coal was delivered on November 7, 2021. Marquette invoiced Emerald for freight and demurrage charges, but Emerald declined to pay the balance of five invoices ($381,896.32) on the ground that Marquette breached the contract by late delivery of the second shipment. Marquette brought this suit against Emerald in Kentucky federal court for breach of contract, and Emerald responded that Marquette breached the contract and asserted a setoff defense for damages caused by Marquette’s alleged breach. Applying maritime law, Judge Beaton considered the meaning of “Term: September—October, 2021” to be ambiguous. Marquette argued that the provision set a loading deadline expiring at the end of October, with no firm delivery deadline. Emerald countered that Marquette was required to deliver the coal by the end of October. Judge Beaton conducted a bench trial at which the parties presented testimony supporting their differing views. He then considered the structure and context of the contract to resolve the facial ambiguity. He cited the provision that all decisions concerning the transportation of the cargo, including “when the cargo will be moved,” will be at the sole discretion of Marquette and the provision that Marquette was not bound to transport any cargo by any particular barge or in time for any market and would not be liable for delays in shipment. The absence of a provision that time was of the essence supported Marquette’s argument, but the contract language alone was not sufficient. Therefore, Judge Beaton considered customary usage and found persuasive the testimony reflecting “a practice of not setting hard delivery deadlines,” supporting Marquette’s understand that the Term “reflects a loading window rather than a delivery deadline.” Consequently, Judge Beaton held that Emerald was liable to Marquette for breaching the transportation agreement by failing to pay the invoices, and he rejected Emerald’s claim for a setoff because Marquette complied with the terms of the contract. He assessed damages in the amount of the unpaid invoices ($381,896.32) plus prejudgment interest (at the modest rate set forth in the contract—1.5%) and attorney fees (because the contract provided for recovery of attorney fees).
Judge remanded a maritime suit brought in state court that was removed based on original admiralty jurisdiction with no independent basis for federal jurisdiction; Hall v. Labmar Ferry Services LLC, No. 2:25-cv-1069, 2025 U.S. Dist. LEXIS 180891 (E.D. La. Sept. 16, 2025) (Vance).
Teresa Hall tripped and fell while attempting to board the Canal Street Ferry in New Orleans and brought this suit against Labmar Ferry Services and the New Orleans Regional Transit Authority in state court in Orleans Parish, Louisiana. The Transit Authority removed the case to federal court based on the federal court’s original admiralty jurisdiction, and Hall moved to remand the action to state court, contending that maritime claims are not removable without an independent basis for subject matter jurisdiction. The Transit Authority cited the Fifth Circuit’s statement in Dutile that “admiralty and general maritime claims fall within the category of any other civil action [governed] by the second sentence of § 1441(b) . . . [and] are removable only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which the action is brought.” As the Removal Statute was amended to remove the prohibition on removal by forum defendants in non-diversity cases, the Transit Authority argued that “the prohibition on removal falls away.” Judge Vance noted that the “Fifth Circuit has not yet decided this issue and courts in this Circuit are split.” However, she followed the majority of district courts and held that an independent basis of jurisdiction is required to remove an admiralty suit. Therefore, she remanded the case to the state court.
Pro se plaintiff’s incarcerated status and incorrect filing under the Federal Tort Claims Act did not toll limitation period under the Suits in Admiralty Act/Public Vessels Act for suit by narcotics detainee alleging inhumane treatment by the Coast Guard; Nibbs v. United States Coast Guard, No. 3:24-cv-1290, 2025 U.S. Dist. LEXIS 183981 (D.P.R. Sept. 17, 2025) (Antongiorgi-Jordan), adopting recommendation of Chalwell v. United States, No. 3:24-cv-1290 c/w No. 3:24-cv-1344 (D.P.R. June 3, 2025) (Ramos-Vega).
Akinde Thomas Chalwell was apprehended by the Coast Guard on the high seas, about 25 nautical miles from St. Thomas, U.S. Virgin Islands, on June 16, 2022 in a narcotics interdiction (his “go-fast” vessel lacked navigational lights and any indicia of nationality). Chalwell claims he was held for 36 days “chained to the deck of multiple USCG’s cutters; exposed to the elements; given minimal food and water; hose down ‘like a dog’; and ordered to defecate and urinate in the presence of children.” He filed an administrative claim under the Federal Tort Claims Act, but his claim fell within the Suits in Admiralty Act/Public Vessels Act. He eventually brought this suit against the Coast Guard in federal court in Puerto Rico on August 1, 2024, but the filing was outside the two-year limitation period in the SIAA (the period began to accrue on July 22, 2022, the date on which his custody was turned over by the Coast Guard for prosecution for smuggling cocaine). The Coast Guard moved for judgment on the pleadings, and Chalwell responded that he was entitled to equitable tolling of the limitation period. Magistrate Judge Ramos-Vega first noted that the mistaken claim under the FTCA was not a basis for a finding of equitable tolling. He also rejected the argument that the Coast Guard acted in bad faith by failing to notify Chalwell, prior to the expiration of the limitation period, that his claims fell under the Suits in Admiralty Act/Public Vessels Act, not the FTCA. His argument that the delay should be excused because he initiated the action as an incarcerated pro se litigant was likewise insufficient. Accordingly, Magistrate Judge Ramos-Vega recommended that judgment on the pleadings be granted. Chalwell objected to the recommendation, and Judge Antongiorgi-Jordan reasoned that his objection “seems to be that he should be excused from the requirement that he diligently pursue his rights, given his pro se incarcerated status.” Judge Antongiorgi-Jordan noted that Chalwell had been appointed counsel for the criminal proceedings arising out of the incident, and she added: “Even if Plaintiff Chalwell were totally unrepresented at all relevant times throughout these proceedings, the Magistrate Judge correctly noted that pro se status does not insulate a litigant from complying with procedural and substantive law.” She held that “his failure to comply with the applicable statute of limitations requires dismissal of his case.”
Bankruptcy stay prevented federal court from hearing the United States’ alter ego claim and disgorgement action against the owner and the sister company of the owner of a tug and barge for response costs under OPA from an oil spill; United States v. Ships International, Inc., No. 2:23-cv-1677, 2025 U.S. Dist. LEXIS 183780 (W.D. Wash. Sept. 18, 2025) (Zilly).
Christian Lint was the captain of the tug HUNTER, which was towing the fishing vessel AMERICAN CHALLENGER off the California coast. The tow broke free and ran aground, spilling oil from the wreck of the AMERICAN CHALLENGER. The United States brought this suit in federal court in Washington against the owner and operator of the tug and tow as well as against the Estate of Christian Lint, who died after the incident, seeking to recover $14,440,310 in response costs. The United States argued that Lint was a “responsible party” under the Oil Pollution Act of 1990 and was jointly and severally liable for the clean-up costs. The Estate argued that Captain Lint did not own or charter the tug or fishing vessel and was not required to file proof of financial responsibility. The United States responded that Lint was solely in control of the tug and towed vessel and was, therefore, an “operator” within the meaning of OPA. Reasoning that an operator includes persons who “manage, direct, or conduct operations specifically related to pollution,” Judge Zilly held that Captain Lint was an operator and accordingly was strictly liable under OPA as a responsible party. Therefore, Judge Zilly held that the Estate was jointly and severally liable for the full amount of the government’s response costs of $14,440,310. See October 2025 Update.
Judge Zilly initially stayed the claims against the owner and operator of the tug and tow (Ships International), the owner of Ships International (Felix Vera), and the company that accepted the proceeds of the sale of the HUNTER (Marine Services International) based on the bankruptcy proceeding initiated by Felix Vera. The United States sought a judgment against Vera, Ships International, and Marine Services, arguing that Ships International and Marine Services were alter egos of Vera so that the United States could execute on any assets of Vera and Marine Services to satisfy the OPA liability of Ships International as owner and operator of the tug and barge. Ships International did not answer the suit, and a default judgment was entered against it. However, Vera and Marine Services argued that the stay from Vera’s bankruptcy should remain in effect. The United States argued that the stay is not automatic when the litigation is brought to enforce the Government’s “police and regulatory power, including the enforcement of a judgment other than a money judgment.” Judge Zilly reasoned that the Government’s claims that Marine Services is an alter ego of Vera and that Vera and Marine Services should disgorge the proceeds of the HUNTER were not asserted to protect the public safety and health and instead were pursuing a judgment for amounts owed under OPA. Therefore, the stay remained in effect as to Vera and Marine Services.
Fact disputes with respect to the injuries claimed by the seaman resulted in denial of his motion for summary judgment seeking to recover maintenance and cure; Gramajo v. Marco Marine, LLC, No. 3:23-cv-6, 2025 U.S. Dist. LEXIS 184841 (D.V.I. Sept. 18, 2025) (Teague), recommendation adopted, (D.V.I. Sept. 29, 2025) (Molloy).
Maximilliano Gramajo, who was employed as a cook aboard the M/V LADY ROMNEY, claims that he sustained two injuries in the service of the vessel. He brought this suit in federal court in the Virgin Islands, asserting that he injured his left knee while lifting heavy ropes during a docking operation and that he injured his low back performing the “very same maneuvers” with heavy ropes. In his discovery responses, Gramajo contended that the second injury occurred when he “went out grocery shopping.” Gramajo eventually returned to his home in Guatemala, sought medical treatment, and (through counsel) demanded maintenance and cure. There was a dispute as to the identity of the owner/manager of the vessel and employer, but Gramajo brought the suit against Marco Marine. Marco Marine did not pay maintenance and cure, and Gramajo filed a motion for partial summary judgment that he was entitled to maintenance and cure and that the refusal to pay was arbitrary and capricious. Marco Marine disputed that the injuries occurred while Gramajo was employed on the vessel; there was a dispute as to the reason that Gramajo left the vessel; and Gramajo’s version of the second accident changed from his complaint to his discovery answers. Therefore, Magistrate Judge Teague recommended that the motion be denied. Additionally, Magistrate Judge Teague recommended that the claim for maintenance was insufficient as a matter of law because Gramajo did not offer evidence that would “enable the Court to estimate his actual food and lodging costs incurred in his locality of Guatemala” (noting that evidence of his monthly wage rate was not evidence of the amount owed for maintenance). Although the recommendation was issued on September 18, 2025, and the recommendation gave the parties 14 days to object, Chief Judge Molloy adopted the recommendation on September 29, 2025. On October 2, 2025, Gramajo filed his objection and moved to vacate the order.
Judge held that contract to supply operators to check offshore wells was not maritime and that the Louisiana Oilfield Indemnity Act voided the indemnity provision; In re Whitney Oil & Gas Co., No. 2:22-cv-3015, 2025 U.S. Dist. LEXIS 185254 (E.D. La. Sept. 22, 2025) (Milazzo).
Whitney Oil & Gas deployed contract operators from Quality Production Services to check its wells located in the Gulf of America off the coast of Louisiana. One of the contract operators, Kerri Espadron, departed in the field boat M/V LIL RED to check wells along with contract operator Wyatt Boone. Boone drove the boat into a well jacket, resulting in an injury to Espadron. Espadron brought suit against Whitney Oil & Gas in state court in Plaquemines Parish, Louisiana, and Whitney Oil & Gas filed this action in federal court in Louisiana, seeking to limit its liability to the value of the LIL RED. Espadron filed a claim in the limitation action, and Whitney Oil & Gas brought a third-party claim against Quality Production. Quality Production then filed a claim in the limitation action, seeking defense and indemnity for Espadron’s claims pursuant to the terms of the Master Service Agreement between Quality Production and Whitney Oil & Gas. Whitney Oil & Gas moved for summary judgment on the claim for defense and indemnity, arguing that maritime law did not apply to the contract and that the Louisiana Oilfield Indemnity Act voided the contractual obligation. Quality Production and Espadron opposed the motion, arguing that the contract was subject to maritime law and that the defense and indemnity provisions are enforceable. As a threshold matter, however, Quality Production argued that Whitney Oil & Gas’s motion was premature because there was no finding of Quality Production’s fault or liability. Judge Milazzo noted that in the Meloy case, the Louisiana Supreme Court held that the Louisiana statute only prohibits indemnity for cost of defense where there is negligence or fault on the part of the indemnitee. As there had not been a determination of whether Quality Production was liable for Espadron’s injuries, it was premature to decide whether the provisions of the contract were enforceable. Therefore, Judge Milazzo declined to decide whether maritime law or Louisiana law applied and whether the defense and indemnity obligations were valid. See July 2025 Update.
