November 2026 Longshore Maritime Update No. 330
Notes from your Updater:
The Update previously reported that Judge Lin of the United States District Court for the Western District of Washington certified a class of dockworkers for a class action in their suit against the Pacific Maritime Association (representing over 70 ocean carriers, stevedoring companies, and marine terminal operators on the West Coast), alleging that the PMA violated Washington law by failing to provide sick leave to members of the International Longshore & Warehouse Union. The class is: “All hourly-paid employees who are covered by a Collective Bargaining Agreement between ILWU and PMA and have worked on a PMA Member jobsite located in the State of Washington at any time since May 29, 2021[.]” See Fowler v. Pacific Maritime Association, No. 2:24-cv-974, 2026 U.S. Dist. LEXIS 140396 (W.D. Wash. June 24, 2026). In separate litigation, unionized California dockworkers brought suit against Pacific Maritime Association and stevedores, terminal operators, and cargo-handling maintenance contractors who employ longshore workers, marine clerks, walking bosses/foremen, and watchmen, alleging that the defendants violated California law and local ordinances by failing to pay them (and a putative class) sick pay. They also argue that the defendants created a $70 million Pandemic Appreciation Pay fund for all dockworkers but excluded Local 26 watchmen in retaliation for complaints filed by watchmen with the California Labor Commission regarding the lack of sick leave. Judge Corley dismissed the sick-leave claims based on ERISA preemption, but she declined to dismiss the retaliation claim involving Pandemic Pay as the defendants had not shown that the plan would fall within ERISA. See Hill v. Pacific Maritime Association, No. 3:24-cv-336, 2026 U.S. Dist. LEXIS 147635 (N.D. Cal. July 2, 2026).
In 2020, Venezuela expropriated assets of the Venezuelan subsidiary of a United States energy company, and the assets are now operated by a state-owned Venezuelan energy company. The American company brought suit in the United States District Court for the District of Columbia, invoking the expropriation exception to the defense of foreign sovereign immunity. The Venezuelan company moved to dismiss the action based on immunity, lack of personal jurisdiction, and the act-of-state doctrine. The district court rejected the defenses and denied the motion to dismiss, and the court of appeals for the D.C. Circuit affirmed. See Helmerich & Payne International Drilling Co. v. Petroleos de Venezuela, S.A., No. 24-7161, 153 F.4th 1316 (Oct. 3, 2025) (Katsas). The Venezuelan company filed a petition for a writ of certiorari with the United States Supreme Court, presenting this question:
The act-of-state doctrine “precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964). In Sabbatino, this Court held that doctrine barred U.S. courts from examining the validity of a Cuban government instrumentality’s claim to funds held in escrow in New York, even though they were attributable to the sale of sugar allegedly expropriated in violation of international law. Id. at 401-407, 428. According to the Court, the fact that the expropriated sugar’s sale proceeds were “brought into this country” did not provide a basis for a U.S. “[j]udicial determination[] of invalidity of [the Cuban government’s] title.” Id. at 431.
In response to Sabbatino, Congress enacted the “Second Hickenlooper Amendment,” which bars a court from applying the act-of-state doctrine “in a case in which a claim of title or other right to property is asserted by any party including a foreign state * * * based upon (or traced through) a confiscation or other taking * * * by an act of that state in violation of the principles of international law.” 22 U.S.C. § 2370(e)(2). That provision “permit[s] adjudication of claims the Sabbatino decision had avoided.” Republic of Hungary v. Simon, 604 U.S. 115, 121 (2025) (citation omitted).
The question presented is:
Whether a claim for damages as compensation for a foreign taking of property triggers 22 U.S.C. § 2370(e)(2)’s exception to the act-of-state doctrine where neither the expropriated property nor any property exchanged for it has entered the United States.
On October 5, 2026, the Court declined to grant a writ of certiorari. See Petróleos de Venezuela, S.A. v. Helmerich & Payne International Drilling Co., No. 25-1256, 2026 U.S. LEXIS 3320 (U.S. Oct. 5, 2026)
The September 2025 Update reported that the Fifth Circuit affirmed the denial of the surety’s claims under state law based on legal subrogation, contribution, and unjust enrichment, applying Louisiana law as surrogate federal law to fill a gap with respect to the right of a surety to seek recovery from third parties after making payment on bonds given to the United States to secure decommissioning obligations of the holder and operator of an offshore oil and gas lease on the outer Continental Shelf. See Lexon Insurance Co. v. Chevron U.S.A. Inc., No. 24-20347, 2025 U.S. App. LEXIS 21221 (5th Cir. Aug. 19, 2025) (Ramirez). Lexon Insurance Co. filed a petition for certiorari with the United States Supreme Court, presenting this question:
The Outer Continental Shelf Lands Act (OCSLA), 67 Stat. 462, 43 U.S.C. § 1331 et seq., extends the “Constitution and laws and civil and political jurisdiction of the United States” to the outer Continental Shelf (OCS), id. § 1333(a)(1)(A), and permits gaps in existing federal law to be filled using state law in limited circumstances, id. § 1333(a)(2)(A). Interpreting that statute, this Court recently made clear that where federal law addresses an issue, state law is “necessarily inconsistent” and “inapplicable” because there is no gap to fill. Parker Drilling Mgmt. Servs., Ltd. v. Newton, 587 U.S. 601, 610, 614 (2019) (OCSLA “does not adopt state law where there is no gap to fill”). And in Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981), this Court observed that the OCSLA makes no distinction between judge-made law and statutory law. Id. at 487–88.
This case raises an issue not presented in Parking [sic] Drilling and not clearly resolved in Gulf Offshore. The question presented is:
Whether long-established federal common law—specifically, a paying surety’s right to equitable subrogation, see Pearlman v. Reliance Ins. Co., 371 U.S. 132 (1962)—is part of the “laws . . . of the United States” extended to the OCS under 43 U.S.C. § 1333(a)(1)(A), precluding the application of inconsistent state law restricting that right.
On October 5, 2026, the Supreme Court declined to grant a writ of certiorari. See Lexon Insurance Co. v. Chevron U.S.A. Inc., No. 26-25, 2026 U.S. LEXIS 3429 (U.S. Oct. 5, 2026).
On October 8, 2026, the Eleventh Circuit vacated the judgment issued by Judge Mendoza of the United States District Court for the Middle District of Florida, granting an injunction requiring the Florida Department of Environmental Protection to apply for an incidental take permit after finding that the Department’s wastewater regulatory scheme was in violation of the Endangered Species Act by damaging manatee habitats of the North Indian River Lagoon (a taking of a listed species, the West Indian Manatee) after the U.S. Fish & Wildlife Service promulgated a new final rule rescinding the rule on which Judge Mendoza relied. The Eleventh Circuit remanded the case for Judge Mendoza to evaluate the effect of the new rule. See Warriors United, Inc. v. Secretary, Florida Department of Environmental Protection, No. 25-11612, 2026 U.S. App. LEXIS 30844 (11th Cir. Oct. 8, 2026) (per curiam).
On October 15, 2026, the Ninth Circuit held that the United States could prosecute Hoang Xuan “Wayne” Le for first degree murder and other crimes for his role in the death of Tri Minh “James” Dao, who drowned in the Pacific Ocean off the coast of Orange County, California, after suffering two gunshot wounds and blunt force trauma to the head during what Doa believed was a lobster-fishing trip, even though his death occurred within three nautical miles from the coast in an area that Le contended was within the exclusive jurisdiction of the State of California. The Ninth Circuit held that the special maritime and territorial jurisdiction of the United States includes the first three nautical miles from shore based on Section 901(a) of the Antiterrorism and Effective Death Penalty Act of 1996. Although the appellate court upheld the authority of the United States to prosecute Le, the court reversed his conviction based on improper replacement of a juror. See United States v. Le, No. 23-1814, 2026 U.S. App. LEXIS 31363 (9th Cir. Oct. 15, 2026) (Friedland).
On October 21, 2026, the Sixth Circuit issued its opinion in connection with the incident in 2013 in which Larry D. Henning and three others left Charleston, South Carolina on a fishing vessel that shipwrecked off the coast of Florida. Henning’s body was never recovered, and the curator of his estate sought recovery on an accidental death policy issued by Life Insurance Co. of North America to group policyholder American Maritime Officers Plans. It was not until 2022 that the benefits were paid, and the estate sought attorney fees and prejudgment interest. The district court declined to award fees and interest under ERISA, and the Sixth Circuit affirmed that decision. See Williamson v. Lunar, No. 25-5790, 2026 U.S. App. LEXIS 32255 (6th Cir. Oct. 21, 2026) (Cole).
On the longshore front . . .
From the federal appellate courts
This is a claim brought by coal miner Gordon Olson pursuant to the Black Lung Benefits Act, but it presents a procedural point that is applicable to claims brought under the LHWCA and its extensions. A formal hearing was held before Administrative Law Judge Nordby, who held the record open after the hearing on employer Energy West’s unopposed motion so that the parties could complete evidentiary development. The parties agreed to further assessment of Olson and further time to submit closing argument after submission of supplemental evidence. The hearing was held on July 8, 2019, and ALJ Nordby set discovery to close on September 6, 2019 and briefing to conclude on October 25, 2019. Further testing occurred in July 2019, but due to issues with the testing, neither party ultimately relied on it. The record closed on October 25, 2019. Seventeen months later, on April 1, 2021, ALJ Nordby issued an order, sua sponte, reopening the record for further evidentiary development, explaining that the probative value of the most recent evidence was qualified by the fact that Olson was recovering from abdominal surgery at the time (the reason given by Energy West when it argued that the May 2019 evaluation was not reliable). Olson and Energy West submitted conflicting medical reports that were admitted without objection, and the parties submitted supplemental closing arguments. Energy West contended that reopening the record was unnecessary. ALJ Nordby then issued his decision on July 8, 2022, awarding benefits to Olson. Energy West appealed to the Benefits Review Board, challenging ALJ Nordby’s decision to reopen the record, and the BRB upheld the authority of the ALJ. Energy West reiterated that argument in its petition for review to the Tenth Circuit, but the appellate court was persuaded that the ALJ had authority to reopen the record for further evidentiary development after the record was closed. Energy West argued that the regulation states that hearings are terminated when evidence has been received, witnesses heard, pleadings and briefs submitted, and the transcript has been printed and delivered to the ALJ. Writing for the Tenth Circuit, Judge Rossman answered that the regulation says nothing about the ALJ’s authority to reopen the record. The argument also failed to address that the regulations state that the record closes when the hearing closes unless the judge directs otherwise. Judge Rossman also found no authority that it was reversible error to fail to issue the decision within 20 days after the termination of the hearing, particularly when there was no harm from the delay. Energy West also asserted that even if the ALJ had authority to reopen the record, it was an abuse of discretion to do so in this case (“the ALJ jumped in and acted as if he were a party litigant, rather than just judging the evidence as presented”). Judge Rossman noted that the reason given by ALJ Nordby for reopening the record was the same one that Energy West gave for not relying on the evidence obtained during the initial period in which the record was held open after the formal hearing and that both parties were given the opportunity to produce evidence that was admitted into the record without objection. Judge Rossman then concluded that Energy West ““utilized the opportunity to submit additional evidence” without mentioning “an objection to the ALJ’s order.” . . . It was only after submitting additional medical evidence, that Energy West made a “belated, general statement that reopening the record was ‘unnecessary’” all along.””