Espadron settled his injury claim, and Judge Milazzo held a bench trial to determine whether the contract between Quality Production and Whitney Oil & Gas was maritime. Quality Production expected that the production operators would be operating vessels and working in an area that could only be accessed by vessel. Whitney Oil & Gas’ corporate representative also expected that the production operators would use vessels as transportation between wells so that the workers could perform their duties on the wells. The tools needed for the work were carried by the vessels, but the tasks (changing valves, checking that wells are flowing, blowing out fueled pods, checking the blow cases for fluid, and changing charts) could not be performed from the vessel and were undertaken after the worker climbed onto a platform or well jacket. On rare occasions, the vessels were used as work platforms, and the operators looked for oil sheens on the water while traveling between well locations. The parties did not provide sufficient evidence for Judge Milazzo to determine whether the OCSLA applied, but she explained that the conclusion would be the same regardless of whether the OCSLA applied—the issue was whether the contract was maritime using the Doiron test enunciated by the en banc Fifth Circuit. Judge Milazzo focused on whether there was “a direct and substantial link between the contract and the operation of the ship, its navigation, or its management afloat, taking into account the needs of the shipping industry.” She added that the Fifth Circuit had “clarified that the role of a vessel as transportation to and from the job site is irrelevant in this analysis;” that the location of the injury on the vessel is not dispositive; and that the vessel’s role in transporting tools and equipment that are transferred to a platform is insubstantial (Judge Milazzo quoted the Fifth Circuit’s Crescent Energy decision: “A vessel’s being indispensable may not equate to its role being ‘substantial.’”). Judge Milazzo added that even assuming the expectations of the parties were unclear, the use of the vessels was primarily for transportation and other work that was incidental to the job contemplated by the contract. Therefore, she held that the agreement was not a maritime contract and that the LOIA precluded Quality Production from enforcing the defense, indemnity and insurance provisions. Thanks to Chip Duncan with Duncan & Sevin, L.L.C. in New Orleans, Louisiana for bringing this case to our attention.
Personal representative failed to properly plead a count of vicarious liability of the cruise line for the negligence of its medical staff in connection with the death of a passenger who sustained an intracranial hemorrhage for failing to sufficiently identify the personnel who were negligent, failing to specify their acts of negligence, and alleging a negligent-mode-of-operation theory; Figas v. Princess Cruise Lines, Ltd., No. 1:25-cv-23279, 2025 U.S. Dist. LEXIS 185637 (S.D. Fla. Sept. 22, 2025) (Altonaga).
Cathryne Anne Figas, a passenger on the EMERALD PRINCESS, reported sudden onset dizziness, headache, and vomiting and was taken to the ship’s medical center in a wheelchair. She was diagnosed with a urinary tract infection and an intracranial hemorrhage and was released to return to her room after spending the night in the medical center. After returning to her room, she collapsed and became unconscious. She remained in the medical center on the ship until she disembarked in Bar Harbor, Maine, about 39 hours after first reporting to the medical center. She was taken to the hospital and life-flighted to Maine Medical Center in Portland, Maine where she underwent an emergency pipeline embolization and then a second stent-assisted coil embolization. After she died, her personal representative brought this action against the cruise line in federal court in Florida with claims for vicarious liability for negligence of the medical staff based on actual agency and apparent agency, vicarious liability for negligence of non-medical personnel based on actual agency, and direct liability for negligence (including negligent hiring). Chief Judge Altonaga dismissed the last count for commingling a negligence cause of action with a claim for negligent hiring and then turned to the cruise line’s motion to dismiss the count asserting vicarious liability with respect to the negligence of the non-medical personnel. The plaintiff listed nine ways in which the cruise line was negligent, predicated on failure to create or follow policies and procedures. The cruise line responded that the plaintiff failed to plead a claim for vicarious liability as a matter of law because the count did not contain any allegations of a duty breached by a crewmember or any allegations of crewmember misconduct connected to plaintiff’s damages. The cruise line did not argue that the plaintiff had to identify individual crewmembers by name; however, Chief Judge Altonaga explained that the plaintiff must do more than identify broad “categories of personnel.” The reference to the cruise line’s “non-medical personnel, including its officers, directors, employees, agents, servants, shipboard personnel . . . both on board . . . and located at Defendant’s shore-side offices” was insufficient. Additionally, plaintiff did not specify the negligent acts or omissions of the individuals, and Chief Judge Altonaga pointed out that allegations against the cruise line were not relevant in a count for vicarious liability. Finally, Chief Judge Altonaga held that the count asserted a negligent-mode-of-operation theory (looking to a choice of a particular mode of operation that resulted in the creation of a dangerous condition and not events surrounding the plaintiff’s accident), which is an impermissible means to circumvent the requirement that the cruise line must have notice of the dangerous condition. Therefore, Chief Judge Altonaga dismissed the count without prejudice.
Questions on the meaning and intent of the documents for the lease and purchase option for a cabin on a residential cruise ship resulted in denial of summary judgment to the parties; Schulz v. Storylines Global Inc., No. 2:24-cv-55, 2025 U.S. Dist. LEXIS 186635 (D. Utah Sept. 22, 2025) (Parrish), adopting recommendation of 2025 U.S. Dist. LEXIS 188040 (D. Utah Aug. 12, 2025) (Bennett).
Storylines is a residential cruise line that sells luxury residential cabins on the yet-to-be-built MV NARRATIVE. Kristen Schulz reserved a unit on the NARRATIVE for a 24-year lease with a refundable deposit of $10,000 and a non-refundable fee to join the Founders Circle program marketed by Storylines for the residential offerings on the NARRATIVE (including an option to convert to an inheritable ownership). Asserting that the sales agreement package did not provide the option for outright purchase, and that Storylines did not hold her membership fee in escrow, Schulz brought suit in federal court in Utah against Storylines for breach of the Founders Circle Benefits Program and refundable deposit agreement, and for fraudulently selling the purchase option with no intent to ever provide anything but a lease. The parties filed cross-motions for summary judgment, and Magistrate Judge Bennett recommended denial of both motions as there were fact questions as to the meaning and intent of the contract and on the issue whether Storylines knowingly misrepresented or concealed material facts with the intent to defraud Schulz. Judge Parrish agreed and adopted the recommendation and denied the motions.
Pollution policy covering decommissioned World War II vessel (serving as a tourist attraction and historical museum) that is docked in navigable waters is a maritime contract so that the suit seeking coverage under the policy related to an oil spill falls within the federal court’s admiralty jurisdiction; Buffalo Naval Park Committee, Inc. v. Water Quality Insurance Syndicate, No. 1:25-cv-6344, 2025 U.S. Dist. LEXIS 187222 (S.D.N.Y. Sept. 23, 2025) (Rochon).
Buffalo Naval Park Committee operates a naval and historical park in Buffalo, New York. One of the vessels at the park, a decommissioned World War II vessel, released petroleum products into the Buffalo River, and the Committee sought coverage from its insurer, Water Quality Insurance Syndicate. The Committee brought this suit against WQIS in state court in Erie County, New York, and WQIS moved to dismiss the complaint based on a forum-selection clause in the policy requiring that suit be filed in the United States District Court for the Southern District of New York. Judge Greenan agreed with WQIS and dismissed the complaint. The Appellate Division affirmed, noting that forum-selection clauses are prima facie valid and enforceable under maritime law and New York law. The Committee argued that enforcement of the clause would deprive it of its day in court because the federal court lacked subject matter jurisdiction over the dispute. The Appellate Division deferred to the federal court to decide whether it had jurisdiction, but that decision did not affect the outcome of the appeal. The Appellate Division noted that Judge Greenan dismissed the complaint without prejudice, stating that the matter may be renewed if the federal court declined to exercise jurisdiction. Therefore, the appellate court concluded that the Committee failed to establish a basis to decline to enforce the forum-selection clause. See July 2025 Update.
The Committee then brought suit against WQIS in federal court in New York where it found itself in the “unique position” of arguing that the federal court did not have jurisdiction to hear the case because the action involves no federal question and the parties are not diverse. The court requested briefing on the issue of whether the case fell within the court’s admiralty jurisdiction, and Judge Rochon agreed that the court had admiralty jurisdiction and that the federal court was the proper venue to hear the dispute because of the forum-selection clause in the policy. The Committee argued that the case presented a “‘garden variety’ insurance coverage dispute” that did not involve any commercial maritime activity. WQIS responded that the dispute concerns marine pollution on a navigable waterway that has the potential to disrupt maritime commerce on the Buffalo River and in an adjacent marina as well as in Lake Erie. Judge Rochon found the dispute to be sufficiently maritime, even though it involved a moored and stationary vessel that was a tourist attraction and historical museum, because the issue was whether the policy covered losses stemming from an oil spill on navigable waters. Judge Bennett was persuaded by the cases focusing not on the activities of the structure but on the potential impact of the spill on maritime commerce. Noting that the Second Circuit “has routinely held that the primary objective of policies providing pollution coverage is maritime,” Judge Rochon held that the court had maritime jurisdiction over the suit on the policy. As the Committee did not make a strong showing that enforcement of the forum-selection clause was unreasonable, Judge Rochon held that the clause was enforceable so that venue was proper in the federal court in New York.
Ad interim stipulation in limitation action without letter of undertaking or other security was insufficient; In re Everglades Airboat Management, LLC, No. 2:25-cv-659, 2025 U.S. Dist. LEXIS 189189 (M.D. Fla. Sept. 24, 2025) (Mizell).
An 18-foot Alumitech Airboat owned by Everglades Airboat Management ran into a thicket of mangroves in the vicinity of the Panther Creek waterway near Everglades City, Florida, and the owner brought this action in Florida federal court seeking to limit its liability. The owner filed an ad interim stipulation stating that the value of the vessel was $18,000, but it did not provide any security for the stipulation. Magistrate Judge Mizell held that the stipulation was insufficient, noting that “an ad interim stipulation customarily includes a letter of undertaking—a letter in which the insurer promises to pay the insured value of the vessel” (adding that other means of security, such as an appropriate bond from a surety, are also sufficient). Accordingly, Magistrate Judge Mizell declined to approve the ad interim stipulation.
Judge found sufficient evidence of exposure to asbestos by marine engineering student who observed work on turbine on vessel to deny the manufacturer’s motion for summary judgment; Judge held that widow’s claim for loss of consortium was not available under maritime law, but her claim for punitive damages on the negligence claim was available; fact questions precluded summary judgment on the manufacturer’s government contractor defense; Payne v. General Electric Co., No. 2:20-cv-1198, 2025 U.S. Dist. LEXIS 190500 (E.D. Cal. Sept. 25, 2025) (Nunley).
The S.S. DEL ORLEANS was built under a U.S. Maritime Commission contract in 1940 with a turbine manufactured by General Electric. Eventually, the ship was loaned to the California Maritime Academy to use as a training ship and was renamed the GOLDEN BEAR II. Dennis C. Payne was a marine engineering student at the Academy from 1972 to 1975, and he claims exposure to asbestos when the vessel experienced a problem with the turbine and the students observed the turbine inspection and removal. Payne developed mesothelioma, and he and his wife, Susan Payne, brought this action in federal court in California against General Electric and others under maritime law and California law. Payne died from mesothelioma, and his widow and General Electric filed cross-motions for summary judgment. General Electric argued that Susan failed to establish that Dennis was exposed to asbestos related to the turbine manufactured by General Electric. Chief Judge Nunley disagreed. Applying maritime law, Chief Judge Nunley found sufficient evidence from the testimony of Dennis that he observed removal of gaskets with lagging and insulation blankets and that he saw dust from the work, including when a classmate blew the asbestos insulation off the casing of the turbine. Payne’s expert examined photographs taken by Dennis during the inspection and confirmed that the insulation around the turbine was asbestos insulation. General Electric also argued that Susan failed to establish that the exposure was a substantial factor in causing Dennis’ mesothelioma, but Chief Judge Nunley found sufficient evidence from the testimony of the expert that the work would lead to the release of high concentrations of airborne asbestos fibers above background concentration levels. Chief Judge Nunley then addressed the duty to warn under the Supreme Court’s DeVries decision. General Electric argued that it did not know in 1940 that removal of insulation from its turbine would exceed threshold asbestos values and cause disease to a bystander. However, Susan cited a letter in 1972 in which General Electric warned a purchaser that stripping the product to expose the conductor could result in airborne asbestos fiber concentrations that exceed OSHA limits. As General Electric provided technical advice to its product users over the lifetime of its turbines, Chief Judge Nunley concluded that there was a continuing duty to warn. Finally, General Electric argued that Susan’s claims for loss of consortium and punitive damages were not available under the maritime law. Chief Judge Nunley agreed that the Supreme Court’s decision in Miles “‘effectively overruled’ loss of consortium claims filed under the Jones Act or under general admiralty law.” As to punitive damages, Chief Judge Nunley noted that the Supreme Court had held in Batterton that punitive damages were unavailable in unseaworthiness actions; however, he believed that the decision in Exxon Shipping v. Baker supported an award of punitive damages in a case based on maritime negligence. Finally, Chief Judge Nunley found fact questions on each of the prongs for General Electric’s government contractor defense and denied Susan’s motion for summary judgment.
Magistrate Judge declined to allow late claims in a limitation action where the case was not in its early stage of development and insubstantial reasons were given for the delay; In re Brandt Marine, Inc., No. 2:24-cv-4765, 2025 U.S. Dist. LEXIS 190499 (E.D.N.Y. Sept. 26, 2025) (Wicks).
Brandt Marine, owner of a 26-foot push barge (GLENN K. BROCKWELL) and a 40-foot deck barge (outfitted with a crane), was engaged by the owners of a home located in Cold Spring Harbor, New York, to replace a marine bulkhead with a new bulkhead at the waterline of their home. The property owner also hired National Framers to perform restoration work on buildings on the property adjacent to the worksite. Ricardo Linares, an employee of National Framers, was injured on October 11, 2023 when a scaffolding collapsed, and Ricardo Linares and his wife, Nilsia Mendes Linares, filed suit in state court in Suffolk County, New York on January 1, 2024, eventually naming Brandt Marine, National Framers, Kevin Sweeney, Lori Engeman, and others as defendants. On July 9, 2024, Brandt Marine filed this limitation action in New York federal court, and claims were due by October 1, 2024. Almost a year later, on September 2, 2025, National Framers, Sweeney, and Engeman moved to allow them to file late claims for contribution and indemnity in the limitation action. Judge Wicks declined to allow the late claims, reasoning that Sweeney and Engeman had notice of the action since December 2024 and had even appeared in the federal action to file a motion to quash. National Framers knew of the action since at least February 2025 when the state action was stayed. They did not show cause for the delay, and discovery had significantly progressed in the federal action, with the deadline being extended twice. Simply put, the case was not in its early stage of development, and the interests of justice did not favor granting the motion based on insubstantial reasons for the delay.
Judge dismissed action brought by towing company against NOAA and the EPA, challenging a penalty action (that the towing company discharged the drydock it was towing in a marine sanctuary) because the administrative adjudication process was not complete; Western Towboat Co. v. National Oceanic & Atmospheric Administration, No. 1:22-cv-2665, 2025 U.S. Dist. LEXIS 190806 (D.D.C. Sept. 26, 2025) (Jackson).
Vigor Marine sold its three-section drydock, constructed in 1956, to a shipyard in Mexico to be scrapped. Vigor then contracted with Western Towboat to tow the drydock from Seattle, Washington to Ensenada, Mexico, using the tug OCEAN RANGER. A surveyor noted significant corrosion but opined that the drydock was appropriately prepared and rigged for the tow in an extended configuration with the bow and stern sections attached. The surveyor did require that the tow avoid heavy head or beam seas to avoid pitching or rolling. The Navy operating manual for the drydock provided that the bow and stern sections should be detached and docked on the center section, and Vigor’s sales contract required that the three sections be detached and carried on a heavy-lift ship. During the tow the drydock began taking on water and listing, and the tug headed toward San Francisco Bay to seek assistance. After communicating with the Coast Guard, the tug concluded it was unsafe to enter San Francisco Bay in the event the drydock sank. The Coast Guard approved the tow entering Monterey Bay where the drydock sank .92 miles inside the Monterey Bay Marine Sanctuary. The National Oceanic and Atmospheric Administration informed Vigor, Western Towing, and the Mexican shipyard of their liability under the National Marine Sanctuaries Act for damages from the sinking in the sanctuary, and Western brought an action against Vigor in federal court in Washington, seeking recovery for its services under its towing agreement and a declaratory judgment against the United States exculpating it of liability in any forthcoming enforcement action under the NMSA. Chief Judge Martinez first held that the court lacked subject matter jurisdiction, based on lack of ripeness and standing, of the action against the United States as NOAA has not taken any final action against the parties. Chief Judge Martinez then turned to the claims between Western and Vigor. He denied Vigor summary judgment that Western had breached the towing agreement by failing to adequately perform its duties when it proceeded into Monterey Bay and stood by while the drydock sank in a marine sanctuary as the contract did not contain a requirement that the tug keep the tow in a safe place to sink. Chief Judge Martinez then addressed the knock-for-knock indemnity provisions in the towing agreement and held that claims arising out of or relating to damage to a party’s own property could not be recouped (such as Vigor’s loss of the drydock); however, that did not bar Vigor from recouping costs incurred as a result of Western’s negligent injury to third parties. With respect to Vigor’s claim that Western was negligent, Chief Judge Martinez declined to find that the last clear chance doctrine or THE PENNSYLVANIA Rule applied; however, he concluded that Western breached its duty of prudent seamanship as a matter of law when it allowed the drydock to sink in the marine sanctuary. Although Western objected that its crew was unaware that the drydock was inside the sanctuary and was unaware of the legal, environmental, or economic consequences of the sinking in the sanctuary, Chief Judge Martinez held Western was negligent as a matter of law with respect to its lack of cognizance of the vessel’s position in relation to the sanctuary. Western moved for reconsideration of the decision on the awareness of the tug’s crew of the sanctuary. Chief Judge Martinez recognized that there were factual disputes about whether the crew knew that the tug had entered a sanctuary, but it was their failure to be aware of the hazards presented by the sanctuary to a tug, together with their lack of positional awareness, that led to the finding of negligence. Additionally, Western argued that it was not negligent for the tug to release the line on the drydock while it was in the sanctuary as it was necessary to save the lives of its crew in the emergency presented by the sinking drydock. Chief Judge Martinez responded that it was not the response to that emergency that was the source of the fault but the failure to exercise prudent seamanship in entering the sanctuary with a sinking drydock. See July 2021 Update.
Chief Judge Martinez conducted a bench trial of the case, and on the final day of trial, Western argued that Vigor was not entitled to recover damages on its counterclaim against Western because Vigor’s insurers paid for a portion of the damages Vigor incurred from its exposure to liability under the NMSA. After holding that Vigor was a real party in interest and could maintain the counterclaim, Chief Judge Martinez addressed the question of whether the collateral source rule applied when Vigor had been partially reimbursed for its losses and there was a waiver of subrogation in the towing agreement. Concluding that the payments were not “benefits from a wholly independent source which Vigor had the foresight to arrange,” Chief Judge Martinez held that the collateral source rule did not apply and that Vigor could not recover to the extent it had been paid by its insurers. See November 2021 Update. On December 16, 2021, Chief Judge Martinez issued his findings of fact and conclusions of law from the bench trial on the cross-motions of Western and Vigor for breach of contract and Vigor’s counterclaim for maritime negligence from the sinking of the drydock in the sanctuary. Chief Judge Martinez concluded that neither party could prevail on the claims for breach of contract, allocated fault for the sinking of the drydock as 60% to Vigor and 40% to Western, and awarded Vigor 40% of the $100,000 expended by Vigor to cooperate with NOAA. Western’s argument that it was entitled to recover the hire under the Tow Agreement was subject to an exception for loss arising from the negligence of Western. As Western’s negligence contributed to the sinking of the drydock, Chief Judge Martinez held that Western was not entitled to recover the contractual hire. Chief Judge Martinez denied Vigor’s counterclaim for breach of contract based on Western’s failure to render reasonable assistance when the drydock became disabled, rejecting the argument that the entry into the sanctuary with the sinking dock breached the contract, noting that the contract only required that Western either proceed to the nearest safe port or stand by the tow, and the standing by could occur in the sanctuary. Comparing the fault of the parties, Chief Judge Martinez found Western to be negligent in voyage planning and navigating into the sanctuary with the sinking drydock. However, he considered that Vigor’s fault saddled Western with a nearly impossible task of managing the unwieldy drydock that should not have been certified as suitable for tow under the circumstances. Consequently, he reduced Vigor’s recovery by 60%. See January 2022 Update.
After the six-day bench trial that resulted in Chief Judge Martinez dismissing Western’s claim for breach of contract and awarding Vigor $40,000 on its counterclaim for maritime negligence, Western and Vigor filed motions for attorney fees, each arguing that it was the prevailing party under the Tow Agreement (the “substantially prevailing party” was entitled to recover its reasonable legal fees and costs). Western argued that it was the “substantially” prevailing party because the court found Vigor was 60% comparatively negligent on its maritime negligence claim. Vigor argued that it was the “substantially” prevailing party because Western took nothing on its claims and Vigor received judgment in its favor of $40,000. Judge Martinez agreed with Vigor because it defeated all of Western’s claims and received a significant judgment in its favor and because Western did not prevail except to the extent that damages were not as high as prayed for. Thus, Vigor was entitled to recover reasonable attorney fees under the Tow Agreement. See July 2023 Update.
Both parties appealed, and Judge Fletcher, writing for the majority of the panel of the Ninth Circuit, first addressed the grant of summary judgment that Western was negligent in allowing the drydock to sink in the Sanctuary. Agreeing with Chief Judge Martinez that it was undisputed that the captain failed to understand the hazards presented by the Sanctuary to a tug towing a sinking drydock, Judge Fletcher affirmed the grant of partial summary judgment to Vigor on liability. Judge Fletcher then addressed Vigor’s argument that the collateral source rule allowed it to recover all of its mitigation damages ($415,441.67) even though it had been reimbursed by its insurance carrier for all but $100,000 of the expenditures. Judge Fletcher agreed with Chief Judge Martinez that the insurance policy was not a wholly independent source because Western had required Vigor to purchase insurance, and Western determined its fee based, in part, on Vigor purchasing insurance. Judge Fletcher did not disturb the allocation of fault, finding no clear error in Chief Judge Martinez’s findings, and he declined to address Western’s argument that the parties agreed in the Tow Agreement not to seek a negligence recovery for any insurance deductible, reasoning that the argument had been waived. Judge Fletcher did reverse the award of prejudgment interest against Western as it ran from the date that the drydock sank rather than from the date of the expenditures. Judge VanDyke dissented from the holding that Western waived its argument that, under the Tow Agreement, the parties agreed to hold each other harmless for any portion of the other’s insurance deductible (Judge VanDyke would have concluded that the agreement held Western harmless for the portion of the deductible awarded by Chief Judge Martinez for Western’s negligence). See December 2023.
Back in the district court, Judge Martinez entered his award for attorney fees and costs. Vigor requested $1,461,393.90 in fees and $111,063.13 in costs. Western first argued that there were no fees to award because Vigor’s underwriters paid everything above $100,000. Western reasoned that the insurance procured was agreed upon by the parties, and that Vigor was only entitled to recover its deductible less its 60% negligence because of the agreement on insurance. Vigor responded that clause in the agreement limiting recoverable damages to the deductible did not apply to the separate provision allowing the prevailing party to recover attorney fees and costs, and Judge Martinez agreed, reasoning that Western could have included attorney fees and costs in the limitation, but it did not do so with a separate agreement for fees and costs to the prevailing party with no limitation. Western next argued that the claimed fees were “wildly disproportionate” because the case was “only a $187,000 contract claim” that Vigor overworked and overstaffed. Judge Martinez did impose a 10% reduction for block billing, redundant work, and failure to segregate fees related to NOAA liability, and he assessed an additional 20% reduction for the disproportionality between the fee request and the damages awarded. Vigor agreed that a charge for the Washington Athletic Club (a dinner charge during trial) and $5,050 in fees for preparing the notice of appeal documents should be removed. Therefore, Judge Martinez awarded a total of $959,100.98 to Vigor. See May 2024 Update.
Western filed a notice of appeal to the Ninth Circuit, and the parties announced a settlement after the case was set for oral argument. In the meantime, Western brought this suit in federal court in the District of Columbia against the National Oceanic and Atmospheric Administration and the Environmental Protection Agency, challenging the civil penalty action brought by NOAA that Western violated the National Marine Sanctuaries Act by discharging an object (the drydock) within the Monterey Bay National Marine Sanctuary. Western argued that NOAA arbitrarily referred its civil penalty demand to the EPA, which appointed an administrative law judge to preside over the proceeding. Additionally, Western argued that the proceeding was not timely brought within the five-year limitation proceeding and that NOAA violated due process by seeking joint and several civil penalties without making any individualized assessment of penalties. The parties filed cross-motions for summary judgment, and Judge Jackson agreed that the case should be dismissed for failure to state a claim and lack of subject matter jurisdiction. She explained that the suit was brought shortly after the case was referred to the administrative law judge and that the administrative adjudication was never completed. She concluded: “Because none of the challenged actions are final agency actions, and because plaintiff has not satisfied the injury-in-fact requirement for standing and ripeness, this case cannot move forward.”
Judge amended judgment denying dock owner’s claim that work performed by contractor in removing tree stump was subject to a flat fee so as to award judgment in favor of the contractor at the hourly rate charged by the contractor; PYC, LLC d/b/a Prospect Yacht Club, LLC v. Carrier Marine Services, No. 3:23-cv-124, 2025 U.S. Dist. LEXIS 191593 (W.D. Ky. Sept. 29, 2025) (Jennings).