From the federal district courts
Hemanu Siatiu was employed as a laborer by Purse Seine Samoa in Pago Pago, American Samoa. He was performing repair work in Purse Seine Samoa’s net yard on the purse seine net of the F/V CAPTAIN VINCENT GANN, owned by JM Fisheries and managed by G.S. Fisheries and James Sousa. The vessel was not in the net yard at the time as it was unloading its catch at a nearby cannery. As a crane operator employed by Purse Seine Samoa fed the vessel’s net through an overhead power block, a metal ring on the net detached and fell, striking and killing Siatiu. The only vessel employee who was present at the time of the incident was deck boss John Balelo. Beneficiaries of Siatiu brought this suit against the owner and managers of the vessel in federal court in California under Section 5(b) of the LHWCA, arguing that the net should not have been turned over to Purse Seine Samoa with the rings still attached and that the deck boss should not have allowed the net to roll through the power block while Siatiu stood underneath. The defendants moved for summary judgment on the ground that they did not violate any of the Scindia duties, and Judge Bencivengo agreed. Beginning with the turnover duty, the beneficiaries argued that the net was in a dangerous condition because the purse rings had not been removed. Judge Bencivengo explained that the test is not whether the condition was dangerous but whether the condition was such that an expert and experienced contractor would be able, with the exercise of reasonable care, to carry on its operation with reasonable safety. The general manager for Purse Seine Samoa testified that Purse Seine Samoa did not require vessels to remove the rings, that he had never seen anyone killed with a purse ring in his 40 years on the job, and that Purse Seine Samoa or Siatiu could have removed the rings. The beneficiaries also argued that the vessel defendants should have expected that Purse Seine Samoa, which specializes in repair of purse seine nets, could not have conducted its operations safely. Judge Bencivengo was not persuaded, answering that a reasonable juror could not find that the vessel defendants were aware of the risk with the rings but that the expert in net repair would not have anticipated the risk and acted accordingly. With respect to warning of the rings, Judge Bencivengo added: “The rings on the net were obvious to PSS, and the Vessel was not in any better position than PSS, which specializes in net repair, to detect and avoid any harm from the rings when the net was turned over.” Judge Bencivengo then considered the active involvement and control duties with respect to the hazard posed by rolling a net through the power block while it is tangled with rings and chains. The analysis involved two questions, whether the defendants actively controlled the relevant area (or participated in operations therein) and whether they exercised due care. Judge Bencivengo found a fact issue on the first question because Balelo was present, physically helped untangle rings and chains from the net before the operation commenced, and gave the “go ahead” to continue rolling the net through the power block. However, Judge Bencivengo concluded that the beneficiaries failed to establish that Balelo acted unreasonably. Balelo cleared the net of tangles before it was rolled, and he gave the “go ahead” to roll the net through the power block. Thus, there was no evidence that he failed to exercise due care. Similarly, there was no violation of the duty to intervene because Balelo was unaware of the tangle in the net that he had untangled. Finally, the beneficiaries argued that the vessel defendants were guilty of negligence per se because Purse Seine Samoa was cited for OSHA violations and the vessel defendants should be considered a controlling employer over the net yard. Judge Bencivengo rejected the argument, noting that OSHA did not cite the vessel defendants, and the Ninth Circuit has not recognized violation of an OSHA regulation as negligence per se in an FELA case.
The United States Navy’s amphibious assault ship, the USS BONHOMME RICHARD, was undergoing maintenance pier-side at the Naval Base in San Diego, California. National Steel & Shipbuilding Co. (a subsidiary of General Dynamics) and United Support Services were under contract with the Navy to service the vessel. A fire originated from the cargo area of the ship and quickly spread through the ship, resulting in several explosions. The fire lasted from July 12, 2020 until July 16, 2020, and a host of homeowners, renters, business owners, and other individuals claimed that they suffered damage to their health and property from exposure to more than a dozen harmful substances released into the air. The injured/damaged parties brought suit in California state court against National Steel, General Dynamics, and United Support. National Steel and General Dynamics removed the cases to federal court based on federal enclave jurisdiction, the Federal Officer Removal Statute, and admiralty jurisdiction. The defendants argued that the suits arose from conduct that took place within a federal enclave (the Naval Base), and that the ship that was docked at the Base was itself a federal enclave. The plaintiffs moved to remand the suits, arguing that the injuries did not arise from a federal enclave because a tort is not complete without an injury, and the injuries did not occur in the enclave. Judge Battaglia disagreed, answering that the Ninth Circuit does not require that both the injury and tortious conduct occur on a federal enclave and that it is the location of the conduct that controls (this was not a situation like the climate-change cases in which the connection with a federal enclave such as the outer Continental Shelf was too attenuated). The allegation that the plaintiffs were damaged by days of exposure to smoke with harmful chemicals was sufficiently connected to the conduct in the enclave. The plaintiffs also argued that the location of the ship on navigable waters could not be within the federal enclave, implicitly arguing that water cannot be both navigable and a federal enclave. Judge Battaglia disagreed as the waters were located within the bounds of a military installation (and were restricted as a “security zone”). Finally, Judge Battaglia held that the federal enclave extended to the BONHOMME RICHARD, which was docked within the enclave. Therefore, he denied the motions to remand. See May 2025 Update.
National Steel and General Dynamics moved to dismiss the suit for lack of subject matter jurisdiction and failure to state a claim. They argued that the court lacked jurisdiction because the defendants were acting as agents of the United States, not independent contractors, and were therefore immune from suit under the exclusivity clause of the Suits in Admiralty Act (requiring that suit be brought only against the United States and not its agents). National Steel argued that its relationship with the United States was one of agency because the Navy “comprehensively controlled” its work (United Support Services joined in the motion, claiming that the argument applied equally to the work performed by United Support Services). There were fact disputes, however, with the level of control that were intertwined with the merits of the plaintiffs’ claims. Accordingly, Judge Battaglia denied the motion to dismiss for lack of jurisdiction without prejudice, awaiting a determination of the facts either by a motion for summary judgment (after discovery) or at trial. The motion to dismiss for failure to state a claim challenged the sufficiency of the allegations, particularly against General Dynamics, and for impermissible group pleading. Judge Battaglia disagreed with respect to National Steel and United Support Services, answering that the complaint has sufficient individualized allegations delineating their responsibilities and failures to comply with the standards of Rule 8. Judge Battaglia reached a different conclusion with respect to General Dynamics, noting that the complaint only asserted that General Dynamics provided services supporting the BONHOMME RICHARD through its agents, employees, and subsidiaries, including by working in concert through National Steel, and that National Steel worked with and reported to General Dynamics. Although the plaintiffs had filed one amendment, Judge Battaglia allowed them leave to file another amendment. See July 2026 Update.
National Steel then asked Judge Battaglia to certify four questions for an interlocutory appeal: 1) when does the government contractor qualify as an agent under the SIAA?; 2) who bears the burden of proof for SIAA agency?; 3) whether a non-charterer contractor is an agent under the SIAA where the Navy sets the contractor’s overall mission?; and 4) whether the Navy’s right to control National Steel’s day-to-day work establishes National Steel’s SIAA agency now as is not intertwined with the merits? Judge Battaglia believed that some of the questions were factually mired, but he concluded that “who bears the burden with regard to the SIAA’s exclusivity clause and what is the appropriate standard to apply for determining SIAA agency of a non-charterer government contractor . . . are purely legal questions that would ‘materially affect the outcome’ of this litigation.” Therefore, Judge Battaglia certified that his order involved a controlling question of law for an immediate appeal, and National Steel filed a petition with the Ninth Circuit for permission to appeal, listing three controlling questions of law: 1) Whether a non-charterer government contractor is an agent of the United States under the SIAA where the United States exercises overall control and direction of the contractor’s mission; 2) Whether the plaintiff or the defendant bears the burden of proof on SIAA agency; and 3) Whether SIAA agency turns on the government’s right to control the contractor’s work or on the government’s actual exercise of that control.
Brandon Lee was employed as a longshore worker on the vessel M/V KOSTAS K at Container Berth 5/6 of the Garden City Terminal of the Georgia Ports Authority with his lashing partner in Bay 38, Row 9, of the vessel. Lee claims that, as they were lashing containers, a defective lashing rod detached from the corner post of a container and struck Lee on the back of his head and neck. Lee brought this suit in state court in Chatham County, Georgia against the owner and operator of the vessel under the Saving-to-Suitors Clause based on maritime law and Georgia law, seeking to recover medical expenses, lost wages, physical and emotional pain and suffering, and permanent impairment. The defendants removed the case, based on diversity, asserting that the amount in controversy was in excess of $75,000, noting awards substantially in excess of the jurisdictional amount, including a verdict in favor of a longshore worker who injured his back and neck and the jury awarded more than $5.6 million. Chief Judge Baker noted that one of the defendants, AMC 2 LLC, is an LLC described by the defendants as organized under the laws of the Marshall Islands with its principal place of business in Greece. That was insufficient to establish the citizenship of an LLC for which the defendants must list the citizenship of all members, and Chief Judge Baker would normally give the defendant the opportunity to supplement its citizenship allegations with an amended notice of removal. However, he declined to give AMC 2 that opportunity because he did not believe that the defendants adequately established that the jurisdictional amount was satisfied. The defendants presented conclusory allegations with no evidence of the severity of the injury. The citation to other claims that did exceed the jurisdictional minimum was not relevant without more concrete information on the injury sustained by Lee. Therefore, Chief Judge Baker remanded the case to the state court.
Francis M. Savoy worked as a commercial diver in marine construction that included excavating soil, debris, and old wood piles from the water near Manhattan. He was injured during a ferry slip rehabilitation construction project at the Battery Marine ferry terminal in lower Manhattan when an underwater wall of soil and debris collapsed while he was removing a pile from the mud. Savoy brought this suit in New York federal court against his employer (Reicon Group), as well as the City of New York and The Trust for Governors Island, which contracted with Reicon Group for the marine construction services. Reicon Group paid LHWCA compensation benefits to Savoy and moved for summary judgment on all of the claims asserted against it by Savoy. Judge Ho noted that Reicon used a spud barge to support the dive and dock work. It was repositioned by a tug throughout the work as needed. The project was located adjacent to the shore. The farthest that Savoy worked from the land was the outer edge of the barge, 200 to 250 feet from the land. Savoy accessed the barge directly from the land by a gangway. From these facts, Judge Ho concluded that Savoy’s work was related to construction and not to seagoing or navigational activity. The work was performed while the barge was secured in place, just offshore, and Savoy did not travel with the barge. Thus, Savoy “did not go to sea and he was not exposed to the perils of the sea in the manner associated with seaman status.” As he was not a seaman and was covered under the LHWCA, Judge Ho held that the state and maritime negligence claims were precluded by the LHWCA, which left his claim under Section 5(b) for negligence in the capacity as owner of the barge. Judge Ho rejected that claim, reasoning that his claim was not sufficiently connected with the barge as the negligence stemmed from the failure to use safety precautions for the mud wall. Savoy moved for summary judgment on his claims against the City, but Judge Ho found fact disputes that precluded summary judgment.
And on the maritime front . . .
From the federal appellate courts
Ocean carrier CMA CGM issued a sea waybill to ship a container of 435 cartons of Pen Display devices from Shanghai, China to Memphis, Tennessee via the Port of Los Angeles. CMA CGM subcontracted with BNSF Railway to transport the container by rail from Los Angeles to Memphis. When the container was delivered, the consignee discovered a replacement seal on the container and the theft of the contents. The owner of the cargo brought suit in federal court in New York against the consignee for the value of the stolen goods ($973,502), and the consignee filed a third-party action against CMA CGM, which the carrier tendered to the railroad. When the railroad “refused to take appropriate action,” CMA CGM brought this suit in federal court in California seeking indemnity from the railroad for negligence, breach of contract, and breach of bailment obligations. The railroad moved to dismiss the indemnity action for failure to state a claim, citing the provision in the BNSF Intermodal Rules and Policies Guide that any claim must be filed within 9 months after delivery. The railroad argued that the Rules were incorporated into the contract to transport the cargo and should be considered by the court in response to the motion to dismiss. CMA CGM specifically referenced the Rules as part of the parties’ agreement in its complaint against the railroad, and Judge Anderson believed that it was appropriate to consider the Rules in ruling on the motion to dismiss. CMA CGM did not dispute the application of the Rules. Instead, it argued that the indemnity did not accrue until entry of a judgment or payment by CMA CGM. Judge Anderson disagreed, noting that the 9 months began on the delivery date and that there was no exception for indemnity or payment and no distinction between direct claims and indemnity claims. Although CMA CGM argued that the interpretation advocated by the railroad would lead to the “absurd result” that the cargo interest had a year to bring a suit against the ocean carrier, but the railroad only had 9 months to bring its indemnity claim. However, Judge Anderson did not believe that he could “ignore the clear language of the parties’ agreement, the sophisticated nature of the parties and the legal landscape against which they operate.” Therefore, he dismissed the indemnity action with prejudice. See February 2024 Update.
CMA CGM appealed the dismissal to the Ninth Circuit, which agreed that Judge Anderson correctly concluded that CMA CGM’s claims are unambiguously governed by the claim-filing provisions in BNSF’s Intermodal Rules, regardless of the fact that the claim was characterized as being rooted in indemnity/breach of contract. The Ninth Circuit also rejected the argument that equitable principles should excuse the late filing because CMA CGM lacked notice of the loss until after the filing period expired (reasoning that impracticability and impossibility defenses “excuse performance of a contract duty or promise,” not compliance with “a condition to the existence of a claim.” The Ninth Circuit declined to consider the unconscionability defense because it was insufficiently raised, and it rejected CMA CGM’s gross negligence claim because the assertion that BNSF failed to safeguard the cargo and allowed the shipment to be lost or stolen did not plausibly state a claim for gross negligence. As CMA CGM failed to demonstrate how an amendment to the pleadings would change the result, the appellate court agreed with the dismissal with prejudice.