Prospect Yacht Club entered into a contract with Carrier Marine Services to remove a submerged tree trunk and stump from Prospect’s dock in Prospect, Kentucky. The contract provided that Prospect would pay $6,400 for the services to be paid at the end of the day and provided Carrier Marine with a maritime lien against the vessel or vessels, cargo and/or equipment for all amounts due. Carrier Marine was unable to remove the tree stump and trunk in one day, and Prospect asked it to return a second day, but it was still unable to complete the work on the second day. Prospect then instructed Carrier Marine to stop the work, and Carrier Marine submitted an invoice for $12,992. Carrier Marine filed a UCC financing statement with the Kentucky Secretary of State, asserting a lien against the dock. Prospect then brought this suit in federal court in Kentucky, seeking a declaratory judgment that Carrier Marine cannot assert a maritime lien because the dock is not a vessel, that the contract does not establish a security interest, and that Prospect only owes Carrier Marine $6,400. Although the parties disputed whether Prospect agreed to a maritime lien in the contract, Judge Jennings stated that the contract had no bearing on whether Carrier Marine was entitled to a maritime lien, as a maritime lien can only arise by operation of law. She added that the existence of the lien depended on whether the dock is a vessel under 1 U.S.C. Section 3 and capable of being subject to a lien under the Commercial Instruments and Maritime Liens Act. Carrier Marine argued that the dock is a vessel because it is a LASH barge that can be readily moved and is engaged in commerce by pumping fuel aboard boats that visit the dock. Prospect responded that the dock holds a bar, restaurant, and other fixtures and is connected to shore by a ramp. Carrier Marine did not argue that the dock does move, only that it could be moved if necessary. As the dock does not transport fuel or food somewhere else to be served, Judge Jennings concluded that the dock lacked the hallmarks of a structure that a reasonable observer would find was designed to a practical degree to carry people or things over water (Lozman test). Carrier Marine also argued in the alternative that it was entitled to a salvage award for helping another at sea, but Judge Jennings answered that salvage is not available when there is a contract between the parties and as Carrier Marine did not provide assistance to a vessel. Finally, Judge Jennings noted that Prospect did invite Carrier Marine to come back the second day so that Carrier Marine would be entitled to $12,800 based on the hourly rate in the contract. Therefore, she declined to grant summary judgment to Prospect on its request for a declaratory judgment that it only owed $6,400. She did not grant a judgment to Carrier Marine for $12,800 as it did not file a counterclaim. See September 2024 Update.
Carrier Marine moved for a declaratory judgment or, alternatively, to alter or amend the judgment, post-judgment, adding a counterclaim seeking a monetary judgment of $17,600 ($12,800 plus contractually provided interest at the rate of 1.5% per month for 25 months). Prospect responded that Carrier Marine’s request was a compulsory counterclaim that should have been asserted by Carrier Marine in its answer. Judge Jennings answered that the request could have been dismissed as a redundant counterclaim under the mirror image rule (providing for the dismissal of counterclaims that merely seek the opposite effect of the complaint). Judge Jennings noted that the counterclaim sought a declaration that it owed $6,400 as a flat fee, not the $12,992 invoiced by Carrier Marine. Prospect argued that the counterclaim also sought interest, but Judge Jennings explained that interest was raised in the original complaint because Prospect sought a judgment that it did not owe $12,992 (which included the $192 in interest that had already accrued at the time of the billing). Thus, the claims raised by Prospect and Carrier Marine had a complete identity of factual and legal issues (both turning on “whether the contract established an hourly rate or a flat fee and whether it provided for the payment of interest”). Additionally, Judge Jennings believed that the counterclaim sought to be filed by Carrier Marine fell within an exception to res judicata for cases in which the only relief sought in the first suit is a declaratory judgment (based on the reasoning that without the exception, plaintiffs would preemptively seek declaratory judgment to force defendants to assert claims in the plaintiffs’ choice of venue). As Carrier Marine could assert its declaratory action in a separate action, it should not be precluded from bringing the claim in the original action. Judge Jennings then addressed the language in the judgment that the court could not grant a judgment to Carrier Marine as it had not filed a counterclaim. She agreed that the language of Carrier Marine’s amended answer did not explicitly state that it contained a “counterclaim;” however, it did put Prospect on notice of Carrier Marine’s claim. As the judgment was entered on August 15, 2024, and as the motion to alter/amend was filed within 28 days on September 12, 2024, the motion was timely under Rule 59, and Judge Jennings held that altering the judgment was necessary to prevent manifest injustice to Carrier Marine. Therefore, Judge Jennings granted a declaratory judgment to Carrier Marine in the amount of $12,800 plus interest at the rate of 1.5% per month.
Former sound engineer for a theater who bought a sailboat for charter was entitled to proceed with his suit against the owner of a towing company, seeking to recover for the actions of the owner of the towing company in causing damage to the vessel during its tow to shore, but his claims against the trade name for the towing company were dismissed; Wolcott v. Jersey Boat Towing & Salvage Inc., No. 23-cv-22300, 2025 U.S. Dist. LEXIS 192118 (D.N.J. Sept. 29, 2025) (Kirsch).
The battery on Brandon P. Wolcott’s vessel, BOLERO, died while the vessel was traveling from New York City to North Carolina. Wolcott was a member of Sea Tow, and he contacted Sea Tow to request a tow to the nearest marine facility in Barnegat Bay, New Jersey. Sea Tow had no available boats within range and contacted TowBoatUS, which contacted its local affiliate, TowBoatUS Barnegat Light. Charles Tharp, owner of TowBoat US Barnegat Light and Jersey Shore Boat Towing & Salvage (which owns vessels that conduct salvage in the name of TowBoat US TB Barnegat) agreed to tow the vessel to the Silver Cloud Marina, but during the tow the vessel began to take on water and it was grounded on a sandbar in Barnegat Bay. Eventually, the vessel was salvaged at a cost of $65,000, paid by the BOLERO’s insurer, Progressive, but there was damage to the vessel and personal belongings. Wolcott filed this suit against Tharp, TowBoatUS Barnegat Light, and Jersey Shore Boat Towing & Salvage with an application to proceed in forma pauperis (bringing claims for negligence, breach of contract, and pursuant to the Ports and Waterways Safety Act). Wolcott asserted that he had been employed as a sound engineer in a theater, but the COVID pandemic caused the industry to shut down. He purchased the BOLERO to start a chartering business, but this incident caused him significant financial hardship. Judge Kirsch agreed that Wolcott had sufficiently pleaded his hardship and allowed him to proceed in forma pauperis. Judge Kirsch then reviewed the sufficiency of the complaint and agreed that the court had admiralty jurisdiction over the claims because the alleged tort had the potential to disrupt maritime commerce and had a significant relationship to traditional maritime activity. Turning to the claim for breach of the Ports and Waterways Safety Act, Judge Kirsch noted that the statute had been repealed in 2018, but that certain sections had been transferred. However, Judge Kirsch could not glean any private cause of action from those sections, and he dismissed the claim for violation of the statute. Judge Kirsch also dismissed the claim for breach of contract because Wolcott did not identify the contract or provisions that were breached. However, Judge Kirsch did allow the negligence claim to proceed, noting that the towing vessel has a duty to exercise reasonable care during the tow, and Wolcott alleged a breach of duty for towing the BOLERO at an unexpectedly high speed, resulting in the damage. See January 2025 Update.
TowBoat US and Tharp moved to dismiss Wolcott’s amended complaint. TowBoat argued that it is not a legal entity and that Jersey Shore operates through the trademark name TowBoat US. The parties did not identify any maritime authority on the issue whether a suit may proceed against a trade name; however, Jersey Shore cited cases under the law of New Jersey (home of Jersey Shore) and New York (home of Wolcott) that the suit is impermissible. Accordingly, Judge Kirsch dismissed TowBoat US, allowing the suit to continue against Jersey Shore. Tharp moved for summary judgment on the ground that he was acting on behalf of Jersey Shore and that respondeat superior precluded suit against the corporation. Judge Kirsch noted that this was not a situation in which Wolcott was seeking to pierce the corporate veil to impose liability on Tharp. Instead, Wolcott was arguing that Tharp arrived at the scene and is personally liable for his involvement in the rescue and salvage of the BOLERO. That was sufficient to permit the suit to move forward against Tharp and Jersey Shore.
After the Fifth Circuit held that life rafts and maritime safety products for vessels and offshore installations fall within the Texas Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act (obligating suppliers to repurchase unsold inventory when the supplier terminates the dealer agreement), the district court denied claims that the dealer was continuing to use the supplier’s trademarks after the termination; Survitec Survival Products, Inc. v. Fire Protection Service, Inc., No. 4:21-cv-312, 2025 U.S. Dist. LEXIS 192805 (S.D. Tex. Sept. 30, 2025) (Rosenthal).
This litigation has been through a bench trial before a judge who has retired, two opinions of the Fifth Circuit, an opinion of the Texas Supreme Court, and another bench trial. Fire Protection Service became an authorized dealer for life rafts and other maritime safety products of Survitec Survival Products. Survitec manufactures and distributes marine safety products, such as life rafts, that are required by federal law and international treaties to be installed on navigable vessels across a wide range of industries, including cruise lines, offshore oil and gas operations, military sealift commands, maritime shipping, merchant marine services, and commercial fishing. After Survitec terminated the dealer agreement, Fire Protection demanded that Survitec repurchase the unsold inventory based on the requirement contained in the Texas Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act, which obligates suppliers of covered “equipment” to a dealer to repurchase unsold inventory of the covered equipment after the supplier terminates the dealer agreement. The statute includes several enumerated types of equipment, including machinery or equipment used for, or in connection with, “industrial, construction, maintenance, mining, or utility activities or applications.” Fire Protection argued that the life rafts are used in connection with offshore oil drilling, and that oil drilling falls within the statutory coverage for mining or industrial activity. Judge Rosenthal disagreed, reviewing the use of these terms in other statutes and holding that the Texas Legislature has not equated oil drilling with mining. Additionally, Judge Rosenthal held that the life rafts and equipment could not be said to be used for or in connection with mining. She agreed that marine life rafts are present in a variety of industries, including offshore construction and maintenance, offshore drilling, undersea mining, and work on utility lines that are over or under bodies of water. However, she responded: “The fact that marine life rafts are often, even required to be, present when offshore industrial activities, offshore construction, maintenance, mining, or other activities or applications are performed, does not mean that the rafts themselves are used in those activities or applications.” As the dealer agreement was outside the scope of the statute, Judge Rosenthal dismissed the claims of Fire Protection. See August 2023 Update.
Fire Protection appealed to the Fifth Circuit, which concluded that Judge Rosenthal “erred in disregarding the copious authorities establishing that the ordinary meaning of ‘mining’ includes oil and gas exploration and production.” Writing for the court, Judge Dennis added that the life rafts were included in four of the commercial contexts covered by the statute, construction, maintenance, mining, and industrial. As the rafts cleared the low “tangential connection” requirement that they be “used . . . in connection with” the commercial activities, the Fifth Circuit reversed the dismissal of Fire Protection’s claims. See September 2025 Update.
After the reversal by the Fifth Circuit, the suit by Fire Protection against Survitec is now pending in the district court. In the meantime, Survitec brought a separate suit in federal court in Texas against Fire Protection, asserting that Fire Protection continued to use its trademarks without authorization, in violation of federal and state law. Judge Rosenthal held a bench trial and issued findings of fact and conclusions of law, denying all of the claims asserted by Survitec.
Loss of consortium was not available in injury case arising from allision between pleasure boats; Struve v. Brown, No. 2:24-cv-281, 2025 U.S. Dist. LEXIS 194091 (M.D. Fla. Oct. 1, 2025) (Dudek).
Nathan S. Struve and his wife Nicole M. Struve acquired ownership of a 1999 Donzi 35-foot motor vessel in Iowa. They insured the vessel with Progressive Northern Insurance Co. and transported the vessel by trailer from Iowa to Cape Coral, Florida to a residence they rented. Nathan Struve piloted the vessel with six passengers for recreational fishing. While returning around sunset, the vessel allided with the anchored sailing vessel ESCAPADE, owned by Erik James Brown, resulting in injury to Nathan and damage to the vessel. Nathan made a claim against Progressive, seeking to recover on the coverage for uninsured/underinsured boaters; however, Progressive denied the claim on the ground that Nathan was solely at fault for the allision. Nathan and Nicole brought this suit in Florida federal court against Brown and Progressive, and Progressive asserted an affirmative defense that Nicole’s claim for loss of consortium was not recognized in the maritime law. Nicole moved for partial summary judgment on the affirmative defense, and Magistrate Judge Dudek recited the history of decisions from the Supreme Court, Eleventh Circuit, and Florida federal courts addressing recoverability of loss of consortium in maritime cases, resulting in a prohibition of recovery except in cases of wrongful death where state law is applicable and for injury or death of a longshore worker in state waters (neither of which is applicable in this case). Magistrate Judge Dudek concluded: “The Eleventh Circuit has spoken, and this Court must listen: maritime law does not recognize loss of consortium damages for personal injury claims like those alleged here.” Therefore, he denied the motion for partial summary judgment and held that Progressive’s affirmative defense “remains at issue.”
Passenger who was injured when she fell on a bumpy surface on the cruise ship’s ice rink sufficiently alleged notice of a dangerous condition of the ice, but her claims with respect to a dangerous condition of her skates, failure to warn, and negligent design of the ice rink were dismissed; Skindariene v. Royal Caribbean Cruises, Ltd., No. 1:24-cv-23005, 2025 U.S. Dist. LEXIS 194427 (S.D. Fla. Oct. 1. 2025) (Altman).
Dalia Skindariene, a passenger on the FREEDOM OF THE SEAS, was injured while ice-skating on the vessel. She alleges that her skate bumped into something uneven on the ice, causing her to lose her balance and fall. Skindariene brought suit against the cruise line in federal court in Florida, citing three dangerous conditions: the ice had unreasonable slopes/grooves that made it bumpy; the rink was overcrowded, making it difficult to navigate with people blocking the flow; and the laces on her skates were short, worn-out, and had knots, making it difficult to lace the skates completely and affecting her balance and stability. The cruise line moved for summary judgment on five grounds. First, it argued that the CCTV footage of the ice rink showed that Skindariene simply lost her balance and fell. Judge Altman agreed with the cruise line that no one was close enough to Skindariene at the time of the fall to support her overcrowding claim, and he granted summary judgment on that limited issue. However, the footage of the fall was not sufficiently definite to disprove Skindariene’s testimony that her fall was caused by her skate bumping into an uneven place in the ice. The cruise line also argued that Skindariene did not allege facts supporting causation between the fall and the condition of the laces of her skates. Judge Altman agreed that Skindariene had complained about the condition of the laces; however, she connected her fall to the condition of the ice, and Judge Altman declined to infer that the skates might have contributed to her fall because the laces were too short and full of knots. Thus, Judge Altman granted summary judgment on the claim that the skates (as opposed to the poor condition of the ice) was a dangerous condition that caused Skindariene’s injuries. The cruise line next argued that there was insufficient evidence of notice of the dangerous condition of the ice to support Skindariene’s direct negligence claims. Judge Altman disagreed, citing Skindariene’s testimony that the ice was not of good quality the entire time she was skating (10 to 15 minutes) and that the condition got worse as she skated. He concluded that if Skindariene noticed the substandard conditions of the ice, “it goes without saying that trained employees responsible for ‘watching the ice’ should notice them as well.” The cruise line also asserted that the failure-to-warn claim should be dismissed because the danger of injury from falling while ice skating is open and obvious. Judge Altman agreed that the danger of falling from the slippery condition of the ice is open and obvious; however, Skindariene complained of the unreasonable slopes/grooves that made the ice bumpy. Skindariene’s testimony that satisfied the notice requirement also defeated her argument on the open and obvious issue: “If the ice’s quality was so bad that Skindariene, a lay person with no expertise in rink maintenance and safety, immediately recognized its flaws, then it’s probably fair to say that other reasonable people would have recognized the open and obvious danger the rink posed.” Therefore, Judge Altman held that the cruise line had no duty to warn of the dangerous condition of the ice. Finally, Judge Altman granted summary judgment on the claims with respect to negligent design for the skates and ice rink. There was no evidence that the cruise line participated in the design of the skates, and the testimony from the corporate representative that the rink has been on the ship for 20 years and “It’s approved of,” was insufficient and probably inadmissible with respect to the approval of the design. Moreover, there was no evidence of any defect in the rink that contributed to the injury. Consequently, Judge Altman granted summary judgment on the claims for negligent design.
Judge again declined to enjoin continued streaming of TV show Below Deck in suit by cast member under the Jones Act, maritime law, and Civil Rights Act (claiming he was discriminated against based on race and sex and forced into a romantic story line with alcohol-induced consent); Kotze v. NBCUniversal Media, LLC, No. 1:25-cv-4703, 2025 U.S. Dist. LEXIS 195480 (S.D.N.Y. Oct. 1, 2025) (Vargas).
Emile Kotze appeared in Season 3 of the television show Below Deck. He claims that he was sexually harassed, manipulated, racially harassed, and subjected to degrading treatment and unsafe working conditions as a deckhand on the 161-foot yacht STAY SALTY, which was named the EROS for the filming of the show. He brought this suit in federal court in New York against NBCUniversal Media and others, alleging that the defendants discriminated against him based on his race and sex in violation of Title VII of the Civil Rights Act of 1964, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, the Jones Act, and general maritime law (unseaworthiness). Kotze’s pro se complaint contained few factual allegations, but he submitted a document titled “Emile Kotze’s Legal Case Against NBC Universal: An unassailable Claim – Evidence Explained,” which Judge Vargas considered as a supplement to his complaint. Kotze asserts that he was induced to participate in the series under the false pretense that it was a commentary about yachting life. He alleges that he was forced into a romantic storyline with another cast member “with alcohol encouraged to impair consent.” He states that footage was manipulated “so as to falsely portray him as immature and unprofessional,” and he was subject to “discrimination as an Afrikaner.” Kotze requested the court issue a temporary restraining order, enjoining the defendants from “airing, streaming, promoting, or distributing any content from Below Deck Season 3 in which [he] appears. Judge Vargas declined to issue the TRO, noting that he could not show that he would suffer irreparable harm without the relief. She explained that Season 3 of the show first aired ten years ago in 2015, and any harm to his reputation from the airing of the show “has already long since occurred.” She added: “Stopping the future airing of Below Deck will not put that genie back in the bottle.” Moreover, Juge Vargas noted that the First Amendment does not generally allow prior restraint of speech with the remedy being damages for the defamation. Kotze then repackaged the same arguments in a motion for reconsideration, emphasizing that his likeness and storyline continued to stream in 2025, causing him “renewed reputational harm, retraumatization and emotional distress.” As he did not cite any new basis to support reconsideration, Judge Vargas denied the motion. See September 2025 Update.
Kotze then filed three additional motions for reconsideration of the denial of his request for a temporary restraining order and preliminary injunction and two renewed applications for a temporary restraining order. Kotze argued that there was new evidence confirming that the defendants “continue to distribute and promote Season 3 of Below Deck” and were continuing to cause him harm. Judge Vargas denied the motions, answering that this was not new “because Plaintiff has essentially repeated the factual statements he asserted in prior motions.” As Kotze “has now filed eight motions essentially seeking the same relief, with no new facts or intervening change of law,” Judge Vargas put Kotze “on notice that, should Plaintiff continue to file duplicative and successive motions, the Court may place limits on Plaintiff’s ability to file motions in this matter without prior Court approval.”
Passenger must plead notice of the dangerous condition she asserted—the combination of a wet ramp with the absence of handrails to stop her fall when she slipped; Delgado v. MSC Cruises S.A., No. 0:25-cv-60633, 2025 U.S. Dist. LEXIS 195543 (S.D. Fla. Oct. 1, 2025) (Smith).
Claudia Delgado, a passenger on the MSC SEASHORE, slipped and fell while walking on a wet or slippery pedestrian ramp with no handles or handrails. She brought this suit against the cruise line in federal court in Florida, asserting a single count for “Premises Liability” that the absence of handrails or handles on the ramp prevented her from being able to catch herself before falling to the floor. The cruise line moved to dismiss the complaint on the ground that the premises liability claim was based on Florida law, not maritime law. Judge Smith looked at the allegations, not the title, and answered that Delgado had pleaded the elements of a direct claim for maritime negligence. However, the allegations of notice were insufficient. Delgado argued that she did not have to plead notice when the complaint asserted that the cruise line created the dangerous condition (the design choice to exclude handrails on the ramp). Judge Smith explained that the pleading claimed that the dangerous condition was the combination of the slippery condition with no handrails. Thus, the mere allegation that the cruise line knew or should have known of the dangerous condition was insufficient under Iqbal and Twombly, and Judge Smith dismissed the complaint with leave to file an amended complaint (adding that Delgado should consider in the amended complaint the propriety of combining claims for negligent failure to maintain, negligent failure to warn, and negligent design in a single count).
Uberrimae fidei applies to all material facts, regardless of whether they relate to the nature of the loss, and failure to disclose auto driving record during telephonic application for insurance on boat resulted in holding that the policy was void ab initio; Garcia v. GEICO Marine Ins. Co., No. 8:24-cv-1609, 2025 U.S. Dist. LEXIS 195143 (M.D. Fla. Oct. 2, 2025) (Mizelle).
In November 2022, Luis Garcia applied for marine insurance with GEICO for his Sea Hunt Gamefish. Agent Spencer Gray took his call and input the information into GEICO’s system, which generated an application. Neither Gray nor Garcia signed the application, and GEICO issued a marine insurance policy. In August 2023, a fire destroyed the boat while it was sitting in a carport at Garcia’s home. Garcia filed a claim, and GEICO’s investigation revealed “a checkered driving history” for Garcia in the years preceding his application for insurance. GEICO rescinded the policy ab initio due to material misrepresentation or omission of facts, refunded his premiums, and denied the claim. Garcia brought suit against GEICO in state court in Hillsborough County, Florida, and GEICO removed the case to Florida federal court based on diversity. The parties filed cross-motions for summary judgment, presenting the questions whether Garcia was affirmatively required to disclose the facts related to his driving history and claims, whether the driving history and claims were material, and whether he disclosed them. Garcia argued that the maritime doctrine of uberrimae fidei did not apply because the seaworthiness of his vessel was not in question. Judge Mizelle disagreed, answering that uberrimae fidei requires that the insured affirmatively disclose all material facts that are, or ought to be, within his knowledge regardless of whether they relate to the seaworthiness of the vessel or its condition or use on the water, noting that Garcia cited no authority “supporting his theory that whether the uberrimae fidei doctrine applies depends on the nature of the loss.” Judge Mizelle also rejected the argument that Garcia’s driving and claims history was not material, citing GEICO’s underwriting policy and agreeing that “a prospective insured’s care in operating and maintaining a land-based motor vehicle is likely indicative of his care in operating and maintaining a boat.” Garcia argued that he assumed GEICO Marine had access to his driving history because GEICO insured his auto for many years. However, he did not introduce evidence that the auto division knew of his driving record or how that information, if known to the auto division, would be imputed to the marine division. As the information was material, Judge Mizelle held that uberrimae fidei required Garcia to disclose it (even if GEICO did not inquire into the material facts). Finally, Garcia claimed that he was not asked any questions regarding traffic violations or claims, and there was a fact question whether he failed to disclose the information. However, in his examination under oath in October 2023, Garcia stated that he did not remember whether Gray asked him about his driving record. Judge Mizelle concluded that Garcia had failed to undermine the application, “the only piece of evidence indicating what Garcia said during his application phone call,” and he granted summary judgment that the policy was void ab initio and that GEICO lawfully rescinded the policy.
Owner of yacht who did not haul the vessel out of the water in advance of a hurricane increased the hazard as a matter of law, but there was a fact question whether the failure was within the control of the owner in the owner’s suit against the vessel’s insurer; Knight v. Markel American Insurance Co., No. 2:24-cv-592, 2025 U.S. Dist. LEXIS 195977 (M.D. Fla. Oct. 3, 2025) (Steele).
Markel American Insurance insured a 57-foot Carver Voyager motor yacht owned by the Knight Living Trust. The vessel, which was moored at The Marina at Edison Ford in Lee County, Florida, was a total loss after Hurricane Ian, and Markel denied the claim because of non-compliance with the haul-out provision in the policy. Scott P. Knight, trustee of the Trust, brought suit against Markel American Insurance in state court in Lee County, Florida. After conducting discovery to obtain jurisdictional facts, Markel American removed the case to federal court in Florida based on diversity jurisdiction and admiralty jurisdiction, and Knight moved to remand the case on the ground that it was not removed within 30 days. Judge Steele upheld the removal and noted that the case fell both within the court’s admiralty and diversity jurisdiction. As there were two viable bases for jurisdiction, Judge Steele addressed whether the case would proceed at law. As Knight’s pleadings in both state court and his amended complaint in federal court did not designate the case as arising in admiralty, and as there was jurisdiction based on diversity, Judge Steele agreed that the case would proceed at law. See September 2024 Update.
Markel moved to dismiss Knight’s amended claim, and Knight argued the denial (based on the haul-out provision) was improper because the failure to haul out the vessel did not increase the risk of loss by any means within the control of the insured (citing the Florida statute that provides that a breach of a policy warranty or condition does not void the policy unless the breach increased the hazard by a means within the control of the insured). As the parties disagreed whether the failure to haul the vessel out of the water increased the hazard to the vessel and whether an increased risk was within the control of the insured, Judge Steele held that Knight had stated a plausible cause of action under the Florida statute. Similarly, Judge Steele held that Knight had pleaded a plausible theory for liability with the allegation that the haul-out provision violates the public policy of Florida, allowing Knight to endeavor to establish such a public policy for marine insurance policies. Therefore, Judge Steele denied the motion to dismiss. See July 2025 Update.