Darlene Wampole, a passenger on the CARNIVAL CONQUEST, was walking on the elevated teak wood deck surrounding a hot tub on the vessel when the floor beneath her (with a closed hatch used to allow maintenance access to the hot tub) collapsed. Wampole brought suit against the cruise line in federal court in Florida with counts for negligent failure to remedy, negligent failure to warn, negligent design and installation, and vicarious liability. The cruise line moved for summary judgment on all of the counts. It argued that the direct liability claims should be dismissed for lack of notice of the dangerous condition. Wampole cited two work orders involving “whirlpool leaking from pump and rust casing” and “whirlpool varnishing to be done.” Both work orders were closed. Judge Moore agreed that work orders can provide evidence of notice of a dangerous condition, but the work orders in this case did not provide notice of any issues with the hatch or the structural integrity of the teak wood deck adjacent to the whirlpool. Wampole also argued that the cruise line had notice based on photographs after the accident reflecting that the area underneath the hatch was rusted and degraded (indicating that the area had not been maintained for a long time). Judge Moore explained that the photographs were evidence of the length of time that the condition had existed, but they did not establish that the condition was reasonably detectable so as to invite corrective measures. Finally, Wampole relied on the opinion of her expert that the hatch should have had a support beam based on industry standards. Judge Moore rejected that claim as it failed to connect the noncompliance with a showing that the cruise line should have known about the noncompliance. Accordingly, Judge Moore granted summary judgment on the claims for direct liability. Turning to the claims for vicarious liability, Judge Moore agreed that Wampole did not have to establish notice on the part of the cruise line; however, she still had to identify a specific employee whose negligence caused her injury. Judge Moore granted the motion for summary judgment, and Wampole filed a notice of appeal the same day. See December 2025 Update.
While the case was on appeal, the cruise line moved to tax costs in the amount of $8,920.15 as the prevailing party. The costs were for subpoenas on medical providers, employers, and related entities and deposition transcripts. After objections, the cruise line agreed to remove charges for expedited transcripts, condensed transcripts, and DepoSummary Pro charges. The new request was for $7,906.05, but Magistrate Judge Elfenbein noted that the revised total contained a mathematical inconsistency in the reduction (the correct amount sought should have been $7,546.05). Wampole argued that the court should stay taxation of costs pending appeal, but Magistrate Judge Elfenbein responded that deferring action on the bill of costs pending appeal is discretionary, and Wampole did not meet her burden to justify a stay. Therefore, Magistrate Judge Elfenbein recommended that the decision on the bill of costs not be stayed. The cruise line argued that the cost of service of subpoenas to medical providers, employer, insurance, pharmacy, and related entities was necessary because Wampole’s medical and earning issues were at issue. Wampole argued that the rate was higher than the amount charged by the Marshal and that the cruise line used an overbroad “buckshot” approach to the parties who were subpoenaed. Magistrate Judge Elfenbein reviewed the charges and found that they were at or lower than the rate for the Marshal and also found that the subpoenas were reasonably necessary in response to Wampole’s allegations. Magistrate Judge Elfenbein also concluded that the deposition charges were reasonably necessary and awarded the corrected amount after deducting the charges that the cruise line conceded should not be included. Therefore, Magistrate Judge Elfenbein recommended awarding a total of $7,546.05 in taxable costs. See September 2026 Update.
Before the Eleventh Circuit, Wampole argued that there was sufficient evidence that the cruise line had constructive notice of risk-creating conditions, citing the cruise line’s correcting the cause of the accident after the fact. The Eleventh Circuit agreed that corrective action can establish notice of a dangerous or defective condition, but the court disagreed that the corrective action in this case (closing off the area for inspection and fixing the issue) was evidence of notice. The cases in which the corrective action was relevant to notice involved an ongoing issue, such as slippery floors or obstructions to pathways when chairs are not properly positioned. In this case the cruise line simply fixed an issue that became apparent when Wampole fell with no prior reports that required corrective action. Thus, the correction did not establish notice. Wampole also argued that the wood deck where the jacuzzi was located experienced high foot traffic so that the crew should have noticed the degradation of the floor; however, there were no prior complaints or reported issues that would have alerted the cruise line to a safety issue, and the cruise line cleaned and inspected the area daily. Third, Wampole argued that two work orders should have alerted the cruise line to the tendency for rust and deck damage. However, the work did not involve any structural issues in the hatch. The court declined to hold that work orders in the area automatically provided notice for any condition that arose. Finally, Wampole argued that the claim of failure to meet industry standards, while insufficient on its own to constitute notice, was sufficient when combined with the other arguments. The Eleventh Circuit rejected the argument and affirmed the summary judgment.
Talos QN Exploration and QuarterNorth Energy own and operate a platform located in the Vermillion area of the outer Continental Shelf of the Gulf of America off the coast of Louisiana. The owner/operator contracted with Facilities Consulting Group and Acadian Contractors as independent contractors to assist in decommissioning the platform. Anthony Daw was employed by Facilities Consulting to be in charge of the platform. During the work, Daw noticed that a conductor pipe on one of the wells on the platform was moving. Daw advised Banning Ohlin, the person in charge of the Acadian crew, to secure the conductor. Once the conductor was secured with a come-along, Acadian was going to weld support braces onto the cellular deck to further secure the conductor from moving. During the welding, Cody Allemond, an employee of Acadian, placed his finger between the angle iron and conductor pipe, and his finger became caught when the conductor pipe moved. Allemond brought this suit in federal court in Texas against the platform owner/operator under the Outer Continental Shelf Lands Act, asserting claims for negligence/gross negligence and premises liability under Louisiana law (applicable under the OCSLA). Allemond asserted claims under two statutes. Article 2315 of the Louisiana Civil Code (vicarious liability) provides that a principal owes a duty to its independent contractor when the principal retains some control over the methods or details of the contractor’s work. The defendants told Facilities Consulting and Acadian to secure the moving conductor, but they did not tell them how to secure it. As there was no evidence that the defendants controlled the methods used by Acadian, Judge Lake granted summary judgment on the vicarious liability claim. With respect to premises liability under articles 2317, 2317.1, and 2322 of the Louisiana Civil Code, Judge Lake held that there were fact questions whether the defendants had custody over the platform at the time of the injury, and he then considered whether the moving conductor was an unreasonably dangerous condition vis-à-vis Allemond. The defendants argued that Allemond was injured by the condition he was asked to repair, which was a routine job for an experienced welder like Allemond. Allemond responded that he was not warned that the conductor was moving after being secured by the come-along, that he could not see the movement of the conductor because he was wearing his welding hood, and the heavy seas made it more likely that the conductor would move. Citing Allemond’s experience and the multiple warnings to avoid pinch points between his hand and finger placement, Judge Lake held that there was no material issue of fact whether the moving conductor was an unreasonably dangerous condition vis-à-vis Allemond, and he dismissed the suit with prejudice. See January 2026 Update.
Allemond appealed and challenged the summary judgment on two grounds. First, he argued that Judge Lake erred when he concluded that the shifting conductor pipe was not an unreasonably dangerous condition. The Fifth Circuit reviewed the four-part risk-utility balancing test, noting that the significant factor was “the nature of the plaintiff’s activities in terms of social utility or whether the activities were dangerous by nature.” Allemond argued that he was not subjectively aware that the conductor was able to move at the time he started welding and that he could not see the conductor moving because his welding visor was on. The Fifth Circuit disagreed, stating that it is “not unreasonably dangerous for an unstable conductor to move as the welder hired to remedy that defect attempts to stabilize it.” The court explained that Allemond had been reminded of the risk seven times and concluded that he was “presumptively cognizant” of the risks and “able to minimize them.” Allemond also argued that Anthony Daw was functioning as the “eyes and ears” of the project manager for the owner/operator, but the Fifth Circuit answered that the argument was not raised in response to the motion for summary judgment and was waived. Therefore, the appellate court affirmed the summary judgment.
We reported in the November 2025 Update the differing results reached by Judge Guidry and Judge Vance of the United States District Court for the Eastern District of Louisiana in cases involving similar issues to a case brought before Judge Fallon of the same court.
In the case decided by Judge Guidry, 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 Cox Operating 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 the 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 made all reasonable efforts to collect the hire. See Offshore Liftboats, LLC v. GOL, LLC, No. 2:24-cv-1632, 2025 U.S. Dist. LEXIS 178597 (E.D. La. Sept. 12, 2025) (Guidry).
In the case decided by Judge Vance, 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, and the contract provided that Seacor appointed GOL as its agent “solely for the purpose of obtaining charters” for Seacor vessels. 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 to recover the amount owed on 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 what 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. See Seacor Marine, LLC v. GOL, LLC, No. 2:24-cv-2409, 2025 U.S. Dist. LEXIS 180892 (E.D. La. Sept. 16, 2025) (Vance). After Judge Vance declined to reconsider the dismissal, Seacor filed a notice of appeal to the Fifth Circuit.
Before Judge Fallon addressed the merits in the suit brought against GOL by R&R Boats 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 on September 22, 2025 and then considered the motion for summary judgment filed by GOL. Judge Fallon agreed with GOL that the Brokerage Agreement is a maritime contract and that maritime law, not Louisiana law, applies. Therefore, R&R was not allowed to proceed on an open account claim under Louisiana law. In declining to grant summary judgment, Judge Fallon noted two distinctions between the contract with R&R Boats and the contract with Seacor. First, the agreement with R&R omitted the word “solely,” so the scope of the duty owed by GOL to R&R was potentially broader. Second, R&R presented evidence that created a fact dispute whether GOL undertook all reasonable efforts to obtain payment. Judge Fallon concluded: “Because the scope of GOL’s duty and the question of whether GOL’s actions undertaken to secure payment for R&R constitute ‘all reasonable efforts’ are issues pregnant with fact, the entry of summary judgment as to R&R’s breach of contract claim would be inappropriate. The claim must proceed to trial.” See R&R Boats, Inc. v. GOL, LLC, No. 2:24-cv-1875, 2025 U.S. Dist. LEXIS 262400 (E.D. La. Dec. 19, 2025) (Fallon) and February 2026 Update.
Judge Fallon held a bench trial in January 2026. He ruled that maritime law embraces general principles of agency and that GOL was R&R Boats’ collection agent with respect to Cox so that GOL owed fiduciary duties of loyalty, good faith, disclosure, and performance to R&R Boats. He found that the interests of GOL and R&R Boats became misaligned when GOL was given access to an insufficient amount to pay all of GOL’s operators. Judge Fallon held that GOL willfully breached its implied duties under the agreement to operate in good faith and loyally to R&R Boats. He awarded R&R Boats $1,430,000, “11% of the $13 million that GOL received from Cox, in recognition of the fact that the $2,815,561.40 balance owed to R&R under the Cox invoices constituted 11% of GOL’s total prepetition claim in the Cox bankruptcy action; and additionally that R&R may ultimately recover all or some portion of the balance owed to it by Cox via R&R’s claims in the still-pending Cox bankruptcy.” See April 2026 Update.
GOL moved for a new trial, and R&R sought attorney fees and costs. GOL argued that Judge Fallon erred in finding that GOL acted as R&R Boats’ collection agent, that he erred in finding that GOL breached the Trade Agreement, that GOL did not, as a matter of law, breach the brokerage agreement, and that Judge Fallon erred in awarding outstanding charter hire to R&R where “no party disputes that Cox never paid the charter hire.” Although Judge Fallon disagreed that GOL satisfied any of the grounds warranting a new trial, he responded to each of the arguments. He stated that there was no error in the finding that GOL acted as R&R’s collection agent because the evidence established that GOL undertook responsibilities extending beyond the mere arrangement of charters and expressly agreed to undertake all reasonable efforts to collect charter hire from the charterer. Judge Fallon answered that there was no error in the finding that GOL breached the Trade Agreement. Although breach of the Trade Agreement was not the basis for imposing liability on R&R, the finding was supported by the record. Judge Fallon responded that GOL breached the brokerage agreement as a matter of law as GOL failed to even attempt to allocate any portion of the Trade Agreement funds toward R&R’s approximately $2.8 million prepetition claim, which did not satisfy the reasonable efforts standard imposed by the agreement. Finally, Judge Fallon explained that he did not err in awarding outstanding charter hire to R&R notwithstanding the fact that Cox did not pay the charter hire directly because of the finding that liability arose from GOL’s breach of its contractual and agency obligations to exercise reasonable efforts to secure payment and protect R&R’s interests in the available settlement funds. Judge Fallon declined to grant a new trial, but he did not award attorney fees, in his discretion, to R&R for responding to the motion. Judge Fallon did award attorney fees and costs to R&R for its other work in the amount of $274,180.00 (in response to its request for $351,343.63). GOL objected to R&R’s bringing three attorneys and a paralegal to trial, arguing that the time was duplicative or in the passive role as an observer. Judge Fallon disagreed, accepting the explanation that one of the attorneys drafted nearly all of the witness outlines and was familiar with the exhibits and discovery. The paralegal assisted with documents and pleadings for impeachment. Thus, the roles were not passive observers. And, Judge Fallon added, GOL brought three attorneys to trial, reflecting that R&R’s staffing was consistent with the community standard. Judge Fallon did reduce the requested fees to account for an open account claim brought by R&R that was meritless from the outset and for fees paid by its counsel and not R&R in response to a recusal motion. Finally, Judge Fallon declined to reduce the amount sought ($14,706) for subpoenas (a number of the subpoenas were ultimately quashed by Magistrate Judge Roby. He recognized that subpoenas are commonly used during the course of trial proceedings and, absent evidence that the subpoenas were improper, issued in bad faith, or meritless, their costs are compensable. See October 2026 Update.
The Fifth Circuit then issued its decision in the appeal of Judge Vance’s dismissal of the suit brought by Seacor. Seacor argued that Judge Vance erred in concluding that the Trade Agreement barred GOL from remitting payment to Seacor, and the Fifth Circuit agreed. The appellate court reasoned that GOL included the $2.7 million that Cox owed Seacor in its $24.8 million prepetition claim, but it gave Seacor nothing when Cox paid $13 million toward that claim. The court stated that Judge Vance let GOL off the hook because she found that GOL was not paid for Seacor’s services and that the Trade Agreement restricted GOL to permitting payment only to vendors who continued to provide services to Cox. The appellate court explained that the Trade Agreement plainly stated that the $13 million was to pay off some of GOL’s $24.8 million prepetition claim (which included the amount that Cox owed Seacor), so there was some evidence that when GOL received the $13 million toward the prepetition claim, it included money Cox owed Seacor. The court then described the decision that the Trade Agreement barred GOL from using part of the payment for Secor because the “aim” of the agreement was to pay those who continued to provide services to Cox during the bankruptcy proceedings as “misguided.” The Fifth Circuit answered that Cox’s bankruptcy interests would not be hindered if GOL applied a portion of the payment to Seacor invoices because GOL would still be contractually bound to continue providing services to Cox, even if Seacor provided no ships. The hardship would fall on GOL, which was required to provide ships to Cox regardless of whether certain owners stopped supplying vessels. As the Trade Agreement did not prevent GOL from paying Seacor, the question was whether GOL was required to pay Seacor under the Brokerage Agreement. The court noted that the agreement imposed duties on GOL to remit net charter hire to Seacor within 15 business days after receipt of charter hire (there was a fact question whether part of the $13 million was for Seacor invoices), and to undertake all reasonable efforts to collect charter hire from the charterer. Seacor argued that GOL had an obligation to act as Seacor’s fiduciary that was violated by GOL treating Seacor unfairly and by self-dealing. The Fifth Circuit agreed that GOL owed Seacor a fiduciary duty under the general maritime, as Seacor’s agent for the purpose of obtaining charter hire, to act loyally for Seacor’s benefit. The fiduciary duty included duties not to acquire a material benefit from a third party, not to use the property for the agent’s own purposes or those of a third party, to act in accordance with the terms of the contract between the agent and principal, not to mingle the principal’s property with anyone else’s, and to keep and render accounts to the principal of money or other property received or paid out on the principal’s account. Finding fact questions whether GOL violated its duties for receiving payments that should have been disbursed to Seacor, the Fifth Circuit held that summary judgment was inappropriate.
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. See November 2025 Update.
Quality Production filed a notice of appeal to the Fifth Circuit, and Whitney Oil & Gas filed a motion seeking attorney fees. The contract provided for an award of attorney fees for the prevailing party in any suit to enforce or interpret the terms of the contract. Quality Production did not dispute that the contract provided for attorney fees in this case; however, it argued that fees were prohibited by the LOIA. Quality Production asserted that the LOIA nullifies any provision that requires indemnity where there is any negligence on the part of the indemnitee and that there was no finding that the indemnitee was free from fault because the parties settled the case. Judge Milazzo answered that the argument “misses the mark.” She explained that Whitney Oil & Gas was not seeking costs of defense of Espadron’s claims and instead was seeking to recover its fees in defending against the separate claim of Quality Production for defense and indemnity. As Quality Production cited no authority holding that the LOIA precludes an award of attorney fees to the prevailing party in a contractual dispute, Judge Milazzo held that the LOIA did not bar an award of fees to Whitney for successfully defending against Quality Production’s claim seeking indemnity. Quality Production also argued that Whitney Oil & Gas’s motion was defective under Rule 54(d)(2) because it did not state the amount sought or a fair estimate of the amount. As the motion was timely and set forth the grounds on which Whitney Oil & Gas sought fees, Judge Milazzo held that the motion was proper and that the amount of fees would be determined subsequently. However, Judge Milazzo did defer ruling on the amount of fees until after resolution of the appeal (and Quality Production filed an amended notice of appeal after the decision on attorney fees). See December 2025 Update.
The Fifth Circuit agreed that the Master Service Agreement was not a maritime contract. Writing for the Fifth Circuit, Judge Willett explained that the inquiry begins by examining the contract to determine whether it outlines substantial use of a vessel. If it does not, the court may consider whether the parties expected a vessel to play a substantial role (with shared expectations). Although the MSA provided for application of general maritime law, referred to the Jones Act and Shipowners Limitation of Liability Act, and required Quality Production to carry marine insurance, Judge Willett reasoned that the provisions reflected that vessels were part of the relationship but not that vessels would play a substantial role in the work. He then turned to the expectation of the parties and the fact that Quality Production employees were not mere passengers on vessels but were driving Whitney vessels to and from offshore wells and platforms to perform their duties. Judge Willett answered that Whitney hired Quality Production to service platforms—work that is not maritime. Driving the vessels to and from locations was incidental. In order for a vessel’s role to be substantial, it must “directly aid the completion of the project.” Judge Willett concluded that providing a ride to work falls short of the substantial role required to satisfy the Doiron test. Finally, Quality Production noted that Whitney paid Espadron maintenance and cure, a remedy only available to a Jones Act seaman. Judge Willett answered that Espadron was a Whitney employee, not a Quality Production laborer working under the MSA and that Whitney’s actions after the allision did not address the expectations of the parties when they entered into the MSA. Therefore, the Fifth Circuit affirmed the judgment that the MSA is not a maritime contract.
Richard Allen DuFour, Jr., brought this BELO suit against BP based on exposure while performing cleanup work on the Macondo/DEEPWATER HORIZON spill within the Southern District of Mississippi (claiming a permanent exacerbation of his chronic asthma). DuFour relied for causation on the reports of his experts, Dr. Michael Freeman (his consultant on forensic medicine and forensic epidemiology) and Dr. Shawn K. French (his treating pulmonologist). Considering Dr. Freeman’s reports, his deposition testimony, and the evidence in the record, Judge Ozerden held that Dufour had not carried his burden to show that the opinions were sufficient to satisfy any plausible causation standard, general, specific, or otherwise, and his opinions were excluded. BP moved to exclude opinions related to causation from DuFour’s treating physicians, including Dr. French, because they had not submitted written reports under Rule 26(a)(2). Judge Ozerden agreed, but he also addressed the causation methodology for Dr. French’s opinions and held that they were “nothing more than ipse dixit testimony and should be excluded. Without expert testimony on causation, Judge Ozerden granted summary judgment to BP. See July 2023 Update.
DuFour appealed to the Fifth Circuit, and Judge Richman wrote the opinion for the court’s majority, affirming the summary judgment. She noted that the oft-cited unpublished decision in Seaman v. Seacor Marine (holding that the plaintiff in a toxic tort case “cannot expect lay fact-finders to understand medical causation; expert testimony is thus required to establish causation”) was well-reasoned and in line with decisions in the Fifth and other circuits applying maritime law. Therefore, the majority expressly agreed with the Seaman holding in this published opinion and held that Judge Ozerden did not err in applying widely accepted toxic tort causation principles as part of maritime law. Judge Richman then addressed whether Judge Ozerden erred in excluding DuFour’s expert witnesses. The majority agreed that Dr. Freeman’s “leap from data showing an increased chance of respiratory symptoms based on duration and frequency of exposure to a conclusion ‘that exposures to oil spill-associated irritants during [DuFour’s] response work were a substantial factor in causing his asthma to worsen during his employment and to persist afterward,’” “constitutes ipse dixit testimony and leaves too great of an analytical gap between the data and his causation opinion.” The majority also agreed with the exclusion of the opinions of Dr. French on the ground that he offered no explanation how he made the determination that a worsening of DuFour’s asthma was more likely caused by the oil spill cleanup efforts than anything else. He did not attempt to relate the worsening asthma to any sort of chemical exposure and did not show how his reliance upon a temporal connection constituted a reliable methodology. As with the opinions of Dr. Freeman, Judge Richman agreed that Dr. French provided nothing more than ipse dixit testimony with too great of an analytical gap between the data and causation. Accordingly, in the absence of expert opinions, the majority affirmed the summary judgment. Judge Oldham dissented as he was “unconvinced that DuFour “should be poured out of court.” He argued that the choice of substantive law was not known in this case—maritime law, federal common law, Mississippi law, or the law of some other state. He added that the Medical Settlement Agreement did not resolve the issue because it selected maritime law for the interpretation of the agreement and release, not for BELO litigation. Judge Oldham then addressed the court’s analysis of the expert reports and stated that he was skeptical. He concluded that “if there were no association between cleanup work and asthma, the probability of observing results this extreme was less than one in ten thousand. Striking that as ‘ipse dixit’ in a case involving a Deepwater Horizon cleanup worker . . . makes as much sense as striking the report for using a disfavored font.”
From the federal district courts
Shellian Clarke and Donavan Clarke, passengers on the CARNIVAL MAGIC, were injured when the shuttle boat (operated by Sea Charters Tender) transporting them back to the ship in Belize allided with the cruise ship in rough seas. The Clarkes brought suit against the cruise line in federal court in Florida with claims for negligence based on breach of the duty of safe transport (1 and 2), vicarious liability as to Sea Charters Tender (3 and 4), negligence based on breach of the duty of safe transport assumed by contract (5 and 6), and declaratory judgment (7). The cruise line moved to dismiss all of the counts for failure to state a claim. It argued that the counts for breach of the duty of safe transport (1 and 2) were based on heightened duties in excess of the duty to exercise reasonable care in facilitating embarkation and disembarkation from the cruise ship. Chief Judge Altonaga answered that the cruise line cited no authority supporting the argument that the alleged breaches of navigation and collision avoidance rules exceeded the duty to exercise reasonable care in facilitating embarkation and disembarkation. She also noted that the plaintiffs had adequately matched alleged facts with breaches of duty so as to properly separate the allegations. The cruise line also argued that the plaintiffs had not pleaded notice of the risk-creating condition, but Chief Judge Altonaga considered the allegations sufficient to plead that the cruise line was on notice of the rough seas and unmanned loading dock before the allision. As for the counts based on breach of duty of safe transport assumed by contract (5 and 6), Chief Judge Altonaga noted that the claim was for the same tort as the first counts, only it was based on obligations assumed in the contract. As the contract did not impose the alleged duties on the cruise line, Chief Judge Altonaga dismissed the tort claims that were based on negligent performance of the contract. Chief Judge Altonaga then considered the claims that the cruise line was vicariously liable for the actions of the crew of the shuttle boat based on a master-servant relationship with the crew (3 and 4). The cruise line argued that the Clarkes needed to plead a negligence cause of action against Sea Charters Tender in order for there to be vicarious liability and that the contract between the cruise line and Sea Charters Tender provided that Sea Charters Tender was an independent contractor with the responsibility for its employees. Chief Judge Altonaga answered that it was not necessary to plead a separate negligence claim against Sea Charters Tender because the pleading was based on liability of crewmembers as employees of the cruise line. Therefore, the vicarious liability was based on acts of the crew taken for the cruise line and not for Sea Charters Tender. She also rejected the argument based on the language of the contract, explaining that the issue of agency is a fact question and that the Clarkes sufficiently pleaded facts to support its control over the crew. Finally, Chief Judge Altonaga addressed the count seeking a declaratory judgment (7) that the Clarkes are third-party beneficiaries of the agreement between the cruise line and Sea Charters Tender. As the Clarkes did not actually plead that they are third-party beneficiaries, Chief Judge Altonaga dismissed the count because the Clarkes lacked standing to seek the relief they requested.