Markel then moved for summary judgment. In response, Knight set forth the efforts he took to haul out the vessel. Before the windstorm warning was issued, he tried to find a marina that would haul out the vessel upon issuance of a windstorm warning. All the facilities required he join the storm haul-out list, but the lists were all full, and the facilities were not accepting new vessels onto their lists (the waitlists were hundreds of vessels long). When the windstorm warning was issued, the vessel was moored at a marina that did not have haul-out capability. Knight contacted Captain Jason Dunwoody, who found no location willing to haul out the vessel, and he advised that moving the vessel was not an option. Applying the Florida anti-technical statute, Judge Steele agreed that the failure to haul the vessel out of the water increased the danger of sinking, rejecting Knight’s argument that the vessel would not have fared any better on land. He answered that Knight’s argument “addresses the wrong question. The question raised by the statute in this case is whether Plaintiff’s failure increased the Vessel’s danger of sinking, not whether the Vessel could have avoided damages if Plaintiff had complied with the Provision.” Judge Steele then considered whether the breach increased the hazard “by any means within the control of the insured.” Markel argued that “control” means control over the insured property; however, Knight argued that “control” must be over the breaching conduct. Judge Steele agreed with Knight that the “text, context, and structure” of the statute indicate that it is control of the breach that matters. He also found a genuine issue of fact whether the failure to haul the vessel out of the water was within Knight’s control. Finally, Knight argued that public policy prohibited requiring vessel owners to remove their vessels from marina slips when a windstorm is approaching because “lives and safety are placed before the interests of protecting property” (citing cases holding that public policy in a statute applicable to marinas prevented marinas from requiring the removal of vessels upon the issuance of hurricane warnings). Judge Steele answered that there was no indication that the public policy applied to insurance companies or that it should be extended to outweigh Florida’s strong public policy favoring freedom of contract. Therefore, he held that the issue of whether the failure to haul the vessel out of the water was within the control of Knight would be determined by a jury.
District Judge continued to apply the test for the seaman exemption from overtime under the FLSA after Loper Bright’s overturning Chevron deference, and there was a fact question whether a cook on a liftboat was a seaman under the FLSA; Judge certified a class of crewmembers of the liftboats who performed a substantial amount of non-seaman work; Breaux v. Alliance Liftboats LLC, No. 2:24-cv-1000, 2025 U.S. Dist. LEXIS 197220, 197797 (E.D. La. Oct. 6, 2025) (Morgan).
Patrick Breaux, a cook on the L/B MIAMI, owned by Alliance Liftboats, was paid a day rate for his work, regardless of the number of hours he worked in a week. Alliance argued that he and other workers who were not involved in the operation of the vessel as a means of transportation were exempt from overtime under the Fair Labor Standards Act. Breaux brought this suit against Alliance in federal court in Louisiana and sought to certify a class of crewmembers who were classified by Alliance as exempt from overtime. Alliance moved for summary judgment that Breaux is exempt from overtime as a seaman under the FLSA. Judge Morgan noted that the Fifth Circuit has formulated a two-part test to determine if a worker is a seaman under the FLSA exemption—the employee is subject to the authority, direction, and control of the master; and the employee’s service is primarily offered to aid the vessel as a means of transportation, provided that the employee does not perform a substantial amount of different work (more than 20% of the time worked by the employee during the workweek). Alliance argued that Breaux’s work was imperative to the vessel’s ability to safely transport people and equipment. Alliance cited the Fifth Circuit’s Adams II decision, explaining that whether a cook is a seaman or not depended on whether the cook is feeding FLSA seamen: “If the cook is feeding FLSA seamen, the cook is an FLSA seaman.” (See March 2021 and October 2021 Updates). The Fifth Circuit instructed that “a cook who spends more than roughly 20 percent of his time cooking for . . . crew members who are non-exempt seamen[] has spent a ‘substantial’ amount of time on differing work.” Applying the instruction from the Fifth Circuit, Judge Morgan held that Alliance had failed to establish the amount of time its employees spend doing work that aids its liftboats as a means of transportation as opposed to different work. Therefore, summary judgment was not appropriate under Fifth Circuit precedent. Alliance argued that Adams II’s reliance on Department of Labor regulations was no longer controlling based on the Supreme Court’s overturning of Chevron deference in Loper Bright (see July 2024 Update). Judge Morgan disagreed, reasoning that the Fifth Circuit has long looked to Department of Labor regulations because the meaning of seaman is undefined in the FLSA, and the regulations have “remained consistent over time.” And even if Loper Bright required overturning of Adams II, there would still be a fact question based on the Fifth Circuit’s interpretation of the exemption prior to the regulation (whether the dominant work performed by the employee is nautical or of a different nature). Judge Morgan then certified a class for the crewmembers on Alliance liftboats “who performed a substantial amount of non-seaman work, yet were misclassified as exempt from overtime.”
Florida Judge declined to vacate garnishment of amounts held in London bank by cruise line that are owed to foreign excursion operator (in suit brought by passenger who was injured during an excursion to the Isle of Capri) or to dismiss the passenger’s suit based on forum non conveniens or comity and also held that the complaint sufficiently alleged notice of the hazardous condition on the ferry; California Magistrate Judge recommended dismissal of the garnishment of funds owed by a cruise line to the excursion operator that were held in the London bank; Buesking v. Aloschi Bros. SRL, No. 1:25-cv-20454, 2025 U.S. Dist. LEXIS 197289 (S.D. Fla. Oct. 6, 2025) (Altonaga); Buesking v. Princess Cruise Lines, Ltd., No. 2:24-cv-4935, 2025 U.S. Dist. LEXIS 199660, 199662 (C.D. Cal. Oct. 6, 2025) (Donahue).
Daryel Buesking, a passenger on the ENCHANTED PRINCESS, was injured during an excursion from Naples, Italy to the island of Capri when he tripped over an obstacle on the ferry (believed to be a bulkhead door threshold). Asserting that the ferry was overcrowded with passengers who were instructed to board at the same time in a chaotic process, Buesking brought his first suit in federal court in California against the cruise line, the excursion operator, and the on-site tour operator. His complaint alleged three causes of action against the cruise line--general negligence, negligent failure to warn, and agency liability for the negligence of the excursion operator. The cruise line moved to dismiss the allegations against it, first arguing that the Passage Ticket Contract contained a provision disclaiming liability for shore excursions. The cruise line argued that the Contract was incorporated into the complaint because the complaint alleged that the action was brought in federal court in accordance with the forum-selection clause of the Contract. Judge Almadani disagreed, reasoning that the contract was not required for the passenger to state a claim for negligence for breach of a duty owed to a passenger and noting that it was the cruise line which submitted the terms of the Contract as a defense. Judge Almadani added that the Contract was not authenticated. Accordingly, she declined to dismiss the complaint based on the shore-excursion liability disclaimer in the Contract. The cruise line also moved to dismiss the allegations of general negligence and failure to warn on the ground that the complaint failed to allege facts establishing that the cruise line should have known that the ferry would be unreasonably crowded or that there was an unreasonably dangerous unmarked threshold on the ferry. Judge Almadani agreed that the cruise line’s knowledge of the number of passengers on the excursion from its sale of tickets did not establish knowledge of the cruise line of overcrowding as there was no notice of the capacity of the ferry or the number of passengers from the general public who would be on the ferry. Judge Almadani also did not find notice from the initial approval process for the excursion and annual inspections as the facts did not correspond to the particular ferry or the date and conditions of this particular trip. She explained: “The incident alleged here involved a variable condition at an excursion location. This distinction matters because the former context requires more factual content than the latter to support a reasonable inference of actual or constructive notice.” Similarly, Judge Almadani found insufficient notice of the risk of the unmarked threshold, reasoning that the passenger would need to allege facts to support the inference that the cruise line undertook “the duty to structurally inspect for every conceivable hazard on every conceivable means of conveyance that the tour operator might have used to transport tour participants to the island of Capri.” Therefore, Judge Almadani dismissed the counts involving negligence and failure to warn, but allowed Buesking leave to amend. See April 2025 Update.
Buesking added allegations related to the cruise line’s notice of the overcrowding conditions, and the cruise line moved to dismiss the amended complaint, arguing that Buesking still failed to plausibly allege that the cruise line had notice of the overcrowding. Although Buesking alleged that the initial approval process of the tour and yearly inspections should have discovered the crowded conditions, Judge Almadani found too many logical gaps in the theory to support an inference that the same or similar overcrowding that caused the injury in this case existed during prior inspections. Buesking also argued that because the cruise line was in privity with the tour, it should have known of the exact number of planned passengers on the ferry; however, Judge Almadani responded that the tour operator was a purchaser of tickets and had no reason to know the total number of passengers on the ferry. Buesking argued that the cruise line’s website advice to passengers that the boarding area in Capri could be busy and that it would vary the tour times to avoid overcrowding reflected notice to the cruise line that the ferry would be overcrowded. However, Buesking was injured while aboard the ferry in Naples, not at the boarding area in Capri. Judge Almadani reasoned that knowledge that Capri is a popular and crowded ferry destination does not show that the cruise line knew that the ferry to Capri would be overcrowded. Similarly, customer reviews complaining of the congested conditions on Capri did not give notice of the conditions on the ferry to the island. Finally, Buesking alleged that the tour operator and excursion operator were agents of the cruise line so that their negligence would be imputed to the cruise line. The problem with that theory was that Buesking did not prove notice on the part of the agents. Therefore, there was no negligence to impute to the cruise line. Accordingly, Judge Almadani again dismissed the complaint. The dismissal was with prejudice except that Judge Almadani allowed Buesking an opportunity to correct the deficiency with respect to the agency claim. Buesking filed a notice of appeal from the dismissal on June 5, 2025. See August 2025 Update.
Meanwhile, Buesking brought another suit in federal court in Florida against the Italian operators of the ferry, SNAV S.P.A. and Aloschi Bros. SRL, and sought to garnish funds owed to the defendants by Carnival, Royal Caribbean, and Celebrity pursuant to Supplemental Rule B. The cruise line garnishees moved to vacate the garnishments, arguing that the garnished property is located outside the federal court in Florida and that the proper forum for the suit is either Italy or California. Buesking responded that the cruise lines did not have standing to invoke Supplemental Rule E to challenge the garnishments because they do not have an interest in the garnished funds, which belong to Aloschi Bros., because the funds have not yet been attached, and because the cruise lines have not yet filed answers or responses to discovery requests on the amount of property held. Chief Judge Altonaga disagreed, reasoning that the garnishments were effective upon service and that the cruise lines could invoke Rule E as the owner of the garnished funds (a party need only claim an interest in the attached property, and the cruise lines held and controlled the funds). Chief Judge Altonaga then addressed whether the requirements of Rule B were satisfied in this case. The cruise lines argued that the funds are not physically located in Florida and that they are in bank accounts in the United Kingdom awaiting wire transfer to Aloschi in Italy. Buesking argued that the cruise lines had constructive possession of the funds in the Florida district. Buesking cited Florida law that electronic funds are located where they are constructively possessed and that constructive possession of intangible property is sufficient to give the court jurisdiction in the domicile of the owner of the property. Chief Judge Altonaga distinguished cases involving garnishment of a defendant’s funds in banks where the funds are located outside the state because constructive possession is not at issue with banks. Chief Judge Altonaga rejected application of the Second Circuit decision in Allied Maritime, holding that funds held by a garnishee bank in its Paris branch were located only in Paris, despite the bank’s New York branches, as that decision involved New York law and involved the distinguishable fact that the garnishee was a bank. In contrast, the garnishees in the present case (cruise lines) are the nominal owners of the funds in the accounts and are the entities with control over (constructive possession) of the funds. Therefore, Chief Judge Altonaga held that Buesking had established that the funds belonging to the cruise lines were in the Florida district for purposes of Rule B. Finally, the cruise lines asserted that under principles of equitable vacatur, either Italy or California would be a more appropriate forum. Chief Judge Altonaga did not believe that the cruise lines gave convincing reasons why Buesking’s choice of litigation in Florida was inequitable, and she added that there was a compelling reason for parallel litigation as the only garnishee in California was Princess, which owed less than $100,000, which was paltry for Buesking’s claim of a catastrophic spinal-cord injury. Therefore, Chief Judge Altonaga declined to vacate the Rule B garnishments. See October 2025 Update.
Chief Judge Altonaga then addressed the motion of Aloschi Bros. and SNAV to dismiss the Florida suit for multiple reasons. The defendants argued that the court lacked admiralty jurisdiction because the incident occurred in Italy on an Italian ferry flying the Italian flag (arguing that the locality rule was not satisfied for a tort in the territorial waters of a foreign nation). Chief Judge Altonaga rejected the argument and concluded that the locality and nexus requirements were satisfied so that the court had admiralty jurisdiction. She then considered the personal jurisdiction over the defendants, rejecting the argument of Aloschi that it lacked minimum contacts with Florida, explaining that minimum contacts are supplied by the Rule B attachment. The decision was different, however, with respect to SNAV as the garnishees never held any property of SNAV. Without minimum contacts or property in the district, SNAV was not subject to personal jurisdiction, and Chief Judge Altonaga dismissed it from the suit. Aloschi next argued that the case should be heard in Italy based on forum non conveniens and international comity. Buesking argued that Italy was not an adequate forum because the case was time-barred under Italian law. Chief Judge Altonaga agreed and declined to dismiss the case because relief is not available in Italy. With respect to comity, Aloschi argued that Italy has primary responsibility for maritime accidents in Italian waters and that proceeding with the case in Florida risked creating conflict between American and Italian legal standards. Chief Judge Altonaga reasoned that comity is most often applied retrospectively with respect to parallel foreign proceedings. As there is no foreign proceeding, and as the United States has a strong interest in ensuring that its citizen is able to pursue his claims in the United States, Chief Judge Altonaga did not believe that Aloschi met the high threshold necessary to obtain relief prospectively based on comity. Finally, Aloschi argued that Buesking failed to state a claim against Aloschi. Buesking alleged that Aloschi failed to inspect the vessel for tripping hazards, failed to warn of the tripping hazard, failed to prevent overcrowding, and failed to coordinate the boarding process in light of the crowded conditions. Aloschi answered that it did not own the vessel, did not manage the passenger manifests, did not oversee crowding, and had no authority to alter vessel operations. However, the complaint alleged that Aloschi created the dangerous condition by instructing hundreds of passengers to board the ferry at the same time, resulting in the chaotic boarding process that made it difficult to identify hazards on the vessel. Based on the allegation that Aloschi created a foreseeably hazardous condition, it was not necessary to plead notice. Therefore, Chief Judge Altonaga declined to dismiss the complaint against Aloschi.