Roberto Andres Sabio Ruiz served as a seaman for Seabulk Tankers for ten years, during which he had numerous medical clearance exams. He advised the medical personnel that he had been diagnosed with chronic kidney disease and hypertension, and he listed the medications he took for these conditions. Between 2021 and 2024, his condition deteriorated, but Seabulk Tankers continued to employ him. On November 9, 2023, he demanded maintenance and cure but received none. On March 13, 2024, Ruiz signed on to the SEABULK CHALLENGE and disembarked for a 60-day vacation with a return date of August 31, 2024 (because he was scheduled to return, Judge Leibowitz states that Ruiz was subject to the call of the vessel). On July 8, 2024, while he was on vacation, Ruiz suffered a massive stroke brought on by his kidney disease, high blood pressure, and lack of medical treatment and was incapacitated. Ruiz received medical treatment, but Seabulk Tankers declined to pay maintenance and cure. His health benefits were exhausted on June 30, 2025, and he was discharged. Ruiz had nowhere to go and died on July 26, 2025. His personal representative, Gerson R. Sabio Velasquez, brought this action against Seabulk Tankers in federal court in Florida under the Jones Act and general maritime law, and the defendant moved to dismiss the complaint. With respect to the claim for maintenance and cure, Judge Leibowitz reasoned that a seaman may recover for a pre-existing condition that is aggravated or manifested itself while in the ship’s service (absent concealment). He “easily dispatched” the defendant’s objection, noting that the complaint asserted that his condition was aggravated while in service of the ship. The complaint suffered from a “lack of factual allegations regarding which particular aspects of Plaintiff’s employment aggravated his medical condition, but the assertion that his stroke occurred six days after he went on vacation and the doctor’s statements that his conditions were aggravated by his employment were sufficient for the claim to survive a motion to dismiss. Judge Leibowitz also rejected application of a state case holding that a seaman must be incapacitated to do a seaman’s work in order to state a claim for maintenance and cure on the ground that the precedential value of “a state court case that cites out-of-circuit precedent is zero.” As the plaintiff stated a claim for maintenance and cure, Judge Leibowitz declined to dismiss the claim for punitive damages for failure to pay maintenance and cure. As for the Jones Act claim, the plaintiff asserted that the employer was negligent for failing to provide adequate medical care to Ruiz. The plaintiff noted that the defendant’s medical staff conducted at least four examinations of Ruiz between 2021 and 2024, and the last was in March 2024 when he signed on the SEABULK CHALLENGER. The plaintiff alleged that the examinations should have revealed that Ruiz’s conditions had progressed to the point that he was unfit for the work expected of him. That was sufficient to support the reasonable inference that the defendant provided negligent medical care that resulted in the aggravation of Ruiz’s medical conditions and subsequent death. Additionally, the allegations that the defendant failed to provide maintenance and cure gave rise to an independent tort action under the Jones Act—the plaintiff alleged that the defendant negligent failed “to diagnose and treat [Ruiz]’s conditions either in the course of his service or after his final sign-off, including by hiring and rehiring [Ruiz] without adequately assessing his medical fitness, failing to assign [Ruiz] tasks consistent with his physical capabilities, and then refusing to provide maintenance and cure over the course of roughly a year as [Ruiz]’s condition deteriorated.” Judge Leibowitz also held that the plaintiff identified a duty to maintain a safe work environment. The defendant argued that the claim was foreclosed by the cases holding that unsafe workplace conditions that place undue stress on the worker do not give rise to claims under the Jones Act or FELA. Judge Leibowitz distinguished those cases as it was not overwork that was the basis for the claim but rather that the defendant failed to furnish appropriate medical monitoring when confronted with evidence that the worker was medical unfit for his duties.
Michael Bianchini brought suit in state court in Plaquemines Parish, Louisiana against Sunland Construction and Venture Global Gator Express, seeking to recover for damage to oyster leases in the coastal waters of Plaquemines Parish allegedly caused by dredging, pile driving, and other activities during the construction of natural gas pipelines in the vicinity of his oyster leases. Venture Global removed the suit to federal court in Louisiana (based on the original admiralty jurisdiction of the federal court) where it was consolidated with a limitation action filed by Sunland Construction. Michael Bianchini moved to remand the case, arguing that original admiralty jurisdiction is not a basis for removal and, following the majority of district courts (the issue remains unresolved in the Fifth Circuit as noted in the N&W Marine case, see February 2024 Update), Judge Guidry remanded the case to state court. See April 2024 Update.
Raymond Bianchini, Jr., and Michael Bianchini filed a claim in Sunland’s limitation action, and Sunland moved to dismiss the claim for failure to state a claim. Sunland relied on the decision in Shelley v. Hilcorp (see August 2023 Update) in which Judge Fallon dismissed the complaint of oyster growers because they did not provide the “when, where, what, or why, or how” any specific defendant “individually caused damage to the plaintiffs’ oyster beds.” The Fifth Circuit agreed that the oyster growers were unable to allege “which of the approximately eighteen Defendants were negligent” in In re Settoon (see August 2024 Update). Although the Bianchinis tried to distinguish the cases, asserting that they had clearly attributed negligence to Sunland, Judge Guidry noted that the Bianchinis identified 16 other vessels that did not belong to Sunland, and there were no specific dates or time frame to explain when Sunland allegedly damaged the leases (the claim also failed by alleging only conclusory facts on Sunland’s negligence). Therefore, the negligence count was dismissed with leave to replead. However, Judge Guidry did not dismiss the claim for a civil trespass, concluding that the allegation that each vessel purposefully navigated into the Bianchinis’ waters without permission, causing damage to the oyster beds, was sufficient to allege a trespass claim under Louisiana law. See November 2024 Update.
In the current limitation claim, the Bianchinis assert that Sunland owned/operated vessels and marine equipment in the vicinity of oyster leases and that Sunland’s negligence and trespass damaged the oyster beds. Sunland filed an amended motion to dismiss, asserting that the negligence claim remained speculative and conclusory. Judge St. John disagreed, noting the difference in the Bianchinis’ allegations and the allegations in Shelley v. Hilcorp. The amended pleading alleged that Sunland vessels in the vicinity of the oyster leases caused damage in specific ways on specific dates with statements of Michael Bianchini that he witnessed Sunland vessels intentionally discharging uncontrolled sediment, intentionally laying pipe, and intentionally digging near the oyster beds. This was different than Shelley in which the complaint alleged that over a dozen defendants may have caused the harm by unspecified means on unspecified dates. As the trespass allegations had already been upheld in this and other cases, Judge St. John declined to dismiss them.
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 in order 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 rate set forth in the contract—1.5% per month) and attorney fees (because the contract provided for recovery of attorney fees). See November 2025 Update.
When the parties sought to follow the court’s instruction to confer and submit a motion with a specific amount due, the parties believed that clarification was necessary as to the rate for prejudgment interest. Judge Beaton noted that he had awarded Marquette prejudgment interest on the invoices at the rate that the “invoices supply,” and the invoices provided for interest at the rate of 1.5% per month. Accordingly, he clarified that the rate of prejudgment interest would be calculated at 1.5% monthly. Judge Beaton referred the award of fees and costs to Magistrate Judge King in accordance with the contractual provision for attorney fees. Marquette sought $431,293.00 based on 560.9 hours of work, and Emerald argued that the amount was excessive. Emerald challenged the 57 hours spent by Marquette on an unsuccessful motion for summary judgment, the fees resulting from the delay caused by the granting of a continuance to Marquette, the duplicative billing of attorneys in the more than 100 pages of invoices, vague, block-billed entries, and charging paralegal rates for secretarial or clerical work. Magistrate Judge King did not believe the motion was unreasonable, and he found that the attorneys sufficiently detailed collaboration in most of the work, but he did recommend some reductions. Magistrate Judge King agreed that some of the entries “could be more detailed” (for example, 5.2 hours for “work much of the day re: the complaint”); however, he concluded that the vagueness objections were “too hypercritical to justify any reduction of the hours billed.” Magistrate Judge King also agreed that some of the tasks performed by the paralegal had a clerical aspect to them; however, the tasks required legal acumen, which is routinely delegated to paralegals. Therefore, he did not recommend any reduction of the paralegal hours. Magistrate Judge King allowed travel time to and from trial and depositions based on the custom in maritime cases, but he did recommend a reduction for the use of a legal assistant at trial to assist with electronic exhibits and for “nominal” timekeepers because Marquette failed to carry its burden with respect to these charges. Finally, Magistrate Judge King agreed to a reduction for process service and pro hac vice fees that are not recoverable under Section 1920. Accordingly, he recommended a reduction of $9,148 from the fee request of $166,726.50 and a reduction of $645.84 from the request for costs ($3,056.59). Emerald objected to the recommendation, and Judge Beaton rejected the objections and adopted the recommendation. Emerald filed a notice of appeal on July 9, 2026.
HECNY Shipping, a non-vessel operating common carrier whose principal place of business is in Kwun Tong, Kowloon, Hong Kong, engaged HYC Logistics, whose principal place of business is in Memphis, Tennessee, to act as an agent for HECNY to promote HECNY’s NVOCC/freight forwarding services, arrange customs clearance, trucking, distribution, and other related services. HECNY brought this suit against HYC in federal court in Tennessee, alleging that HYC delivered goods without requiring the recipient to surrender HECNY’s bills of lading, which exposed HECNY to liability (claiming breach of the Non-Exclusive Agency Agreement and an implied covenant of good faith and fair dealing). HYC filed a counterclaim, alleging that when one of its suppliers sued HECNY in China, HECNY held/suspended delivery of goods in transit for other HYC clients coming from China in an effort to leverage HYC to pay off the balance, crippling HYC’s business. HECNY moved to dismiss the counterclaim based on the forum selection clause in the Non-Exclusive Agency Agreement that in any action instituted by HYC against HECNY, venue shall be in Hong Kong (and that venue for any action by HECNY against HYC shall be in the country where is HYC is based). HYC argued that the forum-selection clause was unenforceable for two reasons. First, it argued that the inconvenience to litigate the counterclaim in Hong Kong was so serious that it would be unjust, but Judge Lea answered that the inconvenience did not rise to the level of depriving HYC of its day in court. Second, HYC argued that it would offend public policy to enforce the clause, noting the federal policy favoring trial in the same proceeding of claims arising from the same transaction or occurrence. Judge Lea did not believe that the policy was so strong as to overcome a forum-selection clause, and he added that the counterclaim did not appear to be compulsory: “HECNY’s original claims concern whether Defendant HYC violated the Agreement (or related law) in turning over goods without the bills of lading, whereas Defendant HYC’s counterclaims concern the distinct issue of Plaintiff HECNY later violating the Agreement (or related law) in seizing goods belonging to Defendant HYC’s other customers. While one event was a reaction to the other, the two sets of claims involve different events and distinct factual and legal issues. Therefore, Judge Lea held that the clause was applicable, mandatory, valid, and enforceable. He then considered the public and private interest factors and agreed to dismiss the counterclaims.
Zionya Nolan, a resident of Los Angeles County, California, was employed by Clair Global to assist in the installation and operation of audio equipment on an MSC cruise ship for a music event known as “Jam Cruise,” organized by Cloud 9 Adventures. Cloud 9 Adventures hired AGGREKO to provide and install temporary power generators and electrical distribution systems to support the event. Nolan was working on the pool deck stage of the vessel, which was either at sea or docked at the Port of Miami, Florida, when Nolan suffered an electrical shock from contact with a metal stage leg. Nolan brought this suit against the cruise line and AGGREKO in federal court in California based on diversity and admiralty. Before any responsive pleading was filed, Judge Anderson issued an order requiring Nolan to show cause why the action should not be dismissed without prejudice for lack of personal jurisdiction or transferred to the Southern District of Florida. Nolan conceded that she had not pleaded facts to support personal jurisdiction in California, and Judge Anderson agreed to transfer the case to the Southern District of Florida as the case could have been brought in that court based on its admiralty jurisdiction and the interests of convenience and justice were served by transfer.
Jacquelyn Oswalt claims that she was a passenger on Renardo Baird’s watercraft on a ten-day trip from Grand Marina in Alameda, California to the Sacramento River Delta and that she was injured when she stepped from her room into an open hatch. She brought suit against Baird in state court in Alameda County, California based on negligence, and Baird removed the case to federal court based on the court’s original admiralty jurisdiction. Oswalt moved to remand the case, and Judge Chhabria granted the motion to remand on the ground that Baird had not established an independent basis for removal. However, Judge Chhabria declined to award attorney fees, stating: “Baird had a reasonable basis for removal because the Ninth Circuit has not decided this issue.”
The courts continue to grapple with claims arising from the Macondo/DEEPWATER HORIZON incident, sixteen years later. Jerry Hampton claims that he was employed between May 2010 and August 2010 by a third party to clean up Florida beaches that were impacted by the oil spill. He asserts that he developed dyspnea, chronic myelogenous leukemia, and acute lymphoblastic leukemia from exposure to oil and chemical dispersants. He brought this “B3” case against BP seeking to recover for the illnesses he claims were caused by the exposure. Hampton did not produce expert reports or testimony by the deadline imposed by the court, and BP moved for summary judgment. As Hampton did not satisfy the requirement to establish general causation, which is required in toxic tort cases, Judge Morgan granted summary judgment and dismissed the suit.
Latoya Starks, a passenger on the CARNIVAL SUNRISE, was injured when she slipped and fell on a wet spot on the ramp while existing a tender boat onto Half Moon Cay in The Bahamas. Starks brought this suit against the cruise line in federal court in Florida, alleging three counts of direct liability and two counts of vicarious liability. The cruise line moved to dismiss the complaint, and Judge Altman began by discussing whether Starks sufficiently pleaded notice for the counts involving direct liability. Starks listed seven bases for notice, but Judge Altman was satisfied by the assertion that there were crewmembers within approximately 15 feet from the location of the fall with a direct line of sight of the location and close enough to have seen that the surface was wet. As for the sufficiency of pleading of the causes of action, Judge Altman concluded that Starks adequately pleaded breach of the duty of reasonable care by failing to remedy the dangerous condition. He concluded that she properly pleaded a claim of failure to warn by plausibly alleging that the wet spot was not open and obvious and that the cruise line had constructive notice of the condition. Judge Altman concluded that Starks sufficiently alleged a design claim from the pleading that the cruise line designed (or approved of the design) of the surface despite the fact that it lacked adequate slip-resistant material without incorporating visual clues that would have allowed Starks to appreciate the danger and despite the absence of adequate safety measures to assist passengers in stabilizing themselves during disembarkation when the ramp became slippery when wet. Turning to the vicarious liability counts, Judge Altman rejected the argument that the counts are duplicative of the direct liability claims, repeating the reasoning that direct and vicarious liability claims are different and that the plaintiff can choose to proceed under alternative theories. He then held that the allegations were sufficient because Starks sufficiently named employees in the abstract, including team-wide departments, for the same facts that he previously held to be sufficient for direct liability. Therefore, Judge Altman denied the motion to dismiss.
Janusz Sendowski and Randall Postma formed Blue Sea I, LLC, to purchase the M/Y MONARCH, using financing from Essex Credit Corp. (predecessor to BMO Bank). Sendowski sold his interest in the vessel and sought to be removed from the loan, which resulted in litigation and a settlement agreement that Postma and Blue Sea would refinance or sell the vessel within nine months or Sendowski would have the right to force the sale of the vessel or take possession of the vessel. The vessel was not sold or refinanced, and Sendowski brought this suit in Florida federal court pursuant to Supplemental Rule D, alleging that he was entitled to possession and title to the vessel and requesting arrest of the vessel to prevent its departure from the United States. The vessel was arrested, and Sendowski paid the fees for the substitute custodian. Blue Sea filed a claim of owner, asserting that it is the sole owner of the vessel, and BMO Bank filed a claim based on its preferred ship mortgage. Arguing that both Blue Sea and BMO Bank benefit from the preservation of the vessel during its custody, Sendowski filed a motion to allocate the custodial costs and compel payment of a proportionate share from Blue Sea and BMO Bank (consistent with the Eleventh Circuit rule that all claimants should share in the administrative cost of preserving the vessel while under arrest). The bank did not object, but Blue Sea argued that it (as the true owner) should not have to pay a third of the cost of arresting the vessel because, unlike a lienor, it receives no benefit from the arrest of its vessel. In a paperless recommendation, Magistrate Judge Valle found Blue Sea’s argument unpersuasive. She recommended that both the bank and Blue Sea be held responsible for a third of the custodial charges while the vessel remains under arrest, including the charges incurred to date. Blue Sea did not object to the recommendation, and Judge Damain agreed with the “well-reasoned recommendations” and ordered that Blue Sea and the bank are each responsible for a third of the custodial charges. See March 2026 Update.
Sendowski then moved for summary judgment on his claim seeking to discharge the Notice of Claim of Lien recorded by Monarch Assets against the MONARCH in the amount of $1,185,489.07 for mechanical and vessel repairs. Sendowski argued that when the lien was recorded, Monarch Assets was the sole manager and owner of Blue Sea, the entity that owned the MONARCH. Judge Damian agreed that the asserted lien was invalid under the maritime law because Monarch Assets occupied a managerial position with respect to the vessel owner and could not claim the status of an arm’s length supplier or stranger to the vessel. Therefore, Judge Damian held that the recorded lien should be discharged. She also agreed that Sendowski is entitled to recover reasonable attorney fees and costs incurred in obtaining the discharge.
Lady Benjamin P.D. Cannon, A.S.C.E., states that she is a highly accomplished and skilled aerospace engineer. She is a co-founder and Chief Technology Officer of an EV battery company, a founder of a global telecommunications company, a Lady of Scotland, and the holder of a TWIC credential from the TSA that allows her access to U.S. Ports under the Maritime Transportation Security Act. She brought this suit in California federal court against a large number of named and unnamed defendants for conduct involving her boats, and, after dismissing some of the claims, 12 claims remained against 11 defendants. One of the claims was for piracy at sea based on Article 101 of the United Nations Convention on the Law of the Sea and 18 U.S. Code Section 1651. The defendants moved to dismiss the piracy count, and Judge Lin explained that federal criminal statutes, such as Section 1651 generally do not provide a private right of action absent an express statement to the contrary. The same is true for ratified treaties, but the United States has never signed UNCLOS, and it is not domestic law. However, even if the general maritime law provides a private right of action based on the statute or treaty, the statute and treaty require conduct occurring on the high seas. As Lady Cannon’s assertions state that the actions giving rise to the piracy occurred close to the shore or in San Francisco Bay, she did not plausibly allege a claim for piracy. Judge Lin did give Lady Cannon leave to amend, but she did not do so. Reasoning that the piracy claim was the only claim that provided federal jurisdiction, Judge Lin dismissed the case.
Seacoast National Bank arrested the SLOW UR ROLL II (a 2008 Everglades 350LX Express) to enforce its first preferred ship mortgage on the vessel. The manager of the owner/borrower, Charles J. Stratmann, who also guaranteed the loan, sought to intervene in the action to protect his interest as the one who is going to ultimately have to pay, but a default had already been entered, and Judge Dimitrouleas denied the intervention. Stratmann then sought to file a claim for seaman’s wages for the services he performed as master and owner of the vessel that included vessel outfitting and preparation for charter operation; research, development, testing and integration of marine stabilization systems; demo rides and customer demonstration voyages; boat show operations; and troubleshooting, maintenance, and continued commercial operation. He asked the court to recognize his claim as a “superpriority maritime lien.” Judge Dimitrouleas rejected the claim, as untimely and because “Stratmann is not entitled to seaman’s wages because he is the sole member and manager of Starboard Yacht Group, LLC, which is the owner of the Vessel, and therefore he is not a ‘stranger to the vessel.’” Judge Dimitrouleas also denied Stratmann’s emergency motion to stay the judicial sale and to preserve the proceeds for his seaman’s wage lien, and Stratmann filed a notice of appeal.
The United States brought this suit in federal court in Pennsylvania seeking to recover damages of more than $1.6 million to the Montgomery Lock and the Dashields Lock and Dam on the Ohio River that were struck by barges being pushed by the towboat M/V STACY LYNN, owned by River Assets and operated by Imperial River Transport (pursuant to a charter between Imperial River Transport and Campbell Transportation Co.). The United States named as defendants IRT, River Assets, the STACY LYNN, the barges, and the owners/charterers of the barges. The barges and their owners/charterers filed cross-claims against IRT and River Assets for contribution, indemnity, and apportionment, and the barges and their owners/charterers filed a motion for judgment on the pleadings against IRT for contractual indemnity (requesting that IRT defend and indemnify them in the suit). The United States alleged that the barges were in tow of the STACY LYNN, which was operated and controlled by IRT. IRT admitted that it entered into a Fully Found Charter with Campbell Transportation for the STACY LYNN that included a provision by which IRT agreed to indemnify Campbell Transportation and the vessels being towed against all losses arising out of the operation of the STACY LYNN or any act or omission of [IRT] in relation to the towage (but excluding fault of a third party or unseaworthiness of a barge). Thus, the barge defendants argued that they were third-party beneficiaries of the indemnity provision in the charter as they were vessels being towed by the STACY LYNN and the damage arose out of the operation of the STACY LYNN. IRT argued that the charter contained a forum-selection clause for federal court in Paducah, Kentucky, but IRT did not move to transfer venue of the cross-claims. IRT also claimed that a bench trial was necessary to determine whether the parties intended that the barges be third-party beneficiaries, but Magistrate Judge Dodge answered that the charter provided multiple references to the barges and the customers of Campbell Transportation. Magistrate Judge Dodge concluded: “As the underlying purpose of the Fully Found Charter was for IRT to tow barges for [Campbell Transportation] and its customers, and the . . . Barges were in tow of the M/V STACY LYNN at the time of the allisions . . ., IRT has a duty to defend the . . . Barges in this lawsuit with respect to the strict liability claims against them because they allegedly arise out of IRT’s operation of the M/V STACY LYNN or any act or omission of IRT in relation to the towage . . . .” Magistrate Judge Dodge recommended that the motion be granted, and Judge Hornak adopted the recommendation and granted judgment against IRT.
Naida Davis, a passenger on the CARNIVAL DREAM, fell while walking in the hallway toward the Crimson Dining Room when her right sandal struck and caught on a metal strip. Photographs taken the next day by Davis’ husband show that the metal threshold stretches across the hallway, is a shiny, silver metallic color, and its edges do not appear to be entirely flush with the tile floor on which it sits (the lip of the threshold is raised above the surface level of the tiles and it did not appear from the photographs that the raised lip was visible from above the threshold). Davis brought this suit against the cruise line in federal court in Florida, and the cruise line produced statements from five passengers on a sister ship (CARNIVAL BREEZE) that the passengers fell over the same type of threshold in the same place on the sister ship. Davis asserted four causes of action, negligent failure to remedy, negligent failure to warn, negligent design/installation, and vicarious liability for the negligent design/installation. The cruise line moved for summary judgment, and Davis responded with respect to the claims for negligent failure to remedy and negligent failure to warn. The cruise line argued that Davis failed to prove that there was a dangerous condition based on her initial statement that she slipped, and there was no evidence of a slippery condition. Judge Smith noted that she later clarified that she had tripped when she caught her sandal, and the photographs supported the dangerous condition. The cruise line also argued that the condition was open and obvious because the threshold is a bright piece of metal surrounded by multi-color green flooring. However, Judge Smith answered that the photographs reflected that the raised edge was not visible from above. The cruise line argued lack of notice, but the five similar incidents on the sister ship were sufficiently similar to provide constructive notice. Finally, Judge Smith rejected the cruise line’s causation argument based on her testimony that she tripped when her sandal became caught, and her testimony was sufficient to establish the injuries she suffered from the fall. Therefore, Judge Smith denied the motion for summary judgment.