Buesking sought to obtain jurisdiction over Aloschi in the California suit with a garnishment of funds owed to Aloschi by Princess Cruise Lines, asserting that Princess owed Aloschi 86,087 Euros, and the funds were held by Princess in a bank in London. Buesking argued that the money was located in the district in California because Princess is within the district and had constructive possession of the funds. Aloschi moved to vacate the attachment and to dismiss the suit against it for lack of personal jurisdiction, and Princess separately moved to quash the attachment. Aloschi (and Princess) argued that it is the location of the property, not the garnishee, that is dispositive and that there were no funds held by Princess at the time of the service of the writ of garnishment. Buesking argued that the writ sought “past, present and future earnings” and that the funds were owed and in the possession of Princess after the service of the summons but before Princess filed its motion to quash. Magistrate Judge Donahue distinguished cases allowing attachment of a matured debt or a fixed rate under a contract that is not executory. In this case, Princess Lines must first sell excursions to its passengers, and then Princess remits funds to Aloschi. Therefore, Magistrate Judge Donahue did not believe that the after-acquired funds were attachable. Additionally, Magistrate Judge Donahue concluded that the funds held in a London bank were not constructively located within the district. Magistrate Judge Donahu noted that the courts have differed in their treatment of attachment of funds in foreign bank accounts; however, he followed authority in the Ninth Circuit requiring the property be found within the district. Therefore, he recommended that the attachment be vacated and the complaint against Aloschi be dismissed for lack of jurisdiction.
Passenger failed to sufficiently plead notice to the cruise line of the hazardous condition of liquid on the floor near an unattended beverage stand on the cruise ship; Gibson v. MSC Cruises S.A., No. 1:25-cv-22517, 2025 U.S. Dist. LEXIS 198638 (S.D. Fla. Oct. 7, 2025) (Martinez).
Retia Gibson, a passenger on the MSC DIVINA, slipped and fell on a liquid substance on the floor near an unattended beverage stand on the vessel. She brought this suit against the cruise line in Florida federal court, claiming that the cruise line was negligent in the design and construction of the flooring, negligent for failure to warn of the hazard, and negligent in maintaining the area. The cruise line moved to dismiss the complaint for failure to adequately allege notice, and Gibson cited five theories to establish notice. Judge Martinez rejected each of the assertions and dismissed the suit with leave to file an amended complaint. Gibson stated that the water was dirty, reflecting that it had been previously walked through and that it had been present for a sufficient time to give notice to the cruise line. Judge Martinez answered that the barebones allegation that the water was dirty was insufficient to establish notice. Gibson alleged that a crewmember was in the area when she fell, but that statement did not establish how the cruise line was aware of the dangerous condition or that it should have corrected it. Gibson claimed that the cruise line operates many substantially similar public areas and knows that passengers frequently traverse these areas, causing water and other slippery substances to accumulate on the floor. Judge Martinez responded that general notice of a potential hazard does not prove that the cruise line was on notice of the particular spill that caused Gibson’s injury. Gibson cited to complaints of passengers slipping on liquid near beverage stands on the DIVINA and other ships, but she did not allege facts to support similarity, such as the type of substance, the length of time it was present, whether crewmembers were present, and whether it was the same beverage stand. Finally, Gibson alleged that the cruise line created, participated in, and/or approved the design of the flooring, knowing that it was unreasonably dangerous when wet. However, Judge Martinez answered that general notice that floors become slippery when wet does not establish notice of the particular spill: “Simply because a hazard is foreseeable does not mean that a defendant is on notice of that potential hazard.”
Magistrate Judge allowed Rule 14(c) impleader for indemnity (contractual) and contribution in tort suit as it would promote judicial economy and efficiency; Integral Consulting Inc. v. Continental Shelf Associates Inc., No. 1:24-cv-428, 2025 U.S. Dist. LEXIS 199964 (D. Me. Oct. 9, 2025) (Wolf).
Integral Consulting, which provides submersible equipment and expertise to the undersea and offshore drilling and exploration industries, contracted with AECOM to provide a Sediment Profile and Plan View Imaging camera (and on-scene expert) to collect data in Machias Bay, Maine. AECOM separately contracted with Continental Shelf Associates to provide the research vessel DOLPHIN with a winch to transport and deploy the camera. Continental deployed the camera, but the camera’s tether became entangled, and the camera was ultimately a total loss. Integral brought this suit in federal court in Maine against Continental, asserting claims for maritime negligence, unjust enrichment, quantum meruit, and maritime bailment. Integral premised jurisdiction on admiralty within the meaning of Rule 9(h) and diversity. Continental then sought to file a third-party complaint and tender under Rule 14(c) against AECOM (and the Conservation Law Foundation), seeking contribution and indemnity because AECOM selected the location and failed to timely retrieve the camera while the Continental vessel was on standby for two weeks. Integral opposed the third-party action, arguing that it would complicate and delay the case, transforming a negligence case into a contractual dispute. Magistrate Judge Wolf noted as a threshold matter that contribution and indemnity claims involving joint tortfeasors generally fall within the ambit of Rule 14(a) and were facially colorable. She also reasoned that impleading AECOM would not cause undue delay. She recognized that the impleader would introduce a contractual dispute, but she answered that the claims were primarily based on the same facts as the underlying negligence action. Thus, granting leave would promote judicial economy and efficiency by allowing the related claims to be tried in the same case. Accordingly, she granted leave to file the third-party complaint.
Judge dismissed federal declaratory judgment action brought by seaman’s employer after the seaman brought suit in state court, and the Judge also dismissed the employer’s purported interpleader of cure benefits; M/V Big Ben, LLC v. Antunez, No. 1:25-cv-146, 2025 U.S. Dist. LEXIS 200151 (S.D. Ala. Oct. 9, 2025) (Steele).
Miguel Leon Antunez, a resident of Cameron County, Texas, claims that he suffered injuries while serving as captain of the shrimp boat BIG BEN, which is owned by Big Ben, LLC and which is based out of Bayou La Batre, Alabama. He brought suit against Big Ben under the Jones Act and general maritime law in Texas state court in July 2024, but he nonsuited the case without prejudice in January 2025 shortly before a scheduled hearing on personal jurisdiction. He then filed a substantively identical action in Alabama state court in July 2025. However, in April 2025, Big Ben brought this suit in federal court in Alabama (based on admiralty jurisdiction), seeking a declaration that it is not responsible for maintenance and cure as well as a declaration of its rights under the Jones Act and general maritime law. Big Ben also sought to interplead the full value of any maintenance and cure benefits that it may owe and to make defendants in the interpleader any healthcare provider, insurer, or other person or entity that may claim a right or interest in those benefits. Antunez moved to dismiss or to abstain and stay the federal suit. The procedural posture of the case did not involve a situation in which the Jones Act employer raced to federal court for forum shopping. The federal suit was brought only after the suit in state court had been dismissed and no state action was pending. Nonetheless, principles of federalism and comity and considerations of efficiency supported dismissal of the federal action (Judge Steele concluded that the result was “not close”). Therefore, he agreed to dismiss the declaratory judgment action. As for the interpleader, Judge Steele ruled that it should be dismissed because it did not name competing claimants for the money (only vaguely listing medical providers and persons with a right to the amount), did not deposit any money (or bond), and did not sufficiently plead subject matter jurisdiction.
Judge declined to dismiss suit by transportation intermediary against cargo shipper for unpaid detention/demurrage charges for lack of underlying invoices, but the Judge dismissed the shipper’s counterclaim for damages because it was untimely under the 12-month period in the bills of lading; Transfair North America International Freight Services, LLC v. Top Shelf Manufacturing, LLC, No. 2:24-cv-1387, 2025 U.S. Dist. LEXIS 200528 (W.D. Wash. Oct. 9, 2025) (Jones).
Transfair, which is a transportation intermediary that coordinates delivery of cargo by ocean, truck, and rail, was engaged by Top Shelf Manufacturing (d/b/a Edsal Sandusky) to deliver cargo from Asia to Edsal’s warehouses in Chicago (through the Port of Vancouver). Transfair billed Edsal $934,133.84 for detention/demurrage (the ports on the West Coast were congested and shipments were delayed). Edsal asked for backup documentation and declined to pay Transfair without the documentation. Transfair filed suit against Edsal in state court in King County, Washington, alleging claims for open book account, account stated, and quantum meruit. Edsal removed the case to federal court based on federal question under 49 U.S.C. Section 80101, et seq., and 49 U.S.C. Section 14705(a), and Edsal asserted a counterclaim that Transfair caused the delays and breached its duty of care as well as an affirmative defense of setoff (for lost sales and profits). Transfair responded to the counterclaim with a motion for summary judgment that the counterclaim was filed more than two years after the last cargo shipment, which was untimely under the 12-month limitation period in the bills of lading. Although there were several documents between the parties, the bills of lading stated that their terms superseded other applicable agreements. Accordingly, Judge Jones held that the counterclaim was time-barred. Although Transfair did not move for summary judgment on the setoff defense, Judge Jones reasoned that the defense required that Edsal prevail on its counterclaim in order to obtain a setoff. As Edsal could not establish that it was owed a debt from Transfair, Judge Jones ruled that Edsal was not entitled to a setoff. Edsal also moved for summary judgment, arguing that Edsal was not required by the parties’ contract to pay the detention/demurrage charges and that Transfair did not present sufficient evidence to support the charges. Reasoning that Edsal was covered by the provision in the bills of lading requiring the “Merchant” to pay for “freight and all other charges,” Judge Jones held that Edsal was responsible for detention/demurrage charges. Although Transfair did not produce the underlying invoices for the disputed amounts, Judge Jones found a fact question whether the amounts were owed based on its invoices and testimony of its officer as to the payment of the underlying invoices.
Jones Act suit was removable to federal court based on its relation to a bankruptcy proceeding, and the federal court did not have to abstain because it had original admiralty jurisdiction; Nichols v. Whitney Oil & Gas, LLC, No. 2:25-cv-533, 2025 U.S. Dist. LEXIS 200927 (E.D. La. Oct. 10, 2025) (Brown).
Joshua Nichols was employed by a contractor of Whitney Oil & Gas. While investigating a gas lift line leak from his “mud boat” (pro-drive boat) in Garden Island Bay, Louisiana, Nichols was killed in an explosion. Nichols’ beneficiaries brought suit against Whitney in state court in Orleans Parish, Louisiana based on Louisiana law and the Jones Act/general maritime law, and Whitney removed the action to federal court on the basis that the claims related to a pending bankruptcy proceeding. Although the beneficiaries argued that the claims did not have a sufficient connection to the bankruptcy estate because they arose from post-petition conduct, Whitney responded that the claims may give rise to administrative expense claims or trigger contractual indemnity obligations under an asset purchase agreement executed during the bankruptcy. Judge Brown found the relationship to be sufficient, and she then addressed whether the federal court must abstain because the claim had no independent basis for federal jurisdiction. As the tort occurred on a vessel on navigable waters, Judge Brown concluded that there was an independent basis for federal jurisdiction (admiralty) [compare this to the transformation argument that “when a maritime claim is filed in state court under the Savings [sic] to Suitors Clause, it is transformed into a case at law, as opposed to admiralty. The federal district courts thus do not have original jurisdiction under the Savings [sic] to Suitors Clause . . . .”]. The beneficiaries argued that a case brought in state court under the Saving-to-Suitors Clause may not be removed based on admiralty jurisdiction, but Judge Brown answered that the case was not removed based on admiralty jurisdiction (it was removed because it related to a bankruptcy proceeding). Noting that the owner/operator of the Pro-Drive Boat had filed a limitation action in the same federal court, Judge Brown found that permissive abstention was not appropriate. Accordingly, she denied the motion for remand (and the request for abstention).
Cruise line that was accused of overserving alcohol to passenger who fell from his balcony was not permitted to contractually absolve itself of negligence; however, the cruise line was not liable for overserving alcohol because it was not on notice of the passenger’s intoxication, because the passenger failed to establish proximate causation (it could have been his drug use that caused the fall), and because the passenger admitted that the crew would not have realized he was intoxicated; Masse v. MSC Cruises, S.A., No. 0:24-cv-61121, 2025 U.S. Dist. LEXIS 201092 (S.D. Fla. Oct. 10, 2025) (Damian).