Davis’ accident occurred on August 11, 2024, and the cruise line prepared an accident report the next day. Between August 17 and August 20, 2024, the cruise line’s staff modified the threshold, filling in the gap that caused Davis to fall (without notifying Davis). Davis retained counsel on August 29, 2024, and counsel provided a notice of intent to sue and preservation letter. Davis argued that the cruise line should have anticipated litigation as early as August 13, 2024 and that the modification without providing Davis an opportunity to inspect the threshold constituted spoliation. Magistrate Judge Hunt recommended denial of the motion. First, Magistrate Judge Hunt did not consider the evidence from an inspection would be crucial because Davis’s husband took pictures before the repair that clearly showed the gap. He added that the negligence case might have been stronger if Davis’ expert could have directly examined the threshold, but that she could still make her case from the available evidence. However, even assuming the evidence was crucial, there was no indication that the cruise line repaired the threshold to hide adverse evidence. The cruise line was not notified of the preservation request until after the repair, and it was arguable whether the cruise line was aware that Davis desired further inspection of the threshold. Therefore, Magistrate Judge Hunt recommended denial of the motion, and Judge Smith adopted the recommendation and denied the motion.
Clinton E. Brown, a licensed captain who has owned several boats, acquired the FRONTIN, a 78-foot pleasure boat, in 2016, with ownership in the name of 500 Wilson St. LLC. From 2016 to 2022, the vessel was in drydock for refurbishment, much of which was performed by Brown. He then rented a mooring for the FRONTIN at the St. Augustine Municipal Marina. A few days before Hurricane Ida made landfall in Florida in September 2022, the St. Augustine Municipal Marina Yachtmaster advised Brown that he needed to move the FRONTIN from the marina. Brown tried to locate a facility but was unsuccessful. He tried to start the engines, but the port engine would not start. Brown battened everything down and called Sea Tow, a boat towing service. The Sea Tow captain arrived and advised that they were very busy and that the vessel was in the safest place it could be (but that Brown should not stay on the vessel during the storm). Brown checked on the FRONTIN one more time and stayed in a hotel, believing that he had done everything he could. By the time Hurricane Ida struck St. Augustine, it was downgraded to a tropical storm (after crossing Florida from landfall from the Gulf of America). The storm uprooted the mooring tackle’s helix from the seabed and drove the FRONTIN up the Matanzas River, dragging the mooring tackle. Eventually, the FRONTIN overran two pilings and allided with Baypointe’s East-West floating dock (depicted in a video from a charter captain who owns two slips at the Baypointe Marina). Baypointe brought this suit against 500 Wilson St. in federal court in Florida, and the case was tried before Judge Young of the United States District Court for the District of Massachusetts, sitting by designation. Judge Young applied the presumption of fault from THE LOUISIANA Rule (“A moored vessel that breaks away from its moorings is presumed to be at fault”) and held that the presumption was unrebutted. Judge Young accepted that Brown subjectively believed that he did everything he reasonably could have done to prepare for the storm, and he did not doubt his “sincerity and heartbreak.” However, Judge Brown concluded that Brown did not try to maneuver to a safer location by running the one working engine or secure a mechanic to assess/repair the engines. Turning to damages, Baypointe replaced the entire dock as it was aging and it made sense to replace it. Baypointe sought damages in the amount of $112,000, the lower of two estimates. Judge Young did not believe that Baypointe was entitled to the value of a new dock, but that the damages were limited to bringing the dock to its working state at the time of the allision. He found the reasonable repair cost was $75,000 and awarded that sum to Baypointe.
This case involves injuries to Giorgio Poncia, Laura Lombardi, and their two minor children, passengers on the OOSTERDAM, when a tender carrying them crashed into the dock while the OOSTERDAM was anchored off the coast of Kordula, Croatia. The parents of the children brought suit against the cruise line in federal court in Washington (on their own behalf and on behalf of their children) and reached a global settlement. One of the injured plaintiffs was still a minor at the time of the settlement, and the parents sought court approval of the portion of the settlement involving the minor (filing an unopposed motion). Judge Jones noted that Local Civil Rule 17(c) supplements Fed. R. Civ. P. 17(c) and provides for an independent guardian ad litem, who shall be an attorney-at-law, unless a general guardian has been appointed or if the court affirmatively finds that the minor is represented by independent counsel. As the attorney representing the parents was not “independent counsel” for the minor, Judge Jones declined to approve the settlement and directed the parties to confer regarding appointment of a guardian ad litem and to present a motion requesting appointment of an independent guardian ad litem from the district’s pro bono panel. The parties stated that they do not believe that court approval of the settlement is required because maritime law does not require court approval of settlements in actions brought on behalf of a ward. Although the parties cited cases from other jurisdictions to support that proposition, they did not cite authority that maritime law can override the specific requirement under the local rule applicable in the Western District of Washington. Accordingly, Judge Jones denied the motion to approve the settlement without prejudice.
This litigation arises from the termination of bareboat charters of three ATBs (articulated tug-barge units) between Unico Marine Services and JMB Shipping ATB 205, JMB Shipping ATB 220, and JMB Shipping ATB 284. The parties arbitrated their disputes, and the arbitrators ruled in favor of Unico Marine on two charters and in favor of JMB Shipping on one charter: “The Panel held that JMB had not effectively terminated the [bareboat charters] for ATB 205 and ATB 220, and, as such the [bareboat charters] were not terminated and Unico’s notice to exercise the first option period of six months was effective to extend the term of the [bareboat charters] for ATB 205 and ATB 220 by six months. . . . The Panel majority awarded Unico damages for the five additional unexercised ‘Additional Option Periods’ in . . . the [bareboat charters] for ATB 205 and ATB 220, finding that Unico ‘would have exercised’ these options but for JMB’s repossession of the Vessels. . . . The Panel found Unico liable to JMB Shipping ATB 284 for damages of $512,112.00 for its early redelivery and breach of the bareboat charter.” JMB Shipping brought this petition in federal court in New York to vacate the award in favor of Unico and to confirm the award in favor of JMB, and Unico filed a cross petition to confirm the award in favor of Unico and to vacate the award in favor of JMB. JMB presented five arguments to support vacatur. First, it argued that the arbitrators exceeded their authority by disregarding the contractual requirements to provide written notice of its intent to exercise the option periods. Judge Carter agreed that the language supported JMB’s position; however, the broad arbitration clause allowed for arbitration of any dispute arising out of the agreement under the Society of Maritime Arbitrators (“SMA”) rules. The broad clause allowed the panel to conclude that while Unico did not provide written notice for the periods, it was not required to provide notice as a predicate for damages and that JMB was precluded from relying on the notice provision because it wrongfully terminated the charters and re-chartered the vessels to a third party. Similarly, JMB’s argument that there was no contract for the subsequent periods because the charters had expired was an attack on the merits that is not a ground for vacatur, nor did the asserted error rise to the level of manifest disregard for the law. Judge Carter rejected the argument that the panel demonstrated partiality because JMB did not provide evidence beyond its allegation that the panel treated JMB disparately when it interpreted the contractual provisions against JMB. Finally, Judge Carter rejected the argument that there would be consequences for public policy unless the award was vacated because JMB did not identify what public policy was violated. Accordingly, Judge Carter entered judgment in accordance with the arbitration award.
Katherine Rhoades, a passenger on the OCEANIA VISTA, slipped and fell on loose gravel during the Mt. Gazo Hike & Swim Excursion in Granada. The excursion was operated by Geo. F. Huggins & Co. and was booked by Rhoades through cruise line personnel while Rhoades was on the OCEANIA VISTA. Rhoades brought suit against the cruise line and excursion operator in federal court in Florida, and the defendants moved to dismiss the complaint. The excursion operator also moved to dismiss the action for lack of personal jurisdiction. In support of personal jurisdiction, Rhoades argued that her injury arose out the contract entered into between the excursion operator and the cruise line, whose principal place of business is in Florida. Judge Leibowitz answered that the Eleventh Circuit and Supreme Court have found that similar contacts with the forum are insufficient, reasoning: “If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot.” Therefore, Judge Leibowitz dismissed the excursion operator for lack of personal jurisdiction. He then considered whether to dismiss the counts against the cruise line for negligence, negligent selection and retention, negligent misrepresentation, vicarious liability and apparent agency, joint venture, and negligent failure to warn. Rhoades argued that the cruise line had sufficient notice for these claims because the cruise line maintained a safety program committed to safety as a “core pillar” of its business operations and that the cruise line had protocols to ensure that vendors undertake similar commitments. Judge Liebowitz responded that the allegations merely allege that the cruise line “represents” that it has the tools to identify excursion safety risks but does not allege that it actually implements anything of the sort. Additionally, the allegations did not say anything about the application of the safety policy to the particular excursion, let alone the particular risk-creating condition. As the allegations were divorced from the concrete application to the facts of this case, Judge Leibowitz held that Rhoades failed to sufficiently plead notice. Similarly, the negligent hiring and retention claims failed because the assertion that the cruise line maintained “robust pre-approval and ongoing audit obligations” did not show that the cruise line learned or should have learned of any insufficiencies. Judge Leibowitz then considered the claim for negligent misrepresentation under the heightened pleading standard of Rule 9(b). The allegation that the cruise line represented to passengers that its shore excursions were “curated, vetted, and managed under rigorous safety and governance standards” failed to state the precise statements, who made them, and when they were made. Rhoades’ attempt to establish apparent agency so that the cruise line would be liable for the negligence of the excursion operator was insufficient because Rhoades failed to adequately allege the elements of apparent agency. The assertions that Rhoades reasonably believed the operator was acting on behalf of the cruise line and that she relied on the cruise line’s manifestations of control and quality assurance were too conclusory and lacked factual support. Finally, Judge Leibowitz held that the count for joint venture was not a separate cause of action but a theory of vicarious liability. As the allegations of agency and negligence were insufficient, Judge Leibowitz explained that the complaint would have to be repleaded, and he dismissed the complaint without prejudice with leave to file an amended complaint.
This litigation involves the recovery of artifacts from the shipwreck of the Spanish galleon NUESTRA SEÑORA DE LA MARAVILLAS, which sank on the Little Bahama Bank in The Bahamas in 1656 with an estimated $5 billion in gold and silver. Daniel Porter and Maritime Research & Recovery (treasure hunter), on the one hand, and Carl Allen and Allen Exploration (benefactor), on the other hand, undertook a multi-year relationship to recover artifacts from the galleon. The relationship soured, and Porter brought this suit against Allen in federal court in Florida (it was transferred to Texas pursuant to a forum-selection clause). Chief Judge O’Connor held a bench trial and found that the parties began with a written agreement and then continued to operate under an implied contract after terminating the written agreement. Chief Judge O’Connor found that Allen had breached the agreement by failing to divide the treasure recoveries, and the court retained jurisdiction to supervise and approve the division.
From the state courts
Associated Terminal owns and operates crane barges that perform midstream stevedoring operations in the lower Mississippi River. Associated Terminal relies on third parties, such as American Commercial Barge Lines (ACBL), to move and fleet the crane barges. Enterprise Marine owns push boats and red-flagged tank barges that transport chemicals on the Mississippi River, including the push boats MV OVIDE J and MV CHRISTINE (and their respective towed barges). When Hurricane Ida struck Louisiana on August 29, 2021, Associated Terminal’s crane barges that were moored to ACBL’s dock broke away from the river bank and allided with the Enterprise Marine push boat MV OVIDE J and three Enterprise barges that were moored downriver. Two of the four workers on the MV OVIDE J, Victor Allen and Peter Dearing, brought suit in state court in St. James Parish, Louisiana, and two other workers on the vessel, Captain Michael Bellard and Bryan Giroir, brought a second suit in the same court (the state suits were consolidated). ACBL brought a limitation action in Louisiana federal court. All of the parties except Associated Terminal participated in a settlement conference in the federal action that resulted in settlements of the injury claims against ACBL and Enterprise, with the workers reserving their claims against Associated Terminal. Enterprise filed a cross-claim against Associated in the consolidated state proceeding, seeking to recover for damage to the OVIDE J and barges as well as for reimbursement of the maintenance and cure paid to the workers. Judge Verdigets held a bench trial and found ACBL 60% liable, Associated Terminal 30% liable, and Enterprise 10% liable. Judge Verdigets premised the liability of Associated Terminal on its failure to follow its hurricane preparedness plan, which did not call for any of its crane barges to be fleeted at the dock but to be fleeted separately with ACBL vessels. Judge Verdigets declined to award Enterprise reimbursement for the maintenance and cure payments because its corporate witness, who lives in Texas, did not attend trial to support the amount of the payments. He did award Enterprise 30% of the damages it claimed for the OVIDE J and barges ($2,362,700.55), a total of $708,810.17, plus prejudgment interest ($219,288.14). Associated Terminal argued on appeal that ACBL, as the fleeter, had the exclusive care, custody, and control over the crane barges and the exclusive obligation to confirm that the dock was sufficient for the mooring. Writing for the court of appeal, Judge Gravois found that there was evidence of independent negligence of Associated Terminal, whose key personnel had a startling lack of knowledge about the specifics of their hurricane preparedness plan and who desired that the barges be moored at the dock because it was closer to the location of its midstream stevedoring operations so that it could resume work faster and cheaper after the storm. Associated Terminal could have rejected the decision of ACBL to moor the barges at the dock (in contrast to the hurricane preparedness plan), but it did not do so. Associated Terminal also argued that it did not owe a supervisory duty to Enterprise to verify or supervise ACBL’s hurricane preparations. Judge Gravois agreed that the owner of a barge involved in a breakaway from a fleet can only be held liable if a fault or unseaworthy condition of the barge or other independent negligence of the owner caused or contributed to causing the breakaway. Although Judge Verdigets used the term “supervise” in his written reasons, Judge Gravois reiterated that Associated Terminal was found liable for its independent negligence. ACBL had the final say regarding the placement of the barges, but there was no evidence that Associated Terminal could not object to the placement or that it was prohibited from requesting that the barges not be placed at the dock (so as to comply with the hurricane preparedness plan). Associated Terminal next argued that Judge Verdigets erred in finding that Associated Terminal’s crane barges allided with the Enterprise vessels. However, Judge Gravois found sufficient evidence that the flotilla impacted the barge tiers above the OVIDE J, which in turn, impacted its tier, causing the breakaway and damage. Judge Gravois did agree with Associated Terminal that Enterprise failed to present competent, admissible evidence of its damages as it failed to present evidence of the actual pre-incident condition of the OVIDE J or the barges or that the costs of repairs were reasonable. Therefore, the award of damages was reversed. Judge Gravois rejected Enterprise’s request for its maintenance and cure payments, concluding that Judge Verdigets did not abuse his discretion in declining to allow the deposition of the Enterprise witness on the ground that he was unavailable “simply because he eschews the trial.”
Lamar Contractors engaged St. Thomas Cargo to ship goods from the Mainland United States, and St. Thomas Cargo asserts that Lamar Contractors did not pay for demurrage. St. Thomas Cargo brought this suit against Lamar Contractors in the Superior Court of the Virgin Islands, and Lamar Contractors moved to dismiss the complaint on the ground that the case was time-barred, claiming that “federal courts have established that ‘the eighteen-month statute of limitations contained in the Interstate Commerce Commission Termination Act (ICCTA) is the presumptive benchmark for the [demurrage] claims.’” Judge Tejo held that the suit was proper under the Saving-to-Suitors clause and that maritime law governed the action. St. Thomas argued that the suit was brought within 18 months of the tender of goods (Lamar did not receive the goods and St. Thomas continued to store the goods on its behalf), but Judge Tejo cited the Virgin Islands Commercial Code that provides that tender is the time that the goods are placed at the buyer’s disposition, not the time that the goods depart the possession of the seller. Therefore, Judge Tejo held the case was time-barred.
Hien Nguyen claims that he made a deal (oral) to buy a half interest in the shrimp boat LUCKY NIKKI, owned by Lisa Le for $100,000 (and share the profits). Nguyen spoke with Lisa’s father, Seiu Le, at the Le home. He did not speak with Lisa. Nguyen was born in Vietnam, but he went to school in Cambodia. He speaks Vietnamese but he does not read or write it. Nguyen brought suit against Lisa Le, her father Seiu Le, and her mother Nancy Tran in state court in Brazoria County, Texas (alleging breach of contract and fraud), and the case was tried to a jury. The jury believed Nguyen, finding that Nguyen entered into an oral contract with Lisa’s father but not with Lisa or her mother, that the oral contract was breached by Lisa and her mother and father, and the breach of the oral contract caused damages in the amount of $151,595. The district judge granted a directed verdict on the fraud claim and set aside the verdict on the oral contract claim and rendered a take-nothing judgment. Nguyen appealed. Writing for the court of appeals, Justice Gunn first noted the tension between the answers that Nguyen entered into an oral contract with Lisa that was breached by Lisa, her mother, and her father. However, the appellate court did not have to address that tension because Justice Gunn found no support for the award of damages. The instructions provided for damages of the difference in value of the oral contract as performed and the value as promised. However, there was no evidence of the value of the contract. There were mentions of the value of the boat, but the charge did not ask about the value of the boat. Accordingly, the district judge correctly set aside the verdict. Justice Gunn then considered the directed verdict on the fraud claim alleging that the defendants falsely represented that they would form a partnership and evenly share the profits from shrimping on the LUCKY NIKKI (although the defendants had no intention of entering into a partnership with Nguyen when they made the representation). Justice Gunn reviewed Nguyen’s testimony that Seiu Le agreed to have a partnership with Nguyen and that his daughter and her mom just kept the money. As that fell short of establish that a material misrepresentation was made with knowledge of the falsity and with the intent to induce reliance, Justice Gunn held that the elements of a fraud claim were not satisfied, and the directed verdict was proper. Justice Gunn also wrote a concurring opinion to discuss the problem with basing a judgment on a verdict with a fatal conflict when the jury has been discharged, which he described as building a house on a bad foundation—“unwise but also difficult.” He suggested an amendment to the Texas Rules of Civil Procedure “might be worth considering.”
Kent Bates, an employee of Transocean Offshore Deepwater Drilling, brought suit under the Jones Act and state law against Transocean in Texas state court, asserting that he was injured on the DEEPWATER ASGARD drilling rig during Hurricane Zeta. When he filed the suit, Bates had been living with his fiancé, Paulisha Harris, and their two children for a number of years. A year later, Harris contacted Transocean to notify it that she had proof that Bates’ suit was fraudulent. She was directed to meet with attorney Todd Crawford of the Lugenbuhl firm at its Gulfport, Mississippi office. Harris produced documents and images to Crawford (along with an affidavit to authenticate the documents), and Transocean paid for a family lawyer to assist Harris with child support issues involving Bates. After Transocean produced the material, Bates filed a motion to disqualify the firm and Crawford and for sanctions. Judge Collier held a hearing and ruled that Crawford and the Lugenbuhl firm were disqualified from participating in the multi-district litigation arising from Hurricane Zeta. She also imposed a monetary sanction payable to Bates in the amount of $500,000 to compensate him and to deter future conduct, and non-monetary sanctions that included revocation of the pro hac vice status of the firm attorneys admitted to practice in the MDL court, requiring disclosure of the order to other Texas courts in which the firm submits an application for admission pro hac vice for the next ten years, and referring the firm attorneys working on the case to Texas and Louisiana disciplinary authorities. Lugenbuhl and Crawford filed this action in the Texas Court of Appeals, seeking a writ of mandamus on the grounds that it had not engaged in any bad faith and that the sanctions were unjust and excessive. They challenged the findings of Judge Collier that they knowingly facilitated transmission of privileged documents, engaged in a quid pro quo by referring Harris to a family lawyer in exchange for her provision of privileged information, and lied to the district court to conceal and mischaracterize their conduct. Writing for the Court of Appeals, Justice Guiney found evidence from which Judge Collier could reasonably conclude that Crawford and the firm knew that the information contained communications between Bates and his attorney and that they were aware of the possible privileged nature of many of the documents and requested that Harris download the documents. Justice Guiney also found some evidence to support the finding that Harris understood that after she provided Bates’ privileged and confidential information, Transocean would help her cover the fees of the family lawyer recommended by the firm. Justice Guiney also found evidence that Crawford lied to the court when he testified that he referred Harris to a family lawyer because he was concerned for her safety and thought she might need a protective order. Turning to the challenge to the excessiveness of the sanctions, Judge Collier found that the conduct was “egregious behavior defiling the very temple of justice.” Justice Guiney declined to disturb the amount of the sanction by this mandamus action, concluding that there is an adequate remedy on appeal. She rejected the argument that the requirement that “Lugenbuhl lawyers who are subject to this order” must disclose a copy to Texas courts to which they submit an application for admission pro hac vice for the next ten years was void for vagueness, but she did believe that the ten-year term for the sanction was excessive and vacated that portion of the order.
Robert Duncan, an employee of Baystone Contractors, claims that he was injured in 2007 when he was jerked by a tagline while working as a seaman on the M/V CHICKASAW, owned by Global Pipelines, while the vessel was working on a project for Petrobras. Duncan brought suit in state court in Orleans Parish, Louisiana, against Baystone, Global, and Petrobras under the Jones Act and general maritime law, alleging that all three entities were his employer. Petrobras and Global filed motions for partial summary judgment, and the district court dismissed all of the claims against Petrobras and all but one claim against Global. The appellate court declined to hear most of the claims as untimely, but the court did address the dismissal of the Jones Act claim against Global. Duncan did not dispute that his direct employer was Baystone, but he argued that he was a borrowed employee of Global (using the Ruiz factors) and that he could maintain claims against Global under the Jones Act and for maintenance and cure. Duncan relied on the testimony of Gary Wayne Davis, a Global employee, whose job was barge superintendent on the CHICKASAW. His responsibilities included taking care of the safety of the people, and the integrity of the equipment. As superintendent he was the head of the barge. Davis testified that he ordered Duncan to grab a tagline that resulted in Duncan’s injury. Writing for the appellate court, Judge Brown agreed that no single factor is dispositive of whether a worker is a borrowed employee; however, Davis’ testimony was sufficient to raise a fact question whether Duncan was a borrowed employee of Global so that he could bring a Jones Act claim. Therefore, the appellate court reversed the grant of partial summary judgment to Global.
Karen Passero, a passenger on Louis Jacobelli’s 20-foot angler boat, was injured while the parties were traveling to a fishing spot through Barnegat Bay when waves from a large passing boat struck Jacobelli’s boat and Karen Passero was launched out of her seat twice and landed on the deck, resulting in fractures of thoracic vertebrae. Karen Passero and her husband Louis Passero brought this suit in state court in Morris County, New Jersey against Louis Jacobelli and his wife Annamarie Jacobelli, and the case was tried to a jury. The jury found that Louis Jacobelli was negligent in the operation of the boat, that Karen Passero was not negligent, that Karen was entitled to damages of $500,000, that Louis Passero was entitled to loss of consortium of $292,000, and that the total award with fee shifting under the offer of judgment rule was $954,120.53. Jacobelli appealed, and the appellate court affirmed the liability finding. However, the appellate court held that the trial court erred in allowing Karen’s treating physician to opine shortly before trial that conservative care had failed and that she now wanted to proceed with surgery without giving the defendant an extension to enable it to obtain an IME of Karen in her current condition. That would require both the examination, a deposition, and a postponement of trial. Therefore, the court remanded the case for a damages-only trial.
Kenneth G. Engerrand
Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1915 23rd Suite B Gulfport, MS 39501 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
Quote
From Judge Joseph C. Hutcheson, Jr., of the Fifth Circuit, dissenting from the majority opinion of Judge John R. Brown in the important case involving the Carriage of Goods by Sea Act, Mississippi Shipping Co. v. Zander & Co., 270 F.2d 345 (5th Cir. 1959):
A careful consideration, in the light of the pleadings, the opening statements of counsel, and the evidence which was substantially not in dispute, of the majority's sweeping out of hand rejection of the district judge's clearly, precisely, and, I think, correctly stated findings and conclusions, has left me with the firm conviction that it is not the district judge who has been misled by able and earnest briefing, suggestion, and argumentation, but the majority, and that, on this record, it is this court's clear duty not to reverse but to affirm the judgment.
Fully realizing that, except as my reasons for making my choice commend themselves to reasonable and informed minds, my statement that I agree with the district judge adds nothing to his discredited and rejected findings, subtracts nothing from those of the majority, which in turn I reject as unwarranted and ill-advised in law, I shall, as briefly and succinctly as I can, and with as few weasel words as may be, state my reasons for my fear, indeed my firm belief, that the opinion of the majority is based on such a 'highly artificial approach' to the construction of the Carriage of Goods by Sea Act as to violate with respect to it the basic principles of statutory construction . . . .
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© Kenneth G. Engerrand, October 30, 2026; redistribution permitted with proper attribution.