Justin Masse, a passenger on the MSC MERAVIGLIA, was injured when he fell (or jumped) from his stateroom balcony to a deck seven stories below. Masse purchased the “Easy Plus” drink package, giving him unlimited access to many types of alcoholic beverages. He was served around 40 standard alcoholic drinks during the 24-hour period prior to his injury, but it was not clear whether the drinks were consumed by Masse or someone else. Masse has no recollection of how he got over the balcony railing, but he testified that when he drinks he “tends to drink to excess” and “will occasionally black out.” Masse also admitted that he smoked marijuana during the period before his fall, and, when he was taken to the hospital, he tested positive for cannabinoids and fentanyl, and his blood alcohol level was 0.152 (6 hours after his last drink). Masse brought this suit against the cruise line in federal court in Florida, asserting a single claim of negligence that the cruise line encouraged over-serving of alcohol for financial gain without regard to the resulting injuries. The cruise line moved for summary judgment, and Judge Damian noted at the outset that the single negligence count was improperly pleaded to include 18 ways in which the cruise line breached its duty of care. As the time had passed to challenge the pleading, Judge Damian commented that the task of reviewing the motion for summary judgment was “particularly difficult” and “administratively burdensome” because the cruise line was “attempting to assert bases for judgment as a matter of law directed at a myriad of theories of liability.” Although Masse’s complaint contained allegations with respect to the construction of the balcony railing, the railing met or exceeded safety regulations, and Masse abandoned this claim. Therefore, Judge Damian focused on the assertions of direct liability and vicarious liability for overserving alcohol. The cruise line argued that the terms and conditions of the Passage Contract and Booking Terms and Conditions signed by Masse before boarding the ship as well as Florida’s reverse dramshop law absolved the cruise line of liability based on his alcohol consumption. Judge Damian rejected the argument, however, based on the federal statute, Section 30527(a)(1), which prohibits limiting liability for negligence for vessels transporting passengers involving a port in the United States. The cruise line next argued that there could be no vicarious liability for the acts of crewmembers in serving him too much alcohol as he testified that he, and no one else, was responsible for how much alcohol he drank on the cruise. Judge Damain agreed, stating that “to the extent Masse’s negligence claim is based on a theory that MSC is vicariously liable based on its employees serving him too much alcohol, he has not demonstrated a genuine issue of material fact on this claim because he admits that no MSC employee was responsible for his overconsumption of alcohol.” That left the claim of direct liability. Judge Damian found no actual notice of Masse’s dangerous intoxication, citing Masse’s testimony that a person looking at him in the bar would not know that he was drunk. As to constructive notice, Masse argued that the cruise line should have known that he was intoxicated from his conduct outside of the bars on the ship, noting that he fell asleep at the dinner table and was swaying and staggering in the hallways. Judge Damian agreed that there was sufficient evidence that he was intoxicated, but the evidence did not establish that his intoxication was so pronounced that the cruise line should have realized he was a danger to himself (again noting his testimony about his not appearing intoxicated when he was in the bars). Therefore, his direct negligence claim did not survive summary judgment. Judge Damian also considered proximate cause and held that a jury could not reasonably conclude that it was the overconsumption of alcohol, as opposed to his drug use. Finally, Masse argued that the cruise line was negligent for the crew’s serving him multiple drinks at a time in contravention of the terms of the bar training manual. Judge Damian answered that, even if there was a duty not to serve multiple drinks at a time, the question was not whether the cruise line served him too many units of alcohol at a time. The question was whether the cruise line was on notice that he was dangerously intoxicated. Therefore, Judge Damian held that Masse would take nothing.
Passenger’s allegations that crewmembers were present in the area where the passenger slipped and that the dangerous condition was within their line of sight were insufficient to establish notice; Long v. MSC Cruises S.A., No. 1:25-cv-22757, 2025 U.S. LEXIS 201140 (S.D. Fla. Oct. 10, 2025) (Dimitrouleas).
Clyde Long, a passenger on the MSC SEASHORE, slipped and fell on a slippery substance as he was passing through the sliding glass doors to the exterior deck of the ship near the Market Place Buffett. Long brought this suit against the cruise line in federal court in Florida with counts for negligent failure to warn, negligent failure to maintain, and general negligence. The cruise line moved to dismiss the counts, alleging that Long failed to sufficiently allege notice. Long responded that he had pleaded that there were crewmembers working in the area that saw or should have seen the dangerous condition, as it was in their line of vision. Judge Dimitrouleas held that the pleading was not enough, lacking specifics about where the employees were, what their job responsibilities were, or how long the condition was present. Judge Dimitrouleas also rejected Long’s pleading of seven prior cases where passengers slipped and fell on slippery flooring on the cruise line’s ships because the instances revealed nothing about the notice of the particular hazard on which Long slipped. Therefore, he dismissed the suit with leave to file an amended complaint.
Seaman did not establish an unseaworthy condition in the vessel’s winch that was related to his injury, and the Judge declined to grant his motion for summary judgment; In re M/V REBEKAH, Nos. 2:24-cv-237, 2:24-cv-246, 2025 U.S. Dist. LEXIS 201305 (W.D. Wash. Oct. 10, 2025) (Zilly).
Stephen Dufrene was injured on the M/V REBEKAH, which was docked in Louisiana. The vessel was apparently owned by Magazine Tug, which had entered into an agreement to sell the vessel to Foss Offshore Wind Holdings. Foss Offshore had entered into a bareboat charter agreement with Magazine, which subchartered the vessel to Foss Maritime Co. Another entity, Tradewinds Towing, was Dufrene’s employer. Foss Offshore, Foss Maritime, Magazine, and Tradewinds sought to limit liability in federal court in Washington, and they filed claims and counterclaims in the limitation actions. Dufrene, who had brought suit in state court in King County, Washington, filed a claim and asked the court to lift the stay based on the single claim exception. Noting the recent decision of the Ninth Circuit in Live Life Bella Vita (see October 2024 Update), Judge Zilly declined to lift the stay, reasoning that lifting the stay “risks exposing to excess liability any parties that the Limitation Act protects”). Judge Zilly also declined to transfer the case to the United States District Court for the Eastern District of Louisiana, holding that the parties’ choice of forum and the presence of the Foss Entities in Washington favored the litigation remaining in Washington (adding that Dufrene received immediate medical treatment in Louisiana, but he is a Virginia resident). See March 2025 Update.
Dufrene, whose left foot and toes were crushed when they were caught in a winch, filed a motion for summary judgment that the vessel was unseaworthy and the limitation petitions were in privity with the defect in the winch. Dufrene argued that the winch had been repaired after a collision with another vessel about a year before Dufrene’s injury, and the winch had been modified so that the winch’s warping head continuously turned while the winch was in operation. However, Judge Zilly answered that Dufrene did not offer any evidence linking the warping head to his injury. And the vessel defendants cited Dufrene’s testimony that he ordered a co-worker to engage the winch while Dufrene’s foot was in a pinch point (“Q. If you had your foot not quite as close, then this wouldn’t have happened, true? A. Yeah, that’s true, yes.”). Accordingly, Judge Zilly declined to grant summary judgment on the seaworthiness of the vessel, and he did not have to decide whether there was privity.
Evidence of the condition of the barge that sank and the efforts of the insurer to determine the cause of the sinking were sufficient to deny the barge owner’s bad faith claim against the insurer for failure to pay the loss before suit was filed; barge owner provided sufficient evidence to avoid summary judgment on its claim of economic loss from the sinking of the barge; River Assets, LLC v. Knight Towing, LLC, No. 1:23-cv-106, 2025 U.S. Dist. LEXIS 201419 (S.D. Ala. Oct. 10, 2025) (Moorer)
River Assets, which operates barges to transport bulk materials, purchased a 33-year-old spud barge, DM-110, and insured the barge and its equipment on its hull policy with U.S. Specialty Insurance Co. for a value of $1,730,000. A tug operated by Knight Towing undertook a voyage towing four barges (including the DM-110) across Mobile Bay to Orange Beach. During the tow, the DM-110 began topping to port, and the crew of the tug repositioned the DM-110 alongside the front hopper barge in the tow with the DM-110’s transom stern facing forward. The DM-110 then began to take on water and eventually sank in shallow water. River Assets brought this suit in Alabama federal court against Knight Towing and against U.S. Specialty for failing to pay under the hull policy and for bad faith. U.S. Specialty moved for summary judgment that River Assets did not establish that the insurer acted in bad faith and that River Assets failed to prove its economic loss. Judge Moorer began his analysis of the bad faith claim with a determination of the applicable law. He noted that maritime law does not have provisions governing bad faith in a marine insurance context, and he considered state law, applying Alabama law but noting that it would not make a difference whether he applied Alabama law (location of the tow and sinking) or Illinois law (location of River Assets and Knight Towing). Judge Zilly granted summary judgment, reasoning that U.S. Specialty had reasonable and legitimate concerns regarding the seaworthiness of the barge and was actively engaged in the process of investigating the claim at the time the suit was filed. U.S. Specialty also challenged the evidence of economic losses alleged by River Assets as too speculative to justify an award (citing the 11th Circuit’s direction that “something else must be shown than the simple fact that the vessel was laid up for repairs”). Judge Moorer noted that the barge was on its way to Orange Beach where it was to be paid $2.50/ton, and the cost of labor to operate the barge was known. The damages beyond that period were not known, but whether further damages are eventually proven was “immaterial at this juncture.” Judge Moorer held that the evidence was not too speculative or unreasonable to present an issue to the fact finder.
From the state courts
Louisiana appellate court reversed the dismissal of a seaman’s claim for punitive damages for failure to pay maintenance and cure based on disputed medical evidence whether the seaman was entitled to further maintenance and cure; Barnes v. Turn Services, L.L.C., No. 2025-C-0439, 2025 La. App. LEXIS 1724 (La. App. 4 Cir. Sept. 17, 2025) (Atkins).
Christopher O. Barnes asserts that he was employed as a seaman by Turn Services on the vessel M/V SIR BARTON at the Myrtle Grove Midstream Terminal on the Mississippi River. He injured his left wrist and hand while attempting to tie up a barge for towing at the facility and brought this suit against Turn Services in state court in Plaquemines Parish, Louisiana under the Jones Act and general maritime law (including a claim for compensatory and punitive damages and attorney fees “in the event it becomes necessary to pursue collection of maintenance and cure”). Turn Services filed a motion for partial summary judgment that there was no evidence establishing willful and wanton disregard of the obligation to pay maintenance and cure that would entitle Barnes to punitive damages. Turn Services paid maintenance and cure after the accident until Barnes was employed by Alexis Marine and an independent medical examination reflected no issues with Barnes’ wrist. The pre-employment medical examination for Alexis Marine did not indicate any abnormalities with Barnes’ arms and hands, and Barnes denied any limitations that would restrict his work. Barnes worked for Alexis Marine for nearly a year, 12 hours per day, before he complained that he had developed carpal tunnel syndrome. Barnes responded that “return to work does not, in and of itself, terminate his right to maintenance and cure, that he had been diagnosed with carpal tunnel syndrome only 4 months after the accident with Turn Services, that carpal tunnel syndrome can be caused by trauma, and that his symptoms went away after surgery. Judge Connor held a hearing on the motion for partial summary judgment and agreed to dismiss the claim for punitive damages based on the opinion of the independent medical examination: “I think they had the information from their doctor. They relied on it, and whether [Dr. Faust is] ultimately right, goes to the issue of the continuance of maintenance and care. It [does not] rise to the level of punitive damages.” Barnes filed a writ application with the Louisiana Court of Appeal, Fourth Circuit, to review the grant of partial summary judgment, arguing that the jury should have been permitted to decide whether the denial of punitive damages was appropriate for resolution by summary judgment. Writing for the Court of Appeal, Judge Atkins concluded that the “conflicting opinions created a question of fact for determination by the trier of fact as to Mr. Barnes’ entitlement to maintenance and cure benefits and as to whether Turn Services’ termination of same was arbitrary or capricious.” Judge Atkins cited the statement of Judge Connor that Turn Services relied on the opinion from Dr. Faust and responded that it was inappropriate for the judge to make determinations of fact with respect to good or bad faith of an actor on a motion for summary judgment. Therefore, the appellate court granted the writ application and reversed the grant of partial summary judgment on the punitive damage claim.
Kenneth G. Engerrand
President, Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 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 Fourth Circuit has also colorfully explained how difficult it is to meet the third basis for reconsideration. It has said: “As we have noted on more than one occasion, ‘[a] prior decision does not qualify for th[e] third exception by being just maybe or probably wrong; it must strike us as wrong with the force of a five-week-old, unrefrigerated dead fish. It must be dead wrong.’”
Judge Ellen L. Hollander in Bethany Boardwalk Group LLC v. Everest Security Insurance Co., No. 18-cv-3918, 2020 U.S. Dist. LEXIS 225178 (D. Md. Dec. 1, 2020) (quoting U.S. Tobacco Cooperative Inc. v. Big South Wholesale of Virginia, LLC, 899 F.3d 236, 258 (4th Cir. 2018), quoting TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009)), aff’d, No. 20-2319, 2022 U.S. App. LEXIS 29398 (4th Cir. Oct. 21, 2022).
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© Kenneth G. Engerrand, October 30, 2025; redistribution permitted with proper attribution.
